Exhibit 4
EXECUTION COPY
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GSAA HOME EQUITY TRUST 2005-11
ASSET-BACKED CERTIFICATES
SERIES 2005-11
MASTER SERVICING
and
TRUST AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
Depositor,
WACHOVIA BANK, NATIONAL ASSOCIATION,
Trustee
DEUTSCHE BANK NATIONAL TRUST COMPANY
and
▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, N.A.,
Custodians
and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
Master Servicer and Securities Administrator
Dated September 1, 2005
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TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.........................................................................................14
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans........................................................................46
Section 2.02 Acceptance by the Custodians of the Mortgage Loans..................................................48
Section 2.03 Execution and Delivery of Certificates..............................................................49
Section 2.04 REMIC Matters.......................................................................................50
Section 2.05 Representations and Warranties of the Depositor.....................................................50
Section 2.06 Representations and Warranties of JPMorgan..........................................................51
Section 2.07 Representations and Warranties of Deutsche Bank.....................................................52
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Excess Reserve Fund Account; Distribution Account...................................................53
Section 3.02 Investment of Funds in the Distribution Account.....................................................54
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution..........................................................................55
Section 4.02 Monthly Statements to Certificateholders............................................................63
Section 4.03 Allocation of Applied Realized Loss Amounts.........................................................66
Section 4.04 Certain Matters Relating to the Determination of LIBOR..............................................66
Section 4.05 Supplemental Interest Trust.........................................................................65
Section 4.06
ARTICLE V
THE CERTIFICATES
i
Section 5.01 The Certificates....................................................................................69
Section 5.02 Certificate Register; Registration of Transfer and Exchange of Certificates.........................69
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates...................................................75
Section 5.04 Persons Deemed Owners...............................................................................75
Section 5.05 Access to List of Certificateholders' Names and Addresses...........................................75
Section 5.06 Maintenance of Office or Agency.....................................................................76
ARTICLE VI
THE DEPOSITOR
Section 6.01 Respective Liabilities of the Depositor.............................................................76
Section 6.02 Merger or Consolidation of the Depositor............................................................76
Section 6.03 Limitation on Liability of the Depositor and Others.................................................76
Section 6.04 Servicing Compliance Review.........................................................................77
Section 6.05 Option to Purchase Defaulted Mortgage Loans.........................................................77
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default...................................................................................77
Section 7.02 Master Servicer to Act; Appointment of Successor....................................................78
Section 7.03 Master Servicer to Act as Servicer..................................................................79
Section 7.04 Notification to Certificateholders..................................................................79
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIANS
Section 8.01 Duties of the Trustee and the Custodians............................................................80
Section 8.02 Custodial Responsibilities..........................................................................81
Section 8.03 Certain Matters Affecting the Trustee and the Custodians............................................81
Section 8.04 Trustee and Custodians Not Liable for Certificates or Mortgage Loans................................82
Section 8.05 Trustee May Own Certificates........................................................................83
Section 8.06 Trustee's Fees and Expenses.........................................................................83
Section 8.07 Eligibility Requirements for the Trustee............................................................84
Section 8.08 Resignation and Removal of the Trustee..............................................................84
Section 8.09 Successor Trustee...................................................................................85
Section 8.10 Merger or Consolidation of the Trustee or the Custodians............................................85
Section 8.11 Appointment of Co-Trustee or Separate Trustee.......................................................86
Section 8.12 Tax Matters.........................................................................................87
Section 8.13 Periodic Filings....................................................................................90
Section 8.14 Tax Classification of the Excess Reserve Fund Account and the Interest Rate Swap Agreement..........92
Section 8.15 Custodial Responsibilities..........................................................................93
ii
ARTICLE IX
ADMINISTRATION OF THE MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of Servicer's Obligations................................94
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions Insurance.....................................95
Section 9.03 Representations and Warranties of the Master Servicer...............................................95
Section 9.04 Master Servicer Events of Default...................................................................97
Section 9.05 Waiver of Default...................................................................................99
Section 9.06 Successor to the Master Servicer....................................................................99
Section 9.07 Compensation of the Master Servicer.................................................................100
Section 9.08 Merger or Consolidation.............................................................................100
Section 9.09 Resignation of the Master Servicer..................................................................100
Section 9.10 Assignment or Delegation of Duties by the Master Servicer...........................................101
Section 9.11 Limitation on Liability of the Master Servicer......................................................101
Section 9.12 Indemnification; Third Party Claims.................................................................102
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator.................................................................102
Section 10.02 Certain Matters Affecting the Securities Administrator.............................................103
Section 10.03 Securities Administrator Not Liable for Certificates or Mortgage Loans.............................105
Section 10.04 Securities Administrator May Own Certificates......................................................105
Section 10.05 Securities Administrator's Fees and Expenses.......................................................106
Section 10.06 Eligibility Requirements for Securities Administrator..............................................106
Section 10.07 Resignation and Removal of Securities Administrator................................................107
Section 10.08 Successor Securities Administrator.................................................................108
Section 10.09 Merger or Consolidation of Securities Administrator................................................108
Section 10.10 Assignment or Delegation of Duties by the Securities Administrator.................................109
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the Mortgage Loans.....................................109
Section 11.02 Final Distribution on the Certificates.............................................................110
Section 11.03 Additional Termination Requirements................................................................111
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment..........................................................................................112
iii
Section 12.02 Recordation of Agreement; Counterparts.............................................................114
Section 12.03 Governing Law......................................................................................114
Section 12.04 Intention of Parties...............................................................................114
Section 12.05 Notices............................................................................................115
Section 12.06 Severability of Provisions.........................................................................116
Section 12.07 Limitation on Rights of Certificateholders.........................................................116
Section 12.08 Certificates Nonassessable and Fully Paid..........................................................117
Section 12.09 Waiver of Jury Trial...............................................................................117
iv
SCHEDULES
Schedule I Mortgage Loan Schedule
EXHIBITS
Exhibit A Form of Class A, Class M and Class B Certificates
Exhibit B Form of Class P Certificates
Exhibit C Form of Class C Certificates
Exhibit D Form of Class R-1 and R-2 Certificates
Exhibit E Form of Class X Certificate
Exhibit F Form of Initial Certification of Trustee
Exhibit G Form of Document Certification and Exception Report of Custodian
Exhibit H Form of Residual Transfer Affidavit
Exhibit I Form of Transferor Certificate
Exhibit J Form of Rule 144A Letter
Exhibit K Form of Certification to be provided with Form 10-K
Exhibit L Form of Certification to be provided to Depositor
Exhibit M Amended and Restated Flow Seller's Warranties and Servicing Agreement, dated as of August 1,
2003, as amended by an Amendment thereto, dated as of July 1, 2004, between National City
Mortgage Co. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company
Exhibit N Master Mortgage Loan Purchase Agreement, dated April 1, 2004, as amended by Amendment No. 1,
dated as of July 1, 2004, and as amended by Amendment No. 2, dated as of January 1, 2005,
between GreenPoint Mortgage Funding, Inc. and ▇▇▇▇▇▇▇ Sachs Mortgage Company
Exhibit O Servicing Agreement, dated as of April 1, 2004, as amended by Amendment No. 1, dated as of July
1, 2004, and as amended by Amendment No. 2, dated as of January 1, 2005, between GreenPoint
Mortgage Funding, Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company
Exhibit P Flow Seller's Warranties and Servicing Agreement, dated November 1, 2004, between ▇▇▇▇▇▇▇ Sachs
Mortgage Company and SunTrust Mortgage, Inc.
v
Exhibit Q Master Mortgage Loan Purchase Agreement, dated July 1, 2004 between Countrywide Home Loans,
Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company
Exhibit R Flow Servicing Agreement, dated as of May 1, 2005, between Countrywide Home Loans Servicing LP
and ▇▇▇▇▇▇▇ Sachs Mortgage Company
Exhibit S Form of Master Loan Purchase Agreement, between various sellers and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Company
Exhibit T Master Mortgage Loan Purchase Agreement, dated as of July 1, 2004, between Countrywide Home
Loans, Inc. and ▇▇▇▇▇▇▇ Sachs Mortgage Company
Exhibit U Servicing Agreement, dated July 1, 2004, between Countrywide Home Loans Servicing LP and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company
Exhibit V Master Seller's Warranties and Servicing Agreement, dated August 1, 2004, as amended by Amendment No.
1, dated as of April 26, 2005, between ▇▇▇▇▇▇▇ Sachs Mortgage Company and ▇▇▇▇▇ Fargo Bank, N.A.
Exhibit W Amended and Restated Master Seller's Warranties and Servicing Agreement, dated as of June 1, 2005,
between ▇▇▇▇▇▇▇ Sachs Mortgage Company and ▇▇▇▇▇ Fargo Bank, N.A.
vi
THIS MASTER SERVICING AND TRUST AGREEMENT, dated as of September 1,
2005 (this "Agreement"), is hereby executed by and among GS MORTGAGE
SECURITIES CORP., a Delaware corporation (the "Depositor"), WACHOVIA BANK,
NATIONAL ASSOCIATION, as trustee (in such capacity, the "Trustee"), DEUTSCHE
BANK NATIONAL TRUST COMPANY ("Deutsche Bank"), as a custodian, ▇.▇. ▇▇▇▇▇▇
TRUST COMPANY, N.A. ("JPMorgan"), as a custodian (Deutsche Bank and JPMorgan,
each a "Custodian" and together the "Custodians") and JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION, as master servicer (in such capacity, the "Master
Servicer") and as securities administrator (in such capacity, the "Securities
Administrator").
W I T N E S S E T H:
- - - - - - - - - -
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Securities Administrator on behalf of the Trust shall elect that
two segregated asset pools within the Trust Fund be treated for federal income
tax purposes as comprising three REMICs (each, a "Trust REMIC" or, in the
alternative, the "Lower-Tier REMIC", the "Middle-Tier REMIC", and the
"Upper-Tier REMIC", respectively). The Class X Interest and each Class of
Offered Certificates (other than the right of each Class of Offered
Certificates to receive Basis Risk Carry Forward Amounts), represents
ownership of a regular interest in the Upper-Tier REMIC for purposes of the
REMIC Provisions. The Class R-1 Certificates represent ownership of the sole
class of residual interest in the Upper-Tier REMIC, and the Class R-2
Certificates represent ownership of the sole class of residual interest in
each of the Lower-Tier REMIC and the Middle Tier REMIC for purposes of the
REMIC Provisions. The Startup Day for each REMIC described herein is the
Closing Date. The latest possible maturity date for each Certificate is the
latest date referenced in Section 2.04. The Upper-Tier REMIC shall hold as
assets the several classes of uncertificated Lower-Tier Regular Interests, set
out below. The Lower-Tier REMIC shall hold as assets the assets described in
the definition of "Trust Fund" herein (other than the Prepayment Premiums, the
Interest Rate Swap Agreement and the Excess Reserve Fund Account). Each
Lower-Tier Regular Interest is hereby designated as a regular interest in the
Lower-Tier REMIC. Each Middle-Tier Regular Interest is hereby designated as a
regular interest in the Lower-Tier REMIC. The Class MT-1A1, Class MT-1A2,
Class MT-2A1, Class MT-2A2, Class MT-3A1, Class MT-3A2, Class MT-3A3, Class
MT-3A4, Class MT-3A5, Class MT-M-1, Class MT-M-2, Class MT-M-3, Class MT-M-4,
Class MT-B-1, Class MT-B-2, Class MT-B-3 and Class MT-B-4 Interests are hereby
designated the MT-Accretion Directed Classes (the "MT Accretion Directed
Classes"). The Class P Certificates represent beneficial ownership of the
Prepayment Premiums, each Class of Regular Certificates represents a
beneficial ownership of a regular interest in the Upper-Tier REMIC and the
right to receive Basis Risk Carry Forward Amounts, the Class C Certificates
represent beneficial ownership of the right to receive payment of the Fair
Market Value Excess, on or after the Optional Termination Date, by the Master
Servicer of all Mortgage Loans (and REO Properties) and the Class X Interest
represent beneficial ownership of a regular interest in the Upper-Tier REMIC,
the Interest Rate Swap Agreement, the Supplemental Trust and the Excess
Reserve Fund Account, which portions of the Trust Fund shall be treated as a
grantor trust.
The Lower-Tier REMIC
------------------------------- ---------------------------- -------------------
Lower Tier REMIC Interest Principal Balance($)(1) Pass Through Rate
------------------------------- ---------------------------- -------------------
Class LT-1 44,886,776.25 (2)
------------------------------- ---------------------------- -------------------
Class LT-2 42,702,252.05 (2)
------------------------------- ---------------------------- -------------------
Class LT-3 40,624,027.86 (2)
------------------------------- ---------------------------- -------------------
Class LT-4 38,646,931.75 (2)
------------------------------- ---------------------------- -------------------
Class LT-5 36,766,043.37 (2)
------------------------------- ---------------------------- -------------------
Class LT-6 34,976,681.74 (2)
------------------------------- ---------------------------- -------------------
Class LT-7 33,274,393.67 (2)
------------------------------- ---------------------------- -------------------
Class LT-8 31,654,942.46 (2)
------------------------------- ---------------------------- -------------------
Class LT-9 30,114,297.73 (2)
------------------------------- ---------------------------- -------------------
Class LT-10 28,648,624.98 (2)
------------------------------- ---------------------------- -------------------
Class LT-11 27,254,276.42 (2)
------------------------------- ---------------------------- -------------------
Class LT-12 51,654,435.13 (2)
------------------------------- ---------------------------- -------------------
Class LT-13 23,411,754.10 (2)
------------------------------- ---------------------------- -------------------
Class LT-14 22,272,335.21 (2)
------------------------------- ---------------------------- -------------------
Class LT-15 21,188,362.33 (2)
------------------------------- ---------------------------- -------------------
Class LT-16 20,157,137.67 (2)
------------------------------ ---------------------------- --------------------
Class LT-17 19,176,094.74 (2)
------------------------------- ---------------------------- -------------------
Class LT-18 18,242,791.94 (2)
------------------------------- ---------------------------- -------------------
Class LT-19 17,354,906.38 (2)
------------------------------ ---------------------------- --------------------
Class LT-20 16,510,228.22 (2)
------------------------------- ---------------------------- -------------------
Class LT-21 15,706,655.13 (2)
------------------------------- ---------------------------- -------------------
Class LT-22 14,942,187.07 (2)
------------------------------- ---------------------------- -------------------
2
------------------------------- ---------------------------- -------------------
Class LT-23 14,214,917.84 (2)
------------------------------- ---------------------------- -------------------
Class LT-24 24,983,563.60 (2)
------------------------------- ---------------------------- -------------------
Class LT-25 12,307,359.33 (2)
------------------------------- ---------------------------- -------------------
Class LT-26 11,708,303.12 (2)
------------------------------- ---------------------------- -------------------
Class LT-27 11,138,401.19 (2)
------------------------------- ---------------------------- -------------------
Class TL-28 10,596,234.84 (2)
------------------------------- ---------------------------- -------------------
Class LT-29 10,080,454.48 (2)
------------------------------- ---------------------------- -------------------
Class LT-30 9,589,862.43 (2)
------------------------------- ---------------------------- -------------------
Class LT-31 9,123,056.72 (2)
------------------------------- ---------------------------- -------------------
Class LT-32 8,678,970.02 (2)
------------------------------- ---------------------------- -------------------
Class LT-33 8,256,496.77 (2)
------------------------------- ---------------------------- -------------------
Class LT-34 7,854,638.03 (2)
------------------------------- ---------------------------- -------------------
Class LT-35 7,482,925.80 (2)
------------------------------- ---------------------------- -------------------
Class LT-36 57,380,476.87 (2)
------------------------------- ---------------------------- -------------------
Class LT-37 4,314,611.33 (2)
------------------------------- ---------------------------- -------------------
Class LT-38 4,104,560.90 (2)
------------------------------- ---------------------------- -------------------
Class LT-39 3,904,734.68 (2)
------------------------------- ---------------------------- -------------------
Class LT-40 3,714,635.01 (2)
------------------------------- ---------------------------- -------------------
Class LT-41 3,533,788.57 (2)
------------------------------- ---------------------------- -------------------
Class LT-42 3,361,745.02 (2)
------------------------------- ---------------------------- -------------------
Class LT-43 3,198,075.92 (2)
------------------------------- ---------------------------- -------------------
Class LT-44 3,042,373.70 (2)
------------------------------- ---------------------------- -------------------
Class LT-45 2,894,250.63 (2)
------------------------------- ---------------------------- -------------------
Class LT-46 2,753,337.87 (2)
------------------------------- ---------------------------- -------------------
3
------------------------------- ---------------------------- -------------------
Class LT-47 2,619,284.44 (2)
------------------------------- ---------------------------- -------------------
Class LT-48 2,491,756.53 (2)
------------------------------- ---------------------------- -------------------
Class LT-49 2,370,436.54 (2)
------------------------------- ---------------------------- -------------------
Class LT-50 2,255,022.34 (2)
------------------------------- ---------------------------- -------------------
Class LT-51 2,145,226.45 (2)
------------------------------- ---------------------------- -------------------
Class LT-52 2,040,775.44 (2)
------------------------------- ---------------------------- -------------------
Class LT-53 1,941,476.24 (2)
------------------------------- ---------------------------- -------------------
Class LT-54 1,846,939.51 (2)
------------------------------- ---------------------------- -------------------
Class LT-55 1,757,006.76 (2)
------------------------------- ---------------------------- -------------------
Class LT-56 1,671,677.86 (2)
------------------------------- ---------------------------- -------------------
Class LT-57 1,590,267.66 (2)
------------------------------- ---------------------------- -------------------
Class LT-58 1,512,725.08 (2)
------------------------------- ---------------------------- -------------------
Class LT-59 28,181,507.47 (2)
------------------------------- ---------------------------- -------------------
Class LT-60 66,358.23 (2)
------------------------------- ---------------------------- -------------------
Class LT-61 1,295,450.91 (2)
------------------------------- ---------------------------- -------------------
(1) Scheduled principal, prepayments and Realized Losses will be
allocated among such Classes sequentially to the Class having the lowest
cardinal number following such designation, in each case until reduced to
zero.
(2) The WAC Cap calculated without regard to Swap Receipt Amounts
and Swap Payment Amounts.
The Lower-Tier REMIC shall hold as assets all of the assets included
in the Trust Fund, other than the Prepayment Premiums, the Interest Rate Swap
Agreement, the Supplemental Interest Trust and the Excess Reserve Fund
Account.
In addition to issuing the Lower-Tier Regular Interests, the
Lower-Tier REMIC shall issue the Class R-1 Interest, which shall be
represented by the Class R-2 Certificates and represent the sole class of
residual interests in the Lower-Tier REMIC.
The Middle-Tier REMIC
4
Corresponding
Lower-Tier Interest Middle-Tier Upper-Tier REMIC
Designation Interest Rate Initial Middle-Tier Principal Amount Class
------------------- ------------- ---------------------------------------- ----------------
Class MT-1A1 (1) 1/2 initial Class Certificate Balance of 1A1
Corresponding Upper-Tier REMIC Regular
Interest
Class MT-1A2 (1) 1/2 initial Class Certificate Balance of 1A2
Corresponding Upper-Tier REMIC Regular
Interest
Class MT-2A1 (1) 1/2 initial Class Certificate Balance of 2A1
Corresponding Upper-Tier REMIC Regular
Interest
Class MT-2A2 (1) 1/2 initial Class Certificate Balance of 2A2
Corresponding Upper-Tier REMIC Regular
Interest
Class MT-3A1 (1) 1/2 initial Class Certificate Balance of 3A1
Corresponding Upper-Tier REMIC Regular
Interest
Class MT-3A2 (1) 1/2 initial Class Certificate Balance of 3A2
Corresponding Upper-Tier REMIC Regular
Interest
Class MT-3A3 (1) 1/2 initial Class Certificate Balance of 3A3
Corresponding Upper-Tier REMIC Regular
Interest
Class MT-3A4 (1) 1/2 initial Class Certificate Balance of 3A4
Corresponding Upper-Tier REMIC Regular
Interest
Class MT-3A5 (1) 1/2 initial Class Certificate Balance of 3A5
Corresponding Upper-Tier REMIC Regular
Interest
Class MT-M-1 (1) 1/2 initial Class Certificate Balance of M-1
Corresponding Upper-Tier REMIC Regular
Interest
Class MT-M-2 (1) 1/2 initial Class Certificate Balance of M-2
Corresponding Upper-Tier REMIC Regular
Interest
Class MT-M-3 (1) 1/2 initial Class Certificate Balance of M-3
Corresponding Upper-Tier REMIC Regular
Interest
Class MT-M-4 (1) 1/2 initial Class Certificate Balance of M-4
Corresponding Upper-Tier REMIC Regular
Interest
Class MT-B-1 (1) 1/2 initial Class Certificate Balance of B-1
Corresponding Upper-Tier REMIC Regular
Interest
Class MT-B-2 (1) 1/2 initial Class Certificate Balance of B-2
5
Corresponding
Lower-Tier Interest Middle-Tier Upper-Tier REMIC
Designation Interest Rate Initial Middle-Tier Principal Amount Class
------------------- ------------- ---------------------------------------- ----------------
Corresponding Upper-Tier REMIC Regular
Interest
Class MT-B-3 (1) 1/2 initial Class Certificate Balance of B-3
Corresponding Upper-Tier REMIC Regular
Interest
Class MT-B-4 (1) 1/2 initial Class Certificate Balance of B-4
Corresponding Upper-Tier REMIC Regular
Interest
Class MT-Accrual (1) 1/2 Pool Stated Principal Balance plus 1/2
Overcollateralized Amount,
less aggregate initial
Lower Tier Principal
Amounts of Class MT-Group
I and Class MT-Group II
Interests
_______________________
Class MT-Group I (2) 0.001% aggregated Stated Principal
Balance of Group I Mortgage Loans (5)
_______________________
Class MT-Group II (3) 0.001% aggregated Stated Principal
Balance of Group II Mortgage Loans (5)
Class MT-Group III (4) 0.001% aggregated Stated Principal
Balance of Group III Mortgage Loans (5)
MT-Swap IO (6) (6)
---------
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the WAC Cap, calculated
without regard to Swap Receipt Amounts.
(2) The interest rate with respect to any Distribution Date for the Class
MT-Group I Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the Loan Group I
Cap, calculated without regard to Swap Receipt Amounts.
(3) The interest rate with respect to any Distribution Date for the Class
MT-Group II Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the Loan Group-II
Cap calculated without regard to Swap Receipt Amounts.
(4) The interest rate with respect to any Distribution Date for the Class
MT-Group III Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the Loan Group-III
Cap calculated without regard to Swap Receipt Amounts.
(5) For all Distribution Dates, the Lower Tier Principal Amount of these
Lower Tier Regular Interests shall be rounded to eight decimal places.
(6) For each Distribution Date, the excess of 3.84 over one month LIBOR on a
notional balance equal to the sum of the principal balances of each Lower
Tier REMIC Regular Interest whose cardinal number following such
designation (▇.▇. -▇, -▇, -▇,..) is not
6
exceeded by the ordinal number of the Distribution Date following
the Closing Date (e.g. first, second, third,...) for such Distribution
Date.
The Middle-Tier REMIC shall hold as assets all of the Lower-Tier
REMIC Regular Interests.
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount will be payable as a reduction of the Middle-Tier
Principal Amount of the MT-Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralized
Amount that is attributable to a reduction in the Class Certificate Balance of
its Corresponding Class) and will be accrued and added to the Lower-Tier
Principal Amount of the Class MT-Accrual Interest. On each Distribution Date,
the increase in the Middle-Tier Principal Amount of the Class MT-Accrual
Interest may not exceed interest accruals for such Distribution Date for the
Class MT-Accrual Interest. In the event that: (i) 50% of the increase in the
Overcollateralized Amount exceeds (ii) interest accruals on the Class
MT-Accrual Interest for such Distribution Date, the excess for such
Distribution Date (accumulated with all such excesses for all prior
Distribution Dates) will be added to any increase in the Overcollateralized
Amount for purposes of determining the amount of interest accrual on the Class
MT-Accrual Interest payable as principal on the MT-Accretion Directed Classes
on the next Distribution Date pursuant to the first sentence of this
paragraph. All payments of scheduled principal and prepayments of principal
generated by the Mortgage Loans shall be allocated (i) 50% to the Class
MT-Accrual Interest, the Class MT-Group I Interest, the Class MT-Group II
Interest and the Class MT-Group III Interest (and further allocated among
these Lower Tier Regular Interests in the manner described below) and (ii) 50%
to the MT-Accretion Directed Classes (principal payments shall be allocated
among such MT-Accretion Directed Classes in an amount equal to 50% of the
principal amounts allocated to their respective Corresponding Classes), until
paid in full. Notwithstanding the above, principal payments allocated to the
Class X Interest that result in the reduction in the Overcollateralized Amount
shall be allocated to the Class MT-Accrual Interest (until paid in full).
Realized Losses shall be applied so that after all distributions have been
made on each Distribution Date (i) the Middle-Tier Principal Amount of each of
the MT-Accretion Directed Classes is equal to 50% of the Class Certificate
Balance of its Corresponding Class, and (ii) the Class MT-Accrual Interest,
the Class MT-Group I Interest, the Class MT-Group II Interest and the Class
MT-Group III Interest (and further allocated among these Lower Tier Regular
Interests in the manner described below) is equal to 50% of the aggregate
Stated Principal Balance of the Mortgage Loans plus 50% of the
Overcollateralized Amount. As among the Class MT-Accrual Interest, the Class
MT-Group I Interest, the Class MT-Group II Interest and the Class MT-Group III
Interest, all payments of scheduled principal and prepayments of principal
generated by the Mortgage Loans, and all Realized Losses, allocable to such
Middle Tier Regular Interests shall be allocated (i) to the Class MT-Group I
Interest, the Class MT-Group II Interest and the Class MT-Group III Interest,
each from the related Loan Group so that their respective Lower Tier Principal
Amounts (computed to at least eight decimal places) are equal to 0.001% of the
aggregate Stated Principal Balance of the Mortgage Loans in the related Loan
Group and (ii) the remainder of such Realized Losses to the Class MT-Accrual
Interest.
In addition to issuing the Middle-Tier Regular Interests, the
Middle-Tier REMIC shall issue the Class R-2 Interest will shall be represented
by the Class R-2 Certificates and
7
which shall be the sole class of residual interests in the Middle-Tier REMIC.
The Class R-2 Certificates will be issued as a single certificate in
definitive form in a principal amount of $100 and shall have no interest rate.
Amounts received by the Class R-2 Certificates shall be deemed paid from the
Middle-Tier REMIC.
The Upper-Tier REMIC
The Upper-Tier REMIC shall issue the following classes of Upper-Tier
Regular Interests, and each such interest, other than the Class UT-R Interest,
is hereby designated as a regular interest in the Upper-Tier REMIC.
Upper-Tier Interest
Rate and Initial Upper-Tier Principal
Upper-Tier Corresponding Amount and Corresponding Corresponding Class of
Class Designation Class Pass-Through Rate Class Certificate Balance Certificates
----------------- ----------------------- ---------------------------- ----------------------
Class 1A1 (1) $103,804,000 Class 1A1(19)
Class 1A2 (2) $11,534,000 Class 1A2(19)
Class 2A1 (3) $99,780,000 Class 2A1(19)
Class 2A2 (4) $11,087,000 Class 2A2(19)
Class 3A1 (5) $300,000,000 Class 3A1(19)
Class 3A2 (6) $33,334,000 Class 3A2(19)
Class 3A3 (7) $168,833,000 Class 3A3(19)
Class 3A4 (8) $53,085,000 Class 3A4(19)
Class 3A5 (9) $62,868,000 Class 3A5(19)
Class M-1 (10) $23,668,000 Class M-1(19)
Class M-2 (11) $7,737,000 Class M-2(19)
Class M-3 (12) $7,282,000 Class M-3(19)
Class M-4 (13) $4,551,000 Class M-4
Class B-1 (14) $4,551,000 Class B-1
Class B-2 (15) $4,551,000 Class B-2
Class B-3 (16) $4,551,000 Class B-3
Class B-4 (17) $4,551,000 Class B-4
Class X (18) (18) Class X(18)
UT-Swap IO (20) (20) N/A
(1) The Class 1A1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the least of (i) LIBOR plus 0.280%, (ii) the
Loan Group I Cap and (iii) WAC Cap or (b) after the first distribution
date on which the optional clean-up call is exercisable, the least of (i)
LIBOR plus 0.560%, (ii) the Loan Group I Cap and (iii) the WAC Cap.
(2) The Class 1A2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the least of (i) LIBOR plus 0.320%, (ii) the
Loan Group I Cap and (iii) WAC Cap or (b) after
8
the first distribution date on which the optional clean-up call is
exercisable, the least of (i) LIBOR plus 0.640%, (ii) the Loan Group I
Cap and (iii) the WAC Cap.
(3) The Class 2A1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the least of (i) LIBOR plus 0.280%, (ii) the
Loan Group II Cap and (iii) WAC Cap or (b) after the first distribution
date on which the optional clean-up call is exercisable, the least of (i)
LIBOR plus 0.560%, (ii) the Loan Group II Cap and (iii) the WAC Cap.
(4) The Class 2A2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the least of (i) LIBOR plus 0.320%, (ii) the
Loan Group II Cap and (iii) WAC Cap or (b) after the first distribution
date on which the optional clean-up call is exercisable, the least of (i)
LIBOR plus 0.640%, (ii) the Loan Group II Cap and (iii) the WAC Cap.
(5) The Class 3A1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the least of (i) LIBOR plus 0.270%, (ii) the
Loan Group III Cap and (iii) WAC Cap or (b) after the first distribution
date on which the optional clean-up call is exercisable, the least of (i)
LIBOR plus 0.540%, (ii) the Loan Group III Cap and (iii) the WAC Cap.
(6) The Class 3A2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the least of (i) LIBOR plus 0.320%, (ii) the
Loan Group III Cap and (iii) WAC Cap or (b) after the first distribution
date on which the optional clean-up call is exercisable, the least of (i)
LIBOR plus 0.640%, (ii) the Loan Group III Cap and (iii) the WAC Cap.
(7) The Class 3A3 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.120%, (ii) the
Loan Group III Cap and (iii) the WAC Cap or (b) after the first
distribution date on which the optional clean-up call is exercisable, the
lesser of (i) LIBOR plus 0.240%, (ii) the Loan Group III Cap and (iii)
the WAC Cap.
(8) The Class 3A4 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.250%, (ii) the
Loan Group III Cap and (iii) the WAC Cap or (b) after the first
distribution date on which the optional clean-up call is exercisable, the
lesser of (i) LIBOR plus 0.500%, (ii) the Loan Group III Cap and (iii)
the WAC Cap.
(9) The Class 3A5 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.370%, (ii) the
Loan Group III Cap and (ii) the WAC Cap or (b) after the first
distribution date on which the optional clean-up call is exercisable, the
lesser of (i) LIBOR plus 0.740%, (ii) the Loan Group III Cap and (iii)
the WAC Cap.
(10) The Class M-1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.480% and (ii)
the WAC Cap or (b) after the first distribution
9
date on which the optional clean-up call is exercisable, the lesser of
(i) LIBOR plus 0.720% and (ii) the WAC Cap.
(11) The Class M-2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.510% and (ii)
the WAC Cap or (b) after the first distribution date on which the
optional clean-up call is exercisable, the lesser of (i) LIBOR plus
0.770% and (ii) the WAC Cap.
(12) The Class M-3 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.630% and (ii)
the WAC Cap or (b) after the first distribution date on which the
optional clean-up call is exercisable, the lesser of (i) LIBOR plus
0.950% and (ii) the WAC Cap.
(13) The Class M-4 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.700% and (ii)
the WAC Cap or (b) after the first distribution date on which the
optional clean-up call is exercisable, the lesser of (i) LIBOR plus
1.050% and (ii) the WAC Cap.
(14) The Class B-1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 1.150% and (ii)
the WAC Cap or (b) after the first distribution date on which the
optional clean-up call is exercisable, the lesser of (i) LIBOR plus
1.730% and (ii) the WAC Cap.
(15) The Class B-2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 1.300% and (ii)
the WAC Cap or (b) after the first distribution date on which the
optional clean-up call is exercisable, the lesser of (i) LIBOR plus
1.950% and (ii) the WAC Cap.
(16) The Class B-3 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 1.750% and (ii)
the WAC Cap or (b) after the first distribution date on which the
optional clean-up call is exercisable, the lesser of (i) LIBOR plus
2.630% and (ii) the WAC Cap.
(17) The Class B-4 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) 5.000% and (ii) the weighted
average of the interest rates for each mortgage loan (in each case, less
the applicable Expense Fee Rate) then in effect at the beginning of the
related Due Period on the mortgage loans or (b) after the first
distribution date on which the optional clean-up call is exercisable, the
lesser of (i) 0.500% and (ii) the weighted average of the interest rates
for each mortgage loan (in each case, less the applicable Expense Fee
Rate) then in effect at the beginning of the related Due Period on the
mortgage loans.
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(18) The Class X Interest will have a principal balance to the extent of any
Overcollateralized Amount. The Class X Interest will not accrue interest
on such balance but will accrue interest on a notional principal balance.
As of any Distribution Date, the Class X Interest shall have a notional
principal balance equal to the aggregate of the principal balances of the
Lower-Tier Regular Interests as of the first day of the related Interest
Accrual Period. With respect to any Interest Accrual Period, the Class X
Interest shall bear interest at a rate equal to the excess, if any, of
the WAC Cap over the product of (i) 2 and (ii) the weighted average
Lower-Tier Interest Rate of the Lower-Tier Regular Interests, where the
Lower-Tier Interest Rates on the Class MT-Accrual, Class MT-Group I,
Class MT-Group II and Class MT-Group III Interests are subject to a cap
equal to zero and each MT-Accretion Directed Class is subject to a cap
equal to the Pass-Through Rate on its Corresponding Class. With respect
to any Distribution Date, interest that so accrues on the notional
principal balance of the Class X Interest shall be deferred in an amount
equal to any increase in the Overcollateralized Amount on such
Distribution Date. Such deferred interest shall not itself bear interest.
The Class X Certificates will represent beneficial ownership of the Class
X Interest, the Interest Rate Swap Agreement, the Supplemental Interest
Trust and amounts in the Excess Reserve Fund Account, subject to the
obligation to make payments from the Excess Reserve Fund Account and the
Supplemental Interest Trust in respect of Basis Risk Carry Forward
Amounts. For federal income tax purposes, the Securities Administrator
will treat the Class X Certificateholders' obligation to make payments
from the Excess Reserve Fund Account and the Supplemental Interest Trust
as payments made pursuant to an interest rate cap contract written by the
Class X Certificateholders in favor of each Class of Principal
Certificates. Such rights of the Class X Certificateholders and Principal
Certificateholders shall be treated as held in a portion of the Trust
Fund that is treated as a grantor trust under subpart E, Part I of
subchapter J of the Code.
(19) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper-Tier Regular Interest but also the right to
receive payments from the Excess Reserve Fund Account and the
Supplemental Interest Trust in respect of any Basis Risk Carry Forward
Amounts. For federal income tax purposes, the Securities Administrator
will treat a Certificateholder's right to receive payments from the
Excess Reserve Fund Account and the Supplemental Interest Trust as
payments made pursuant to an interest rate cap contract written by the
Class X Certificateholders.
(20) For each Distribution Date, 100% of the cash flow in respect of the Class
MT-Swap IO Interest. The Class X Certificates will be entitled to 100% of
the Cash flow in respect of the Class UT-Swap IO Interest.
(21) Each of these Certificates will also be subject to the obligation to pay
Class IO Shortfalls as described in Section 8.14. For federal income tax
purposes, any amount distributed on the Principal Certificates on any
such Distribution Date in excess of their Pass Through Rate, calculated
by subtracting any Swap Payment Amounts or Swap Receipt Amounts from the
WAC Cap (the "REMIC Cap") shall be treated as having been paid from the
Excess Reserve Fund Account or the Supplemental Interest Trust, as
applicable, and any excess of the REMIC Cap over the amount distributable
on such Class of Principal Certificates on such Distribution Date shall
be treated as having been paid to the Supplemental Interest Trust, all
pursuant to, and as further provided in, Section 8.14. The
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Trustee will treat a Principal Certificateholder's right to receive
payments from the Excess Reserve Fund Account and the Supplemental
Interest Trust as payments made pursuant to an interest rate cap contract
written by the Class X Certificateholders.
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In addition to issuing the Upper-Tier Regular Interests, the
Upper-Tier REMIC shall issue the Class R-1 Certificates, which shall be the
sole class of residual interests in the Upper-Tier REMIC. The Class R-1
Certificates will be issued as a single certificate in definitive form in a
principal amount of $100 and shall have no interest rate. Amounts received by
the Class R-1 Certificates shall be deemed paid from the Upper-Tier REMIC.
The foregoing REMIC structure is intended to cause all of the cash
from the Mortgage Loans to flow through to the Upper-Tier REMIC as cash flow
on a REMIC regular interest, without creating any shortfall--actual or
potential (other than for credit losses) to any REMIC regular interest. It is
not intended that the Class R-1 or Class R-2 Certificates be entitled to any
cash flow pursuant to this Agreement except as provided in Section
4.01(a)(ii)(A)(I)(a) hereunder.
For any purpose for which the Pass-Through Rates are calculated, the
interest rate on the Mortgage Loans shall be appropriately adjusted to account
for the difference between the monthly day count convention of the Mortgage
Loans and the monthly day count convention of the regular interests issued by
each of the REMICs. For purposes of calculating the Pass-Through Rates for
each of the interests issued by the Lower-Tier REMIC such rates shall be
adjusted to equal a monthly day count convention based on a 30 day month for
each Due Period and a 360-day year so that the Mortgage Loans and all regular
interests will be using the same monthly day count convention.
The minimum denomination for each Class of the Offered Certificates
will be $50,000 initial Certificate Balance, with integral multiples of $1 in
excess thereof except that one Certificate in each Class may be issued in a
different amount. The minimum denomination for (a) the Class R-1 and Class R-2
Certificates will each be $100 and each will be a 100% Percentage Interest in
such Class and (b) the Class P, Class C and X Certificates will be a 1%
Percentage Interest in each such Class.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates...................... All Classes of Certificates other than the Physical Certificates.
Class A Certificates......................... The Class 1A1, Class 1A2, Class 2A1, Class 2A2, Class 3A1, Class
3A2, Class 3A3, Class 3A4 and Class 3A5, collectively.
Class B Certificates......................... The Class B-1, Class B-2, Class B-3 and Class B-4, collectively.
Class M Certificates......................... The Class M-1, Class M-2, Class M-3 and Class M-4, collectively.
Class R Certificates......................... The Class R-1 and Class R-2 Certificates.
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ERISA Restricted
Certificates................................. The Class B-4 Certificates, the Physical Certificates and any
Certificate with a rating below the lowest applicable
permitted rating under the Underwriters' Exemption.
Fixed Rate Certificates...................... The Class B-4 Certificates.
LIBOR Certificates........................... The Class A Certificates, the Class M Certificates, the Class B-1,
Class B-2 and Class B-3 Certificates.
Offered Certificates......................... All Classes of Certificates other than the Private Certificates.
Physical Certificates........................ The Class P, Class C, Class X and Class R Certificates.
Principal Certificates....................... Fixed Rate Certificates and LIBOR Certificates.
Private Certificates......................... Class B-4, Class P, Class C and Class X Certificates.
Rating Agencies.............................. ▇▇▇▇▇'▇ and S&P.
Regular Certificates......................... All Classes of Certificates other than the Class R Certificates.
Residual Certificates........................ The Class R Certificates.
Subordinated Certificates.................... The Class M and Class B Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein but not
defined herein shall have the meanings given them in the applicable Servicing
Agreement or Sale Agreement. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which any portion of a Monthly Payment is, as of the last day of the prior Due
Period, two months or more past due (without giving effect to any grace
period), each Mortgage Loan in foreclosure, all REO Property and each Mortgage
Loan for which the Mortgagor has filed for bankruptcy.
Account: Any of the Distribution Account or the Excess Reserve Fund
Account. Each Account shall be an Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of Principal Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class
14
Certificate Balance immediately prior to such Distribution Date, as reduced by
such Class's share of Net Prepayment Interest Shortfalls and Relief Act
Interest Shortfalls for the related Due Period allocated to such Class
pursuant to Section 4.02.
Adjusted Net Mortgage Interest Rate: As to each Mortgage Loan and at
any time, the per annum rate equal to the Mortgage Interest Rate less the
Expense Fee Rate.
Administrative Fee Rate: With respect to any Mortgage Loan, the
investment income earned on amounts in the Distribution Account during the
Master Servicer Float Period and paid to the Master Servicer as compensation
for its activities under this Agreement.
Administrative Fees: As to each Mortgage Loan, the fees calculated
by reference to the Administrative Fee Rate.
Advance: Any Monthly Advance or Servicing Advance.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
Agreement: This Master Servicing and Trust Agreement and all
amendments or supplements hereto.
Applied Realized Loss Amount: With respect to any Distribution Date,
the amount, if any, by which the aggregate Class Certificate Balance of the
Principal Certificates after distributions of principal on such Distribution
Date exceeds the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form (other than the
assignee's name and recording information not yet returned from the recording
office), reflecting the sale of the Mortgage to the Trustee.
Assignment Agreement: A Step 1 Assignment Agreement or a Step 2
Assignment Agreement.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Master Servicer (x) the sum of
(without duplication) (i) all scheduled installments of interest (net of the
related Expense Fees) and principal due on the Due Date on such Mortgage Loans
in the related Due Period and received on or prior to the related
Determination Date, together with any Monthly Advances in respect thereof;
(ii) all Condemnation Proceeds, Insurance Proceeds and Liquidation Proceeds
received during the related Principal Prepayment Period (in each case, net of
unreimbursed expenses incurred in connection with a liquidation or foreclosure
and unreimbursed Advances, if any); (iii) all partial or full prepayments
(excluding Prepayment Premiums) on the Mortgage Loans received during the
related Principal Prepayment Period together with all Compensating Interest
paid in
15
connection therewith; (iv) all amounts received with respect to such
Distribution Date in connection with a purchase or repurchase of a Deleted
Mortgage Loan; (v) all amounts received with respect to such Distribution Date
as a Substitution Adjustment Amount received in connection with the
substitution of a Mortgage Loan; (vi) all Swap Receipt Amounts, if any, less
Swap Payment Amounts, if any, for such Distribution Date; and (vii) all
proceeds received with respect to the termination of the Trust Fund pursuant
to clause (a) of Section 11.01; reduced by (y) all amounts in reimbursement
for Monthly Advances and Servicing Advances previously made with respect to
the Mortgage Loans, and other amounts as to which the Servicers, the
Depositor, the Master Servicer, the Securities Administrator, the Trustee (or
co-trustee) or the Custodians are entitled to be paid or reimbursed pursuant
to this Agreement.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Principal Remittance Amount
for such Distribution Date over (ii) the Excess Overcollateralized Amount, if
any, for such Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of
Principal Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of Principal
Certificates is based upon a Loan Group Cap or the WAC Cap, the excess, if
any, of (i) the amount of interest such Class of Certificates would otherwise
be entitled to receive on such Distribution Date had such Pass-Through Rate
not been subject to a Loan Group Cap or the WAC Cap, over (ii) the amount of
interest that Class of Certificates received on such Distribution Date taking
into account the related Loan Group Cap and the WAC Cap and (B) the Basis Risk
Carry Forward Amount for such Class of Certificates for all previous
Distribution Dates not previously paid, together with interest thereon at a
rate equal to the applicable Pass-Through Rate for such Class of Certificates
for such Distribution Date, without giving effect to a Loan Group Cap or the
WAC Cap).
Basis Risk Payment: For any Distribution Date, an amount equal to
the lesser of (i) the aggregate of the Basis Risk Carry Forward Amounts for
such Distribution Date, (ii) the Class X Distributable Amount (prior to any
reduction for Basis Risk Payments) or (iii) the amount payable from the
Supplemental Interest Trust.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions, in (a) the States of
New York or California, (b) the State in which a Servicer's servicing
operations are located, or (c) the State in which the Trustee's operations are
located, are authorized or obligated by law or executive order to be closed.
Certificate: Any one of the Certificates executed by the Securities
Administrator in substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of Principal
Certificates, at any date, the maximum dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
Denomination thereof minus all distributions of principal previously made with
respect thereto and in the case of any Subordinated Certificates,
16
reduced by any Applied Realized Loss Amounts applicable to such Class of
Subordinated Certificates; provided, however, that immediately following the
Distribution Date on which a Subsequent Recovery is distributed, the Class
Certificate Balances of any Class or Classes of Certificates that have been
previously reduced by Applied Realized Loss Amounts will be increased, in
order of seniority, by the amount of the Subsequent Recovery distributed on
such Distribution Date (up to the amount of Applied Realized Loss Amounts
allocated to such Class or Classes). The Class X, Class P and Class C
Certificates have no Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered
in the name of the Depositor or any affiliate of the Depositor shall be deemed
not to be Outstanding and the Percentage Interest evidenced thereby shall not
be taken into account in determining whether the requisite amount of
Percentage Interests necessary to effect such consent has been obtained;
provided, however, that if any such Person (including the Depositor) owns 100%
of the Percentage Interests evidenced by a Class of Certificates, such
Certificates shall be deemed to be Outstanding for purposes of any provision
hereof that requires the consent of the Holders of Certificates of a
particular Class as a condition to the taking of any action hereunder. The
Securities Administrator is entitled to rely conclusively on a certification
of the Depositor or any affiliate of the Depositor in determining which
Certificates are registered in the name of an affiliate of the Depositor.
Certification: As defined in Section 8.13(b).
Class: All Certificates bearing the same class designation as set
forth in this Agreement.
Class 1A Certificates: The Class 1A1 and Class 1A2 Certificates,
collectively.
Class 2A Certificates: The Class 2A1 and Class 2A2 Certificates,
collectively.
Class 3A Certificates: The Class 3A1, Class 3A2, Class 3A3, Class
3A4 and Class 3A5 Certificates, collectively.
Class A Certificate Group: Either the Class 1A, Class 2A or Class 3A
Certificates.
Class A Certificates: As specified in the Preliminary Statement.
Class A Principal Allocation Percentage: For any Distribution Date, the
percentage equivalent of a fraction, determined as follows: (A) with respect
to the Class 1A Certificates, a fraction, the numerator of which is the
portion of the Principal Remittance Amount for such Distribution Date that is
attributable to the principal received or advanced on the Group I Mortgage
Loans and the denominator of which is the Principal Remittance Amount for such
Distribution Date; (B) with
17
respect to the Class 2A Certificates, a fraction, the numerator of which is
the portion of the Principal Remittance Amount for such Distribution Date that
is attributable to the principal received or advanced on the Group II Mortgage
Loans and the denominator of which is the Principal Remittance Amount for such
Distribution Date; and (C) with respect to the Class 3A Certificates, a
fraction, the numerator of which is the portion of the Principal Remittance
Amount for such Distribution Date that is attributable to principal received
or advanced on the Group III Mortgage Loans and the denominator of which is
the Principal Remittance Amount for such Distribution Date.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class Certificate Balance
of the Class A Certificates immediately prior to such Distribution Date over
(ii) the lesser of (A) 85.50% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class 1A1 Certificates: All Certificates bearing the class
designation of "Class 1A1."
Class 1A2 Certificates: All Certificates bearing the class
designation of "Class 1A2."
Class 2A1 Certificates: All Certificates bearing the class
designation of "Class 2A1."
Class 2A2 Certificates: All Certificates bearing the class
designation of "Class 2A2."
Class 3A1 Certificates: All Certificates bearing the class
designation of "Class 3A1."
Class 3A2 Certificates: All Certificates bearing the class
designation of "Class 3A2."
Class 3A3 Certificates: All Certificates bearing the class
designation of "Class 3A3."
Class 3A4 Certificates: All Certificates bearing the class
designation of "Class 3A4."
Class 3A5 Certificates: All Certificates bearing the class
designation of "Class 3A5."
Class B-1 Certificates: All Certificates bearing the class
designation of "Class B-1."
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A
18
Certificates (after taking into account the distribution of the Class A
Principal Distribution Amount on such Distribution Date), (B) the Class
Certificate Balance of the Class M-1 Certificates (after taking into account
the distribution of the Class M-1 Principal Distribution Amount on such
Distribution Date), (C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount for such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account
the distribution of the Class M-3 Principal Distribution Amount for such
Distribution Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the Class M-4
Principal Distribution Amount for such Distribution Date) and (F) the Class
Certificate Balance of the Class B-1 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 96.00% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, and (B)
the excess, if any, of the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date over the Overcollateralization Floor.
Class B-2 Certificates: All Certificates bearing the class
designation of "Class B-2."
Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account
the distribution of the Class A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account
the distribution of the Class M-2 Principal Distribution Amount for such
Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount for such Distribution Date), (E) the Class
Certificate Balance of the Class M-4 Certificates (after taking into account
the distribution of the Class M-4 Principal Distribution Amount for such
Distribution Date), (F) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the distribution of the Class B-1
Principal Distribution Amount for such Distribution Date) and (G) the Class
Certificate Balance of the Class B-2 Certificates immediately prior to that
Distribution Date over (ii) the lesser of (A) 97.00% of the aggregate Stated
Principal Balances of the Mortgage Loans for such Distribution Date and (B)
the excess, if any, of the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date over the Overcollateralization Floor.
Class B-3 Certificates: All Certificates bearing the class
designation of "Class B-3."
Class B-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account
the distribution of the Class A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account
the distribution of the Class M-2 Principal Distribution
19
Amount for such Distribution Date), (D) the Class Certificate Balance of the
Class M-3 Certificates (after taking into account the distribution of the
Class M-3 Principal Distribution Amount for such Distribution Date), (E) the
Class Certificate Balance of the Class M-4 Certificates (after taking into
account the distribution of the Class M-4 Principal Distribution Amount for
such Distribution Date), (F) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the distribution of the Class B-1
Principal Distribution Amount for such Distribution Date), (G) the Class
Certificate Balance of the Class B-2 Certificates (after taking into account
the distribution of the Class B-2 Principal Distribution Amount for such
Distribution Date) and (H) the Class Certificate Balance of the Class B-3
Certificates immediately prior to that Distribution Date over (ii) the lesser
of (A) 98.00% of the aggregate Stated Principal Balances of the Mortgage Loans
for such Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class B-4 Certificates: All Certificates bearing the class
designation of "Class B-4."
Class B-4 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account
the distribution of the Class A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account
the distribution of the Class M-2 Principal Distribution Amount for such
Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount for such Distribution Date), (E) the Class
Certificate Balance of the Class M-4 Certificates (after taking into account
the distribution of the Class M-4 Principal Distribution Amount for such
Distribution Date), (F) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the distribution of the Class B-1
Principal Distribution Amount for such Distribution Date), (G) the Class
Certificate Balance of the Class B-2 Certificates (after taking into account
the distribution of the Class B-2 Principal Distribution Amount for such
Distribution Date), (H) the Class Certificate Balance of the Class B-3
Certificates (after taking into account the distribution of the Class B-3
Principal Distribution Amount for such Distribution Date) and (I) the Class
Certificate Balance of the Class B-4 Certificates immediately prior to that
Distribution Date over (ii) the lesser of (A) 99.00% of the aggregate Stated
Principal Balances of the Mortgage Loans for such Distribution Date and (B)
the excess, if any, of the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date over the Overcollateralization Floor.
Class C Certificates: All Certificates bearing the class designation
of "Class C."
Class Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
20
Class IO Shortfalls: As defined in Section 8.14. For the avoidance
of doubt, the Class IO Shortfall for any Distribution Date shall equal the
amount payable to the Class X Certificates in respect of amounts due to the
Swap Provider on such Distribution Date (other than Defaulted Swap Termination
Payments) in excess of the amount payable on the Class X Interest on such
Distribution Date, all as further provided in Section 8.14.
Class M-1 Certificates: All Certificates bearing the class
designation of "Class M-1."
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account
the distribution of the Class A Principal Distribution Amount on such
Distribution Date), and (B) the Class Certificate Balance of the Class M-1
Certificates immediately prior to such Distribution Date over (ii) the lesser
of (A) 90.70% of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class M-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account
the distribution of the Class A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date) and (C) the Class
Certificate Balance of the Class M-2 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 92.40% (rounded to two decimal
places) of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class M-3 Certificates: All Certificates bearing the class
designation of "Class M-3."
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account
the distribution of the Class A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account
the distribution of the Class M-2 Principal Distribution Amount on such
Distribution Date) and (D) the Class Certificate Balance of the Class M-3
Certificates immediately prior to such Distribution Date over (ii) the lesser
of (A) 94.00% (rounded to two decimal places) of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date over the Overcollateralization Floor.
21
Class M-4 Certificates: All Certificates bearing the class
designation of "Class M-4."
Class M-4 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account
the distribution of the Class A Principal Distribution Amount on such
Distribution Date), (B) the Class Certificate Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (C) the Class
Certificate Balance of the Class M-2 Certificates (after taking into account
the distribution of the Class M-2 Principal Distribution Amount on such
Distribution Date), (D) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date) and (E) the Class
Certificate Balance of the Class M-4 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 95.00% (rounded to two decimal
places) of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class P Certificates: All Certificates bearing the class designation
of "Class P."
Class R Certificates: All Certificates bearing the class designation
of "Class R."
Class R-1 Certificates: All Certificates bearing the class
designation of "Class R-1."
Class R-2 Certificates: All Certificates bearing the class
designation of "Class R-2."
Class X Certificates: All Certificates bearing the class designation
of "Class X."
Class X Distributable Amount: On any Distribution Date, (i) as a
distribution in respect of interest, the amount of interest that has accrued
on the Class X Interest and not applied as an Extra Principal Distribution
Amount on such Distribution Date, plus any such accrued interest remaining
undistributed from prior Distribution Dates, plus, without duplication, (ii)
as a distribution in respect of principal, any portion of the principal
balance of the Class X Interest which is distributable as an
Overcollateralization Reduction Amount, minus (iii) any amounts paid as a
Basis Risk Payment.
Class X Interest: The Upper-Tier Regular Interest represented by the
Class X Certificates as specified and described in the Preliminary Statement
and the related footnote thereto.
Closing Date: September 29, 2005.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
22
Collection Account: The "Custodial Account" as defined in the
applicable Servicing Agreement.
Compensating Interest: For any Distribution Date and Servicer (other
than SunTrust), the lesser of (a) the Prepayment Interest Shortfall, if any,
for the Distribution Date, with respect to voluntary Principal Prepayments in
full or in part by the Mortgagor (excluding any payments made upon liquidation
of the Mortgage Loan), and (b) (x) in the case of Countrywide, GreenPoint and
▇▇▇▇▇ Fargo, one half of the Servicing Fee payable to such Servicer for such
Distribution Date or (y) in the case of National City, the entire Servicing
Fee payable to such servicer for such Distribution Date. For any Distribution
Date and SunTrust, "Compensating Interest" shall mean the amount specified in
clause (a) above.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Corporate Trust Office: With respect to the Securities
Administrator, to the principal office of the Securities Administrator at 4
New York Plaza, 6th Floor, New York, New York 10004, Attention: Worldwide
Securities Servicers Global Debt - GSAA Home Equity Trust 2005-11, or at such
other address as the Securities Administrator may designate from time to time
by notice to the Certificateholders. With respect to the Trustee, to the
principal office of the Trustee at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Structured Finance Trust
Services or at such other address as the Trustee may designate from time to
time by notice to the Certificateholders.
Corresponding Class: The Class of interests in one Trust REMIC
created under this Agreement that corresponds to the Class of interests in the
other Trust REMIC or to a Class of Certificates in the manner set out below:
Lower-Tier Upper-Tier Corresponding
Regular Interest Regular Interest Class of Certificates
---------------- ---------------- ---------------------
Class LT-1A1 Class 1A1 Class 1A1
Class LT-1A2 Class 1A2 Class 1A2
Class LT-2A1 Class 2A1 Class 2A1
Class LT-2A2 Class 2A2 Class 2A2
Class LT-3A1 Class 3A1 Class 3A1
Class LT-3A2 Class 3A2 Class 3A2
Class LT-3A3 Class 3A3 Class 3A3
Class LT-3A4 Class 3A4 Class 3A4
Class LT-3A5 Class 3A5 Class 3A5
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-M-4 Class M-4 Class M-4
Class LT-B-1 Class B-1 Class B-1
Class LT-B-2 Class B-2 Class B-2
23
Class LT-B-3 Class B-3 Class B-3
Class LT-B-4 Class B-4 Class B-4
Countrywide: Countrywide Home Loans, Inc., a New York corporation,
and its successors in interest.
Countrywide Mortgage Loans: The mortgage loans acquired by the
Purchaser from Countrywide pursuant to the Countrywide Sale Agreement, and, in
the case of the mortgage loans being serviced by Countrywide, shall include
the Ameriquest Mortgage Loans and the FNBN Mortgage Loans.
Countrywide Sale Agreement: The Master Mortgage Loan Purchase
Agreement, dated July 1, 2004, between Countrywide and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Company.
Countrywide Servicing: Countrywide Home Loans Servicing LP, a Texas
limited partnership, and its successors in interest.
Countrywide Servicing Agreements: The Flow Servicing Rights Purchase
and Servicing Agreement, dated April 16, 2004, among ▇▇▇▇▇▇▇ Sachs Mortgage
Company, Countrywide Home Loans Servicing LP and Countrywide Home Loans, Inc.,
and the Servicing Agreement, dated July 1, 2004, between Countrywide Servicing
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, each as modified by the related Assignment
Agreements.
Custodial File: With respect to each Mortgage Loan, any Mortgage
Loan Document which is delivered to the applicable Custodian or which at any
time comes into the possession of that Custodian.
Custodian: With respect to the Goldman Conduit Mortgage Loans,
JPMorgan, and with respect to all other Mortgage Loans, Deutsche Bank.
Cut-off Date: September 1, 2005.
Cut-off Date Pool Principal Balance: The aggregate Stated Principal
Balances of all Mortgage Loans as of the Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date
(after giving effect to payments of principal due on that date).
Defaulted Swap Termination Payment: Any Swap Termination Payment
required to be paid by the Supplemental Interest Trust to the Swap Provider
pursuant to the Interest Rate Swap Agreement as a result of an Event of
Default (as defined in the Interest Rate Swap Agreement) with respect to which
the Swap Provider is the defaulting party or a Termination Event (as defined
in the Interest Rate Swap Agreement) (other than Illegality or a Tax Event
that is not a Tax Event Upon Merger (each as defined in the Interest Rate Swap
Agreement)) with respect to which the Swap Provider is the sole Affected Party
(as defined in the Interest Rate Swap Agreement) or with respect to a
termination resulting from a Substitution Event (as defined in the Interest
Rate Swap Agreement).
24
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted Mortgage Loan: A Mortgage Loan which is purchased or
repurchased by any Responsible Party, the Purchaser or the Depositor in
accordance with the terms of any Sale Agreement, any Assignment Agreement or
this Agreement, as applicable, or which is, in the case of a substitution
pursuant to the GreenPoint Sale Agreement, Countrywide Sale Agreement or any
related Assignment Agreement, replaced or to be replaced with a substitute
mortgage loan.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate"
or the Percentage Interest appearing on the face thereof.
Depositor: GS Mortgage Securities Corp., a Delaware corporation, and
its successors in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code
of the State of New York.
Depository Institution: Any depository institution or trust company,
including the Trustee and the Securities Administrator, that (a) is
incorporated under the laws of the United States of America or any State
thereof, (b) is subject to supervision and examination by federal or state
banking authorities and (c) has outstanding unsecured commercial paper or
other short-term unsecured debt obligations that are rated "P-1" by Moody's
and "A-1" by Standard & Poor's.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: For each Distribution Date, the Business Day
immediately preceding the Remittance Date, or, with respect to the Goldman
Conduit Mortgage Loans, the 15th calendar day (or if such 15th day is not a
Business Day, the Business Day immediately following such 15th day) of the
month of the related Remittance Date.
Deutsche Bank: Deutsche Bank National Trust Company.
Distribution Account: The separate Eligible Account created by the
Master Servicer pursuant to Section 3.01(b) in the name of the Securities
Administrator as paying agent for the benefit of the Trustee and the
Certificateholders and designated "JPMorgan Chase Bank, National Association,
as paying agent, in trust for registered holders of GSAA Home Equity Trust
2005-11, Asset-Backed Certificates, Series 2005-11." Funds in the Distribution
Account shall be held in trust for the Certificateholders for the uses and
purposes set forth in this Agreement.
25
Distribution Date: The 25th day of each month or, if such day is not
a Business Day, the immediately succeeding Business Day, commencing in October
2005.
Document Certification and Exception Report: The report attached to
Exhibit G hereto.
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in
which that Distribution Date occurs and ending on the first day of the
calendar month in which that Distribution Date occurs, except, in the case of
the Goldman Conduit Mortgage Loans, the period commencing on the first day of
the month and ending on the last day of the month preceding the month of the
Remittance Date.
Eligible Account: Either (i) an account maintained with a federal or
state chartered depository institution or trust company the short-term
unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is a subsidiary of a holding company, the
short-term unsecured debt obligations of such holding company) are rated
"A-1+" by Standard & Poor's, "F1" by Fitch and "P-1" by Moody's (or a
comparable rating if another Rating Agency is specified by the Depositor by
written notice to the Servicer) at the time any amounts are held on deposit
therein, (ii) a trust account or accounts maintained with a federal or state
chartered depository institution or trust company acting in its fiduciary
capacity or (iii) any other account acceptable to each Rating Agency. Eligible
Accounts may bear interest, and may include, if otherwise qualified under this
definition, accounts maintained with the Securities Administrator or the
Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of Prohibited
Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Event of Default: As defined in the applicable Servicing Agreement.
Excess Overcollateralized Amount: With respect to any Distribution
Date, the excess, if any, of (a) the Overcollateralized Amount on such
Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Securities Administrator pursuant to Sections 3.01(a) in
the name of the Securities Administrator as paying agent for the benefit of
the Regular Certificateholders and designated "JPMorgan Chase Bank, National
Association, as paying agent, in trust for registered holders of GSAA Home
Equity Trust 2005-11, Asset-Backed Certificates, Series 2005-11." Funds in the
Excess Reserve Fund Account shall be held in trust for the Regular
26
Certificateholders for the uses and purposes set forth in this Agreement.
Amounts on deposit in the Excess Reserve Fund Account shall not be invested.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal
to the sum of the Servicing Fee Rate, the Administrative Fee Rate and, if set
forth on the Mortgage Loan Schedule, the applicable Primary Mortgage Insurance
Policy premium rate.
Expense Fees: As to each Mortgage Loan, the fees calculated by
reference to the Expense Fee Rate.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for that
Distribution Date and (y) the related Overcollateralization Deficiency for
such Distribution Date.
Fair Market Value Excess: As defined in Section 11.01.
▇▇▇▇▇▇ ▇▇▇: The Federal National Mortgage Association, and its
successors in interest.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for each Class of Certificates is the Distribution Date occurring in
October 2035.
Fitch: Fitch, Inc.
Fixed Rate Certificates: As specified in the Preliminary Statement.
▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, and its successors in
interest.
Goldman Conduit: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Conduit Program.
Goldman Conduit Mortgage Loans: The Mortgage Loans acquired by the
Purchaser pursuant to the applicable Goldman Conduit Sale Agreements.
Goldman Conduit Sale Agreements: The Master Loan Purchase
Agreements, between various mortgage loan sellers and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Company, dated as of their respective dates.
Goldman Servicing Agreement: The Flow Servicing Agreement, dated as
of May 1, 2005, between Countrywide Servicing and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Company relating to the servicing of the Goldman Conduit Mortgage Loans.
GreenPoint: GreenPoint Mortgage Funding, Inc., a New York
corporation, and its successor in interest.
27
GreenPoint Mortgage Loans: The Mortgage Loans acquired by the
Purchaser from GreenPoint pursuant to the GreenPoint Sale Agreement.
GreenPoint Sale Agreement: The Master Mortgage Loan Purchase
Agreement, dated April 1, 2004, as amended by Amendment No. 1, dated as of
July 1, 2004, and as amended by Amendment No. 2, dated as of January 1, 2005,
between GreenPoint and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company.
GreenPoint Servicing Agreement: The Servicing Agreement, dated as of
April 1, 2004, as amended by Amendment No. 1, dated as of July 1, 2004, and as
amended by Amendment No. 2, dated as of January 1, 2005, between GreenPoint
and ▇▇▇▇▇▇▇ Sachs Mortgage Company.
Group I Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group I Mortgage Loans.
Group I Sequential Trigger Event: With respect to any Distribution
Date (a) before the 37th Distribution Date, the circumstances in which the
aggregate amount of Realized Losses incurred since the Cut off Date through
the last day of the related Prepayment Period divided by the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut off Date exceeds 0.60%,
or (b) on or after the 37th Distribution Date, if a Trigger Event is in
effect.
Group II Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group II Mortgage Loans.
Group II Sequential Trigger Event: With respect to any Distribution
Date (a) before the 37th Distribution Date, the circumstances in which the
aggregate amount of Realized Losses incurred since the Cut off Date through
the last day of the related Prepayment Period divided by the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut off Date exceeds 0.60%,
or (b) on or after the 37th Distribution Date, if a Trigger Event is in
effect.
Group III Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group III Mortgage Loans.
Group III Sequential Trigger Event: With respect to any Distribution
Date (a) before the 37th Distribution Date, the circumstances in which the
aggregate amount of Realized Losses incurred since the Cut off Date through
the last day of the related Prepayment Period divided by the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut off Date exceeds 0.60%,
or (b) on or after the 37th Distribution Date, if a Trigger Event is in
effect.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
Interest Accrual Period: With respect to any Distribution Date, (i)
with respect to the LIBOR Certificates, the period commencing on the
immediately preceding Distribution Date (or commencing on the Closing Date in
the case of the first Distribution Date) and ending on the day immediately
preceding the current Distribution Date, and (ii) with respect to the Fixed
Rate
28
Certificates, the calendar month immediately preceding the month which such
Distribution Date occurs.
Interest Rate Swap Agreement: The interest rate swap agreement,
dated as of September 29, 2005, between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mitsui Marine Derivative
Products, L.P. and the Trust and assigned to the Supplemental Interest Trust
or any other swap agreement (including any related schedules) assigned to the
Supplemental Interest Trust.
Interest Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans in a Loan Group, that portion of Available Funds
attributable to interest relating to the Mortgage Loans in such Loan Group and
any Swap Receipt Amount attributable to such Loan Group for such Distribution
Date, net of any Swap Payment Amount made from such Loan Group with respect to
such Distribution Date.
Investment Account: As defined in Section 3.02(a).
JPMorgan: ▇.▇. ▇▇▇▇▇▇ Trust Company, N.A., a national banking
corporation, and its successors in interest.
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Securities Administrator on the
related LIBOR Determination Date on the basis of the offered rate for one
month U.S. dollar deposits as such rate appears on Telerate Page 3750 as of
11:00 a.m. (London time) on such date; provided, that if such rate does not
appear on Telerate Page 3750, the rate for such date will be determined on the
basis of the rates at which one-month U.S. dollar deposits are offered by the
Reference Banks at approximately 11:00 a.m. (London time) on such date to
prime banks in the London interbank market. In such event, the Securities
Administrator shall request the principal London office of each of the
Reference Banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that date will be the arithmetic mean of
the quotations (rounded upwards if necessary to the nearest whole multiple of
1/16%). If fewer than two quotations are provided as requested, the rate for
that date will be the arithmetic mean of the rates quoted by major banks in
New York City, selected by the Securities Administrator (after consultation
with the Depositor), at approximately 11:00 a.m. (New York City time) on such
date for one-month U.S. dollar deposits of leading European banks. The
establishment of LIBOR by the Securities Administrator and the Securities
Administrator's subsequent calculations based thereon, in the absence of
manifest error, shall be final and binding. Except as otherwise set forth
herein, absent manifest error, the Securities Administrator may conclusively
rely on quotations of LIBOR as such quotations appear on Telerate Screen Page
3750.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: With respect to any Interest Accrual
Period for the LIBOR Certificates, the second London Business Day preceding
the commencement of such Interest Accrual Period.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in
the Principal Prepayment Period preceding the month of such Distribution Date
and as to which the applicable Servicer has
29
certified that it has received all amounts it expects to receive in connection
with the liquidation of such Mortgage Loan including the final disposition of
an REO Property.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale or
otherwise, or the sale of the related Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage Loan, including any
Subsequent Recoveries.
Loan Group: The Group I Mortgage Loans, the Group II Mortgage Loans
or the Group III Mortgage Loans, as applicable.
Loan Group Cap: The Loan Group I Cap, the Loan Group II Cap or the
Loan Group III Cap, as applicable.
Loan Group I Cap: With respect to the Group I Mortgage Loans as of
any Distribution Date, a per annum rate equal to the product of (i) the sum of
(A) the weighted average of the Adjusted Net Mortgage Interest Rates then in
effect on the beginning of the related Due Period on the Group I Mortgage
Loans, and (B) the Swap Receipt Amount, if any, less the Swap Payment Amount,
if any, divided by Stated Principal Balance of the Mortgage Loans of the
beginning of the related Due Period multiplied by 12 and (ii) 30 divided by
the actual number of days in the related Interest Accrual Period.
Loan Group II Cap: With respect to the Group II Mortgage Loans as of
any Distribution Date, a per annum rate equal to the product of (i) the sum of
(A) the weighted average of the Adjusted Net Mortgage Interest Rates then in
effect on the beginning of the related Due Period on the Group II Mortgage
Loans, and (B) the Swap Receipt Amount, if any, less the Swap Payment Amount,
if any, divided by Stated Principal Balance of the Mortgage Loans of the
beginning of the related Due Period multiplied by 12 and (ii) 30 divided by
the actual number of days in the related Interest Accrual Period.
Loan Group III Cap: With respect to the Group III Mortgage Loans as
of any Distribution Date, a per annum rate equal to the product of (i) the sum
of (A) the weighted average of the Adjusted Net Mortgage Interest Rates then
in effect on the beginning of the related Due Period on the Group III Mortgage
Loans, and (B) the Swap Receipt Amount, if any, less the Swap Payment Amount,
if any, divided by Stated Principal Balance of the Mortgage Loans of the
beginning of the related Due Period multiplied by 12 and (ii) 30 divided by
the actual number of days in the related Interest Accrual Period.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lower-Tier Principal Amount: As described in the Preliminary
Statement.
Lower-Tier Regular Interest: Each of the Class LT-1A1, Class LT-1A2,
Class LT-2A1, Class LT-2A2, Class LT-3A1, Class LT-3A2, Class LT-3A3, Class
LT-3A4, Class LT-3A5, Class LT-M-1, Class LT-M-2, Class LT-M-3, Class LT-M-4,
Class LT-B-1, Class LT-B-2,
30
Class LT-B-3, Class LT-B-4, Class LT-Group I, Class LT-Group II, Class
LT-Group III and Class LT-Accrual Interests as described in the Preliminary
Statement.
Lower-Tier REMIC: As described in the Preliminary Statement.
Master Servicer: JPMorgan Chase Bank, National Association, and if a
successor master servicer is appointed hereunder, such successor.
Master Servicer Event of Default: As defined in Section 9.04.
Master Servicing Float Period: As to any Distribution Date and each
Mortgage Loan, the period commencing on the 18th Business Day immediately
preceding such Distribution Date and ending on such Distribution Date.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor thereto.
MERS Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Advance: As defined in the applicable Servicing Agreement.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.02.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. If ▇▇▇▇▇'▇ is designated as
a Rating Agency in the Preliminary Statement, for purposes of Section 12.05(b)
the address for notices to Moody's shall be ▇▇▇▇▇'▇ Investors Service, Inc.,
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Residential Mortgage
Pass-Through Group, or such other address as Moody's may hereafter furnish to
the Depositor and the Servicer.
Mortgage: The mortgage, deed of trust or other instrument identified
on the Mortgage Loan Schedule as securing a Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to the Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of a
Sale Agreement and a Servicing Agreement, each Mortgage Loan originally sold
and subject to any Sale Agreement being identified on the Mortgage Loan
Schedule, which Mortgage Loan
31
includes without limitation the Mortgage File, the Servicing File, the Monthly
Payments, Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, REO Disposition proceeds and all other rights, benefits,
proceeds and obligations arising from or in connection with such Mortgage
Loan.
Mortgage Loan Documents: The mortgage loan documents pertaining to
each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Schedule I, such schedule setting forth the following information with
respect to each Mortgage Loan: (1) Responsible Party's Mortgage Loan number;
(2) the address, city, state and zip code of the Mortgaged Property; (3) a
code indicating whether the Mortgagor is self-employed; (4) a code indicating
whether the Mortgaged Property is owner-occupied, investment property or a
second home; (5) a code indicating whether the Mortgaged Property is a single
family residence, two family residence, three-family residence, four family
residence, condominium, manufactured housing or planned unit development; (6)
the purpose of the Mortgage Loan; (7) the type of Mortgage Loan; (8) the
Mortgage Interest Rate at origination; (9) the current Mortgage Interest Rate;
(10) the name of the applicable Servicer; (11) the applicable Servicing Fee
Rate; (12) the current Monthly Payment; (13) the original term to maturity;
(14) the remaining term to maturity; (15) the principal balance of the
Mortgage Loan as of the Cut-off Date after deduction of payments of principal
due on or before the Cut-off Date whether or not collected; (16) the LTV at
origination and if the Mortgage Loan has a second lien, combined LTV at
origination; (17) the actual principal balance of the Mortgage Loan as of the
Cut-off Date; (18) social security number of the Mortgagor; (19) a code
indicating whether the Mortgage Loan had a second lien at origination; (20) if
the Mortgage Loan has a second lien, combined loan balance as of the Cut-off
Date; (21) a code indicating whether the Mortgaged Property is a leasehold
estate; (22) the due date of the Mortgage Loan; (23) whether the Mortgage Loan
is insured by a Primary Mortgage Insurance Policy and the name of the insurer;
(24) the certificate number of the Primary Mortgage Insurance Policy; (25) the
amount of coverage of the Primary Mortgage Insurance Policy, and if it is a
lender-paid Primary Mortgage Insurance Policy, the premium rate; (26) the type
of appraisal; (27) a code indicating whether the Mortgage Loan is a MERS Loan;
(28) documentation type (including asset and income type); (29) first payment
date; (30) the schedule of the payment delinquencies in the prior 12 months;
(31) FICO score; (32) the Mortgagor's name; (33) the stated maturity date;
(34) the original principal amount of the mortgage; (35) the name of the
applicable Custodian and (36) a code indicating whether the Mortgage Loan is a
Group I Mortgage Loan, a Group II Mortgage Loan or a Group III Mortgage Loan.
With respect to the Mortgage Loans in the aggregate: (1) the number of
Mortgage Loans; (2) the current aggregate outstanding principal balance of the
Mortgage Loans; (3) the weighted average Mortgage Interest Rate of the
Mortgage Loans; and (4) the weighted average maturity of the Mortgage Loans.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
32
National City: National City Mortgage Co., an Ohio corporation, and
its successors in interest.
National City Mortgage Loans: The Mortgage Loans acquired by the
Purchaser from National City pursuant to the National City Sale and Servicing
Agreement.
National City Sale and Servicing Agreement: Amended and Restated
Flow Seller's Warranties and Servicing Agreement, dated as of August 1, 2003,
as amended by an Amendment thereto, dated as of July 1, 2004, between National
City and ▇▇▇▇▇▇▇ Sachs Mortgage Company.
Net Monthly Excess Cash Flow: For any Distribution Date the amount
remaining for distribution pursuant to subsection 4.01(a)(iii) (before giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date, the
amount by which the sum of the Prepayment Interest Shortfalls exceeds the sum
of the Compensating Interest payments made on such Distribution Date.
NIM Issuer: The entity established as the issuer of NIM Securities.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class P, Class C and Class X Certificates.
NIM Trustee: The trustee for the NIM Securities.
Non Permitted Transferee: As defined in Section 8.12(e).
Nonrecoverable Monthly Advance: Any Monthly Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property that, in
the good faith business judgment of the Servicer, the Master Servicer or any
successor Master Servicer including the Trustee, as applicable, will not or,
in the case of a proposed Monthly Advance, would not be ultimately recoverable
from related late payments, Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds on such Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in the good faith business judgment of the Servicer, the Master
Servicer or any successor Master Servicer including the Trustee, as
applicable, will not or, in the case of a proposed Servicing Advance, would
not, be ultimately recoverable from related Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 11.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
33
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President
or an Assistant Vice President and by the Treasurer or the Secretary or one of
the Assistant Treasurers or Assistant Secretaries of any Servicer or any
Responsible Party, and delivered to the Trustee and the Securities
Administrator, as required by any Servicing Agreement or Sale Agreement.
Opinion of Counsel: A written opinion of counsel, who may be in
house counsel for applicable Servicer, reasonably acceptable to the Trustee
and/or the Securities Administrator, as applicable (and/or such other Persons
as may be set forth herein); provided, that any Opinion of Counsel relating to
(a) qualification of either the Lower-Tier REMIC or Upper-Tier REMIC or (b)
compliance with the REMIC Provisions, must be (unless otherwise stated in such
Opinion of Counsel) an opinion of counsel who (i) is in fact independent of
the applicable Servicer or the Master Servicer of the Mortgage Loans, (ii)
does not have any material direct or indirect financial interest in the
applicable Servicer or the Master Servicer of the Mortgage Loans or in an
affiliate of either and (iii) is not connected with the applicable Servicer or
the Master Servicer of the Mortgage Loans as an officer, employee, director or
person performing similar functions.
Optional Termination Date: The Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans, as of the last day
of the related Due Period, is equal to 10.00% or less of the Cut-off Date Pool
Principal Balance.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Securities
Administrator or delivered to the Securities Administrator for
cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Securities
Administrator pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Amount: As of any Distribution Date, the excess,
if any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over (b) the aggregate of the Class Certificate
Balances of the Principal Certificates as of such Distribution Date (after
giving effect to the payment of the Principal Remittance Amount on such
Certificates on that Distribution Date).
Overcollateralization Deficiency: With respect to any Distribution
Date, the excess, if any, of (a) the Specified Overcollateralized Amount
applicable to such Distribution Date over (b) the Overcollateralized Amount
applicable to such Distribution Date.
34
Overcollateralization Reduction Amount: With respect to any
Distribution Date, an amount equal to the lesser of (a) the Excess
Overcollateralized Amount and (b) the Net Monthly Excess Cash Flow.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect,
legal or beneficial.
Pass-Through Rate: For each Class of Certificates and each
Lower-Tier Regular Interest, the per annum rate set forth or calculated in the
manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Permitted Investments: Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued by the Servicer, the Trustee or any of their respective
Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed
by the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars and
issued by any Depository Institution and rated F1+ by Fitch, P-1 by
Moody's and A-1+ by S&P;
(iii) repurchase obligations with respect to any security described
in clause (i) above entered into with a Depository Institution (acting as
principal);
(iv) securities bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the United
States of America or any state thereof and that are rated by each Rating
Agency that rates such securities in its highest long-term unsecured
rating categories at the time of such investment or contractual
commitment providing for such investment;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 30 days after the date of acquisition
thereof) that is rated by each Rating Agency that rates such securities
in its highest short-term unsecured debt rating available at the time of
such investment;
35
(vi) units of money market funds, including money market funds
advised by the Depositor or the Trustee or an Affiliate thereof, that
have been rated "Aaa" by Moody's, "AAAm" or "AAAm-G" by Standard & Poor's
and, if rated by Fitch, at least "AA" by Fitch; and
(vii) if previously confirmed in writing to the Securities
Administrator, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to the
Rating Agencies as a permitted investment of funds backing "Aaa" or "AAA"
rated securities;
provided, however, that no instrument described hereunder shall evidence
either the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying
obligations.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality
of any of the foregoing, (ii) a foreign government, international organization
or any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Section 521 of
the Code) which is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by Section 511 of the Code on unrelated business taxable
income) on any excess inclusions (as defined in Section 860E(c)(1) of the
Code) with respect to any Residual Certificate, (iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of the Code, (v) a
Person that is not a U.S. Person or a U.S. Person with respect to whom income
from a Residual Certificate is attributable to a foreign permanent
establishment or fixed base (within the meaning of an applicable income tax
treaty) of such Person or any other U.S. Person, (vi) an "electing large
partnership" within the meaning of Section 775 of the Code and (vii) any other
Person so designated by the Depositor based upon an Opinion of Counsel that
the Transfer of an Ownership Interest in a Residual Certificate to such Person
may cause either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to
qualify as a REMIC at any time that the Certificates are outstanding. The
terms "United States," "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or
of any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the ▇▇▇▇▇▇▇ Mac, a
majority of its board of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans for such
Distribution Date that were Outstanding Mortgage Loans on the Due Date in the
related Due Period.
36
Prepayment Interest Shortfall: With respect to any Remittance Date,
the sum of, for each Mortgage Loan that was during the related Principal
Prepayment Period the subject of a Principal Prepayment that was applied by
the Servicer to reduce the outstanding principal balance of such Mortgage Loan
on a date preceding the Due Date in the succeeding Principal Prepayment
Period, an amount equal to the product of (a) the Mortgage Interest Rate net
of the applicable Servicing Fee Rate for such Mortgage Loan, (b) the amount of
the Principal Prepayment for such Mortgage Loan, (c) 1/360 and (d) the number
of days commencing on the date on which such Principal Prepayment was applied
and ending on the last day of the related Principal Prepayment Period.
Prepayment Premium: Any prepayment premium, penalty or charge, if
any, required under the terms of the related Mortgage Note to be paid in
connection with a Principal Prepayment, to the extent permitted by law.
Principal Certificates: As specified in the Preliminary Statement.
Principal Distribution Amount: For any Distribution Date, the sum of
(i) the Basic Principal Distribution Amount for such Distribution Date and
(ii) the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other recovery
of principal on a Mortgage Loan (including upon liquidation of a Mortgage
Loan) which is received in advance of its scheduled Due Date, including any
Prepayment Premium, and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or
months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Prepayment Period: With respect to any Distribution Date,
the calendar month preceding the month in which that Distribution Date occurs.
Principal Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans, the amount equal to the sum of the following amounts
(without duplication): (i) all scheduled payments of principal due on the Due
Date on such Mortgage Loans in the related Due Period and received on or prior
to the related Determination Date, together with any Monthly Advances in
respect thereof; (ii) all Condemnation Proceeds, Insurance Proceeds and
Liquidation Proceeds allocable to principal and received during the related
Principal Prepayment Period; (iii) all Principal Prepayments allocable to
principal and received during the related Principal Prepayment Period; (iv)
all amounts received with respect to such Distribution Date representing the
portion of the purchase price allocable to principal in connection with a
purchase or repurchase of a Deleted Mortgage Loan; (v) principal portion of
all amounts received with respect to such Distribution Date as a Substitution
Adjustment Amount and received in connection with the substitution of a
Mortgage Loan and (vi) the allocable portion of the proceeds received with
respect to the termination of the Trust Fund pursuant to clause (a) of Section
11.01 (to the extent such proceeds relate to principal).
Private Certificates: As specified in the Preliminary Statement.
37
Prospectus Supplement: The Prospectus Supplement, dated September
26, 2005, relating to the Offered Certificates.
PTCE: Prohibited Transaction Class Exemption, issued by the U.S.
Department of Labor.
PUD: A planned unit development.
Purchaser: ▇▇▇▇▇▇▇ Sachs Mortgage Company, a New York limited
partnership, and its successors in interest.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Securities Administrator. References herein to a given rating or rating
category of a Rating Agency shall mean such rating category without giving
effect to any modifiers. For purposes of Section 12.05(b), the addresses for
notices to each Rating Agency shall be the address specified therefor in the
definition corresponding to the name of such Rating Agency, or such other
address as either such Rating Agency may hereafter furnish to the Depositor
and the Servicer.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid
principal balance of such Liquidated Mortgage Loan together with accrued and
unpaid interest thereon exceeds (b) the Liquidation Proceeds with respect
thereto net of the expenses incurred by the Servicer in connection with the
liquidation of such Liquidated Mortgage Loan and net of any amount of
unreimbursed Servicing Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the related Interest Accrual Period;
provided, however, that for any Definitive Certificate issued pursuant to
Section 5.02(e), the Record Date shall be the close of business on the last
Business Day of the month immediately preceding the month in which the related
Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers' Civil Relief Act of 1940 or any similar
state statutes.
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
38
Subchapter M of Chapter 1 of the Code, and related provisions, and regulations
promulgated thereunder, as the foregoing may be in effect from time to time as
well as provisions of applicable state laws.
Remittance Advice Date: The 5th, 10th, 10th, 10th and 10th day of
each calendar month, respectively, with respect to GreenPoint, National City,
SunTrust, ▇▇▇▇▇ Fargo and Countrywide Servicing or the immediately following
Business Day if such day is not a Business Day, and with respect to the
Goldman Conduit Mortgage Loans, not later than each Remittance Date.
Remittance Date: With respect to any Distribution Date, the 18th day
(or if such 18th day is not a Business Day, the first Business Day immediately
preceding such 18th day) of the month in which such Distribution Date occurs.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, the
Securities Administrator or the Master Servicer, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer,
any associate or any other officer of the Trustee, the Securities
Administrator or the Master Servicer, customarily performing functions similar
to those performed by any of the above designated officers who at such time
shall be officers to whom, with respect to a particular matter, such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Agreement.
Responsible Party: Each of GreenPoint, Countrywide, SunTrust, ▇▇▇▇▇
Fargo or National City, as the context may require, in its capacity as seller
under the related Sale Agreement. With respect to the Goldman Conduit Mortgage
Loans, the Purchaser.
Rule 144A Letter: As defined in Section 5.02(b).
Sale Agreement: Each of the GreenPoint Sale Agreement, the
Countrywide Sale Agreement, the SunTrust Sale and Servicing Agreement, the
National City Sale and Servicing Agreement, the ▇▇▇▇▇ Fargo Sale and Servicing
Agreement and the Goldman Conduit Sale Agreement.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: JPMorgan Chase Bank, National Association,
and if a successor securities administrator is appointed hereunder, such
successor.
39
Securities Administrator Float Period: With respect to the
Distribution Date and the related amounts in the Distribution Account, the
period commencing on the seventh Business Day immediately preceding such
Distribution Date and ending on such Distribution Date.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate
Class Certificate Balances of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans as of the
first day of the month in which such Distribution Date occurs.
Senior Specified Enhancement Percentage: As of any date of
determination, 14.50%.
Servicer: Each of Countrywide Servicing, GreenPoint, National City,
SunTrust, and ▇▇▇▇▇ Fargo in its capacity as servicer under the related
Servicing Agreement, or any successor servicer appointed pursuant to such
Servicing Agreement.
Servicing Advances: As defined in the Servicing Agreement.
Servicing Agreement: Each of the Countrywide Servicing Agreement,
the GreenPoint Servicing Agreement, the National City Sale and Servicing
Agreement, the SunTrust Sale and Servicing Agreement and the ▇▇▇▇▇ Fargo Sale
and Servicing Agreement.
Servicing Fee: As defined in the related Servicing Agreement.
Servicing Fee Rate: As of the statistical calculation date of August
1, 2005, a per annum rate equal to 0.25% with respect to approximately 79.68%
of the mortgage loans and 0.375% per annum with respect to approximately
20.32% of the mortgage loans.
Servicing File: As defined in the applicable Servicing Agreement.
Similar Law: As defined in Section 5.02(b).
Specified Overcollateralized Amount: Prior to the Stepdown Date, an
amount equal to 0.50% of the Cut-off Date Pool Principal Balance. On and after
the Stepdown Date, an amount equal to 1.00% of the aggregate Stated Principal
Balance of the Mortgage Loans for that Distribution Date, subject, until the
Class Certificate Balance of each Class of Principal Certificates has been
reduced to zero, to a minimum amount equal to the Overcollateralization Floor;
provided, however, that if, on any Distribution Date, a Trigger Event has
occurred, the Specified Overcollateralized Amount shall not be reduced to the
applicable percentage of the then aggregate Stated Principal Balance of the
Mortgage Loans but instead will remain the same as the prior period's
Specified Overcollateralized Amount until the Distribution Date on which a
Trigger Event is no longer occurring. When the Class Certificate Balance of
each Class of Principal Certificates has been reduced to zero, the Specified
Overcollateralized Amount will thereafter equal zero.
40
Standard & Poor's or S&P: Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. If Standard & Poor's is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
12.05(b) the address for notices to Standard & Poor's shall be Standard &
Poor's, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Residential
Mortgage Surveillance Group - GSAA Home Equity Trust 2005-11, or such other
address as Standard & Poor's may hereafter furnish to the Depositor and the
Servicer.
Startup Day: The Closing Date.
Stated Principal Balance: As to each Mortgage Loan and as of any
Determination Date, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before
such date, minus (ii) all amounts previously remitted to the Securities
Administrator with respect to the related Mortgage Loan representing payments
or recoveries of principal including advances in respect of scheduled payments
of principal. For purposes of any Distribution Date, the Stated Principal
Balance of any Mortgage Loan will give effect to any scheduled payments of
principal received or advanced prior to the related Remittance Date and any
unscheduled principal payments and other unscheduled principal collections
received during the related Principal Prepayment Period, and the Stated
Principal Balance of any Mortgage Loan that has prepaid in full or has become
a Liquidated Mortgage Loan during the related Prepayment Period shall be zero.
Step 1 Assignment Agreement: Each of the (i) Assignment, Assumption
and Recognition Agreement, dated as of September 29, 2005, between the
Purchaser, GreenPoint and the Depositor, (ii) Assignment, Assumption and
Recognition Agreement, dated as of September 29, 2005, between the Purchaser,
Countrywide Servicing and the Depositor, (iii) Assignment, Assumption and
Recognition Agreement, dated as of September 29, 2005, between the Purchaser,
National City and the Depositor, (iv) Assignment, Assumption and Recognition
Agreement, dated as of September 29, 2005, between the Purchaser, Goldman
Conduit, Countrywide Servicing and the Depositor, (v) Assignment, Assumption
and Recognition Agreement, dated as of September 29, 2005, between the
Purchaser, SunTrust and the Depositor and (vi) Assignment, Assumption and
Recognition Agreement, dated as of September 29, 2005, between the Purchaser,
▇▇▇▇▇ Fargo and the Depositor.
Step 2 Assignment Agreement: Each of the (i) Assignment, Assumption
and Recognition Agreement, dated as of September 29, 2005, among the
Depositor, the Master Servicer, the Trustee and GreenPoint, (ii) Assignment,
Assumption and Recognition Agreement, dated as of September 29, 2005, among
the Depositor, the Master Servicer, the Trustee and Countrywide Servicing,
(iii) Assignment, Assumption and Recognition Agreement, dated as of September
29, 2005, among the Depositor, the Master Servicer, the Trustee and National
City, (iv) Assignment, Assumption and Recognition Agreement, dated as of
September 29, 2005, between the Purchaser, Goldman Conduit, Countrywide
Servicing, the Trustee and the Depositor, (v) Assignment, Assumption and
Recognition Agreement, dated as of September 29, 2005, between the Purchaser,
SunTrust, the Trustee and the Depositor and (vi) Assignment, Assumption and
Recognition Agreement, dated as of September 29, 2005, between the Purchaser,
Goldman Conduit, ▇▇▇▇▇ Fargo Bank, NA, the Trustee and the Depositor.
41
Stepdown Date: The earlier to occur of (a) the date on which the
aggregate Class Certificate Balance of the Class A certificates has been
reduced to zero and (b) the later to occur of (i) the Distribution Date in
October 2008 and (ii) the first Distribution Date on which the Senior
Enhancement Percentage is greater than or equal to the Senior Specified
Enhancement Percentage.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subsequent Recoveries: Amount received with respect to any
Liquidated Mortgage Loan after it has become a Liquidated Mortgage Loan.
Substitution Adjustment Amount: With respect to any GreenPoint or
Countrywide Sale Agreement or with respect to a Mortgage Loan substituted by
the Purchaser, an amount of cash received from the applicable Responsible
Party in connection with a substitution for a Deleted Mortgage Loan.
SunTrust: SunTrust Mortgage, Inc., a Virginia corporation, and its
successor in interest.
SunTrust Mortgage Loans: The Mortgage Loans acquired by the
Purchaser from SunTrust pursuant to the SunTrust Sale Agreement.
SunTrust Sale and Servicing Agreement: Flow Seller's Warranties and
Servicing Agreement, dated November 1, 2004, between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Company and SunTrust Mortgage, Inc.
Supplemental Interest Trust: The corpus of a trust created pursuant
to Section 4.05 of this Agreement, consisting of the Interest Rate Swap
Agreement, subject to the obligation to pay amounts specified in Section 4.05.
Swap Payment Amount: With respect to any Distribution Date, the
Fixed Amount (as defined in the Interest Rate Swap Agreement) payable by the
Supplemental Interest Trust to the Swap Provider, pursuant to the applicable
clauses of the Priorities of Distribution, on the related Fixed Rate Payer
Payment Date (as defined in the Interest Rate Swap Agreement).
Swap Provider: ▇▇▇▇▇▇▇ Sachs Mitsui Marine Derivative Products,
L.P., a Delaware limited partnership, and its successors in interest, and any
successor swap provider under any replacement Interest Rate Swap Agreement.
Swap Receipt Amount: With respect to any Distribution Date, the
Floating Amount (as defined in the Interest Rate Swap Agreement) payable by
the Swap Provider to the Supplemental Interest Trust on the related Floating
Rate Payer Payment Date (as defined in the Interest Rate Swap Agreement).
Swap Termination Payment: Any payment payable by the Supplemental
Interest Trust or the Swap Provider upon termination of the Interest Rate Swap
Agreement as a result of an Event of Default (as defined in the Interest Rate
Swap Agreement) or a Termination Event (as defined in the Interest Rate Swap
Agreement).
42
Tax Matters Person: The Holder of the Class R-1 and Class R-2
Certificates is designated as "tax matters person" of the Lower-Tier REMIC and
the Upper-Tier REMIC, respectively, in the manner provided under Treasury
Regulations Section 1.806F-4(d) and Treasury Regulations Section
301.6234(a)(7)-1.
Telerate Page 3750: The display page currently so designated on the
Bridge Telerate Service (or such other page as may replace that page on that
service for displaying comparable rates or prices).
Termination Price: As defined in Section 11.01.
Total Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess if any, of (i) the interest collected (prior to the
Remittance Date) or advanced on the Mortgage Loans for Due Dates during the
related Due Period (net of Expense Fees) plus the Swap Receipt Amount and
minus any Swap Payment Amount over (ii) the sum of the interest payable to the
Principal Certificates on such Distribution Date pursuant to Section
4.01(a)(i).
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c)(ii).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a Trigger
Event exists if (i) on such Distribution Date the quotient (expressed as a
percentage) of (x) the rolling three month average of the aggregate unpaid
principal balances of 60+ Day Delinquent Mortgage Loans, and (y) the unpaid
principal balance of the Mortgage Loans equals or exceeds 40% of the Senior
Enhancement Percentage as of the last day of the prior Due Period or (ii) the
quotient (expressed as a percentage) of (x) the aggregate amount of Realized
Losses incurred since the Cut-off Date through the last day of the related
Principal Prepayment Period divided by (y) the Cut-off Date Pool Principal
Balance exceeds the applicable percentages set forth below with respect to
such Distribution Date:
Distribution Date Occurring In Loss Percentage
------------------------------ ---------------
October 2007 - September 2008 0.250% for the first month, plus an additional 1/12th
of 0.350% for each month thereafter (e.g.,
approximately 0.279% in November 2007)
October 2008 - September 2009 0.600% for the first month, plus an additional 1/12th
of 0.350% for each month thereafter (e.g.,
approximately 0.629% in November 2008)
October 2009 - September 2010 0.950% for the first month, plus an additional 1/12th
of 0.300% for each month thereafter (e.g.,
approximately 0.975% in November 2009)
43
October 2010 and September 2011 1.250% for the first month, plus an additional 1/12th
of 0.200% for each month thereafter (e.g.,
approximately 1.267% in November 2010)
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal received on or with
respect thereto after the related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or before the related Cut-off Date; (ii) the
Interest Rate Swap Agreement and all amounts received thereunder; (iii) the
Excess Reserve Fund Account, the Distribution Account, and all amounts
deposited therein pursuant to the applicable provisions of this Agreement;
(iv) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure or otherwise; (v) the rights of the
Trust under the Step 2 Assignment Agreements; (vi) the Supplemental Interest
Trust: and (vii) all proceeds of the conversion, voluntary or involuntary, of
any of the foregoing.
Trust REMIC: As specified in the Preliminary Statement.
Trustee: Wachovia Bank, National Association, a national banking
association, and its successors in interest, and, if a successor trustee is
appointed hereunder, such successor.
Underwriters' Exemption: Any exemption listed in footnote 1 of, and
amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487
(2002), or amended by Prohibited Transaction Exemption 2002-19, 67 Fed. Reg.
14979, or any successor exemption.
Unpaid Interest Amount: As of any Distribution Date and any Class of
Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from Distribution Dates remaining unpaid prior to the
current Distribution Date and (b) interest on the amount in clause (a) at the
applicable Pass-Through Rate (to the extent permitted by applicable law).
U.S. Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of
any state thereof, including, for this purpose, the District of Columbia;
(iii) a partnership (or entity treated as a partnership for tax purposes)
organized in the United States or under the laws of the United States or of
any State thereof, including, for this purpose, the District of Columbia
(unless provided otherwise by future Treasury regulations); (iv) an estate
whose income is includible in gross income for United States income tax
purposes regardless of its source; or (v) a trust, if a court within the
United States is able to exercise primary supervision over the administration
of the trust and one or more U.S. Persons have authority to control all
substantial decisions of the trust. Notwithstanding the last clause of the
preceding sentence, to the extent provided in Treasury regulations, certain
trusts in existence on August 20, 1996, and treated as U.S. Persons prior to
such date, may elect to continue to be U.S. Persons.
44
Upper-Tier Regular Interest: As described in the Preliminary
Statement.
Upper-Tier REMIC: As described in the Preliminary Statement.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (c) 1% of all Voting Rights shall be allocated to the Class C
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), and (d) the remaining Voting Rights shall be allocated among
Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
WAC Cap: With respect to the Mortgage Loans as of any Distribution
Date, a per annum rate equal to the product of (i) the sum of (A) the weighted
average of the Adjusted Net Mortgage Interest Rates then in effect on the
beginning of the related Due Period on the Mortgage Loans, and (B) the Swap
Receipt Amount, if any, less the Swap Payment Amount, if any, divided by the
Stated Principal Balance of the Mortgage Loans at the beginning of the related
Due Period multiplied by 12 and (ii) 30 divided by the actual number of days
in the related Interest Accrual Period, in the case of the LIBOR Certificates,
and 30 divided by 360, in the case of the Class B-4 Certificates.
▇▇▇▇▇ Fargo: ▇▇▇▇▇ Fargo Bank, N.A., a national banking association,
and its successors in interest.
▇▇▇▇▇ Fargo Mortgage Loans: The mortgage loans acquired by the
Purchaser from ▇▇▇▇▇ Fargo pursuant to the ▇▇▇▇▇ Fargo Sale and Servicing
Agreement.
▇▇▇▇▇ Fargo Sale and Servicing Agreement: The Master Seller's
Warranties and Servicing Agreement, dated August 1, 2004, as amended by
Amendment No. 1 thereto, dated April 26, 2005, between ▇▇▇▇▇ Fargo Bank, N.A.
and ▇▇▇▇▇▇▇ Sachs Mortgage Company, as modified by the related Assignment
Agreements.
45
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered or caused to be delivered to each Custodian
on behalf of the Trustee for the benefit of the Certificateholders the
following documents or instruments with respect to each applicable Mortgage
Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(ii) The original Assignment of Mortgage in blank (or, in the case
of the Goldman Conduit Mortgage Loans, in form and substance acceptable
for recording or if the Mortgage is to be recorded, assigned to the
Purchaser), unless the Mortgage Loan is a MERS Loan, and in the case of
the SunTrust Mortgage Loans and the ▇▇▇▇▇ Fargo Mortgage Loans, blanket
assignments for Mortgage Loans secured by Mortgaged Properties in
jurisdictions where permitted by Applicable Law;
(iii) personal endorsement, surety and/or guaranty agreements
executed in connection with all non individual Mortgage Loans
(corporations, partnerships, trusts, estates, etc. (if any);
(iv) the related original Mortgage and evidence of its recording or,
in certain limited circumstances as set forth in the applicable Servicing
Agreement, a certified copy of the mortgage with evidence of recording;
(v) originals of any intervening Mortgage assignment or certified
copies in either case necessary to show a complete chain of title from
the original mortgagee to the seller and evidencing recording; provided,
that, except in the case of the Goldman Conduit Mortgage Loans, the
assignment may be in the form of a blanket assignment or assignments, a
copy of which with evidence of recording shall be acceptable;
(vi) originals of all assumption, modification, consolidation or
extension agreements or certified copies thereof, in either case with
evidence of recording if required to maintain the lien of the mortgage or
if otherwise required, or, if recordation is not required, an original or
copy of the agreement; provided, that, in the case of the Goldman Conduit
Mortgage Loans, an original with evidence of recording thereon is always
required;
46
(vii) except with respect to the Countrywide Mortgage Loans, an
original or copy of a title insurance policy or evidence of title;
(viii) to the extent applicable, an original power of attorney;
except in the case of the ▇▇▇▇▇▇▇ Conduit Mortgage Loans, an original
power of attorney or, in limited circumstances as set forth in the
applicable Servicing Agreement, a copy of the power of attorney;
(ix) for each GreenPoint Mortgage Loan with respect to which the
Mortgagor's name as it appears on the note does not match the borrower's
name on the mortgage loan schedule, one of the following: the original of
the assumption agreement, or a certified copy thereof, in either case
with evidence of recording thereon if required to maintain the lien of
the mortgage or if otherwise required, or, if recordation is not so
required, an original or copy of such assumption agreement;
(x) except with respect to the Countrywide Mortgage Loans, a
security agreement, chattel mortgage or equivalent document executed in
connection with the Mortgage, if any; and
(xi) with respect to each Mortgage Loan, the complete Mortgage File
including all items as set forth in the applicable Servicing Agreement to
the extent in the possession of the Depositor or the Depositor's Agents.
The Depositor shall deliver to each Custodian the applicable
recorded document promptly upon receipt from the respective recording office
but in no event later than 120 days from the Closing Date.
From time to time, pursuant to the applicable Sale Agreement, the
Responsible Party may forward to the applicable Custodian additional original
documents, additional documents evidencing an assumption, modification,
consolidation or extension of a Mortgage Loan, in accordance with the terms of
the applicable Sale Agreement. All such mortgage documents held by the
Custodians as to each Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall deliver to the
Custodians Assignments of Mortgages (except in the case of MERS Loans), in
blank, for each applicable Mortgage Loan. On the Closing Date, the Trustee
shall provide a written request to each Responsible Party to submit the
Assignments of Mortgage for recordation, at the Responsible Party's expense,
pursuant to the applicable Sale Agreement. Each Custodian shall deliver the
Assignment of Mortgages to be submitted for recordation to the applicable
Responsible Party.
In the event that such original or copy of any document submitted
for recordation to the appropriate public recording office is not so delivered
to the Custodian within the time period and in the manner specified in the
applicable Sale Agreement, the Trustee shall take or cause to be taken such
remedial actions under the Sale Agreement against the applicable Responsible
Party as may be permitted to be taken thereunder, including without
limitation, if applicable, the repurchase by the applicable Responsible Party
of such Mortgage Loan. The foregoing repurchase remedy shall not apply in the
event that the Responsible Party cannot
47
deliver such original or copy of any document submitted for recordation to the
appropriate public recording office within the specified period due to a delay
caused by the recording office in the applicable jurisdiction; provided, that
the applicable Responsible Party shall instead deliver a recording receipt of
such recording office or, if such recording receipt is not available, an
officer's certificate of an officer of the applicable Responsible Party,
confirming that such document has been accepted for recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses
the original Mortgage or assignment after it has been recorded, the
obligations of the Responsible Party shall be deemed to have been satisfied
upon delivery by the Responsible Party to the applicable Custodian prior to
the Closing Date of a copy of such Mortgage or assignment, as the case may be,
certified (such certification to be an original thereof) by the public
recording office to be a true and complete copy of the recorded original
thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "GSAA Home Equity Trust
2005-11" and Wachovia Bank, National Association is hereby appointed as
Trustee in accordance with the provisions of this Agreement.
(d) It is the policy and intention of the Trust that none of the
Mortgage Loans included in the Trust is (a) covered by the Home Ownership and
Equity Protection Act of 1994, or (b) considered a "high cost home,"
"threshold," "predatory" or "covered" loan (excluding "covered home loans" as
defined under clause (1) of the definition of "covered home loans" in the New
Jersey Home Ownership Security Act of 2002) under applicable state, federal or
local laws.
Section 2.02 Acceptance by the Custodians of the Mortgage Loans.
Each Custodian acknowledges receipt of the documents identified in the Initial
Certification, subject to any exceptions listed on the exception report
attached thereto, in the form annexed hereto as Exhibit F, and declares that
it holds and will hold such documents and the other documents delivered to it
pursuant to Section 2.01, and that it holds or will hold such other assets as
are included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders. Deutsche Bank, as Custodian,
acknowledges that it will maintain possession of the related Mortgage Notes in
the State of California and JPMorgan, as Custodian, acknowledges that it will
maintain possession of the related Mortgage Notes in the State of Texas,
unless otherwise permitted by the Rating Agencies.
Prior to and as a condition to the Closing, each Custodian shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor an Initial Certification prior to the Closing Date, or as the
Depositor agrees to, on the Closing Date, certifying receipt of a Mortgage
Note and Assignment of Mortgage, subject to any exceptions listed on the
exception report attached thereto, for each Mortgage Loan. Neither Custodian
shall be responsible to verify the validity, sufficiency or genuineness of any
document in any Custodial File.
On the Closing Date, each Custodian shall ascertain that all
documents required to be delivered to it are in its possession, subject to any
exceptions listed on the exception report
48
attached thereto, and shall deliver to the Depositor an Initial Certification,
in the form annexed hereto as Exhibit F, and shall deliver to the Depositor a
Document Certification and Exception Report, in the form annexed hereto as
Exhibit G, within 90 days after the Closing Date to the effect that, as to
each applicable Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Mortgage Loan paid in full or any Mortgage Loan specifically identified in
such certification as an exception and not covered by such certification): (i)
all documents required to be delivered to it are in its possession; (ii) such
documents have been reviewed by it and appear regular on their face and relate
to such Mortgage Loan; (iii) based on its examination and only as to the
foregoing documents, as to Deutsche Bank, the information set forth in items
2, 8, 33, and 34 of the Mortgage Loan Schedule respecting such Mortgage Loan
is correct; (iv) based on its examination and only as to the foregoing
documents, as to JPMorgan, the information set forth in items 2, 8, 33, and 34
of the Mortgage Loan Schedule respecting such Mortgage Loan is correct; and
(v) each Mortgage Note has been endorsed as provided in Section 2.01 of this
Agreement. Neither Custodian shall be responsible to verify the validity,
sufficiency or genuineness of any document in any Custodial File.
Each Custodian shall retain possession and custody of each
applicable Custodial File in accordance with and subject to the terms and
conditions set forth herein. The Servicer shall promptly deliver to the
applicable Custodian, upon the execution or receipt thereof, the originals of
such other documents or instruments constituting the Custodial File as come
into the possession of the Servicer from time to time.
Each Custodian shall notify the Trustee of any Mortgage Loans that
do not conform to such requirements of Sections 2.01 and 2.02 hereof. The
Trustee shall enforce the obligation of the Responsible Parties to cure or
repurchase Mortgage Loans that do not conform to such requirements as
determined in the Custodian's review as required herein, or based upon
notification from JPMorgan, by notifying the applicable Responsible Party to
correct or cure such default. The Trustee shall also enforce the obligation of
the Responsible Parties under the Sale Agreements, and the Servicing
Agreements and of the Purchaser under the GSMC Assignment Agreements to cure
or repurchase Mortgage Loans for which there is a defect or a breach of a
representation or warranty thereunder of which a Responsible Officer of the
Trustee has actual knowledge, by notifying the applicable party to correct or
cure such default. If any Servicer, any Responsible Party or the Purchaser, as
the case may be, fails or is unable to correct or cure the defect or breach
within the period set forth in the applicable agreement, the Trustee shall
notify the Depositor of such failure to correct or cure. Unless otherwise
directed by the Depositor within five (5) Business Days after notifying the
Depositor of such failure by the applicable party to correct or cure, the
Trustee shall notify such party to repurchase the Mortgage Loan. If, within
ten (10) Business Days of receipt of such notice by such party, such party
fails to repurchase such Mortgage Loan, the Trustee shall notify the Depositor
of such failure. The Trustee shall pursue all legal remedies available to the
Trustee against the Servicers, the Responsible Parties and the Purchaser, as
applicable, under this Agreement, if the Trustee has received written notice
from the Depositor directing the Trustee to pursue such remedies.
Section 2.03 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, the Securities Administrator
has executed and delivered to or upon the order of the Depositor, the
Certificates in authorized denominations evidencing directly or indirectly the
49
entire ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund
and exercise the rights referred to above for the benefit of all present and
future Holders of the Certificates.
Section 2.04 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
The "Startup Day" for purposes of the REMIC Provisions shall be the Closing
Date. The "latest possible maturity date" is October 25, 2035, which is the
Distribution Date following the latest Mortgage Loan maturity date. Amounts
paid to the Class X Certificates (prior to any reduction for any Basis Risk
Payment or Swap Termination Payment) shall be deemed paid from the Upper-Tier
REMIC in respect of the Class X Interest to the holders of the Class X
Certificates prior to distribution of Basis Risk Payments to the Principal
Certificates.
Amounts distributable to the Class X Certificates (prior to any
reduction for any Swap Receipt Amounts, Swap Payment Amounts or Swap
Termination Payment), shall be deemed paid from the Master REMIC to the
Holders of the Class X Certificates prior to distribution of any Basis Risk
Payments to the Principal Certificates.
For federal income tax purposes, any amount distributed on the
Principal Certificates on any such Distribution Date in excess of their Pass
Through Rate, calculated by substituting the REMIC Cap for the WAC Cap shall
be treated as having been paid from the Excess Reserve Fund Account or the
Supplemental Interest Trust, as applicable, and any excess of the REMIC Cap
over the amount distributable on such Class of Principal Certificates on such
Distribution Date shall be treated as having been paid to the Supplemental
Interest Trust, all pursuant to, and as further provided in, Section 8.14.
Section 2.05 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Trustee that as of
the date of this Agreement or as of such date specifically provided herein:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to convey
the Mortgage Loans and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite corporate action having been
taken, and, assuming the due authorization, execution and delivery hereof by
the other parties hereto, constitutes or will constitute the legal, valid and
binding agreement of the Depositor, enforceable against the Depositor in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(d) No consent, approval, authorization or order of or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the
50
Depositor of any of the transactions contemplated hereby, except as have been
made on or prior to the Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of,
or constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of trust,
contract or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound;
(ii) results or will result in a violation of any law, rule, regulation,
order, judgment or decree applicable to the Depositor of any court or
governmental authority having jurisdiction over the Depositor or its
subsidiaries; or (iii) results in the creation or imposition of any lien,
charge or encumbrance which would have a material adverse effect upon the
Mortgage Loans or any documents or instruments evidencing or securing the
Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the
Depositor, threatened, before any court, administrative agency or other
tribunal, and no notice of any such action, which, in the Depositor's
reasonable judgment, might materially and adversely affect the performance by
the Depositor of its obligations under this Agreement, or the validity or
enforceability of this Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any
other Person, and the Depositor has transferred all right, title and interest
in each Mortgage Loan to the Trustee. The transfer of each Mortgage Note and
each Mortgage as and in the manner contemplated by this Agreement is
sufficient either (i) fully to transfer to the Trustee, for the benefit of the
Certificateholders, all right, title, and interest of the Depositor thereto as
note holder and mortgagee or (ii) to grant to the Trustee, for the benefit of
the Certificateholders, the security interest referred to in Section 12.04
hereof.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.05 shall survive delivery of the
respective Custodial Files to the Custodians, and shall inure to the benefit
and to Certificateholders.
Section 2.06 Representations and Warranties of JPMorgan. JPMorgan
hereby represents and warrants to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date:
(a) Such Custodian is duly organized and is validly existing and in
good standing under the laws of its jurisdiction of incorporation and is duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by such Custodian
51
or is otherwise not required under applicable law to effect such qualification
and, in any event, is in compliance with the doing business laws of any such
state, to the extent necessary to perform any of its obligations under this
Agreement in accordance with the terms thereof.
(b) Such Custodian has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary action
on the part of such Custodian the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of such Custodian, enforceable against such Custodian in
accordance with its terms, except that (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) The execution and delivery of this Agreement by such Custodian,
the consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms thereof are in
the ordinary course of business of such Custodian and will not result in a
material breach of any term or provision of the articles of incorporation or
by laws of such Custodian.
Section 2.07 Representations and Warranties of Deutsche Bank.
Deutsche Bank hereby represents and warrants to the Depositor, the Master
Servicer and the Trustee, as of the Closing Date:
(a) Such Custodian is duly organized and is validly existing and in
good standing under the laws of its jurisdiction of incorporation and is duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by such Custodian or is otherwise not required under
applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such state, to the extent
necessary to perform any of its obligations under this Agreement in accordance
with the terms thereof.
(b) Such Custodian has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary action
on the part of such Custodian the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of such Custodian, enforceable against such Custodian in
accordance with its terms, except that (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) The execution and delivery of this Agreement by such Custodian,
the consummation of any other of the transactions contemplated by this
Agreement, and the
52
fulfillment of or compliance with the terms thereof are in the ordinary course
of business of such Custodian and will not result in a material breach of any
term or provision of the articles of incorporation or by laws of such
Custodian.
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Excess Reserve Fund Account; Distribution Account. (a)
The Securities Administrator shall establish and maintain the Excess Reserve
Fund Account to receive any Basis Risk Payment and to secure their limited
recourse obligation to pay to the Principal Certificateholders any Basis Risk
Carry Forward Amounts (prior to using any Swap Receipt Amounts). On each
Distribution Date, the Securities Administrator shall deposit the amount of
any Basis Risk Payment received by it for such date into the Excess Reserve
Fund Account. For the avoidance of doubt, any Basis Risk Carry Forward Amounts
shall be paid to the LIBOR Certificates first from the Excess Reserve Fund
Account and then from the Supplemental Interest Trust.
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class or Classes of Principal Certificates, the
Securities Administrator shall (1) withdraw from the Distribution Account, to
the extent of funds available therefor in the Distribution Account, and
deposit in the Excess Reserve Fund Account, as set forth in Section
4.01(a)(iii)(I), the lesser of (x) the Class X Distributable Amount (without
regard to the reduction in clause (iii) of the definition thereof with respect
to Basis Risk Payments) (to the extent remaining after the distributions
specified in Sections 4.01(a)(iii)(A)-(H)) and (y) the aggregate Basis Risk
Carry Forward Amounts of the Principal Certificates for such Distribution Date
and (2) withdraw from the Excess Reserve Fund Account and the Supplemental
Interest Account amounts necessary (including Swap Payment Amounts or Swap
Termination Payments (other than amounts received pursuant to an ISDA Credit
Support Annex negotiated between the Trust and the Swap Provider)) to pay to
such Class or Classes of Certificates the related Basis Risk Carry Forward
Amount. Such payments shall be allocated to those Classes based upon the
amount of Basis Risk Carry Forward Amount owed to each such Class and shall be
paid in the priority set forth in Sections 4.01(a)(iii)(J).
The Securities Administrator shall account for the Excess Reserve
Fund Account as an asset of a grantor trust under subpart E, Part I of
subchapter J of the Code and not as an asset of any REMIC created pursuant to
this Agreement. The beneficial owners of the Excess Reserve Fund Account are
the Class X Certificateholders. For all federal income tax purposes, amounts
transferred by the Upper-Tier REMIC to the Excess Reserve Fund Account shall
be treated as distributions by the Securities Administrator to the Class X
Certificateholders in respect of the Class X Interest and then contributed by
the Class X Certificateholders to the Excess Reserve Fund Account.
Any Basis Risk Carry Forward Amounts distributed by the Securities
Administrator to the Principal Certificateholders shall be accounted for by
the Securities Administrator, for federal income tax purposes, as amounts paid
first to the Holders of the Class X Certificates (in respect of the Class X
Interest) and then to the respective Class or Classes of
53
Principal Certificates. In addition, the Securities Administrator shall
account for the Principal Certificateholders' rights to receive payments of
Basis Risk Carry Forward Amounts as rights in a limited recourse interest rate
cap contract written by the Class X Certificateholders in favor of the Holders
of each such Class.
Notwithstanding any provision contained in this Agreement, the
Securities Administrator shall not be required to make any distributions from
the Excess Reserve Fund Account except as expressly set forth in this Section
3.01(a).
(b) The Master Servicer shall establish and maintain the
Distribution Account on behalf of the Certificateholders. The Master Servicer
shall, promptly upon receipt on the Business Day received, deposit in the
Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Servicers to the Master
Servicer pursuant to the Servicing Agreements;
(ii) Any Swap Receipt Amounts or Swap Termination Payments (other
than amounts received pursuant to an ISDA Credit Support Annex negotiated
between the Trust and the Swap Provider) remitted by the Swap Provider;
and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that any Servicer shall remit any amount not required
to be remitted pursuant to the applicable Servicing Agreement, and such
Servicer directs the Master Servicer in writing to withdraw such amount from
the Distribution Account, the Master Servicer shall return such funds to the
applicable Servicer. All funds deposited in the Distribution Account shall be
held by the Securities Administrator in trust for the Certificateholders until
disbursed in accordance with this Agreement or withdrawn in accordance with
Section 4.01.
(c) From time to time, the Securities Administrator may also
establish any other accounts for the purposes of carrying out its duties
hereunder (including, without limitations, any account necessary under the
Interest Rate Swap Agreement).
Section 3.02 Investment of Funds in the Distribution Account. (a)
The Securities Administrator may (but shall not be obligated to) invest funds
in the Distribution Account during the Securities Administrator Float Period
(for purposes of this Section 3.02, such Account is referred to as an
"Investment Account"), in one or more Permitted Investments bearing interest
or sold at a discount, and maturing, unless payable on demand, or maturing on
such Distribution Date, in the case of an investment that is an obligation of
▇▇▇▇▇ Fargo Bank, N.A., no later than the Business Day immediately preceding
the date on which such funds are required to be withdrawn from such account
pursuant to this Agreement. All such Permitted Investments shall be held to
maturity, unless payable on demand. Any investment of funds in an Investment
Account shall be made in the name of the Securities Administrator. The
Securities Administrator shall be entitled to sole possession over each such
investment, and any certificate or other instrument evidencing any such
investment shall be delivered directly to the Securities Administrator or its
agent, together with any document of transfer necessary to transfer title to
such investment to the Securities Administrator. In the event amounts on
deposit in an
54
Investment Account are at any time invested in a Permitted Investment payable
on demand, the Securities Administrator may:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the
last day such Permitted Investment may otherwise mature
hereunder in an amount equal to the lesser of (1) all
amounts then payable thereunder and (2) the amount
required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in
the Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Securities Administrator
during the Securities Administrator Float Period shall be subject to the
Securities Administrator's withdrawal in the manner set forth in Section
10.05.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment,
or if a default occurs in any other performance required under any Permitted
Investment, the Securities Administrator shall take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings. Notwithstanding the foregoing, the
Securities Administrator shall be liable to the Trust for any such loss on any
funds it has invested under this Section 3.02 only during the Securities
Administrator Float Period, and the Securities Administrator shall deposit
funds in the amount of such loss in the Distribution Account promptly after
such loss is incurred.
(d) The Securities Administrator or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the Securities
Administrator's economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to
effect transactions in certain Permitted Investments and (iii) effecting
transactions in certain Permitted Investments. Such compensation is not
payable or reimbursable under Section 8.06 of this Agreement.
(e) In order to comply with its duties under the USA Patriot Act of
2001, the Trustee and the Custodians shall obtain and verify certain
information and documentation from the other parties to this Agreement
including, but not limited to, each such party's name, address and other
identifying information.
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution. (a) On each Distribution
Date, the Securities Administrator shall make the disbursements and transfers
from amounts then on
55
deposit in the Distribution Account in the following order of priority and to
the extent of the Available Funds remaining:
(i) to the holders of each class of Principal Certificates and to
the Supplemental Interest Trust in the following order of priority:
(A) to the Supplemental Interest Trust, the sum of (x) all Swap
Payment Amounts and (y) any Swap Termination Payment owed to the
Swap Provider other than a Defaulted Swap Termination Payment owed
to the Swap Provider, if any;
(B) concurrently,
(1) from the Interest Remittance Amount related to the
Group I Mortgage Loans, to the Class 1A1 and Class 1A2
Certificates, the related Accrued Certificate Interest
Distribution Amounts and Unpaid Interest Amounts for the Class
1A1 and Class 1A2 Certificates, allocated in accordance with
clauses (iv), (v) and (vi) of this Section 4.01(a);
(2) from the Interest Remittance Amount related to the
Group II Mortgage Loans, to the Class 2A1 and Class 2A2
Certificates, the related Accrued Certificate Interest
Distribution Amounts and Unpaid Interest Amounts for the Class
2A1 and Class 2A2 Certificates, allocated in accordance with
clauses (iv), (v) and (vi) of this Section 4.01(a); and
(3) from the Interest Remittance Amount related to the
Group III Mortgage Loans, to the Class 3A1, Class 3A2, Class
3A3, Class 3A4 and Class 3A5 Certificates, the related Accrued
Certificate Interest Distribution Amounts and Unpaid Interest
Amounts for the Class 3A1, Class 3A2, Class 3A3, Class 3A4 and
Class 3A5 Certificates, allocated in accordance with clauses
(iv), (v) and (vi) of this Section 4.01(a);
provided, that if the Interest Remittance Amount for any Loan
Group is insufficient to make the related payments set forth in
clause (1), (2) or (3) above, any Interest Remittance Amount
relating to the other Loan Groups remaining after making the
related payments set forth in clause (1), (2) or (3) above will
be available to cover that shortfall;
(C) from any remaining Interest Remittance Amounts to the Class
M-1 Certificates, the Accrued Certificate Interest for that Class;
(D) from any remaining Interest Remittance Amounts to the Class
M-2 Certificates, the Accrued Certificate Interest for that Class;
(E) from any remaining Interest Remittance Amounts to the Class
M-3 Certificates, the Accrued Certificate Interest for that Class;
56
(F) from any remaining Interest Remittance Amounts to the Class
M-4 Certificates, the Accrued Certificate Interest for that Class;
(G) from any remaining Interest Remittance Amounts to the Class
B-1 Certificates, the Accrued Certificate Interest for that Class;
(H) from any remaining Interest Remittance Amounts to the Class
B-2 Certificates, the Accrued Certificate Interest for that Class;
(I) from any remaining Interest Remittance Amounts to the Class
B-3 Certificates, the Accrued Certificate Interest for that Class;
(J) from any remaining Interest Remittance Amounts to the Class
B-4 Certificates, the Accrued Certificate Interest for that Class.
(ii) (A) on each Distribution Date (x) prior to the Stepdown Date or
(y) with respect to which a Trigger Event is in effect, to the holders of
the Class or Classes of Principal Certificates and Residual Certificates
then entitled to distributions of principal, from Available Funds
remaining after making distributions pursuant to clause (i) above, an
amount equal to the Principal Distribution Amount in the following order
of priority:
(1) concurrently, to the Class R-1 and R-2 Certificates,
pro rata, from payments related to the Group III Mortgage
Loans, until their respective Class Certificate Balances have
been reduced to zero;
(2) to the Class A Certificates, allocated as described in
Section 4.01(d), until their respective Class Certificate
Balances have been reduced to zero; and
(3) sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3,
Class M-4, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates, in that order, until their respective Class
Certificate Balances have been reduced to zero;
(B) on each Distribution Date (x) on and after the Stepdown
Date and (y) as long as a Trigger Event is not in effect, to the
holders of the Class or Classes of Principal Certificates then
entitled to distribution of principal from Available Funds remaining
after making distributions pursuant to clause (i) above, an amount
equal to the Principal Distribution Amount in the following order of
priority:
(1) to the Class A Certificates, the lesser of (x) the
Principal Distribution Amount and (y) the Class A Principal
Distribution Amount, allocated as described in Section 4.01(d),
until their respective Class Certificate Balances have been
reduced to zero;
(2) to the Class M-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to
57
the Class A Certificates in clause (ii)(B)(1) above and (y) the
Class M-1 Principal Distribution Amount, until their Class
Certificate Balance has been reduced to zero;
(3) to the Class M-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(1) above and to the Class M-1 Certificates in clause
(ii)(B)(2) above and (y) the Class M-2 Principal Distribution
Amount, until their Class Certificate Balance has been reduced
to zero;
(4) to the Class M-3 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(1) above, to the Class M-1 Certificates in clause
(ii)(B)(2) above and to the Class M-2 Certificates in clause
(ii)(B)(3) above and (y) the Class M-3 Principal Distribution
Amount, until their Class Certificate Balance has been reduced
to zero;
(5) to the Class M-4 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(1) above, to the Class M-1 Certificates in clause
(ii)(B)(2) above, to the Class M-2 Certificates in clause
(ii)(B)(3) above and to the Class M-3 Certificates in clause
(ii)(B)(4) above and (y) the Class M-4 Principal Distribution
Amount, until their Class Certificate Balance has been reduced
to zero;
(6) to the Class B-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(1) above, to the Class M-1 Certificates in clause
(ii)(B)(2) above, to the Class M-2 Certificates in clause
(ii)(B)(3) above, to the Class M-3 Certificates in clause
(ii)(B)(4) above, to the Class M-4 Certificates in clause
(ii)(B)(5) above, and (y) the Class B-1 Principal Distribution
Amount, until their Class Certificate Balance has been reduced
to zero;
(7) to the Class B-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(1) above, to the Class M-1 Certificates in clause
(ii)(B)(2) above, to the Class M-2 Certificates in clause
(ii)(B)(3) above, to the Class M-3 Certificates in clause
(ii)(B)(4) above, to the Class M-4 Certificates in clause
(ii)(B)(5) above, and to the Class B-1 Certificates in clause
(ii)(B)(6) above and (y) the Class B-2 Principal Distribution
Amount, until their Class Certificate Balance has been reduced
to zero;
(8) to the Class B-3 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to
58
the Class A Certificates in clause (ii)(B)(1) above, to the
Class M-1 Certificates in clause (ii)(B)(2) above, to the Class
M-2 Certificates in clause (ii)(B)(3) above, to the Class M-3
Certificates in clause (ii)(B)(4) above, to the Class M-4
Certificates in clause (ii)(B)(5) above, to the Class B-1
Certificates in clause (ii)(B)(6) above and to the Class B-2
Certificates in clause (ii)(B)(7) above and (y) the Class B-3
Principal Distribution Amount, until their Class Certificate
Balance has been reduced to zero; and
(9) to the Class B-4 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(1) above, to the Class M-1 Certificates in clause
(ii)(B)(2) above, to the Class M-2 Certificates in clause
(ii)(B)(3) above, to the Class M-3 Certificates in clause
(ii)(B)(4) above, to the Class M-4 Certificates in clause
(ii)(B)(5) above, to the Class B-1 Certificates in clause
(ii)(B)(6) above, to the Class B-2 Certificates in clause
(ii)(B)(7) above and to the Class B-3 Certificates in clause
(ii)(B)(8) above and (y) the Class B-4 Principal Distribution
Amount, until their Class Certificate Balance has been reduced
to zero;
(iii) any amount remaining after the distributions in clauses (i)
and (ii) above shall be distributed in the following order of priority:
(A) to the holders of the Class M-1 Certificates, any Unpaid
Interest Amount for that Class;
(B) to the holders of the Class M-2 Certificates, any Unpaid
Interest Amount for that Class;
(C) to the holders of the Class M-3 Certificates, any Unpaid
Interest Amount for that Class;
(D) to the holders of the Class M-4 Certificates, any Unpaid
Interest Amount for that Class;
(E) to the holders of the Class B-1 Certificates, any Unpaid
Interest Amount for that Class;
(F) to the holders of the Class B-2 Certificates, any Unpaid
Interest Amount for that Class;
(G) to the holders of the Class B-3 Certificates, any Unpaid
Interest Amount for that Class;
(H) to the holders of the Class B-4 Certificates, any Unpaid
Interest Amount for that Class;
59
(I) to the Excess Reserve Fund Account, the amount of any Basis
Risk Payment (without regard to Swap Receipt Amounts) for such
Distribution Date;
(J) from funds on deposit in the Excess Reserve Fund Account
with respect to that Distribution Date, an amount equal to any Basis
Risk Carry Forward Amount with respect to the Principal Certificates
for that Distribution Date in the same order and priority in which
Accrued Certificate Interest is allocated among those Classes of
Certificates, with the allocation to the Class A Certificates being
pro rata based on their respective Basis Risk Carry Forward Amounts;
(K) to the Supplemental Interest Trust, the amount of any
Defaulted Swap Termination Payment owed to the Swap Provider;
(L) to the holders of the Class X Certificates, the remainder
of the Class X Distributable Amount not distributed pursuant to
Sections 4.01(a)(iii)(A)-(K); and
(M) to the holders of the Class R-1 and Class R-2 Certificates,
pro rata, any remaining amount.
(iv) Solely for purposes of interest allocation calculations, the
portion of the interest component attributable to the Group I Mortgage
Loans will be allocated:
(A) first, pro rata (based on the accrued and unpaid interest
distributable pursuant to Section 4.01(a)(i)(B)(1), to the Class 1A1
and Class 1A2 Certificates, the Accrued Certificate Interest
Distribution Amount and any Unpaid Interest Amount for each such
Class; and
(B) second, pro rata (based on the accrued and unpaid interest
distributable pursuant to Section 4.01(a)(i)(B)(2), to the Class 2A1
and Class 2A2 Certificates, the Accrued Certificate Interest
Distribution Amount and any Unpaid Interest Amount for each such
Class, to the extent not otherwise previously paid from the Interest
Remittance Amount attributable to the Group II Mortgage Loans.
(C) third, pro rata (based on the accrued and unpaid interest
distributable pursuant to Section 4.01(a)(i)(B)(3), to the Class
3A1, Class 3A2, Class 3A3, Class 3A4 and Class 3A5 Certificates, the
Accrued Certificate Interest Distribution Amount and any Unpaid
Interest Amount for each such Class, to the extent not otherwise
previously paid from the Interest Remittance Amount attributable to
the Group III Mortgage Loans.
(v) Solely for purposes of interest allocation calculations, the portion
of the interest component attributable to the Group II Mortgage Loans
will be allocated:
(A) first, pro rata (based on the accrued and unpaid interest
distributable pursuant to Section 4.01(a)(i)(B)(2), to the Class 2A1
and Class 2A2
60
Certificates, the Accrued Certificate Interest Distribution Amount
and any Unpaid Interest Amount for each such Class; and
(B) second, pro rata (based on the accrued and unpaid interest
distributable pursuant to Section 4.01(a)(i)(B)(1), to the Class 1A1
and Class 1A2 Certificates, the Accrued Certificate Interest
Distribution Amount and any Unpaid Interest Amount for each such
Class, to the extent not otherwise previously paid from the Interest
Remittance Amount attributable to the Group I Mortgage Loans.
(C) third, pro rata (based on the accrued and unpaid interest
distributable pursuant to Section 4.01(a)(i)(B)(3), to the Class
3A1, Class 3A2, Class 3A3, Class 3A4 and Class 3A5 Certificates, the
Accrued Certificate Interest Distribution Amount and any Unpaid
Interest Amount for each such Class, to the extent not otherwise
previously paid from the Interest Remittance Amount attributable to
the Group III Mortgage Loans.
(vi) Solely for purposes of interest allocation calculations, the
portion of the interest component attributable to the Group III Mortgage
Loans will be allocated:
(A) first, pro rata (based on the accrued and unpaid interest
distributable pursuant to Section 4.01(a)(i)(B)(3), Class 3A1, Class
3A2, Class 3A3, Class 3A4 and Class 3A5 Certificates, the Accrued
Certificate Interest Distribution Amount and any Unpaid Interest
Amount for each such Class;
(B) second, pro rata (based on the accrued and unpaid interest
distributable pursuant to Section 4.01(a)(i)(B)(1), to the Class 1A1
and Class 1A2 Certificates, the Accrued Certificate Interest
Distribution Amount and any Unpaid Interest Amount for each such
Class, to the extent not otherwise previously paid from the Interest
Remittance Amount attributable to the Group I Mortgage Loans.
(C) third, pro rata (based on the accrued and unpaid interest
distributable pursuant to Section 4.01(a)(i)(B)(2), to the Class 2A1
and Class 2A2 Certificates, the Accrued Certificate Interest
Distribution Amount and any Unpaid Interest Amount for each such
Class, to the extent not otherwise previously paid from the Interest
Remittance Amount attributable to the Group II Mortgage Loans. If on
any Distribution Date, as a result of the foregoing allocation
rules, any Class of Class A Certificates does not receive the
related Accrued Certificate Interest Distribution Amount or the
related Unpaid Interest Amount, if any, then that unpaid amount will
be recoverable by the holders of those Classes, with interest
thereon, on future Distribution Dates, as an Unpaid Interest Amount,
subject to the priorities described above. In the event the Class
Certificate Balance of any Class of Principal Certificates has been
reduced to zero, that Class of Certificates shall no longer be
entitled to receive any related unpaid Basis Risk Carry Forward
Amounts except to the extent the Class Certificate Balance is
increased as a result of any Subsequent Recovery.
61
(b) On each Distribution Date, all amounts representing Prepayment
Premiums from the Mortgage Loans received during the related Principal
Prepayment Period shall be distributed by the Securities Administrator to the
holders of the Class P Certificates.
(c) Upon any exercise of the purchase option set forth in Section
11.01(a), the Securities Administrator shall distribute to the holders of the
Class C Certificates any amounts required to be distributed on the Class C
Certificates pursuant to Section 11.02.
(d) All principal distributions to the Holders of the Class A
Certificates on any Distribution Date shall be allocated between the Class 1A
Certificates, the Class 2A Certificates and the Class 3A Certificates based on
the Class A Principal Allocation Percentage for the Class 1A Certificates, the
Class 2A Certificates or the Class 3A Certificates, as applicable; provided,
however, that if the aggregate Class Certificate Principal Balance of any
Class A Certificate Group is reduced to zero, then the remaining amount of
principal distributions distributable to the Class A Certificate on such
Distribution Date, and the amount of such principal distributions
distributable on all subsequent Distribution Dates, shall be distributed to
the Class A Certificates remaining outstanding in accordance with the
principal distribution allocations set forth in this Section 4.01(d), until
their respective Class Certificate Balances have been reduced to zero. Any
payments of principal to the Class 1A Certificates shall be made first from
Available Funds relating to the Group I Mortgage Loans, any payments of
principal to the Class 2A Certificates shall be made first from Available
Funds relating to the Group II Mortgage Loans and any payments of principal to
the Class 3A Certificates shall be made first from Available Funds relating to
the Group III Mortgage Loans.
Any principal distributions allocated to the Class 1A Certificates
shall be distributed pro rata between the Class 1A1 and Class 1A2
Certificates, based on their respective Class Certificate Balances, until
their respective Class Certificate Balances have been reduced to zero.
However, so long as a Group I Sequential Trigger Event is in effect, principal
distributions to the Class 1A Certificates shall be allocated sequentially, to
the Class 1A1 and Class 1A2 Certificates, in that order, until their
respective Class Certificate Balances have been reduced to zero.
Any principal distributions allocated to the Class 2A Certificates
shall be distributed pro rata between the Class 2A1 and Class 2A2
Certificates, based on their respective Class Certificate Balances, until
their respective Class Certificate Balances have been reduced to zero.
However, so long as a Group II Sequential Trigger Event is in effect,
principal distributions to the Class 2A Certificates shall be allocated
sequentially, to the Class 2A1 and Class 2A2 Certificates, in that order,
until their respective Class Certificate Balances have been reduced to zero.
Any principal distributions allocated to the Class 3A Certificates
shall be distributed pro rata between clauses (i) and (ii) below,
(i) to the Class 3A1 and 3A2 Certificates, allocated pro rata, until
their respective Class Certificate Balances have been reduced to zero.
However, so long as a Group III Sequential Trigger Event is in effect,
principal distributions to the Class 3A1 and 3A2 Certificates shall be
62
allocated sequentially, to the Class 3A1 and Class 3A2 Certificates, in that
order, until their respective Class Certificate Balances have been reduced to
zero; and
(ii) sequentially, the Class 3A3, Class 3A4 and Class 3A5
Certificates, in that order, until their respective Class Certificate Balances
have been reduced to zero.
(e) Notwithstanding the allocation of principal to the Class A
Certificates described in the immediately preceding clause (d), from and after
the Distribution Date on which the aggregate Class Certificate Balance of the
Subordinated Certificates and the principal balance of the Class X
Certificates have been reduced to zero, any principal distributions allocated
to the Class A Certificates shall be allocated pro rata to the Class 1
Certificates, based on their respective Class Certificate Balances, except
that (x) so long as a Group I Sequential Trigger Event is in effect, principal
distributions to the Class 1A Certificates shall be allocated sequentially, to
the Class 1A1 and Class 1A2 Certificates, in that order, until their
respective Class Certificate Balances have been reduced to zero, (y) so long
as a Group II Sequential Trigger Event is in effect, principal distributions
to the Class 2A Certificates shall be allocated sequentially, to the Class 2A1
and Class 2A2 Certificates, in that order, until their respective Class
Certificate Balances have been reduced to zero; and (iii) so long as a Group
III Sequential Trigger Event is in effect, principal distributions to the
Class 3A1 and Class 3A2 Certificates shall be allocated sequentially, to the
Class 3A1 and Class 3A2 Certificates, in that order, until their respective
Class Certificate Balances have been reduced to zero and sequentially, the
Class 3A3, Class 3A4 and Class 3A5 Certificates, in that order, until their
respective Class Certificate Balances have been reduced to zero.
(f) On any Distribution Date, any Relief Act Interest Shortfalls and
Net Prepayment Interest Shortfalls for such Distribution Date shall be
allocated pro rata, as a reduction of the Accrued Certificate Interest
Distribution Amount for the Class A, Class M and Class B Certificates, based
on the Accrued Certificate Interest Distribution Amount to which such Classes
would otherwise be entitled on such Distribution Date.
(g) On each Distribution Date, all amounts representing Prepayment
Premiums from the Mortgage Loans received during the related Principal
Prepayment Period shall be distributed by the Securities Administrator to the
holders of the Class P Certificates.
(h) Upon any exercise of the purchase option set forth in Section
11.01(a), the Securities Administrator shall distribute to the holders of the
Class C Certificates any amounts required to be distributed on the Class C
Certificates pursuant to Section 11.02.
Section 4.02 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Securities Administrator shall make available
to each Certificateholder, the Depositor, the Trustee and each Rating Agency a
statement based upon the information provided by the Servicers setting forth
with respect to the related distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds included
therein;
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(ii) the amount thereof allocable to interest, any Unpaid Interest
Amount included in such distribution and any remaining Unpaid Interest
Amount after giving effect to such distribution, any Basis Risk Carry
Forward Amount for such Distribution Date and the amount of all Basis
Risk Carry Forward Amount covered by withdrawals from the Excess Reserve
Fund Account and the Supplemental Interest Trust on such Distribution
Date;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the
amount of the shortfall and the allocation thereof as between principal
and interest, including any Basis Risk Carry Forward Amount not covered
by amounts in the Excess Reserve Fund Account and the Supplemental
Interest Trust;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) the Pool Stated Principal Balance for the following Distribution
Date;
(vi) the amount of the Servicing Fees paid to or retained by the
Servicers with respect to such Distribution Date;
(vii) the amount of any Administrative Fees paid to the Master
Servicer or Securities Administrator with respect to such Distribution
Date;
(viii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(ix) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances reported by the
Servicers as outstanding as of the close of business on the Determination
Date immediately preceding such Distribution Date;
(x) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the Monthly Payment is delinquent 31 to 60
days, 61 to 90 days and 91 or more days, (2) that have become REO
Property, (3) that are in foreclosure and (4) that are in bankruptcy, in
each case as of the close of business on the last Business Day of the
immediately preceding month;
(xi) for each of the preceding 12 calendar months, or all calendar
months since the related Cut-off Date, whichever is less, the aggregate
dollar amount of the Monthly Payments (A) due on all Outstanding Mortgage
Loans on each of the Due Dates in each such month and (B) delinquent 60
days or more on each of the Due Dates in each such month;
(xii) with respect to each Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the last
Business Day of the immediately preceding month prior to such
Distribution Date and the date of acquisition thereof;
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(xiii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the last
Business Day of the immediately preceding month prior to such
Distribution Date;
(xiv) whether a Trigger Event has occurred and is continuing
(including the calculation of thereof and the aggregate outstanding
balance of all 60+ Day Delinquent Mortgage Loans);
(xv) the amount on deposit in the Excess Reserve Fund Account (after
giving effect to distributions on such Distribution Date);
(xvi) the aggregate amount of Applied Realized Loss Amounts incurred
during the preceding calendar month and aggregate Applied Realized Loss
Amounts through such Distribution Date;
(xvii) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the Certificateholders
with respect to Unpaid Interest Amounts;
(xviii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xix) the Prepayment Premiums collected by the Servicers;
(xx) the amount distributed on the Class X, Class P and Class R
Certificates; and
(xxi) the amount of any Subsequent Recoveries for such Distribution
Date.
(b) The Securities Administrator's responsibility for providing the
above statement to the Certificateholders, each Rating Agency, the Trustee and
the Depositor is limited to the availability, timeliness and accuracy of the
information derived from the Master Servicer, the Servicers and the
Responsible Parties. The Securities Administrator shall provide the above
statement via the Securities Administrator's internet website. Assistance in
using the website can be obtained by calling the Securities Administrator's
investor relations desk at ▇-▇▇▇-▇▇▇-▇▇▇▇. The Securities Administrator will
also make a paper copy of the above statement available upon request.
(c) Upon request, within a reasonable period of time after the end
of each calendar year, the Securities Administrator shall cause to be
furnished to each Person who at any time during the calendar year was a
Certificateholder, a statement containing the information set forth in clauses
(a)(i), (a)(ii), (a)(iii) and (a)(vii) of this Section 4.02 aggregated for
such calendar year or applicable portion thereof during which such Person was
a Certificateholder. Such obligation of the Securities Administrator shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Securities Administrator pursuant to any
requirements of the Code as from time to time in effect.
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The Securities Administrator shall be entitled to rely on
information provided by third parties for purposes of preparing the foregoing
report, but shall not be responsible for the accuracy of such information.
Section 4.03 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts will be allocated to the most junior Class of
Subordinated Certificates then outstanding in reduction of the Class
Certificate Balance thereof. In the event, Applied Realized Loss Amounts are
allocated to any Class of Certificates, their Class Certificate Balance shall
be reduced by the amount so allocated and no funds shall be distributed with
respect to the written down amounts or with respect to interest or Basis Risk
Carry Forward Amounts on the written down amounts on that Distribution Date or
any future Distribution Dates, even if funds are otherwise available therefor.
Notwithstanding the foregoing, the Class Certificate Balance of each
Class of Subordinated Certificates that has been previously reduced by Applied
Realized Loss Amounts will be increased, in that order or seniority, by the
amount of the Subsequent Recoveries (but not in excess of the Applied Realized
Loss Amount allocated to the applicable Class of Subordinated Certificates).
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Securities Administrator in accordance with
the definition of "LIBOR." Until all of the LIBOR Certificates are paid in
full, the Securities Administrator will at all times retain at least four
Reference Banks for the purpose of determining LIBOR with respect to each
LIBOR Determination Date. The Securities Administrator initially shall
designate the Reference Banks (after consultation with the Depositor). Each
"Reference Bank" shall be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, shall not control, be
controlled by, or be under common control with, the Securities Administrator
and shall have an established place of business in London. If any such
Reference Bank should be unwilling or unable to act as such or if the
Securities Administrator should terminate its appointment as Reference Bank,
the Securities Administrator shall promptly appoint or cause to be appointed
another Reference Bank (after consultation with the Depositor). The Securities
Administrator shall have no liability or responsibility to any Person for (i)
the selection of any Reference Bank for purposes of determining LIBOR or (ii)
any inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Securities Administrator on
each LIBOR Determination Date so long as the LIBOR Certificates are
outstanding on the basis of LIBOR and the respective formulae appearing in
footnotes corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement. The Securities Administrator shall
not have any liability or responsibility to any Person for its inability,
following a good faith reasonable effort, to obtain quotations from the
Reference Banks or to determine the arithmetic mean referred to in the
definition of LIBOR, all as provided for in this Section 4.04 and the
definition of LIBOR. The establishment of LIBOR and each Pass-Through Rate for
the LIBOR Certificates by the Securities Administrator shall (in the absence
of manifest error) be final, conclusive and binding upon each Holder of a
Certificate and the Trustee.
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Section 4.05 Supplemental Interest Trust. On the Closing Date, the
Securities Administrator on behalf of the Trustee shall establish and maintain
a separate non-interest bearing trust (the "Supplemental Interest Trust") to
which the Trustee will transfer and assign the Interest Rate Swap Agreement.
The Supplemental Interest Trust shall be an Eligible Account, and funds on
deposit therein shall be held separate and apart from, and shall not be
commingled with, any other moneys, including, without limitation, other moneys
of the Trustee held pursuant to this Agreement.
On any Distribution Date, Swap Termination Payments, Swap Payment
Amounts owed to the Swap Provider and Swap Receipt Amounts for that
Distribution Date will be deposited into the Supplemental Interest Trust.
Funds in the Supplemental Interest Trust will be distributed in the following
order of priority:
(i) to the Swap Provider, the sum of (x) all Swap Payment Amounts
and (y) any Swap Termination Payment, other than a Defaulted Swap
Termination Payment, to the Swap Provider, if any, owed for that
Distribution Date;
(ii) to the Certificateholders, to pay Accrued Certificate Interest
and, if applicable, any Unpaid Interest Amounts as described in clause
(i) of "--Priorities of Distributions" above, to the extent unpaid from
other Available Funds;
(iii) to the Certificateholders, to pay principal as described in
clause (ii)(A) and clause (ii)(B) of "--Priorities of Distributions"
above, but only to the extent necessary to maintain the
Overcollateralized Amount at the Specified Overcollateralized Amount,
after giving effect to payments and distributions from other Available
Funds;
(iv) to the Certificateholders, to pay Unpaid Interest Amounts and
Basis Risk Carry Forward Amounts as described in clause (iii) of
"--Priorities of Distributions" above, to the extent unpaid from other
Available Funds (including funds on deposit in the Excess Reserve Fund
Account);
(v) to the Swap Provider, any Defaulted Swap Termination Payment
owed to the Swap Provider for that Distribution Date; and
(F) to the holders of the Class X Certificates, any remaining
amounts.
Upon termination of the Trust, any amounts remaining in the
Supplemental Interest Trust shall be distributed pursuant to the priorities
set forth in this Section 4.05.
The Securities Administrator shall account for the Supplemental
Interest Trust as an asset of a grantor trust under subpart E, Part I of
subchapter J of the Code and not as an asset of any Trust REMIC created
pursuant to this Agreement. The beneficial owners of the Supplemental Interest
Trust are the Class X Certificateholders. For federal income tax purposes,
Swap Payment Amounts and Swap Termination Payments payable to the Swap
Provider shall be deemed to be paid to the Supplemental Interest Trust first,
from the Upper-Tier REMIC, by the Holder of the Class X Certificates and
second, other than any Defaulted Swap Termination Payment, from the Upper-Tier
REMIC by the Holders of the applicable Class or Classes of Principal
Certificates as and to the extent provided in Section 8.14.
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Any Basis Risk Carry Forward Amounts distributed by the Securities
Administrator to the Principal Certificateholders shall be accounted for by
the Securities Administrator, for federal income tax purposes, as amounts paid
first to the Holders of the Class X Certificates in respect of the Class X
Interest and (to the extent remaining after payments to the Swap Provider)
then to the respective Class or Classes of Principal Certificates. In
addition, the Securities Administrator shall account for the rights of Holders
of each Class of Principal Certificates to receive payments of Basis Risk
Carry Forward Amounts from the Supplemental Interest Trust (along with Basis
Risk Carry Forward Amounts payable from the Excess Reserve Fund Account) as
rights in a separate limited recourse interest rate cap contract written by
the Class X Certificateholders in favor of Holders of each such Class.
The Supplemental Interest Trust shall be an "outside reserve fund"
for federal income tax purposes and will not be an asset of any Trust REMIC.
Furthermore, the Holders of the Class X Certificates shall be the beneficial
owners of the Supplemental Interest Trust for all federal income tax purposes,
and shall be taxable on all income earned thereon.
Section 4.06 Trust's Obligations under the Interest Rate Swap
Agreement; Replacement and Termination of the Interest Rate Swap Agreement.
(a) Upon the Trustee obtaining actual knowledge of the rating of the
Swap Provider falling below the Required Hedge Counterparty Rating (as defined
in the Interest Rate Swap Agreement), the Trustee, acting at the written
direction of the Depositor, shall attempt to negotiate an ISDA Credit Support
Annex (as defined in the Interest Rate Swap Agreement with the Swap Provider
that meets the terms of the Interest Rate Swap Agreement. If an ISDA Credit
Support Annex is negotiated, the Trustee, acting at the written direction of
the Depositor, shall set up an account in accordance with Section 3.01(c) to
hold cash or other eligible investments pledged under such ISDA Credit Support
Annex. Any cash or other eligible investments pledged under an ISDA Credit
Support Annex shall not be part of the Distribution Account, the Excess
Reserve Fund Account or the Supplemental Interest Trust unless they are
applied in accordance with such ISDA Credit Support Annex to make a payment
due to the Trust pursuant to the Interest Rate Swap Agreement.
(b) Upon the Trustee obtaining actual knowledge of an Event of
Default (as defined in the Interest Rate Swap Agreement) or Termination Event
(as defined in the Interest Rate Swap Agreement) for which the Trust has the
right to designate an Early Termination Date (as defined in the Interest Rate
Swap Agreement), the Trustee will act at the written direction of the
Depositor as to whether it will designate an Early Termination Date; provided,
however, that the Trust shall provide written notice to each Rating Agency
following the Event of Default or Termination Event. Upon the termination of
the Interest Rate Swap Agreement under the circumstances contemplated by this
Section 4.06(b), the Trust shall use its reasonable best efforts to enforce
the rights of the Trust and the Trustee thereunder as may be permitted by the
terms of the Interest Rate Swap Agreement and consistent with the terms
hereof, and shall apply the proceeds of any such efforts to enter into a
replacement interest rate swap agreement with another swap provider. To the
extent such replacement interest rate swap agreement can be entered into, any
termination payments received by the Trust in respect of the terminated
interest rate swap agreement shall be used, to the extent necessary, by the
Trust for the purpose of entering into such replacement interest rate swap
agreement.
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ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral
multiples in excess thereof (except that one Certificate in each Class may be
issued in a different amount) and aggregate denominations per Class set forth
in the Preliminary Statement.
The Depositor hereby directs the Securities Administrator to
register the Class X, Class P and Class C Certificates in the name of the
Depositor or its designee. On a date as to which the Depositor notifies the
Securities Administrator, the Depositor hereby directs the Securities
Administrator to transfer the Class X, Class P and Class C Certificates in the
name of the NIM Trustee or such other name or names as the Depositor shall
request, and to deliver the Class X, Class P and Class C Certificates to the
NIM Trustee, or to such other person or persons as the Depositor shall
request.
Subject to Section 11.02 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator shall
make distributions to each Certificateholder of record on the preceding Record
Date either (x) by wire transfer in immediately available funds to the account
of such holder at a bank or other entity having appropriate facilities
therefor as directed by that Certificateholder by written wire instructions
provided to the Securities Administrator or (y), in the event that no wire
instructions are provided to the Securities Administrator, by check mailed by
first class mail to such Certificateholder at the address of such holder
appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Securities Administrator by an authorized officer.
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time such signatures were affixed, authorized to sign on behalf
of the Securities Administrator shall bind the Securities Administrator,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of any such Certificates
or did not hold such office at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless authenticated by the Securities Administrator by manual
signature, and such authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly executed
and delivered hereunder. All Certificates shall be dated the date of their
authentication. On the Closing Date, the Securities Administrator shall
authenticate the Certificates to be issued at the direction of the Depositor,
or any affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Securities Administrator shall maintain, or
cause to be maintained in accordance with the provisions of Section 5.06, a
Certificate Register for the Trust Fund in which, subject to the provisions of
subsections (b) and (c) below and to such reasonable regulations as it may
prescribe, the Securities Administrator shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein
provided. Upon surrender
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for registration of transfer of any Certificate, the Securities Administrator
shall execute and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class and aggregate
Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator shall execute, authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the
holder thereof or his attorney duly authorized in writing. In the event, the
Depositor or an Affiliate transfers the Class X Certificates, or a portion
thereof, to another Affiliate, it shall notify the Securities Administrator in
writing of the affiliated status of the transferee. The Trustee and the
Securities Administrator shall have no liability regarding the lack of notice
with respect thereto.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Securities
Administrator in accordance with the Securities Administrator's customary
procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws.
Except with respect to (i) the initial transfer of the Class X and Class R
Certificates on the Closing Date, (ii) the transfer of the Class X, Class P or
Class C Certificates to the NIM Issuer or the NIM Trustee, or (iii) a transfer
of the Class X, Class P or Class C Certificates to the Depositor or any
Affiliate of the Depositor, in the event that a transfer of a Private
Certificate which is a Physical Certificate is to be made in reliance upon an
exemption from the Securities Act and such laws, in order to assure compliance
with the Securities Act and such laws, the Certificateholder desiring to
effect such transfer shall certify to the Securities Administrator in writing
the facts surrounding the transfer in substantially the form set forth in
Exhibit I (the "Transferor Certificate") and either (i) there shall be
delivered to the Securities Administrator a letter in substantially the form
of Exhibit J (the "Rule 144A Letter") or (ii) there shall be delivered to the
Securities Administrator at the expense of the transferor an Opinion of
Counsel that such transfer may be made without registration under the
Securities Act. In the event that a transfer of a Private Certificate which is
a Book-Entry Certificate is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
transfer will be deemed to have made as of the transfer date each of the
certifications set forth in the Transferor Certificate in respect of such
Certificate and the transferee will be deemed to have made as of the transfer
date each of the certifications set forth in the Rule 144A Letter in respect
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of such Certificate, in each case as if such Certificate were evidenced by a
Physical Certificate. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to
eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate
without registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A. The Trustee and the Securities
Administrator shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to the
Depositor such information regarding the Certificates, the Mortgage Loans and
other matters regarding the Trust Fund as the Depositor shall reasonably
request to meet its obligation under the preceding sentence. Each Holder of a
Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trustee and the Depositor and each Servicer against
any liability that may result if the transfer is not so exempt or is not made
in accordance with such federal and state laws.
Except with respect to (i) the initial transfer of the Class X or
Class R Certificates on the Closing Date, (ii) the transfer of the Class X,
Class P or Class C Certificates to the NIM Issuer or the NIM Trustee or (iii)
a transfer of the Class X, Class P or Class C Certificates to the Depositor or
any Affiliate of the Depositor, no transfer of an ERISA-Restricted Certificate
shall be made unless the Securities Administrator shall have received either
(i) a representation from the transferee of such Certificate acceptable to and
in form and substance satisfactory to the Securities Administrator (in the
event such Certificate is a Private Certificate or a Residual Certificate,
such requirement is satisfied only by the Securities Administrator's receipt
of a representation letter from the transferee substantially in the form of
Exhibit J), to the effect that such transferee is not an employee benefit plan
or arrangement subject to Section 406 of ERISA, a plan subject to Section 4975
of the Code or a plan subject to any Federal, state or local law ("Similar
Law") materially similar to the foregoing provisions of ERISA or the Code, nor
a person acting on behalf of any such plan or arrangement or using the assets
of any such plan or arrangement to effect such transfer (each such investor a
"Plan"), (ii) in the case of an ERISA-Restricted Certificate (other than a
Residual Certificate or Class C Certificate) that has been the subject of an
ERISA-Qualifying Underwriting, a representation that the purchaser is an
insurance company that is purchasing such Certificates with funds contained in
an "insurance company general account" (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption ("PTCE") 95-60) and that the
purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60 or (iii) in the case
of any ERISA-Restricted Certificate presented for registration in the name of
an employee benefit plan subject to Title I of ERISA, a plan or arrangement
subject to Section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a plan subject to Similar Law, or a trustee of any
such plan or any other person acting on behalf of any such plan or arrangement
or using such plan's or arrangement's assets, an Opinion of Counsel
satisfactory to the Trustee, the Securities Administrator and the Depositor,
which Opinion of Counsel shall not be an expense of the Trustee, the
Depositor, the Securities Administrator or the Trust Fund, addressed to the
Securities Administrator and the Depositor, to the effect that the purchase
and holding of such ERISA-Restricted Certificate will not constitute or result
in a non-exempt prohibited transaction within the meaning of ERISA, Section
4975 of the Code or any Similar Law and will not subject the Trustee, the
Depositor, the Master Servicer, any other servicer or the Securities
Administrator to any obligation in addition to those expressly undertaken in
this Agreement or to any liability.
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For purposes of the preceding sentence, with respect to an ERISA-Restricted
Certificate that is not a Private Certificate or a Residual Certificate, in
the event the representation letter referred to in the preceding sentence is
not furnished, such representation shall be deemed to have been made to the
Securities Administrator by the transferee's (including an initial acquirer's)
acceptance of the ERISA-Restricted Certificates. In the event that such
representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to Section 406 of ERISA, a plan subject to Section 4975 of
the Code or a plan subject to Similar Law, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement,
without such Opinion of Counsel, such attempted transfer or acquisition shall
be void and of no effect.
During the period the Supplemental Interest Trust is in effect, no
transfer of a Certificate shall be made unless the Securities Administrator
shall have received either a representation from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the
Securities Administrator to the effect that such transferee is not a Plan, or
(ii) a representation that the purchase and holding of the Certificate satisfy
the requirements for exemptive relief under ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇-▇, ▇▇▇▇ ▇▇-▇▇,
▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ 96-23 or a similar exemption, or in the case of a Plan
subject to Similar Law, will not constitute a non-exempt violation of such
Similar Law. In the event such a representation letter is not delivered, one
of the foregoing representations, as appropriate, shall be deemed to have been
made by the transferee's (including an initial acquirer's) acceptance of the
Certificate. In the event that such representation is violated, such transfer
or acquisition shall be void and of no effect.
None of the Class R or Class C Certificates may be sold to any
employee benefit plan subject to Title I of ERISA, any plan subject to Section
4975 of the Code, or any plan subject to any Similar Law or any person
investing on behalf of or with plan assets of such plan.
Neither the Securities Administrator nor the Trustee shall have any
duty to monitor transfers of beneficial interests in any Book-Entry
Certificate, and neither the Securities Administrator nor the Trustee shall be
under liability to any Person for any registration of transfer of any ERISA
Restricted Certificate that is in fact not permitted by this Section 5.02(b)
or for making any payments due on such Certificate to the Holder thereof or
taking any other action with respect to such Holder under the provisions of
this Agreement so long as the transfer was registered by the Securities
Administrator in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Securities Administrator shall not register
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the Transfer of any Residual Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator
under subparagraph (b) above, the Securities Administrator shall have
been furnished with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form attached hereto as Exhibit
H;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder
of a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored
to all rights as Holder thereof retroactive to the date of registration
of Transfer of such Residual Certificate. Neither the Securities
Administrator nor the Trustee shall have any liability to any Person for
any registration of Transfer of a Residual Certificate that is in fact
not permitted by Section 5.02(b) and this Section 5.02(c) or for making
any payments due on such Certificate to the Holder thereof or taking any
other action with respect to such Holder under the provisions of this
Agreement. The Securities Administrator shall be entitled but not
obligated to recover from any Holder of a Residual Certificate that was
in fact not a Permitted Transferee at the time it became a Holder or, at
such subsequent time as it became other than a Permitted Transferee, all
payments made on such Residual Certificate at and after either such time.
Any such payments so recovered by the Securities Administrator shall be
paid and delivered by the Securities Administrator to the last preceding
Permitted Transferee of such Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Securities Administrator, all
information necessary to compute any tax imposed under Section 860E(e) of
the Code as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Securities Administrator of an Opinion of
Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund,
the Trustee, or the Securities Administrator, to the effect that the
elimination of such restrictions will not cause either Trust REMIC to fail to
qualify as a REMIC at any time that the Certificates are outstanding or result
in the imposition of any tax on the Trust Fund, a Certificateholder or another
Person. Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based on
an Opinion of
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Counsel furnished to the Securities Administrator, is reasonably necessary (a)
to ensure that the record ownership of, or any beneficial interest in, a
Residual Certificate is not transferred, directly or indirectly, to a Person
that is not a Permitted Transferee and (b) to provide for a means to compel
the Transfer of a Residual Certificate which is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and
at all times: (i) registration of the Certificates may not be transferred by
the Securities Administrator except to another Depository; (ii) the Depository
shall maintain book entry records with respect to the Certificate Owners and
with respect to ownership and transfers of such Book-Entry Certificates; (iii)
ownership and transfers of registration of the Book-Entry Certificates on the
books of the Depository shall be governed by applicable rules established by
the Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Trustee and the
Securities Administrator shall deal with the Depository, Depository
Participants and indirect participating firms as representatives of the
Certificate Owners of the Book-Entry Certificates for purposes of exercising
the rights of holders under this Agreement, and requests and directions for
and votes of such representatives shall not be deemed to be inconsistent if
they are made with respect to different Certificate Owners; and (vi) the
Securities Administrator may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (ii) the Securities
Administrator or the Depositor is unable to locate a qualified successor, or
(y) the Depositor notifies the Depository of its intent to terminate the book
entry system through the Depository, the Depository Participants holding
beneficial interests in the Book-Entry Certificates agree to initiate such
termination, the Securities Administrator shall notify all Certificate Owners,
through the Depository, of the occurrence of any such event and of the
availability of definitive, fully registered Certificates (the "Definitive
Certificates") to Certificate Owners requesting the same. Upon surrender to
the Securities Administrator of the related Class of Certificates by the
Depository, accompanied by the instructions from the Depository for
registration, the Securities Administrator shall issue the Definitive
Certificates. Neither the Depositor nor the Securities Administrator shall be
liable for any delay in delivery of such instruction and each may conclusively
rely on, and shall be
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protected in relying on, such instructions. The Depositor shall provide the
Securities Administrator with an adequate inventory of Certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon the
issuance of Definitive Certificates all references herein to obligations
imposed upon or to be performed by the Depository shall be deemed to be
imposed upon and performed by the Securities Administrator, to the extent
applicable with respect to such Definitive Certificates and the Securities
Administrator shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder; provided, that the Securities Administrator
shall not by virtue of its assumption of such obligations become liable to any
party for any act or failure to act of the Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Securities
Administrator, duly executed by the Certificateholder or his attorney duly
authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be canceled and subsequently
disposed of by the Securities Administrator in accordance with its customary
practice. No service charge shall be made for any registration of transfer or
exchange of Private Certificates, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer or exchange of Private
Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Securities Administrator,
or the Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to
the Depositor, the Trustee and the Securities Administrator such security or
indemnity as may be required by them to hold each of them harmless, then, in
the absence of notice to the Securities Administrator that such Certificate
has been acquired by a protected purchaser, the Securities Administrator shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any
new Certificate under this Section 5.03, the Securities Administrator may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Securities Administrator) connected
therewith. Any replacement Certificate issued pursuant to this Section 5.03
shall constitute complete and indefeasible evidence of ownership, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04 Persons Deemed Owners. The Trustee, the Depositor, the
Securities Administrator and any agent of the Depositor, the Securities
Administrator or the Trustee may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions as provided in this Agreement and for all other
purposes whatsoever, and none of the Trustee, the Securities Administrator,
the Depositor or any agent of the Depositor, the Securities Administrator or
the Trustee shall be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Securities
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Administrator, (b) state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this
Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or a Servicer shall request such information in writing from the
Securities Administrator, then the Securities Administrator shall, within ten
Business Days after the receipt of such request, provide the Depositor, such
Servicer or such Certificateholders at such recipients' expense the most
recent list of the Certificateholders of such Trust Fund held by the
Securities Administrator, if any. The Depositor and every Certificateholder,
by receiving and holding a Certificate, agree that the Securities
Administrator shall not be held accountable by reason of the disclosure of any
such information as to the list of the Certificateholders hereunder,
regardless of the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. The Securities
Administrator will maintain or cause to be maintained at its expense an office
or agency or agencies where Certificates may be surrendered for registration
of transfer or exchange. The Securities Administrator initially designates its
office for such purposes, located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇; Attention: Worldwide Securities Services, GSAA 2005-11. The
Securities Administrator will give prompt written notice to the
Certificateholders of any change in such location of any such office or
agency.
ARTICLE VI
THE DEPOSITOR
Section 6.01 Respective Liabilities of the Depositor. The Depositor
shall be liable in accordance herewith only to the extent of the obligations
specifically and respectively imposed upon and undertaken by them herein.
Section 6.02 Merger or Consolidation of the Depositor. The Depositor
will keep in full effect its existence, rights and franchises as a corporation
or federally chartered savings bank, as the case may be, under the laws of the
United States or under the laws of one of the states thereof and will each
obtain and preserve its qualification to do business as a foreign corporation
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
Any Person into which the Depositor may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the
Depositor shall be a party, or any person succeeding to the business of the
Depositor, shall be the successor of the Depositor, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 6.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers, employees or agents
shall be under any liability to the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor or any such Person against any breach of
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representations or warranties made by it herein or protect the Depositor or
any such Person from any liability which would otherwise be imposed by reasons
of willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
The Depositor and any director, officer, employee or agent of the Depositor
may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Depositor and any director, officer, employee or agent of the Depositor
shall be indemnified by the Trust Fund and held harmless against any loss,
liability or expense incurred in connection with any audit, controversy or
judicial proceeding relating to a governmental taxing authority or any legal
action relating to this Agreement or the Certificates, other than any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or by reason of
reckless disregard of obligations and duties hereunder. The Depositor shall
not be under any obligation to appear in, prosecute or defend any legal action
that is not incidental to its respective duties hereunder and which in its
opinion may involve it in any expense or liability; provided, however, that
the Depositor may in its discretion undertake any such action (or direct the
Trustee to undertake such actions for the benefit of the Certificateholders)
that it may deem necessary or desirable in respect of this Agreement and the
rights and duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, the Depositor shall be entitled to be
reimbursed therefor out of the Distribution Account.
Section 6.04 Servicing Compliance Review. Promptly upon receipt from
each Servicer of its annual statement of compliance and accountant's report
described in the applicable Step 2 Assignment Agreement the Master Servicer
shall furnish a copy thereof to the Depositor. Promptly after the Depositor's
receipt thereof, the Depositor shall review the same and, if applicable,
consult with such Servicer as to the nature of any defaults by such Servicer
in the fulfillment of any of its Servicer's obligations under the applicable
Servicing Agreement.
Section 6.05 Option to Purchase Defaulted Mortgage Loans. The
Depositor shall have the option, but is not obligated, to purchase from the
Trust any Mortgage Loan that is 90 days or more delinquent. The purchase price
therefor shall be 100% of the unpaid principal balance of such Mortgage Loan,
plus all related accrued and unpaid interest, and the amount of any
unreimbursed Servicing Advances made by the Servicers or the Master Servicer
related to the Mortgage Loan.
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default. If an Event of Default described in
any Servicing Agreement shall occur with respect to the related Servicer then,
and in each and every such case, so long as such Event of Default shall not
have been remedied, the Master Servicer may, or at the direction of
Certificateholders entitled to a majority of the Voting Rights the Master
Servicer shall, by notice in writing to the applicable Servicer (with a copy
to each Rating Agency), terminate all of the rights and obligations of such
Servicer under the applicable Servicing Agreement and in and to the Mortgage
Loans and the proceeds thereof. The Holders
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of Certificates evidencing at least 66% of the Voting Rights of Certificates
affected by a Event of Default may waive such Event of Default; provided,
however, that (a) an Event of Default with respect to any Servicer's
obligation to make Monthly Advances may be waived only by all of the holders
of the Certificates affected by such Event of Default and (b) no such waiver
is permitted that would materially adversely affect any non consenting
Certificateholder. On and after the receipt by such Servicer of such written
notice of termination, all authority and power of such Servicer hereunder,
whether with respect to the Mortgage Loans or otherwise, shall pass to and be
vested in the Master Servicer. The Master Servicer is hereby authorized and
empowered to execute and deliver, on behalf of such Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments,
and to do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, whether to complete the
transfer and endorsement or assignment of the Mortgage Loans and related
documents, or otherwise.
Section 7.02 Master Servicer to Act; Appointment of Successor.
Within 120 days after the Master Servicer gives, and the applicable Servicer
receives a notice of termination pursuant to Section 7.01, the Master Servicer
shall, subject to and to the extent provided in Section 7.03, and subject to
the rights of the Master Servicer to appoint a successor Servicer pursuant to
this Section 7.02, be the successor to the Servicer in its capacity as
servicer under the applicable Servicing Agreement and the transactions set
forth or provided for herein and in such Servicing Agreement and shall be
subject to all the responsibilities, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions of such Servicing Agreement
and applicable law including the obligation to make Monthly Advances or
Servicing Advances pursuant to such Servicing Agreement (it being understood
and agreed that if any Servicer fails to make an Advance, the Master Servicer
shall do so unless a determination has been made that such Advance would
constitute a Nonrecoverable Monthly Advance or a Nonrecoverable Servicing
Advance). As compensation therefor, the Master Servicer shall be entitled to
all funds relating to the Mortgage Loans that the Servicer would have been
entitled to charge to the Collection Account if the Servicer had continued to
act under the Servicing Agreement including, if the Servicer was receiving the
Servicing Fee at the Servicing Fee Rate set forth in the Servicing Agreement
(as set forth in the Mortgage Loan Schedule with respect to the related Group
I Mortgage Loans, Group II Mortgage Loans and Group III Mortgage Loans,
respectively) such Servicing Fee and the income on investments or gain related
to the Collection Account.
Notwithstanding the foregoing, the Master Servicer may, if it shall
be unwilling to so act, or shall, if it is prohibited by applicable law from
making Monthly Advances and Servicing Advances pursuant to the applicable
Servicing Agreement, or if it is otherwise unable to so act, or, at the
written request of Certificateholders entitled to a majority of the Voting
Rights, appoint, or petition a court of competent jurisdiction to appoint, any
established mortgage loan servicing institution the appointment of which does
not adversely affect the then current rating of the Certificates by each
Rating Agency, as the successor to such Servicer under the applicable
Servicing Agreement in the assumption of all or any part of the
responsibilities, duties or liabilities of such Servicer. No such appointment
of a successor to a Servicer hereunder shall be effective until the Depositor
shall have consented thereto. Any successor to such Servicer shall be an
institution which is a ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac approved seller/servicer in
good standing, which has a net worth of at least $25,000,000, which is willing
to service the Mortgage Loans and which executes and delivers to the Depositor
and the Master Servicer an agreement
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accepting such delegation and assignment, containing an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of such terminated Servicer, (other than liabilities of such
terminated Servicer incurred prior to termination of such Servicer under
Section 7.01), with like effect as if originally named as a party to this
Agreement; provided, that each Rating Agency acknowledges that its rating of
the Certificates in effect immediately prior to such assignment and delegation
will not be qualified or reduced, as a result of such assignment and
delegation. Pending appointment of a successor to a Servicer hereunder, the
Master Servicer, unless the Master Servicer is prohibited by law from so
acting, shall, subject to this Section 7.02, act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
Master Servicer may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it, the Depositor and such
successor shall agree; provided, however, that no such compensation shall be
in excess of the Servicing Fee Rate and amounts paid to the Servicer from
investments. The Master Servicer and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Neither the Master Servicer nor any other successor to a Servicer
shall be deemed to be in default hereunder by reason of any failure to make,
or any delay in making, any distribution hereunder or any portion thereof or
any failure to perform, or any delay in performing, any duties or
responsibilities hereunder, in either case caused by the failure of the
predecessor Servicer to deliver or provide, or any delay in delivering or
providing, any cash, information, documents or records to it.
Any successor Servicer shall give notice to the Mortgagors of such
change of Servicer, in accordance with applicable federal and state law, and
shall, during the term of its service as servicer, maintain in force the
policy or policies that each Servicer is required to maintain pursuant to the
applicable Servicing Agreement.
Notwithstanding the foregoing, the Master Servicer may not terminate
a Servicer without cause.
Section 7.03 Master Servicer to Act as Servicer. In the event that a
Servicer shall for any other reason no longer be the Servicer, the Master
Servicer or another successor Servicer, shall thereupon assume all of the
rights and obligations of the predecessor Servicer hereunder arising
thereafter pursuant to Section 7.02.
Section 7.04 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to a Servicer, the Securities
Administrator shall give prompt written notice thereof to Certificateholders
and to each Rating Agency.
(b) Promptly after the occurrence of any Event of Default, the
Securities Administrator shall transmit by mail to all Certificateholders and
each Rating Agency notice of each such Event of Default hereunder known to the
Securities Administrator, unless such Event of Default shall have been cured
or waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIANS
Section 8.01 Duties of the Trustee and the Custodians. The Trustee,
before the occurrence of a Master Servicer Event of Default and after the
curing of all Master Servicer Events of Default that may have occurred, shall
undertake to perform such duties and only such duties as are specifically set
forth in this Agreement. In case a Master Servicer Event of Default has
occurred and remains uncured, the Trustee shall exercise such of the rights
and powers vested in it by this Agreement, and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
The Trustee and the Custodians, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee or the Custodians, as applicable, that
are specifically required to be furnished pursuant to any provision of this
Agreement shall examine them to determine whether on their face they are in
the form required by this Agreement, or with respect to the documents in the
respective Custodial Files whether they satisfy the review criteria set forth
in Section 2.02. Neither the Trustee nor the Custodians shall be responsible
for the accuracy or content of any resolution, certificate, statement,
opinion, report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee or the Custodians from liability for its own negligent action, its own
negligent failure to act or its own bad faith or willful misfeasance;
provided, however, that:
(a) unless a Master Servicer Event of Default of which a Responsible
Officer of the Trustee obtains actual knowledge has occurred and is
continuing, the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of the duties and obligations specifically
set forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee, and the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Agreement which it believed in good
faith to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Certificates evidencing not less than 25% of
the Voting Rights of Certificates relating to the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this Agreement.
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Section 8.02 Custodial Responsibilities. Each Custodian shall
provide access to the Mortgage Loan documents in possession of the Custodian
regarding the related Mortgage Loans and REO Property and the servicing
thereof to the Trustee, the Certificateholders, the FDIC, and the supervisory
agents and examiners of the FDIC, such access being afforded only upon
reasonable prior written request (but in no event less than 48 hours) and
during normal business hours at the office of the Custodian. Each Custodian
shall allow representatives of the above entities to photocopy any of the
records and documentation and shall provide equipment for that purpose at the
expense of the person requesting such access.
Upon receipt of a written request by a Servicer in a form acceptable
to the applicable Custodian, the Custodian shall release within five Business
Days the related Mortgage File to the Servicer and the Trustee shall execute
and deliver to the Servicer, without recourse, a request for reconveyance,
deed of reconveyance or release or satisfaction of mortgage or such instrument
releasing the lien of the Mortgage (furnished by such Servicer), together with
the Mortgage Note.
Section 8.03 Certain Matters Affecting the Trustee and the
Custodians. Except as otherwise provided in Section 8.01:
(a) the Trustee and the Custodians may request and rely upon and
shall be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, Opinion of Counsel, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties
and the Trustee and the Custodians shall have no responsibility to ascertain
or confirm the genuineness of any signature of any such party or parties;
(b) the Trustee and the Custodians may consult with counsel,
financial advisers or accountants and the advice of any such counsel,
financial advisers or accountants and any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(c) the Trustee and the Custodians shall not be liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(d) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond
or other paper or document, unless requested in writing so to do by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to
each Class of Certificates; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of
the Trustee, not assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require indemnity satisfactory to the
Trustee against such cost, expense or liability as a condition to taking any
such action. The reasonable expense of every such examination shall be paid by
the applicable Servicer or, if paid
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by the Trustee, shall be repaid by the Servicer upon demand from the
applicable Servicer's own funds;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) neither the Trustee nor the Custodians shall be required to risk
or expend its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the investment
security;
(h) unless a Responsible Officer of the Trustee has actual knowledge
of the occurrence of a Master Servicer Event of Default or an Event of
Default, the Trustee shall not be deemed to have knowledge of a Master
Servicer Event of Default or an Event of Default, until a Responsible Officer
of the Trustee shall have received written notice thereof; and
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to this
Agreement, unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities which may be incurred therein or thereby.
(j) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act;
(k) the Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the powers
granted hereunder;
(l) notwithstanding anything to the contrary in any Servicing
Agreement, the Trustee shall not consent to a Servicer's request of assigning
the Servicing Agreement or the servicing rights thereunder to any other party;
(m) the Trustee is authorized and directed to execute the Interest
Rate Swap Agreement.
Section 8.04 Trustee and Custodians Not Liable for Certificates or
Mortgage Loans. The recitals contained herein and in the Certificates shall be
taken as the statements of the Depositor and neither the Trustee nor the
Custodians assumes any responsibility for their correctness. The Trustee and
the Custodians make no representations as to the validity or sufficiency of
this Agreement or of the Certificates or of any Mortgage Loan or related
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document. Neither the Trustee nor the Custodians shall be accountable for the
use or application by the Depositor, the Master Servicer, any Servicer or the
Securities Administrator of any funds paid to the Depositor, the Master
Servicer, any Servicer or the Securities Administrator in respect of the
Mortgage Loans or deposited in or withdrawn from the Collection Account or the
Distribution Account by the Depositor, the Master Servicer, any Servicer, or
the Securities Administrator.
The Trustee shall have no responsibility (i) for filing or recording
any financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become and remains the
successor Master Servicer) (ii) to see to any insurance (unless the Trustee
shall have become the successor Master Servicer), or (iii) to confirm or
verify the contents of any reports or certificates of the Servicers,
Securities Administrator or Master Servicer delivered to the Trustee pursuant
to this Agreement believed by the Trustee to be genuine and to have been
signed or presented by the proper party or parties.
The Securities Administrator executes the Certificates not in its
individual capacity but solely as Trustee of the Trust Fund created by this
Agreement, in the exercise of the powers and authority conferred and vested in
it by this Agreement. Each of the undertakings and agreements made on the part
of the Trustee on behalf of the Trust Fund in the Certificates is made and
intended not as a personal undertaking or agreement by the Trustee but is made
and intended for the purpose of binding only the Trust Fund.
Section 8.05 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of
Certificates with the same rights as it would have if it were not the Trustee.
Section 8.06 Trustee's Fees and Expenses. As compensation for its
activities under this Agreement, the Trustee shall be paid an on-going monthly
or annual fee, as applicable, by the Securities Administrator pursuant to a
separate agreement. The Trustee shall have no lien on the Trust Fund for the
payment of such fees. The Trustee shall be entitled to be reimbursed, from
funds on deposit in the Distribution Account, amounts sufficient to indemnify
and hold harmless the Trustee and any director, officer, employee, or agent of
the Trustee against any loss, liability, or expense (including reasonable
attorneys' fees) incurred in connection with any claim or legal action
relating to
(a) this Agreement,
(b) the Certificates, or
(c) the performance of any of the Trustee's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any breach of
any Servicer's obligations in connection with a Servicing Agreement for which
that Servicer has performed its obligation to indemnify the Trustee pursuant
to Servicing Agreement, (ii) resulting from any breach of the Responsible
Party's obligations in connection with any Sale Agreement for which it has
performed its obligation to indemnify the Trustee pursuant to the Sale
Agreement, (iii) resulting from any breach of the Master Servicer's
obligations hereunder for which the Master
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Servicer has performed its obligation to indemnify the Trustee pursuant to
this Agreement, or (iv) incurred because of willful misfeasance, bad faith, or
negligence in the performance of any of the Trustee's duties under this
Agreement. This indemnity shall survive the termination of this Agreement or
the resignation or removal of the Trustee under this Agreement. Without
limiting the foregoing, except as otherwise agreed upon in writing by the
Depositor and the Trustee, and except for any expense, disbursement, or
advance arising from the Trustee's negligence, bad faith, or willful
misfeasance, the Trust Fund shall pay or reimburse the Trustee, for all
reasonable expenses, disbursements, and advances incurred or made by the
Trustee in accordance with this Agreement with respect to:
(A) the reasonable compensation, expenses, and disbursements of
its counsel not associated with the closing of the issuance of the
Certificates, and
(B) the reasonable compensation, expenses, and disbursements of
any accountant, engineer, or appraiser that is not regularly
employed by the Trustee, to the extent that the Trustee must engage
them to perform services under this Agreement.
Except as otherwise provided in this Agreement, the Trustee shall
not be entitled to payment or reimbursement for any routine ongoing expenses
incurred by the Trustee in the ordinary course of its duties as Trustee under
this Agreement or for any other expenses.
Section 8.07 Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times be a corporation, banking association or other
association organized and doing business under the laws of a state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating which would not cause any of the Rating Agencies to reduce their
respective then current ratings of the Certificates (or having provided such
security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.07 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with
this Section 8.07, the Trustee shall resign immediately in the manner and with
the effect specified in Section 8.08. The entity serving as Trustee may have
normal banking and trust relationships with the Depositor and its affiliates
or with the Servicer and its affiliates; provided, however, that such entity
cannot be an affiliate of the Depositor or of any Servicer other than the
Trustee in its role as successor to the Master Servicer.
Section 8.08 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice of resignation to the Depositor, the Master Servicer, the
Securities Administrator and each Rating Agency not less than 60 days before
the date specified in such notice, when, subject to Section 8.09, such
resignation is to take effect, and acceptance by a successor trustee in
accordance with Section 8.09 meeting the qualifications set forth in Section
8.07. If no successor trustee meeting
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such qualifications shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice or resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.07 and shall fail to resign after written request thereto by
the Depositor, or if at any time the Trustee shall become incapable of acting,
or shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or
of its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect
to the Trust Fund by any state in which the Trustee or the Trust Fund is
located and the imposition of such tax would be avoided by the appointment of
a different trustee, then the Depositor may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, one copy of which shall
be delivered to the Trustee and one copy to the successor trustee.
The Holders of Certificates entitled to a majority of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in duplicate, signed by such Holders or
their attorneys in fact duly authorized, one complete set of which shall be
delivered to the Trustee so removed and one complete set to the successor so
appointed. The successor trustee shall notify each Rating Agency of any
removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.08 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
8.09.
Section 8.09 Successor Trustee. Any successor trustee appointed as
provided in Section 8.08 shall execute, acknowledge and deliver to the
Depositor and to its predecessor trustee an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The Depositor and the
predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers,
duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.09 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.07 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.09, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates and the Custodians. If the
Depositor fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Depositor.
Section 8.10 Merger or Consolidation of the Trustee or the
Custodians. Any corporation into which the Trustee or the Custodians, as
applicable, may be merged or converted
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or with which it may be consolidated or any corporation resulting from any
merger, conversion or consolidation to which the Trustee or the Custodians, as
applicable, shall be a party, or any corporation succeeding to the business of
the Trustee or the Custodians, as applicable, shall be the successor of the
Trustee or the Custodians, as applicable, hereunder; provided, that such
corporation shall be eligible under Section 8.07 without the execution or
filing of any paper or further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 8.11 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing any Mortgage Note may at the time
be located, the Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons to act as co-trustee or co-trustees
jointly with the Trustee, or separate trustee or separate trustees, of all or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity and for the benefit of the Certificateholders, such title to the
Trust Fund or any part thereof, whichever is applicable, and, subject to the
other provisions of this Section 8.11, such powers, duties, obligations,
rights and trusts as the Trustee may consider appropriate. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.09 and no notice to Certificateholders
of the appointment of any co-trustee or separate trustee shall be required
under Section 8.09.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.11, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee (as successor
Master Servicer) under this Agreement to advance funds on behalf of the Master
Servicer, shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be
performed (whether as Trustee hereunder or as successor to the Master Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the applicable Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of the
Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
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(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees,
when and as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article VIII. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 8.12 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be
made, as set forth in the Preliminary Statement, shall constitute, and that
the conduct of matters relating to such assets shall be such as to qualify
such assets as, a "real estate mortgage investment conduit" as defined in, and
in accordance with, the REMIC Provisions. In furtherance of such intention,
the Securities Administrator covenants and agrees that it shall act as agent
(and the Securities Administrator is hereby appointed to act as agent) on
behalf of each REMIC described in the Preliminary Statement and that in such
capacity it shall:
(a) prepare and file, in a timely manner, a U.S. Real Estate
Mortgage Investment Conduit (REMIC) Income Tax Return (Form 1066 or any
successor form adopted by the Internal Revenue Service) and prepare and file
with the Internal Revenue Service and applicable state or local tax
authorities income tax or information returns for each taxable year with
respect to each Trust REMIC containing such information and at the times and
in the manner as may be required by the Code or state or local tax laws,
regulations, or rules, and furnish to Certificateholders the schedules,
statements or information at such times and in such manner as may be required
thereby;
(b) within thirty days of the Closing Date, apply for an employer
identification number from the Internal Revenue Service via Form SS-4 or any
other acceptable method for all tax entities and shall also furnish to the
Internal Revenue Service, on Form 8811 or as otherwise may be required by the
Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the
Code;
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(c) make an election that each of the Lower-Tier REMIC and the
Upper-Tier REMIC be treated as a REMIC on the federal tax return for its first
taxable year (and, if necessary, under applicable state law);
(d) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any
original issue discount using the prepayment assumption (as described in the
Prospectus Supplement);
(e) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee (a "Non Permitted Transferee"), or an agent (including a broker,
nominee or other middleman) of a Non Permitted Transferee, or a pass through
entity in which a Non Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be
charged to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so
as to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any Trust
REMIC created hereunder;
(h) pay, from the sources specified in the last paragraph of this
Section 8.12, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on either Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Securities Administrator or any other appropriate Person
from contesting any such tax in appropriate proceedings and shall not prevent
the Securities Administrator from withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings);
(i) cause federal, state or local income tax or information returns
to be signed by the Securities Administrator or, if required by applicable tax
law, the Trustee or such other person as may be required to sign such returns
by the Code or state or local laws, regulations or rules;
(j) maintain records relating to each of the Trust REMICs, including
the income, expenses, assets, and liabilities thereof on a calendar year basis
and on the accrual method of accounting and the fair market value and adjusted
basis of the assets determined at such intervals as may be required by the
Code, as may be necessary to prepare the foregoing returns, schedules,
statements or information; and
(k) as and when necessary and appropriate, represent each Trust
REMIC in any administrative or judicial proceedings relating to an examination
or audit by any governmental taxing authority, request an administrative
adjustment as to any taxable year of each Trust REMIC, enter into settlement
agreements with any governmental taxing agency,
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extend any statute of limitations relating to any tax item of either Trust
REMIC, and otherwise act on behalf of each Trust REMIC in relation to any tax
matter or controversy involving it.
The Holder of the largest Percentage Interest of the Class R
Certificates shall act as Tax Matters Person for the Lower-Tier REMIC and the
Upper-Tier REMIC, respectively, within the meaning of Treasury Regulations
Section 1.860F-4(d), and the Securities Administrator is hereby designated as
agent of such Certificateholder for such purpose (or if the Securities
Administrator is not so permitted, such Holder shall be the Tax Matters Person
in accordance with the REMIC Provisions). In such capacity, the Securities
Administrator shall, as and when necessary and appropriate, represent each
Trust REMIC in any administrative or judicial proceedings relating to an
examination or audit by any governmental taxing authority, request an
administrative adjustment as to any taxable year of each Trust REMIC, enter
into settlement agreements with any governmental taxing agency, extend any
statute of limitations relating to any tax item of either Trust REMIC, and
otherwise act on behalf of each Trust REMIC in relation to any tax matter or
controversy involving it.
The Securities Administrator shall treat the rights of the Class P
Certificateholders to receive Prepayment Premiums, the rights of the Class C
Certificateholders to receive payment from the Master Servicer of the Fair
Market Value Excess, on or after the Optional Termination Date, by the Master
Servicer of all Mortgage Loans (and REO Properties) and payment in full of the
other Classes of Certificates, the rights of the Class X Certificateholders to
receive amounts in the Excess Reserve Fund Account and Supplemental Interest
Trust (subject to the obligation to pay Basis Risk Carry Forward Amounts) and
the rights of the Principal Certificateholders to receive Basis Risk Carry
Forward Amounts as the beneficial ownership interests in a grantor trust and
not as an obligations of any REMIC created hereunder, for federal income tax
purposes. The Securities Administrator shall file or cause to be filed with
the Internal Revenue Service Form 1041 or such other form as may be applicable
and shall furnish or cause to be furnished, to the Class X Certificateholders,
the Class P Certificateholders, the Class C Certificateholders and the
Principal Certificateholders, the respective amounts described above that are
received, in the time or times and in the manner required by the Code.
To enable the Securities Administrator to perform its duties under
this Agreement, the Depositor shall provide to the Securities Administrator
within ten days after the Closing Date all information or data that the
Securities Administrator requests in writing and determines to be relevant for
tax purposes to the valuations and offering prices of the Certificates,
including the price, yield, prepayment assumption, and projected cash flows of
the Certificates and the Mortgage Loans. Moreover, the Depositor shall provide
information to the Securities Administrator concerning the value, if any, to
each Class of Certificates of the right to receive Basis Risk Carry Forward
Amounts from the Excess Reserve Fund Account and the Supplemental Interest
Trust. Thereafter, the Depositor shall provide to the Securities Administrator
promptly upon written request therefor any additional information or data that
the Securities Administrator may, from time to time, reasonably request to
enable the Securities Administrator to perform its duties under this
Agreement. The Depositor hereby indemnifies the Securities Administrator for
any losses, liabilities, damages, claims, or expenses of the Securities
Administrator arising from any errors or miscalculations of the Securities
Administrator that result from any failure of the Depositor to provide, or to
cause to be provided, accurate information or data to the Securities
Administrator on a timely basis.
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If any tax is imposed on "prohibited transactions" of any Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Lower-Tier REMIC as defined in Section 860G(c) of
the Code, on any contribution to any Trust REMIC after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed,
including any minimum tax imposed on any Trust REMIC pursuant to Sections
23153 and 24874 of the California Revenue and Taxation Code, if not paid as
otherwise provided for herein, the tax shall be paid by (i) the Master
Servicer, the Trustee or the Securities Administrator, as applicable if such
tax arises out of or results from negligence of the Master Servicer, the
Trustee or the Securities Administrator, as applicable in the performance of
any of its obligations under this Agreement, (ii) a Servicer, in the case of
any such minimum tax, and otherwise if such tax arises out of or results from
a breach by the Servicer of any of its obligations under the applicable
Servicing Agreement, (iii) a Responsible Party if such tax arises out of or
results from the Responsible Party's obligation to repurchase a Mortgage Loan
pursuant to the applicable Sale Agreement or (iv) in all other cases, or if
the Trustee, the Master Servicer, the Securities Administrator, the Servicer
or the Responsible Party fails to honor its obligations under the preceding
clause (i), (ii), or (iii), any such tax will be paid with amounts otherwise
to be distributed to the Certificateholders, as provided in Section 4.01(a).
For as long as each Trust REMIC shall exist, the Securities
Administrator shall act as specifically required herein, and the Securities
Administrator shall comply with any directions of the Depositor or a Servicer
stating that such directions are being given to assure such continuing
treatment. In particular, the Securities Administrator shall not (a) sell or
authorize the sale of all or any portion of the Mortgage Loans or of any
investment of deposits in an Account unless such sale is as a result of a
purchase or repurchase of the Mortgage Loans pursuant to this Agreement or (b)
accept any contribution to either Trust REMIC after the Startup Day without
receipt of an Opinion of Counsel that such action described in clause (a) or
(b) will not result in the imposition of a tax on either Trust REMIC or cause
either Trust REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
Section 8.13 Periodic Filings. (a) The Securities Administrator
shall reasonably cooperate with the Depositor in connection with the Trust's
satisfying the reporting requirements under the Exchange Act. The Securities
Administrator shall prepare or cause to be prepared on behalf of the Trust any
Forms 8-K (other than the initial Current Report on Form 8-K) and 10-K
customary for similar securities as required by the Exchange Act and the Rules
and Regulations of the Securities and Exchange Commission thereunder, and the
Securities Administrator shall sign and file (via the Securities and Exchange
Commission's Electronic Data Gathering and Retrieval System) such Forms on
behalf of the Depositor. In the event the Securities Administrator is signing
on behalf of the Depositor pursuant to the preceding sentence, the Depositor
hereby grants to the Securities Administrator a limited power of attorney to
execute and file each such document on behalf of the Depositor. Such power of
attorney shall continue until the earlier of either (i) receipt by the
Securities Administrator from the Depositor of written termination of such
power of attorney and (ii) the termination of the Trust. Notwithstanding the
foregoing, the Securities Administrator shall prepare such Form 10-K to be
signed by the Depositor and the Depositor shall sign such form.
(b) Each Form 8-K shall be filed by the Securities Administrator
within 15 days after each Distribution Date, including a copy of the statement
to the Certificateholders for
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such Distribution Date as an exhibit thereto. Prior to March 30th of each year
(or such earlier date as may be required by the Exchange Act and the Rules and
Regulations of the Securities and Exchange Commission), the Securities
Administrator shall file a Form 10-K in substance as required by applicable
law or applicable Securities and Exchange Commission staff's interpretations,
with respect to the Trust Fund. Such Form 10-K shall include the Servicer's
annual statement of compliance described in the applicable Servicing Agreement
(upon which the Securities Administrator may rely in delivering its
certification hereunder) and the accountant's report described in the
applicable Servicing Agreement, in each case to the extent they have been
timely delivered to the Securities Administrator. If they are not so timely
delivered, the Securities Administrator shall file an amended Form 10-K
including such documents as exhibits reasonably promptly after they are
delivered to the Securities Administrator. The Securities Administrator shall
have no liability with respect to any failure to properly prepare or file such
periodic reports resulting from or relating to the Securities Administrator's
inability or failure to obtain any information not resulting from its own
negligence, willful misconduct or bad faith. The Form 10-K shall also include
a certification in the form attached hereto as Exhibit K, with such changes as
may be necessary or appropriate as a result of changes promulgated by the
Securities and Exchange Commission (the "Certification"), which shall be
signed by the senior officer of the Depositor in charge of securitization.
(c) No later than ten Business Days prior to the date on which any
Annual Report on Form 10-K with respect to the Trust is required to be filed,
the Depositor shall deliver to the Securities Administrator an officer's
certificate in the form set forth in Exhibit K and the Securities
Administrator shall deliver to the Depositor an officer's certificate in the
form set forth in Exhibit L. Unless otherwise advised by the Depositor, the
Securities Administrator shall assume that all reports, statements and
information respecting the Trust and/or the Certificates required to be filed,
and any and all proxies of the Certificateholders whenever such proxies are
required to be solicited, pursuant to the Securities and Exchange Act of 1934,
as amended, and the rules thereunder ("1934 Act Documents"), shall consist of
only the following: Form 8-K reports attaching the related servicer
certificates, to be filed each month beginning in October 2005 through January
2006, a Form 15D to be filed in January 2006 (provided, however, that if the
criteria for filing a Form 15D is not met, the Securities Administrator shall
continue filing the monthly and annual forms), and a Form 10-K to be filed
each March beginning in March 2006. The Securities Administrator shall
promptly file, and exercise its reasonable best efforts to obtain a favorable
response to, no-action requests with, or other appropriate exemptive relief
from the Securities and Exchange Commission seeking the usual and customary
exemption from such reporting requirements granted to issuers of securities
similar to the Certificates if and to the extent the Depositor shall deem any
such relief to be necessary or appropriate. Unless otherwise advised by the
Depositor, the Securities Administrator shall assume that the Depositor is in
compliance with the preceding sentence. In no event shall the Securities
Administrator have any liability for the execution or content of any 1934 Act
Document. The Depositor hereby grants to the Securities Administrator a
limited power of attorney to execute (other than any Form 10-K) and file each
such documents on behalf of the Depositor. Such power of attorney shall
continue until either the earlier of (i) receipt by the Securities
Administrator from the Depositor of written termination of such power of
attorney and (ii) the termination of the Trust. The Depositor agrees to
promptly furnish to the Securities Administrator, from time to time upon
written request, such further information, reports and financial statements
within its control related to the Trust
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Agreement and the Mortgage Loans as the Depositor reasonably deems appropriate
to prepare and file all necessary reports with the Securities and Exchange
Commission.
(d) Upon any filing with the Securities and Exchange Commission, the
Securities Administrator shall promptly deliver to the Depositor a copy of any
such executed report, statement or information.
(e) Prior to January 30 of the first year in which the Securities
Administrator is able to do so under applicable law, the Securities
Administrator shall file a Form 15 Suspension Notification with respect to the
Trust.
Section 8.14 Tax Classification of the Excess Reserve Fund Account
and the Interest Rate Swap Agreement. For federal income tax purposes, the
Securities Administrator shall treat the Excess Reserve Fund Account and the
Interest Rate Swap Agreement as beneficially owned by the holder of the Class
X Certificates and shall treat such portion of the Trust Fund as a grantor
trust under subpart E, Part I of subchapter J of the Code. The Securities
Administrator shall treat the rights that each Class of Principal Certificates
has to receive payments of Basis Risk Carry Forward Amounts from the Excess
Reserve Fund Account and the Supplemental Interest Trust as rights to receive
payments under an interest rate cap contract written by the Class X
Certificateholders in favor of each Class. Accordingly, each Class of
Principal Certificates will comprise two components--a regular interest in the
Upper-Tier REMIC and an interest in an interest rate cap contract, and the
Class X Certificates will be comprised of four components--a regular interest
in the Upper-Tier REMIC, an interest in the Interest Rate Swap Agreement, the
Supplemental Interest Trust and the Excess Reserve Fund Account subject to the
obligation to pay Basis Risk ▇▇▇▇ Forward Amounts, Swap Payment Amounts and
Swap Termination Payments. The Securities Administrator shall allocate the
issue price for a Class of Certificates among these components for purposes of
determining the issue price of the Upper-Tier Regular Interest component based
on information received from the Depositor. Unless otherwise advised by the
Depositor in writing, for federal income tax purposes, the Securities
Administrator is hereby directed to assign a value of zero to the right of
each Holder of a Principal Certificate to receive the related Basis Risk Carry
Forward Amount for purposes of allocating the purchase price of an initial
Principal Certificateholder between such right and the related Upper-Tier
Regular Interest.
Holders of Principal Certificates shall also be treated as having
agreed to pay, on each Distribution Date, to the Holders of the Class X
Certificates an aggregate amount equal to the excess, if any, of (i) Swap
Payment Amounts and Swap Termination Payments (other that Defaulted Swap
Termination Payments) over (ii) the sum of amounts payable on the Class X
Interest as provided in the Preliminary Statement hereof (such excess, a
"Class IO Shortfall"), first from interest and then from principal
distributable on the Principal Certificates. A Class IO Shortfall payable from
interest collections shall be allocated pro rata among such Principal
Certificates based on the amount of interest otherwise payable to such Class
of Principal Certificates, and a Class IO Shortfall payable from principal
collections shall be allocated in reverse sequential order beginning with the
most subordinate Class of Principal Certificates then outstanding.
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Any payments of Class IO Shortfalls shall be treated for tax
purposes as having been received by the Holders of such Class of Principal
Certificates in respect of the corresponding Upper-Tier Regular Interest and
as having been paid by such Holders to the Holders of the Class X Certificates
through the Supplemental Interest Trust.
Section 8.15 Custodial Responsibilities. Each of the Custodians
shall provide access to the Mortgage Loan documents in possession of such
Custodian regarding the related Mortgage Loans and REO Property and the
servicing thereof to the Trustee, the Certificateholders, the FDIC, and the
supervisory agents and examiners of the FDIC, such access being afforded only
upon two (2) Business Days prior written request and during normal business
hours at the office of such Custodian; provided, however, that, unless
otherwise required by law or any regulatory or administrative agency
(including the FDIC), such Custodian shall not be required to provide access
to such records and documentation if the provision thereof would violate the
legal right to privacy of any Mortgagor. Each of the Custodians shall allow
representatives of the above entities to photocopy any of the records and
documentation and shall provide equipment for that purpose at the expense of
the Trust that covers such Custodians actual costs.
Upon receipt of a Request for Release by a Servicer, the applicable
Custodian shall release within five Business Days the related Mortgage File to
such Servicer and the Trustee shall execute and deliver to such Servicer,
without recourse, a request for reconveyance, deed of reconveyance or release
or satisfaction of mortgage or such instrument releasing the lien of the
Mortgage (furnished by such Servicer), together with the Mortgage Note.
Each of the Custodians may resign at any time or may be terminated
by the Trustee with cause, in each case, upon 60 days written notice to the
applicable Servicer, the Depositor and the Securities Administrator, in which
event the Depositor will be obligated to appoint a successor. If no successor
has been appointed and has accepted appointment within 60 days after the
resignation or termination of such Custodian, such Custodian may petition any
court of competent jurisdiction for appointment of a successor.
The Securities Administrator, pursuant to a separate agreement,
shall compensate from its own funds the Custodians for their respective
activities under this Agreement. The Custodians shall have no lien on the
Trust Fund for the payment of such fees. The Custodians shall be entitled to
be reimbursed, from funds on deposit in the Distribution Account, amounts
sufficient to indemnify and hold harmless each of the Custodians and any
director, officer, employee, or agent of a Custodian against any loss,
liability, or expense (including reasonable attorneys' fees) incurred in
connection with any claim or legal action relating to:
(a) this Agreement;
(b) the Certificates; or
(c) the performance of any of such Custodian's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any
breach of a Servicer's obligations in connection with a Servicing Agreement
for which the Servicer has performed its obligation to indemnify such
Custodian pursuant to such Servicing Agreement, (ii)
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resulting from any breach of the Responsible Party's obligations in connection
with a Servicing Agreement for which the Responsible Party has performed its
obligation to indemnify such Custodian pursuant to such Servicing Agreement,
or (iii) incurred because of willful misfeasance, bad faith, or negligence in
the performance of any of such Custodian's duties under this Agreement.
ARTICLE IX
ADMINISTRATION OF THE MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of
Servicer's Obligations. (a) The Master Servicer, on behalf of the Trustee, the
Securities Administrator, the Depositor and the Certificateholders, shall
monitor the performance of the Servicers under the related Servicing
Agreements, and (except as set forth below) shall use its reasonable good
faith efforts to cause the Servicers to duly and punctually perform their
duties and obligations thereunder as applicable. Upon the occurrence of an
Event of Default of which a Responsible Officer of the Master Servicer has
actual knowledge, the Master Servicer shall promptly notify the Securities
Administrator and the Trustee and shall specify in such notice the action, if
any, the Master Servicer plans to take in respect of such default. So long as
an Event of Default shall occur and be continuing, the Master Servicer shall
take the actions specified in Article VII. In no event, however, will the
Master Servicer be responsible for supervising the servicing by any Servicer
of any defaulted Mortgage Loans and any related REO Properties.
If (i) a Servicer reports a delinquency on a monthly report and (ii)
such Servicer, by 11 a.m. (New York Time) on the Business Day preceding the
related Remittance Date, neither makes a Monthly Advance nor provides the
Securities Administrator and the Master Servicer with a report certifying that
such a Monthly Advance would be a Nonrecoverable Monthly Advance, then the
Master Servicer shall deposit in the Distribution Account not later than the
Business Day immediately preceding the related Distribution Date a Monthly
Advance in an amount equal to the difference between (x) with respect to each
Monthly Payment due on a Mortgage Loan that is delinquent (other than Relief
Act Interest Shortfalls) and for which the related Servicer was required to
make a Monthly Advance pursuant to the related Servicing Agreement and (y)
amounts deposited in the Collection Account to be used for Monthly Advances
with respect to such Mortgage Loan, except to the extent the Master Servicer
determines any such Monthly Advance to be a Nonrecoverable Monthly Advance or
Nonrecoverable Servicing Advance. Subject to the foregoing, the Master
Servicer shall continue to make such Monthly Advances for so long as the
related Servicer is required to do so under the related Servicing Agreement.
If applicable, on the Business Day immediately preceding the Distribution
Date, the Master Servicer shall deliver an Officer's Certificate to the
Trustee stating that the Master Servicer elects not to make a Monthly Advance
in a stated amount and detailing the reason(s) it deems the Monthly Advance to
be a Nonrecoverable Monthly Advance. Any amounts deposited by the Master
Servicer pursuant to this Section 9.01 shall be net of the Servicing Fee for
the related Mortgage Loans.
(a) The Master Servicer shall pay the costs of monitoring the
Servicers as required hereunder (including costs associated with (i)
termination of any Servicer, (ii) the appointment of a successor servicer or
(iii) the transfer to and assumption of, the servicing by the Master Servicer)
and shall, to the extent permitted by the related Servicing Agreement, seek
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reimbursement therefor initially from the terminated Servicer. In the event
the full costs associated with the transition of servicing responsibilities to
the Master Servicer or to a successor servicer are not paid for by the
predecessor or successor Servicer (provided such successor Servicer is not the
Master Servicer), the Master Servicer may be reimbursed therefor by the Trust
for out-of-pocket costs incurred by the Master Servicer associated with any
such transfer of servicing duties from a Servicer to the Master Servicer or
any other successor servicer.
(b) If the Master Servicer assumes the servicing with respect to any
of the Mortgage Loans, it will not assume liability for the representations
and warranties of any Servicer it replaces or for any errors or omissions of
such Servicer.
If the Depositor or an affiliate of the Depositor, is the owner of
the servicing rights for a servicer and the Depositor chooses to terminate
such servicer with or without cause and sell those servicing rights to a
successor servicer, then the Depositor must provide 30 days' notice to the
Master Servicer, such successor servicer must be reasonably acceptable to the
Master Servicer, the terminated servicer must be reimbursed for any
unreimbursed Monthly Advances, servicing fees and any related expenses, the
successor servicer must be qualified to service mortgage loans for ▇▇▇▇▇▇ Mae
or ▇▇▇▇▇▇▇ Mac and the Depositor must obtain prior written consent from the
Rating Agencies that the transfer of the servicing of the mortgage loans will
not result in a downgrade, qualification or withdrawal of the then current
ratings of the Certificates. The costs of such transfer (including any costs
of the Master Servicer) are to be borne by the Depositor.
Neither the Depositor nor the Securities Administrator shall consent
to the assignment by any Servicer of such Servicer's rights and obligations
under the Agreement without the prior written consent of the Master Servicer,
which consent shall not be unreasonably withheld.
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
(a) The Master Servicer, at its expense, shall maintain in effect a
blanket fidelity bond and an errors and omissions insurance policy, affording
coverage with respect to all directors, officers, directors, employees and
other Persons acting on such Master Servicer's behalf, and covering errors and
omissions in the performance of the Master Servicer's obligations hereunder.
The errors and omissions insurance policy and the fidelity bond shall be in
such form and amount generally acceptable for entities serving as master
servicers or trustees.
Section 9.03 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the Depositor, the
Securities Administrator and the Trustee, for the benefit of the
Certificateholders, as of the Closing Date that:
(i) it is a national banking association validly existing and in
good standing under the laws of the United States of America, and as
Master Servicer has full power and authority to transact any and all
business contemplated by this Agreement and to execute, deliver and
comply with its obligations under the terms of this Agreement, the
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execution, delivery and performance of which have been duly authorized by
all necessary corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws,
(B) violate any law or regulation or any administrative decree or order
to which it is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it is
bound or to which any of its assets are subject, which violation, default
or breach would materially and adversely affect the Master Servicer's
ability to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
in general, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any order
or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency to the extent that any such default
would materially and adversely affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any agreement
or instrument or subject to any charter provision, bylaw or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that may materially and adversely affect its ability as
Master Servicer to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations
under this Agreement;
(vi) no litigation is pending or, to the Master Servicer's
knowledge, threatened against the Master Servicer which would prohibit
its entering into this Agreement or performing its obligations under this
Agreement;
(vii) [Reserved];
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master
Servicer with this Agreement or the consummation of the transactions
contemplated by this Agreement, except for such consents, approvals,
authorizations and orders (if any) as have been obtained; and
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer.
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(b) Section 11.01(a) of this Agreement and Section 7 of the Step 2
Assignment Agreements provide that the Master Servicer may purchase, on or
after the Optional Termination Date, all Mortgage Loans (and REO Properties)
at the Termination Price. The Master Servicer, in consideration of the
benefits to it of the transactions occurring under this Agreement, the
Assignment Agreements and the Servicing Agreements, hereby represents,
covenants and agrees with the Depositor and any applicable NIM Issuer that it
will not exercise its right to purchase, on or after the Optional Termination
Date, all Mortgage Loans (and REO Properties) unless it has received (x)
written notification from the NIM Trustee that all of the outstanding notes
issued under the applicable indenture have been paid in full or (y) an
Officer's Certificate of the NIM Issuer pursuant to the applicable section of
the relevant indenture to the effect that all conditions precedent to the
satisfaction and discharge of the indenture have been complied with.
(c) It is understood and agreed that the representations and
warranties set forth in this Section shall survive the execution and delivery
of this Agreement. The Master Servicer shall indemnify the Depositor,
Securities Administrator, and the Trustee and hold them harmless against any
loss, damages, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments, and other reasonable costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a material breach of the Master Servicer's representations and
warranties contained in Section 9.03(a) above. It is understood and agreed
that the enforcement of the obligation of the Master Servicer set forth in
this Section 9.03 to indemnify the Depositor, Securities Administrator, and
the Trustee constitutes the sole remedy of the Depositor and the Trustee,
respecting a breach of the foregoing representations and warranties. Such
indemnification shall survive any termination of the Master Servicer as Master
Servicer hereunder and any termination of this Agreement.
Any cause of action against the Master Servicer relating to or
arising out of the breach of any representations and warranties made in this
Section shall accrue upon discovery of such breach by either the Depositor,
the Master Servicer, Securities Administrator or the Trustee or notice thereof
by any one of such parties to the other parties.
Section 9.04 Master Servicer Events of Default. Each of the
following shall constitute a "Master Servicer Event of Default":
(a) any failure by the Master Servicer to deposit in the
Distribution Account any payment received by it from any Servicer or required
to be made by the Master Servicer under the terms of this Agreement which
continues unremedied for a period of two (2) Business Days after the date upon
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer by any other party hereto;
(b) failure by the Master Servicer to duly observe or perform, in
any material respect, any other covenants, obligations or agreements of the
Master Servicer as set forth in this Agreement which failure continues
unremedied for a period of thirty (30) days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been
given to the Master Servicer by the Trustee or to the Master Servicer and
Trustee by the holders of Certificates evidencing at least 25% of the Voting
Rights;
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(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer and such decree or order shall have remained in force, undischarged
or unstayed for a period of sixty (60) days;
(d) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Master Servicer or relating to all or
substantially all of its property;
(e) the Master Servicer shall admit in writing its inability to pay
its debts as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations
for three (3) Business Days;
(f) Except as otherwise set forth herein, the Master Servicer
attempts to assign this Agreement or its responsibilities hereunder or to
delegate its duties hereunder (or any portion thereof) without the consent of
the Trustee, Securities Administrator and the Depositor; or
(g) the indictment of the Master Servicer for the taking of any
action by the Master Servicer, any employee thereof, any Affiliate or any
director or employee thereof that constitutes fraud or criminal activity in
the performance of its obligations under this Agreement, in each case, where
such indictment materially and adversely affects the ability of the Master
Servicer to perform its obligations under this Agreement (subject to the
condition that such indictment is not dismissed within ninety (90) days).
In each and every such case, so long as a Master Servicer Event of
Default shall not have been remedied, in addition to whatever rights the
Trustee may have at law or equity to damages, including injunctive relief and
specific performance, the Trustee, by notice in writing to the Master
Servicer, may, and upon the request of the Holders of Certificates
representing at least 51% of the Voting Rights shall, terminate with cause all
the rights and obligations of the Master Servicer under this Agreement.
Upon receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer under this Agreement, shall pass to
and be vested in any successor master servicer appointed hereunder which
accepts such appointments. Upon written request from the Trustee or the
Depositor, the Master Servicer shall prepare, execute and deliver to the
successor entity designated by the Trustee any and all documents and other
instruments related to the performance of its duties hereunder as the Master
Servicer and, place in such successor's possession all such documents with
respect to the master servicing of the Mortgage Loans and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes
of such notice of termination, at the Master Servicer's sole expense. The
Master Servicer shall cooperate with the Trustee and such successor master
servicer in effecting the termination of the Master Servicer's
responsibilities and rights hereunder, including without limitation, the
transfer to such
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successor master servicer for administration by it of all cash amounts which
shall at the time be credited to the Distribution Account or are thereafter
received with respect to the Mortgage Loans.
Section 9.05 Waiver of Default. By a written notice, the Trustee may
with the consent of a Holders of Certificates evidencing at least 51% of the
Voting Rights waive any default by the Master Servicer in the performance of
its obligations hereunder and its consequences. Upon any waiver of a past
default, such default shall cease to exist, and any Master Servicer Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 9.06 Successor to the Master Servicer. Upon termination of
the Master Servicer's responsibilities and duties under this Agreement, the
Trustee shall appoint or may petition any court of competent jurisdiction for
the appointment of a successor, which shall succeed to all rights and assume
all of the responsibilities, duties and liabilities of the Master Servicer
under this Agreement prior to the termination of the Master Servicer. Any
successor shall be a ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac approved servicer in good
standing and acceptable to the Depositor and the Rating Agencies. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that
in no event shall the master servicer fee paid to such successor master
servicer exceed that paid to the Master Servicer hereunder. In the event that
the Master Servicer's duties, responsibilities and liabilities under this
Agreement are terminated, the Master Servicer shall continue to discharge its
duties and responsibilities hereunder until the effective date of such
termination with the same degree of diligence and prudence which it is
obligated to exercise under this Agreement and shall take no action whatsoever
that might impair or prejudice the rights of its successor. The termination of
the Master Servicer shall not become effective until a successor shall be
appointed pursuant hereto and shall in no event (i) relieve the Master
Servicer of responsibility for the representations and warranties made
pursuant to Section 9.03(a) hereof and the remedies available to the Trustee
under Section 9.03(b) hereof, it being understood and agreed that the
provisions of Section 9.03 hereof shall be applicable to the Master Servicer
notwithstanding any such sale, assignment, resignation or termination of the
Master Servicer or the termination of this Agreement; or (ii) affect the right
of the Master Servicer to receive payment and/or reimbursement of any amounts
accruing to it hereunder prior to the date of termination (or during any
transition period in which the Master Servicer continues to perform its duties
hereunder prior to the date the successor master servicer fully assumes its
duties).
If no successor Master Servicer has accepted its appointment within
90 days of the time the Trustee receives the resignation of the Master
Servicer, the Trustee shall be the successor Master Servicer in all respects
under this Agreement and shall have all the rights and powers and be subject
to all the responsibilities, duties and liabilities relating thereto,
including the obligation to make Monthly Advances; provided, however, that any
failure to perform any duties or responsibilities caused by the Master
Servicer's failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In the Trustee's capacity as
such successor, the Trustee shall have the same limitations on liability
herein granted to the Master Servicer. As compensation therefor, the Trustee
shall be entitled to receive the
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compensation, reimbursement and indemnities otherwise payable to the Master
Servicer, including the fees and other amounts payable pursuant to Section
9.07 hereof.
Any successor master servicer appointed as provided herein, shall
execute, acknowledge and deliver to the Master Servicer and to the Trustee an
instrument accepting such appointment, wherein the successor shall make the
representations and warranties set forth in Section 9.03 hereof, and whereupon
such successor shall become fully vested with all of the rights, powers,
duties, responsibilities, obligations and liabilities of the Master Servicer,
with like effect as if originally named as a party to this Agreement. Any
termination or resignation of the Master Servicer or termination of this
Agreement shall not affect any claims that the Trustee may have against the
Master Servicer arising out of the Master Servicer's actions or failure to act
prior to any such termination or resignation or in connection with the
Trustee's assumption of such obligations, duties and responsibilities.
Upon a successor's acceptance of appointment as such, the Master
Servicer shall notify by mail the Trustee of such appointment.
Compensation of the Master Servicer. As compensation for its
activities under this Agreement, the Master Servicer shall be entitled to the
investment income earned on amounts in the Distribution Account during the
Master Servicer Float Period.
Section 9.07 Merger or Consolidation. Any Person into which the
Master Servicer may be merged or consolidated, or any Person resulting from
any merger, conversion, other change in form or consolidation to which the
Master Servicer shall be a party, or any Person succeeding to the business of
the Master Servicer, shall be the successor to the Master Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or resulting Person to the Master
Servicer shall (i) be a Person (or have an Affiliate) that is qualified and
approved to service mortgage loans for ▇▇▇▇▇▇ ▇▇▇ and FHLMC (provided further
that a successor Master Servicer that satisfies subclause (i) through an
Affiliate agrees to service the Mortgage Loans in accordance with all
applicable ▇▇▇▇▇▇ Mae and FHLMC guidelines) and (ii) have a net worth of not
less than $25,000,000.
Section 9.08 Resignation of the Master Servicer. Except as otherwise
provided in Sections 9.08 and 9.10 hereof, the Master Servicer shall not
resign from the obligations and duties hereby imposed on it unless the Master
Servicer's duties hereunder are no longer permissible under applicable law or
are in material conflict by reason of applicable law with any other activities
carried on by it and cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of Counsel
that shall be independent to such effect delivered to the Trustee. No such
resignation shall become effective until the Trustee shall have assumed, or a
successor master servicer satisfactory to the Trustee and the Depositor shall
have assumed, the Master Servicer's responsibilities and obligations under
this Agreement. Notice of such resignation shall be given promptly by the
Master Servicer and the Depositor to the Trustee.
If at any time, JPMorgan Chase Bank, National Association, as Master
Servicer, resigns under this Section 9.09, or is removed as Master Servicer
pursuant to Section 9.04, then
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at such time ▇▇▇▇▇ Fargo Bank, N.A. shall also resign (and shall be entitled
to resign) as Securities Administrator under this Agreement.
Section 9.09 Assignment or Delegation of Duties by the Master
Servicer. Except as expressly provided herein, the Master Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer; provided, however, that the Master Servicer
shall have the right with the prior written consent of the Depositor (which
shall not be unreasonably withheld or delayed), and upon delivery to the
Trustee and the Depositor of a letter from each Rating Agency to the effect
that such action shall not result in a downgrade of the ratings assigned to
any of the Certificates, to delegate or assign to or subcontract with or
authorize or appoint any qualified Person to perform and carry out any duties,
covenants or obligations to be performed and carried out by the Master
Servicer hereunder. Notice of such permitted assignment shall be given
promptly by the Master Servicer to the Depositor and the Trustee. If, pursuant
to any provision hereof, the duties of the Master Servicer are transferred to
a successor master servicer, the entire compensation payable to the Master
Servicer pursuant hereto shall thereafter be payable to such successor master
servicer but in no event shall the fee payable to the successor master
servicer exceed that payable to the predecessor master servicer.
Section 9.10 Limitation on Liability of the Master Servicer. Neither
the Master Servicer nor any of the directors, officers, employees or agents of
the Master Servicer shall be under any liability to the Trustee, Securities
Administrator, the Servicers or the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Master Servicer or any such person against any liability
that would otherwise be imposed by reason of willful malfeasance, bad faith or
negligence in the performance of its duties or by reason of reckless disregard
for its obligations and duties under this Agreement. The Master Servicer and
any director, officer, employee or agent of the Master Servicer may rely in
good faith on any document prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Master Servicer shall be
under no obligation to appear in, prosecute or defend any legal action that is
not incidental to its duties as Master Servicer with respect to the Mortgage
Loans under this Agreement and that in its opinion may involve it in any
expenses or liability; provided, however, that the Master Servicer may in its
sole discretion undertake any such action that it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom, shall be liabilities of the Trust, and the Master Servicer shall be
entitled to be reimbursed therefor out of the Master Servicer Account in
accordance with the provisions of Section 9.07 and Section 9.12.
The Master Servicer shall not be liable for any acts or omissions of
any Servicer except to the extent that damages or expenses are incurred as a
result of such act or omissions and such damages and expenses would not have
been incurred but for the negligence, willful malfeasance, bad faith or
recklessness of the Master Servicer in supervising, monitoring and overseeing
the obligations of the Servicers as required under the Agreement.
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Section 9.11 Indemnification; Third Party Claims. The Master
Servicer agrees to indemnify the Depositor, Securities Administrator and the
Trustee, and hold them harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, liability, fees and expenses that the Depositor, the Securities
Administrator or the Trustee may sustain as a result of the Master Servicer's
willful malfeasance, bad faith or negligence in the performance of its duties
hereunder or by reason of its reckless disregard for its obligations and
duties under this Agreement. The Depositor, Securities Administrator, the
Servicer, and the Trustee shall immediately notify the Master Servicer if a
claim is made by a third party with respect to this Agreement or the Mortgage
Loans which would entitle the Depositor, the Servicer or the Trustee to
indemnification under this Section 9.12, whereupon the Master Servicer shall
assume the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim.
The Master Servicer agrees to indemnify and hold harmless the
Trustee from and against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liability, fees and expenses (including reasonable attorneys' fees) that the
Trustee may sustain as a result of such liability or obligations of the Master
Servicer and in connection with the Trustee's assumption (not including the
Trustee's performance, except to the extent that costs or liability of the
Trustee are created or increased as a result of negligent or wrongful acts or
omissions of the Master Servicer prior to its replacement as Master Servicer)
of the Master Servicer's obligations, duties or responsibilities under such
agreement.
The Trust will indemnify the Master Servicer and hold it harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that the Master Servicer may incur or sustain in connection with,
arising out of or related to this Agreement, the Servicing Agreements, the
Sale Agreements, the Step 2 Assignment Agreements or the Certificates, except
to the extent that any such loss, liability or expense is related to (i) a
material breach of the Master Servicer's representations and warranties in
this Agreement or (ii) the Master Servicer's willful malfeasance, bad faith or
negligence or by reason of its reckless disregard of its duties and
obligations under any such agreement; provided that any such loss, liability
or expense constitutes an "unanticipated expense incurred by the REMIC" within
the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii). The Master
Servicer shall be entitled to reimbursement for any such indemnified amount
from funds on deposit in the Distribution Account.
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator. The Securities
Administrator shall undertake to perform such duties and only such duties as
are specifically set forth in this Agreement.
The Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Securities Administrator that are specifically
required to be furnished pursuant to any provision of this
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Agreement shall examine them to determine whether they are in the form
required by this Agreement; provided, however, that the Securities
Administrator shall not be responsible for the accuracy or content of any such
resolution, certificate, statement, opinion, report, document, order or other
instrument. If any such instrument is found not to conform in any material
respect to the requirements of this Agreement, the Securities Administrator
shall notify the Certificateholders of such non conforming instrument in the
event the Securities Administrator, after so requesting, does not receive a
satisfactorily corrected instrument.
No provision of this Agreement shall be construed to relieve the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however,
that:
(i) the duties and obligations of the Securities Administrator shall
be determined solely by the express provisions of this Agreement, the
Securities Administrator shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Securities Administrator and the Securities
Administrator may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Securities Administrator and
conforming to the requirements of this Agreement which it believed in
good faith to be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
(ii) the Securities Administrator shall not be liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Securities Administrator, unless it shall be conclusively
determined by a court of competent jurisdiction, such determination no
longer subject to appeal, that the Securities Administrator was negligent
in ascertaining the pertinent facts;
(iii) the Securities Administrator shall not be liable with respect
to any action or inaction taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Holders of Certificates
evidencing not less than 25% of the Voting Rights of Certificates
relating to the time, method and place of conducting any proceeding for
any remedy available to the Securities Administrator, or exercising or
omitting to exercise any trust or power conferred upon the Securities
Administrator under this Agreement; and
(iv) the Securities Administrator shall not be accountable, shall
have no liability and makes no representation as to any acts or omissions
hereunder of the Master Servicer or the Trustee.
Section 10.02 Certain Matters Affecting the Securities
Administrator. Except as otherwise provided in Section 10.01:
(i) the Securities Administrator may request and conclusively rely
upon and shall be fully protected in acting or refraining from acting
upon any resolution, Officer's Certificate, certificate of auditors or
any other certificate, statement, instrument, opinion,
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report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Securities Administrator
shall have no responsibility to ascertain or confirm the genuineness of
any signature of any such party or parties;
(ii) the Securities Administrator may consult with counsel,
financial advisers or accountants and the advice of any such counsel,
financial advisers or accountants and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) the Securities Administrator shall not be liable for any
action or inaction taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(iv) the Securities Administrator shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing not
less than 25% of the Voting Rights allocated to each Class of
Certificates; provided, however, that if the payment within a reasonable
time to the Securities Administrator of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Securities Administrator, not
reasonably assured to the Securities Administrator by the security
afforded to it by the terms of this Agreement, the Securities
Administrator may require reasonable indemnity against such expense or
liability as a condition to so proceeding. Nothing in this clause (iv)
shall derogate from the obligation of the Master Servicer to observe any
applicable law prohibiting disclosure of information regarding the
Mortgagors, provided that the Master Servicer shall have no liability for
disclosure required by this Agreement;
(v) the Securities Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian and the Securities
Administrator shall not be responsible for any misconduct or negligence
on the part of any such agent, attorney or custodian appointed by the
Securities Administrator with due care;
(vi) the Securities Administrator shall not be required to risk or
expend its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its rights
or powers hereunder if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not assured to it, and none of the provisions contained in
this Agreement shall in any event require the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer under this Agreement;
(vii) the Securities Administrator shall be under no obligation to
exercise any of the trusts, rights or powers vested in it by this
Agreement or to institute, conduct or
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defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Securities Administrator reasonable security or indemnity
satisfactory to the Securities Administrator against the costs, expenses
and liabilities which may be incurred therein or thereby;
(viii) the Securities Administrator shall have no obligation to
appear in, prosecute or defend any legal action that is not incidental to
its duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Securities
Administrator may in its discretion undertake any such action that it may
deem necessary or desirable in respect of this Agreement and the rights
and duties of the parties hereto and the interests of the Trustee, the
Securities Administrator and the Certificateholders hereunder. In such
event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust
Fund, and the Securities Administrator shall be entitled to be reimbursed
therefor out of the Collection Account; and
(ix) in no event shall the Securities Administrator be liable for
special, indirect or consequential damages.
The Securities Administrator shall have no duty (A) to see to any
recording, filing, or depositing of this Agreement or any agreement referred
to herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or
filing or depositing or to any rerecording, refiling or redepositing thereof,
(B) to see to the provision of any insurance or (C) to see to the payment or
discharge of any tax, assessment, or other governmental charge or any lien or
encumbrance of any kind owing with respect to, assessed or levied against, any
part of the Trust Fund other than from funds available in the Distribution
Account.
Section 10.03 Securities Administrator Not Liable for Certificates
or Mortgage Loans. The recitals contained herein and in the Certificates shall
be taken as the statements of the Depositor or the Transferor, as the case may
be, and the Securities Administrator assumes no responsibility for their
correctness. The Securities Administrator makes no representations as to the
validity or sufficiency of this Agreement or of the Certificates or of any
Mortgage Loan or related document other than with respect to the Securities
Administrator's execution and authentication of the Certificates. The
Securities Administrator shall not be accountable for the use or application
by the Depositor or the Master Servicer of any funds paid to the Depositor or
the Master Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or the Master Servicer.
Section 10.04 Securities Administrator May Own Certificates. The
Securities Administrator in its individual or any other capacity may become
the owner or pledgee of Certificates and may transact business with the
parties hereto and their Affiliates with the same rights as it would have if
it were not the Securities Administrator.
Section 10.05 Securities Administrator's Fees and Expenses. The
Securities Administrator shall be entitled to the investment income earned on
amounts in the Distribution
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Account during the Securities Administrator Float Period. The Securities
Administrator and any director, officer, employee, agent or "control
person" within the meaning of the Securities Act of 1933, as amended, and
the Securities Exchange of 1934, as amended ("Control Person"), of the
Securities Administrator shall be indemnified by the Trust and held
harmless against any loss, liability or expense (including reasonable
attorney's fees) (i) incurred in connection with any claim or legal
action relating to (a) this Agreement, (b) the Mortgage Loans or (c) the
Certificates, other than any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence in the performance
of any of the Securities Administrator's duties hereunder, (ii) incurred
in connection with the performance of any of the Securities
Administrator's duties hereunder, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of any of the Securities Administrator's
duties hereunder or (iii) incurred by reason of any action of the
Securities Administrator taken at the direction of the
Certificateholders, provided that any such loss, liability or expense
constitutes an "unanticipated expense incurred by the REMIC" within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii). Such
indemnity shall survive the termination of this Agreement or the
resignation or removal of the Securities Administrator hereunder. Without
limiting the foregoing, and except for any such expense, disbursement or
advance as may arise from the Securities Administrator's negligence, bad
faith or willful misconduct, or which would not be an "unanticipated
expense" within the meaning of the second preceding sentence, the
Securities Administrator shall be reimbursed by the Trust for all
reasonable expenses, disbursements and advances incurred or made by the
Securities Administrator in accordance with any of the provisions of this
Agreement with respect to: (A) the reasonable compensation and the
expenses and disbursements of its counsel not associated with the closing
of the issuance of the Certificates, (B) the reasonable compensation,
expenses and disbursements of any accountant, engineer, appraiser or
other agent that is not regularly employed by the Securities
Administrator, to the extent that the Securities Administrator must
engage such Persons to perform acts or services hereunder and (C)
printing and engraving expenses in connection with preparing any
Definitive Certificates. The Trust shall fulfill its obligations under
this paragraph from amounts on deposit from time to time in the
Distribution Account.
The Securities Administrator may retain or withdraw from the
Distribution Account, (i) the investment income earned on amounts in the
Distribution Account during the Master Servicer Float Period, (ii) amounts
necessary to reimburse it or the Master Servicer for any previously
unreimbursed Advances and any Advances the Master Servicer deems to be
non-recoverable from the related Mortgage Loan proceeds, (iii) an aggregate
annual amount to indemnify the Master Servicer and itself for amounts due in
accordance with this Agreement, and (iv) any other amounts which it or the
Master Servicer is entitled to receive hereunder for reimbursement,
indemnification or otherwise, including the amount to which the Securities
Administrator is entitled pursuant to Section 3.02 hereof. The Securities
Administrator shall be required to pay all expenses incurred by it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as provided in this Agreement.
Section 10.06 Eligibility Requirements for Securities Administrator.
The Securities Administrator hereunder shall at all times be a corporation or
association organized and doing business under the laws the United States of
America or any state thereof, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at
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least $50,000,000, subject to supervision or examination by federal or state
authority and with a credit rating of at least investment grade. If such
corporation or association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 10.06 the combined
capital and surplus of such corporation or association shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Securities Administrator shall
cease to be eligible in accordance with the provisions of this Section 10.06,
the Securities Administrator shall resign immediately in the manner and with
the effect specified in Section 10.07 hereof. The entity serving as Securities
Administrator may have normal banking and trust relationships with the
Depositor and its affiliates or the Trustee and its affiliates.
Any successor Securities Administrator (i) may not be an originator,
the Master Servicer, the Servicer, the Depositor or an affiliate of the
Depositor unless the Securities Administrator functions are operated through
an institutional trust department of the Securities Administrator, (ii) must
be authorized to exercise corporate trust powers under the laws of its
jurisdiction of organization, and (iii) must be rated at least "A/F1" by
Fitch, if Fitch is a Rating Agency, or the equivalent rating by S&P or
▇▇▇▇▇'▇. If no successor Securities Administrator shall have been appointed
and shall have accepted appointment within 60 days after the Securities
Administrator ceases to be the Securities Administrator pursuant to Section
10.07, then the Trustee may (but shall not be obligated to) become the
successor Securities Administrator. The Depositor shall appoint a successor to
the Securities Administrator in accordance with Section 10.07. The Trustee
shall notify the Rating Agencies of any change of Securities Administrator.
Section 10.07 Resignation and Removal of Securities Administrator.
The Securities Administrator may at any time resign by giving written notice
of resignation to the Depositor and the Trustee and each Rating Agency not
less than 60 days before the date specified in such notice when, subject to
Section 10.08, such resignation is to take effect, and acceptance by a
successor Securities Administrator in accordance with Section 10.08 meeting
the qualifications set forth in Section 10.06. If no successor Securities
Administrator meeting such qualifications shall have been so appointed by the
Depositor and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Securities Administrator may
petition any court of competent jurisdiction for the appointment of a
successor Securities Administrator.
If at any time the Securities Administrator shall cease to be
eligible in accordance with the provisions of Section 10.06 hereof and shall
fail to resign after written request thereto by the Depositor, or if at any
time the Securities Administrator shall become incapable of acting, or shall
be adjudged as bankrupt or insolvent, or a receiver of the Securities
Administrator or of its property shall be appointed, or any public officer
shall take charge or control of the Securities Administrator or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or a tax is imposed with respect to the Trust Fund by any state
in which the Securities Administrator or the Trust Fund is located and the
imposition of such tax would be avoided by the appointment of a different
Securities Administrator, then the Depositor may remove the Securities
Administrator and appoint a successor Securities Administrator by written
instrument, in triplicate, one copy of which instrument shall be delivered to
the Securities
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Administrator so removed, one copy of which shall be delivered to the Master
Servicer and one copy to the successor Securities Administrator.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Securities Administrator and appoint a
successor Securities Administrator by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys in fact duly authorized,
one complete set of which instruments shall be delivered by the successor
Securities Administrator to the Trustee, one complete set to the Securities
Administrator so removed and one complete set to the successor so appointed.
Notice of any removal of the Securities Administrator shall be given to each
Rating Agency by the successor Securities Administrator.
Any resignation or removal of the Securities Administrator and
appointment of a successor Securities Administrator pursuant to any of the
provisions of this Section 10.07 shall become effective upon acceptance by the
successor Securities Administrator of appointment as provided in Section 10.08
hereof.
Section 10.08 Successor Securities Administrator. Any successor
Securities Administrator (which may be the Trustee) appointed as provided in
Section 10.07 hereof shall execute, acknowledge and deliver to the Depositor
and to its predecessor Securities Administrator and the Trustee an instrument
accepting such appointment hereunder and thereupon the resignation or removal
of the predecessor Securities Administrator shall become effective and such
successor Securities Administrator, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if
originally named as Securities Administrator herein. The Depositor, the
Trustee, the Master Servicer and the predecessor Securities Administrator
shall execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
the successor Securities Administrator all such rights, powers, duties, and
obligations.
No successor Securities Administrator shall accept appointment as
provided in this Section 10.08 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 10.06 hereof and its appointment shall not adversely affect the then
current rating of the Certificates, as confirmed in writing by each Rating
Agency.
Upon acceptance by a successor Securities Administrator of
appointment as provided in this Section 10.08, the Depositor shall mail notice
of the succession of such Securities Administrator hereunder to all Holders of
Certificates. If the Depositor fails to mail such notice within 10 days after
acceptance by the successor Securities Administrator of appointment, the
successor Securities Administrator shall cause such notice to be mailed at the
expense of the Depositor.
Section 10.09 Merger or Consolidation of Securities Administrator.
Any corporation or other entity into which the Securities Administrator may be
merged or converted or with which it may be consolidated or any corporation or
other entity resulting from any merger, conversion or consolidation to which
the Securities Administrator shall be a party, or
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any corporation or other entity succeeding to the business of the Securities
Administrator, shall be the successor of the Securities Administrator
hereunder, provided that such corporation or other entity shall be eligible
under the provisions of Section 10.06 hereof, without the execution or filing
of any paper or further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section 10.10 Assignment or Delegation of Duties by the Securities
Administrator. Except as expressly provided herein, the Securities
Administrator shall not assign or transfer any of its rights, benefits or
privileges hereunder to any other Person, or delegate to or subcontract with,
or authorize or appoint any other Person to perform any of the duties,
covenants or obligations to be performed by the Securities Administrator;
provided, however, that the Securities Administrator shall have the right with
the prior written consent of the Depositor (which shall not be unreasonably
withheld or delayed), and upon delivery to the Trustee and the Depositor of a
letter from each Rating Agency to the effect that such action shall not result
in a downgrade of the ratings assigned to any of the Certificates, to delegate
or assign to or subcontract with or authorize or appoint any qualified Person
to perform and carry out any duties, covenants or obligations to be performed
and carried out by the Securities Administrator hereunder. Notice of such
permitted assignment shall be given promptly by the Securities Administrator
to the Depositor and the Trustee. If, pursuant to any provision hereof, the
duties of the Securities Administrator are transferred to a successor
securities administrator, the entire compensation payable to the Securities
Administrator pursuant hereto shall thereafter be payable to such successor
securities administrator but in no event shall the fee payable to the
successor securities administrator exceed that payable to the predecessor
securities administrator.
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 11.03, the obligations and responsibilities
of the Depositor, the Master Servicer, the Servicers, the Securities
Administrator and the Trustee created hereby with respect to the Trust Fund
shall terminate upon the earlier of (a) the purchase on or after the Optional
Termination Date, by the Master Servicer of all Mortgage Loans (and REO
Properties), at the price (the "Termination Price") equal to the greater of
(1) sum of (i) 100% of the unpaid principal balance of each Mortgage Loan
(other than in respect of REO Property) plus accrued and unpaid interest
thereon at the applicable Mortgage Interest Rate, (ii) the lesser of (x) the
appraised value of any REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the Master
Servicer at its expense, plus accrued and unpaid interest on the related
mortgage loans at the applicable mortgage rate and (y) the unpaid principal
balance of each Mortgage Loan related to any REO Property, in each case plus
accrued and unpaid interest thereon at the applicable Mortgage Interest Rate,
and (iii) any Swap Termination Payment other than a Defaulted Swap Termination
Payment owed to the Swap Provider and (2) the aggregate fair market value of
each Mortgage Loan and any REO Property, as determined by the highest bid
received by the Trustee from closed bids solicited by the Depositor or its
designee from at least three recognized broker/dealers (one of which may be an
affiliate of the Depositor) that deal in similar assets as of the close of
business on the third Business Day preceding the date upon which a Notice of
Final Distribution is furnished to
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Certificateholders pursuant to Section 11.02, plus accrued and unpaid interest
on the Mortgage Loans at the applicable Mortgage Interest Rate. In no event
shall the trusts created hereby continue beyond the expiration of 21 years
from the death of the survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the
late Ambassador of the United States to the Court of St. James's, living on
the date hereof.
The proceeds of the sale of such assets of the Trust (other than,
with respect to any mortgage loan and the related property, an amount equal to
the excess, if any, of the amount in Section 11.01(a)(2) over the sum of the
amount in Section 11.01(a)(1) (such excess, the "Fair Market Value Excess"))
will be distributed to the holders of the Certificates in accordance with
Section 4.01. Any Fair Market Value Excess received in connection with the
purchase of the Mortgage Loans and REO properties will be distributed to the
holders of the Class C Certificates.
Except to the extent provided above with regard to allocating any
Fair Market Value Excess to the holders of the Class C Certificates, the
proceeds of such a purchase will be treated as a prepayment of the Mortgage
Loans for purposes of distributions to Certificateholders. Accordingly, the
exercise by the Master Servicer of its option to purchase the Mortgage Loans
and REO properties will result in the final distribution on the Certificates
on that Distribution Date.
Section 11.02 Final Distribution on the Certificates. If, on any
Remittance Date, the Servicers notify the Securities Administrator that there
are no Outstanding Mortgage Loans and no other funds or assets in the Trust
Fund other than the funds in the Collection Account, the Securities
Administrator shall promptly send a Notice of Final Distribution to the
applicable Certificateholders. If the Master Servicer elects to terminate the
Trust Fund pursuant to clause (a) of Section 11.01, by no later than the 10th
day of the month of the final distribution, the Master Servicer, pursuant to
the Step 2 Assignment Agreements, shall notify the Trustee and the Securities
Administrator of the final Distribution Date and of the applicable repurchase
price of the Mortgage Loans and REO Properties.
A Notice of Final Distribution, specifying the Distribution Date on
which Certificateholders may surrender their Certificates for payment of the
final distribution and cancellation, shall be given promptly by the Securities
Administrator by letter to Certificateholders mailed not later than the 15th
day of the month of such final distribution. Any such Notice of Final
Distribution shall specify (a) the Distribution Date upon which final
distribution on the Certificates will be made upon presentation and surrender
of Certificates at the office therein designated, (b) the amount of such final
distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date
otherwise applicable to such Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Securities Administrator
will give such Notice of Final Distribution to each Rating Agency at the time
such Notice of Final Distribution is given to Certificateholders.
In the event the Master Servicer purchases the Mortgage Loans (and
REO Properties) pursuant to Section 11.01(a), pursuant to the Step 2
Assignment Agreements the Master Servicer is required thereunder to remit to
the Securities Administrator the applicable Termination Price on the
Remittance Date immediately preceding the applicable final
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Distribution Date. Upon such final deposit with respect to the Trust Fund and
the receipt by the Securities Administrator and the Custodians of a Request
for Release therefor, the Master Servicer shall direct the Custodians to
release and the relevant Custodians shall promptly release to the Master
Servicer or its designee the Custodial Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class (after reimbursement of all amounts due the Depositor and the Trustee
hereunder), in each case on the final Distribution Date and in the order set
forth in Section 4.01, in proportion to their respective Percentage Interests,
with respect to Certificateholders of the same Class, an amount up to an
amount equal to (i) as to each Class of Regular Certificates (except the Class
X Certificate), the Certificate Balance thereof plus for each such Class and
the Class X Certificate accrued interest thereon in the case of an
interest-bearing Certificate and all other amounts to which such Classes are
entitled pursuant to Section 4.01, (ii) as to the Class C Certificates, upon
any exercise of the purchase option set forth in Section 11.01(a), held by the
Trust after the distribution pursuant to clause (i) above and (iii) as to the
Residual Certificates, the amount, if any, which remains on deposit in the
Distribution Account after application pursuant to clause (i) above (other
than the amounts retained to meet claims, which retained amounts shall also be
released to the Class C Certificates or the Residual Certificates, as
applicable, as and to the extent such amounts shall no longer be required to
be so retained). The foregoing provisions are intended to distribute to each
Class of Regular Certificates any accrued and unpaid interest and principal to
which they are entitled based on the Pass-Through Rates and actual Class
Certificate Balances or notional principal balances set forth in the
Preliminary Statement upon liquidation of the Trust.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Securities Administrator
shall give a second written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final
distribution with respect thereto. If within six months after the second
notice all the applicable Certificates shall not have been surrendered for
cancellation, the Securities Administrator may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain a part of
the Trust Fund. If within one year after the second notice all Certificates
shall not have been surrendered for cancellation, the Class R
Certificateholders shall be entitled to all unclaimed funds and other assets
of the Trust Fund which remain subject hereto.
Section 11.03 Additional Termination Requirements. In the event the
Master Servicer elects to purchase the Mortgage Loans as provided in Section
11.01, the Trust Fund shall be terminated in accordance with the following
additional requirements, unless the Trustee and the Securities Administrator
have been supplied with an Opinion of Counsel, at the expense of the Master
Servicer, to the effect that the failure to comply with the requirements of
this Section 11.03 will not (i) result in the imposition of taxes on
"prohibited transactions" on either Trust REMIC as defined in Section 860F of
the Code, or (ii) cause either Trust REMIC to fail to qualify as a REMIC at
any time that any Certificates are outstanding:
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(a) The Securities Administrator on behalf of the Trustee shall sell
all of the assets of the Trust Fund to the Master Servicer and, by the next
Distribution Date after such sale, shall distribute to the Certificateholders
the proceeds of such sale in complete liquidation of each of the Trust REMICs;
and
(b) The Securities Administrator shall attach a statement to the
final federal income tax return for each of the Trust REMICs stating that
pursuant to Treasury Regulations Section 1.860F-1, the first day of the 90 day
liquidation period for each such Trust REMIC was the date on which the
Securities Administrator on behalf of the Trustee sold the assets of the Trust
Fund to the Master Servicer.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Master Servicer, the Securities Administrator, the
Custodians and the Trustee (and the Master Servicer may request an amendment
or consent to any amendment of a Servicing Agreement as directed by the
Depositor) without the consent of any of the Certificateholders (i) to cure
any ambiguity or mistake, (ii) to correct any defective provision herein or in
the applicable Servicing Agreement, or to supplement any provision in this
Agreement which may be inconsistent with any other provision herein or in the
applicable Servicing Agreement, (iii) to add to the duties of the Depositor,
or the Trustee (or with respect to the applicable Servicing Agreement, of the
applicable Servicer) the Master Servicer, the Securities Administrator or the
Custodians, (iv) to add any other provisions with respect to matters or
questions arising hereunder or under the applicable Servicing Agreement, or
(v) to modify, alter, amend, add to or rescind any of the terms or provisions
contained in this Agreement or in the applicable Servicing Agreement; provided
that any action pursuant to clause (iv) or (v) above shall not, as evidenced
by an Opinion of Counsel (which Opinion of Counsel shall be an expense of the
requesting party, but in any case shall not be an expense of the Trustee, the
Master Servicer, the Securities Administrator, the Custodians or the Trust
Fund), adversely affect in any material respect the interests of any
Certificateholder; provided, further, that the amendment shall not be deemed
to adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter
from each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, the Depositor, the Custodians, the
Securities Administrator and the Master Servicer also may at any time and from
time to time amend this Agreement (and the Master Servicer shall request the
Servicers amend the applicable Servicing Agreements), without the consent of
the Certificateholders, to modify, eliminate or add to any of its provisions
to such extent as shall be necessary or helpful to (i) maintain the
qualification of each Trust REMIC under the REMIC Provisions, (ii) avoid or
minimize the risk of the imposition of any tax on either Trust REMIC pursuant
to the Code that would be a claim at any time prior to the final redemption of
the Certificates or (iii) comply with any other requirements of the Code;
provided, that the Trustee and the Master Servicer have been provided an
Opinion of Counsel, which
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opinion shall be an expense of the party requesting such opinion but in any
case shall not be an expense of the Trustee or the Trust Fund, to the effect
that such action is necessary or helpful to, as applicable, (i) maintain such
qualification, (ii) avoid or minimize the risk of the imposition of such a tax
or (iii) comply with any such requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Custodians, the Securities Administrator
and the Trustee (and the Master Servicer shall consent to any amendment to the
applicable Servicing Agreement as directed by the Depositor) with the consent
of the Holders of Certificates evidencing Percentage Interests aggregating not
less than 66?% of each Class of Certificates affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of
the provisions of this Agreement or of modifying in any manner the rights of
the Holders of Certificates; provided, however, that no such amendment shall
(i) reduce in any manner the amount of, or delay the timing of, payments
required to be distributed on any Certificate without the consent of the
Holder of such Certificate, (ii) adversely affect in any material respect the
interests of the Holders of any Class of Certificates in a manner other than
as described in clause (i), without the consent of the Holders of Certificates
of such Class evidencing, as to such Class, Percentage Interests aggregating
not less than 66?%, or (iii) reduce the aforesaid percentages of Certificates
the Holders of which are required to consent to any such amendment, without
the consent of the Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee and the Master Servicer shall not consent to any amendment to this
Agreement or any Servicing Agreement unless (i) each shall have first received
an Opinion of Counsel, which opinion shall not be an expense of the Trustee,
the Master Servicer or the Trust Fund, to the effect that such amendment will
not cause the imposition of any tax on either Trust REMIC or the
Certificateholders or cause either Trust REMIC to fail to qualify as a REMIC
at any time that any Certificates are outstanding and (ii) the party seeking
such amendment shall have provided written notice to the Rating Agencies (with
a copy of such notice to the Trustee and the Master Servicer) of such
amendment, stating the provisions of the Agreement to be amended.
Notwithstanding the foregoing provisions of this Section 12.01, with
respect to any amendment that significantly modifies the permitted activities
of the Trustee or a Servicer under the applicable Servicing Agreement, any
Certificate beneficially owned by the Depositor or any of its Affiliates or by
the Responsible Party or any of its Affiliates shall be deemed not to be
outstanding (and shall not be considered when determining the percentage of
Certificateholders consenting or when calculating the total number of
Certificates entitled to consent) for purposes of determining if the requisite
consents of Certificateholders under this Section 12.01 have been obtained.
Promptly after the execution of any amendment to this Agreement or
any Servicing Agreement requiring the consent of Certificateholders, the
Trustee shall furnish written notification of the substance or a copy of such
amendment to each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such
113
consent shall approve the substance thereof. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable regulations as the
Trustee may prescribe.
Nothing in this Agreement shall require the Trustee, the Custodians,
the Master Servicer or the Securities Administrator to enter into an amendment
which modifies its obligations or liabilities without its consent and in all
cases without receiving an Opinion of Counsel (which Opinion shall not be an
expense of the Trustee, the Custodians, the Master Servicer, the Securities
Administrator or the Trust Fund), satisfactory to the Trustee, the Master
Servicer or the Securities Administrator, as applicable, that (i) such
amendment is permitted and is not prohibited by this Agreement or the
applicable Servicing Agreement and that all requirements for amending this
Agreement or such Servicing Agreement have been complied with; and (ii) either
(A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to
this Section 12.01.
Notwithstanding the Trustee's consent to, or the Master Servicer's
request for, any amendment of any Servicing Agreement pursuant to the terms of
this Section 12.01, such Servicing Agreement cannot be amended without the
consent of the applicable Servicer. Neither the Master Servicer nor the
Trustee shall be responsible for any failure by such Servicer to consent to
any amendment to the applicable Servicing Agreement.
Section 12.02 Recordation of Agreement; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation shall be
effected by the Trustee at the expense of the Trust, but only if an Opinion of
Counsel to the effect that such recordation materially and beneficially
affects the interests of the Certificateholders is delivered to the Trustee.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
Section 12.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. It is, further, not the intention of
the parties that such conveyances be deemed a pledge thereof. However, in the
event that, notwithstanding the intent of the parties, either of such assets
are held to be the
114
property of the Depositor, or if for any other reason this Agreement is held
or deemed to create a security interest in either of such assets, then (i)
this Agreement shall be deemed to be a security agreement within the meaning
of the Uniform Commercial Code of the State of New York and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The Depositor, for the benefit of the Certificateholders, shall, to
the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Trust Fund, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement. The Depositor shall
arrange for filing any Uniform Commercial Code continuation statements in
connection with any security interest granted or assigned to the Trustee for
the benefit of the Certificateholders.
Section 12.05 Notices. (a) The Securities Administrator shall use
its best efforts to promptly provide notice to each Rating Agency with respect
to each of the following of which it has actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Event of Default that has not been cured;
(iii) The resignation or termination of a Servicer, Master Servicer,
Securities Administrator or the Trustee and the appointment of any
successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant to
this Agreement or the Sale Agreements; and
(v) The final payment to Certificateholders.
(b) In addition, the Securities Administrator shall promptly make
available on its internet website to each Rating Agency copies of the
following:
(i) Each report to Certificateholders described in Section 4.02.
(ii) The Servicer's annual statement of compliance and the
accountant's report described in the Servicing Agreements; and
(iii) Any notice of a purchase of a Mortgage Loan pursuant to this
Agreement and any Sale Agreement.
(b) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to (a) in
the case of the Depositor or GS Mortgage Securities Corp. or ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Principal Finance
Group/▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and Asset Management Group/Senior Asset Manager,
or such other address as may be hereafter furnished to the Securities
Administrator by the Depositor in writing; (b) in the case of National City,
National
115
City Mortgage Co., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇
▇▇▇▇▇▇, Trader, or such other address as may be hereafter furnished to the
Depositor and the Securities Administrator by National City in writing; (c) in
the case of Countrywide Servicing, to Countrywide Home Loans Servicing LP,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Investor
Accounting, or such other address as may be hereafter furnished to the
Depositor and the Securities Administrator by Countrywide in writing; (d) in
the case of GreenPoint, GreenPoint Mortgage Funding, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇, or such other address
as may be hereafter furnished to the Depositor and the Securities
Administrator by GreenPoint in writing; (e) in the case of SunTrust, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇▇ , or such
other address as may be hereafter furnished to the Depositor and the
Securities Administrator by SunTrust in writing; (f) in the case of ▇▇▇▇▇
Fargo, ▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇, or such other address as may be hereafter
furnished to the Depositor and the Securities Administrator by ▇▇▇▇▇ Fargo in
writing; (g) in the case of the Goldman Conduit, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; (h) in the case of the
Trustee or the Securities Administrator to its Corporate Trust Office, or such
other address as the Trustee or the Securities Administrator may hereafter
furnish to the Depositor; (i) in the case of the Master Servicer, JPMorgan
Chase Bank, National Association, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: GSAA 2005-11, or such other address as may be hereafter
furnished to the Depositor and the Securities Administrator by the Master
Servicer in writing; (j) in the case of Deutsche Bank National Trust Company,
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Mortgage
Custody - GS05PC; (k) in the case of ▇.▇. ▇▇▇▇▇▇ Trust Company, N.A., ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; (l) in the case of the Swap
Provider, to the related Swap Provider addressed to it at the address
specified in the Interest Rate Swap Agreement or at any other address
previously furnished in writing to the Trust by the related Swap Provider; and
(m) in the case of each of the Rating Agencies, the address specified therefor
in the definition corresponding to the name of such Rating Agency. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
Section 12.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of the
Certificates or the rights of the Holders thereof.
Section 12.07 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the
116
obligations of the parties hereto, nor shall anything herein set forth or
contained in the terms of the Certificates be construed so as to constitute
the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
herein provided, and unless the Holders of Certificates evidencing not less
than 25% of the Voting Rights evidenced by the Certificates shall also have
made written request to the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted
by each Certificateholder with every other Certificateholder and the Trustee,
that no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the Holders of
any other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Agreement, except in the manner herein provided and for the common benefit of
all Certificateholders. For the protection and enforcement of the provisions
of this Section 12.07, each and every Certificateholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Section 12.08 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 12.09 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE
LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
* * * * * * *
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
GS MORTGAGE SECURITIES CORP.
By: ________________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION, solely as Trustee and not in its
individual capacity
By: ________________________________________
Name:
Title:
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as Master Servicer
and Securities Administrator
By: ________________________________________
Name:
Title:
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as a Custodian
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, N.A., as a
Custodian
By: ________________________________________
Name:
Title:
SCHEDULE I
Mortgage Loan Schedule
S-I-1
EXHIBIT A
FORM OF CLASS 1A1, CLASS 1A2, CLASS 2A1, CLASS 2A2, CLASS 3A1, CLASS 3A2,
CLASS 3A3, CLASS 3A4, CLASS 3A5, CLASS ▇-▇, ▇▇▇▇▇ ▇-▇, CLASS M-3, CLASS
M-4, CLASS B-1, CLASS B-2, CLASS B-3 AND CLASS B-4 CERTIFICATES
[To be added to the Class B-4 Certificates while they remain Private
Certificates: IF THIS CERTIFICATE IS A PHYSICAL CERTIFICATE, NEITHER THIS
CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR CERTIFICATE
(THE "TRANSFEROR CERTIFICATE") IN THE FORM OF EXHIBIT I TO THE AGREEMENT
REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE
144A LETTER (THE "RULE 144A LETTER") IN THE FORM OF EXHIBIT J TO THE AGREEMENT
REFERRED TO HEREIN OR (II) THE SECURITIES ADMINISTRATOR RECEIVES AN OPINION OF
COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE
MADE WITHOUT-REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.]
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL
BE DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.
[To be added to the Class B-4 Certificates while they remain non-investment
grade Certificates: NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR
EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975
OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN,
OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT
IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING
OF THIS CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR AN
OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR
AND THE DEPOSITOR, TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE
A-1
TRUSTEE, THE MASTER SERVICER, THE SERVICERS OR THE SECURITIES ADMINISTRATOR TO
ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR
TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
WITHOUT THE REPRESENTATION LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE
SECURITIES ADMINISTRATOR, TRUSTEE AND DEPOSITOR AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.]
IN THE EVENT THAT A TRANSFER OF A PRIVATE CERTIFICATE WHICH IS A BOOK-ENTRY
CERTIFICATE IS TO BE MADE IN RELIANCE UPON AN EXEMPTION FROM THE SECURITIES
ACT AND SUCH LAWS, IN ORDER TO ASSURE COMPLIANCE WITH THE SECURITIES ACT AND
SUCH LAWS, THE CERTIFICATEHOLDER DESIRING TO EFFECT SUCH TRANSFER WILL BE
DEEMED TO HAVE MADE AS OF THE TRANSFER DATE EACH OF THE CERTIFICATIONS SET
FORTH IN THE TRANSFEROR CERTIFICATE IN RESPECT OF SUCH CERTIFICATE AND THE
TRANSFEREE WILL BE DEEMED TO HAVE MADE AS OF THE TRANSFER DATE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER IN RESPECT OF SUCH
CERTIFICATE, IN EACH CASE AS IF SUCH CERTIFICATE WERE EVIDENCED BY A PHYSICAL
CERTIFICATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN
OTHER ASSETS.
[To be added to the Class B-4 Certificates while they remain Private
Certificates: THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS
CERTIFICATE WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A
TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
A-2
Certificate No. :
Cut-off Date : September 1, 2005
First Distribution Date : October 25, 2005
Initial Certificate Balance of
this Certificate
("Denomination") :
Initial Certificate Balances of
all Certificates of this Class : ____________ ___________
CUSIP
ISIN
A-3
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-11
Asset-Backed Certificates, Series 2005-11
[Class 1A1][Class 1A2][Class 2A1][Class 2A2][Class 3A1][Class
3A2][Class 3A3][Class 3A4] [Class 3A5][Class M-1][Class
M-2][Class M-3][Class M-4][Class B-1][Class B-2]
[Class B-3][Class B-4]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Master Servicer, the Securities Administrator or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions pursuant to a Master Servicing and Trust Agreement dated
as of the Cut-off Date specified above (the "Agreement") among GS Mortgage
Securities Corp., as depositor (the "Depositor"), Wachovia Bank, National
Association, as trustee (the "Trustee"), JPMorgan Chase Bank, National
Association, as Master Servicer (in such capacity, the "Master Servicer") and
Securities Administrator (in such capacity, the "Securities Administrator"),
Deutsche Bank National Trust Company, as a custodian and ▇.▇. ▇▇▇▇▇▇ Trust
Company, N.A., as a custodian. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
A-4
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Securities Administrator
By:
---------------------------------
Authenticated:
By:
---------------------------------
Authorized Signatory of
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Securities Administrator
A-5
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-11
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2005-11 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
for each Distribution Date is the last Business Day of the applicable Interest
Accrual Period for the related Distribution Date; provided, however, that for
any Definitive Certificates, the Record Date shall be the last Business Day of
the month immediately preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office designated by the
Securities Administrator for such purposes, or such other location specified
in the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Trustee and the other
A-6
parties to the Agreement with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Trustee, the Depositor and the Securities Administrator and any
agent of the Trustee, the Depositor or the Securities Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof
for all purposes, and none of the Depositor, the Trustee, the Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all
remaining Mortgage Loans and all property acquired in respect of the Mortgage
Loans at a purchase price determined and in the manner as provided in the
Agreement. The obligations and responsibilities created by the Agreement will
terminate as provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
A-7
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
A-8
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ______________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number ______, or, if mailed by check, to ___________________________.
Applicable statements should be mailed to ___________________________________,
_____________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or ________________________________________________,
as its agent.
A-9
EXHIBIT B
FORM OF CLASS P CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE
FORM OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE TRUSTEE
RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR,
THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR IF THE TRANSFEREE IS AN
INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION LETTER THAT IT IS USING THE
ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE DEPOSITOR,
TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE
TRUSTEE, THE MASTER SERVICER, THE DEPOSITOR OR THE SECURITIES ADMINISTRATOR TO
ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR
TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
WITHOUT THE REPRESENTATION LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE
SECURITIES ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
B-1
Certificate No. : 1
Cut-off Date : September 1, 2005
First Distribution Date : October 25, 2005
Percentage Interest of this
Certificate
("Denomination") : [_____]%
------------
CUSIP :
ISIN :
B-2
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-11
Asset-Backed Certificates, Series 2005-11
Class P
evidencing a percentage interest in the distributions allocable to
the Certificates of the above referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Master
Servicer, the Securities Administrator or the Trustee referred to below or any
of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Master Servicing and
Trust Agreement dated as of the Cut-off Date specified above (the "Agreement")
among GS Mortgage Securities Corp., as depositor (the "Depositor"), Wachovia
Bank, National Association, as trustee (the "Trustee"), JPMorgan Chase Bank,
National Association, as Master Servicer (in such capacity, the "Master
Servicer") and Securities Administrator (in such capacity, the "Securities
Administrator"), Deutsche Bank National Trust Company, as a custodian and ▇.▇.
▇▇▇▇▇▇ Trust Company, N.A., as a custodian. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the
Trust will be made only upon presentment and surrender of this Certificate at
the office designated by the Securities Administrator for such purposes or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor. No transfer of a
Certificate of this Class shall be made unless the Securities Administrator
shall have received either (i) a representation letter
B-3
from the transferee of such Certificate, acceptable to and in form and
substance satisfactory to the Securities Administrator, to the effect that
such transferee is not an employee benefit plan subject to Section 406 of
ERISA or Section 4975 of the Code or any materially similar provisions of
applicable federal, state or local law ("Similar Law") or a person acting on
behalf of or investing plan assets of any such plan, which representation
letter shall not be an expense of the Securities Administrator, or (ii) if the
transferee is an insurance company and the certificate has been the subject of
an ERISA-Qualifying Underwriting, a representation letter that it is
purchasing such Certificates with the assets of its general account and that
the purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, or (iii) in the case
of a Certificate presented for registration in the name of an employee benefit
plan subject to ERISA, or a plan or arrangement subject to Section 4975 of the
Code (or comparable provisions of any subsequent enactments) or a plan subject
to Similar Law, or a trustee of any such plan or any other person acting on
behalf of any such plan or arrangement or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Securities Administrator,
which Opinion of Counsel shall not be an expense of the Securities
Administrator, the Depositor, the Trustee or the Trust Fund, addressed to the
Securities Administrator, the Trustee and the Depositor to the effect that the
purchase and holding of such Certificate will not constitute or result in a
non-exempt prohibited transaction within the meaning of ERISA, Section 4975 of
the Code or any Similar Law and will not subject the Trustee to any obligation
in addition to those expressly undertaken in this Agreement or to any
liability.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
B-4
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Securities Administrator
By:
---------------------------------
Authenticated:
By:
---------------------------------
Authorized Signatory of
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Securities Administrator
B-5
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-11
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2005-11 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
for each Distribution Date is the last Business Day of the month immediately
preceding the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Trustee and the other parties to the Agreement with the consent of
the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future
B-6
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Trustee, the Depositor and the Securities Administrator and any
agent of the Trustee, the Depositor or the Securities Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof
for all purposes, and none of the Trustee, the Depositor, the Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Principal Balance, the Person specified in Section 11.01 of the Agreement will
have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined and in the manner as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
B-7
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
B-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ______________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number ______, or, if mailed by check, to ___________________________.
Applicable statements should be mailed to ___________________________________,
_____________________________________________________________________________.
This information is provided by _________,
the assignee named above, or ,
as its agent.
B-9
EXHIBIT C
FORM OF CLASS C CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE
FORM OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE TRUSTEE
RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR,
THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF
OR WITH PLAN ASSETS OF SUCH A PLAN, OR AN OPINION OF COUNSEL AS DESCRIBED IN
THE AGREEMENT. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
WITHOUT THE REPRESENTATION LETTER AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.
Certificate No. : 1
Cut-off Date : September 1, 2005
First Distribution Date : October 25, 2005
Percentage Interest of this
Certificate
("Denomination") : [_____]%
------------
CUSIP :
ISIN :
C-1
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-11
Asset-Backed Certificates, Series 2005-11
Class C
evidencing a percentage interest in the distributions allocable to
the Certificates of the above referenced Class.
Distributions in respect of this Certificate are distributable as
set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain distributions pursuant to a Master Servicing and Trust
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
GS Mortgage Securities Corp., as depositor (the "Depositor"), Wachovia Bank,
National Association, as trustee (the "Trustee"), JPMorgan Chase Bank,
National Association, as Master Servicer (in such capacity, the "Master
Servicer") and Securities Administrator (in such capacity, the "Securities
Administrator"), Deutsche Bank National Trust Company, as a custodian and ▇.▇.
▇▇▇▇▇▇ Trust Company, N.A., as a custodian. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the
Trust will be made only upon presentment and surrender of this Certificate at
the office designated by the Securities Administrator for such purposes or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor. No transfer of a
Certificate of this Class shall be made unless the Securities Administrator
shall have received a representation letter from the
C-2
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such
transferee is not an employee benefit plan subject to Section 406 of ERISA,
Section 4975 of the Code or any materially similar provisions of applicable
federal, state or local law ("Similar Law"), or a person acting on behalf of
or investing plan assets of any such plan, or an opinion of counsel as
described in the Agreement, which representation letter or opinion of counsel
shall not be an expense of the Securities Administrator.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
C--3
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated:
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity, but
solely as Securities Administrator
By:
---------------------------------
Authenticated:
By:
---------------------------------
Authorized Signatory of
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Securities Administrator
C-4
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-11
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2005-11 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
for each Distribution Date is the last Business Day of the month immediately
preceding the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Trustee and the other parties to the Agreement with the consent of
the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent
by the Holder of this Certificate shall be conclusive and binding on such
Holder and upon all future
C-5
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Trustee, the Depositor and the Securities Administrator and any
agent of the Trustee, the Depositor or the Securities Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof
for all purposes, and none of the Trustee, the Depositor, the Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Principal Balance, the Person specified in Section 11.01 of the Agreement will
have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined and in the manner as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
C-6
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
C-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ______________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number ______, or, if mailed by check, to ___________________________.
Applicable statements should be mailed to ___________________________________,
_____________________________________________________________________________.
This information is provided by _________,
the assignee named above, or ,
as its agent.
C-8
EXHIBIT D
FORM OF CLASS R-1 AND CLASS R-2 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY
SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR AN
OPINION OF COUNSEL AS DESCRIBED IN THE AGREEMENT. IN THE EVENT THAT SUCH
REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT
WITHOUT AN OPINION OF COUNSEL AS DESCRIBED IN THE AGREEMENT, SUCH ATTEMPTED
TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [R-1][R-2]
Cut-off Date : September 1, 2005
First Distribution Date : October 25, 2005
Initial Certificate Balance of this
Certificate ("Denomination") : $100
Initial Certificate Balance of all
Certificates of this Class: : $100
D-1
CUSIP :
ISIN :
D-2
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-11
Asset-Backed Certificates, Series 2005-11
Class [R-1] [R-2]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Master Servicer, the Securities Administrator or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [____________] is the registered owner of the
Percentage Interest specified above of any monthly distributions due to the
Class [R-1] [R-2] Certificates pursuant to a Master Servicing and Trust
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
GS Mortgage Securities Corp., as depositor (the "Depositor"), Wachovia Bank,
National Association, as trustee (the "Trustee"), JPMorgan Chase Bank,
National Association, as Master Servicer (in such capacity, the "Master
Servicer") and Securities Administrator (in such capacity, the "Securities
Administrator"), Deutsche Bank National Trust Company, as a custodian and ▇.▇.
▇▇▇▇▇▇ Trust Company, N.A., as a custodian. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class [R-1][R-2]
Certificate at the office designated by the Securities Administrator for such
purposes.
No transfer of a Class [R-1][R-2] Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such
transferee is not an employee benefit plan or arrangement subject to Section
406 of ERISA, a plan or arrangement subject to Section 4975 of the Code or a
plan subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement to effect such
transfer, which representation letter shall not be an expense of the
Securities Administrator or the Trust Fund, or, alternatively, an opinion of
counsel as described in the Agreement. In the event that such representation
is violated, or any attempt is made to transfer to a plan or arrangement
subject to Section 406 of ERISA or a plan subject to Section 4975 of the Code
or a plan subject to Similar Law, or a person acting on behalf of any such
plan or arrangement or using the assets of any such plan or arrangement,
without an opinion
D-3
of counsel as described in the Agreement, such attempted transfer or
acquisition shall be void and of no effect.
Each Holder of this Class [R-1] [R-2] Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class [R-1] [R-2]
Certificate to have agreed to be bound by the following provisions, and the
rights of each Person acquiring any Ownership Interest in this Class [R-1]
[R-2] Certificate are expressly subject to the following provisions: (i) each
Person holding or acquiring any Ownership Interest in this Class [R-1] [R-2]
Certificate shall be a Permitted Transferee and shall promptly notify the
Securities Administrator of any change or impending change in its status as a
Permitted Transferee, (ii) no Ownership Interest in this Class [R-1] [R-2]
Certificate may be registered on the Closing Date or thereafter transferred,
and the Securities Administrator shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered
to the Securities Administrator under Section 5.02(b) of the Agreement, the
Securities Administrator shall have been furnished with a Transfer Affidavit
of the initial owner or the proposed transferee in the form attached as
Exhibit H to the Agreement, (iii) each Person holding or acquiring any
Ownership Interest in this Class [R-1] [R-2] Certificate shall agree (A) to
obtain a Transfer Affidavit from any other Person to whom such Person attempts
to Transfer its Ownership Interest this Class [R-1] [R-2] Certificate, (B) to
obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of this Class [R-1]
[R-2] Certificate, (C) not to cause income with respect to the Class [R-1]
[R-2] Certificate to be attributable to a foreign permanent establishment or
fixed base, within the meaning of an applicable income tax treaty, of such
Person or any other U.S. Person and (D) not to Transfer the Ownership Interest
in this Class [R-1] [R-2] Certificate or to cause the Transfer of the
Ownership Interest in this Class [R-1] [R-2] Certificate to any other Person
if it has actual knowledge that such Person is not a Permitted Transferee and
(iv) any attempted or purported Transfer of the Ownership Interest in this
Class [R-1] [R-2] Certificate in violation of the provisions herein shall be
absolutely null and void and shall vest no rights in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
D-4
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Securities
Administrator
By:
---------------------------------
Authenticated:
By:
---------------------------------
Authorized Signatory of
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Securities Administrator
D-5
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-11
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2005-11 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name
this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the monthly immediately
preceding the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office designated by the
Securities Administrator for such purposes, or such other location specified
in the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Trustee and the other parties to the Agreement with
the consent of the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Agreement.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder
D-6
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Securities Administrator upon surrender of this Certificate
for registration of transfer at the office designated by the Securities
Administrator for such purposes, accompanied by a written instrument of
transfer in form satisfactory to the Securities Administrator duly executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Trustee, the Depositor, the Securities Administrator and any agent of
the Trustee, the Depositor or the Securities Administrator may treat the
Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Trustee or Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than or equal to 10% of the Cut-off Date Pool
Principal Balance, the Person specified in Section 11.01 of the Agreement will
have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined and in the manner as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
D-7
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
D-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ______________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number ______, or, if mailed by check, to ___________________________.
Applicable statements should be mailed to ___________________________________,
_____________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or ___________________________________________,
as its agent.
D-9
EXHIBIT E
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER ASSETS
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE
FORM OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES
ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE
TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT-REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR IF THE TRANSFEREE IS AN
INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION LETTER THAT IT IS USING THE
ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE DEPOSITOR,
TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE
TRUSTEE, THE MASTER SERVICER, THE DEPOSITOR OR THE SECURITIES ADMINISTRATOR TO
ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR
TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
WITHOUT THE REPRESENTATION
E-1
LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : X-1
Cut-off Date : September 1, 2005
First Distribution Date : October 25, 2005
Percentage Interest of this
Certificate ("Denomination") : 100%
CUSIP :
ISIN :
E-2
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-11
Asset-Backed Certificates, Series 2005-11
Class X
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor the Master
Servicer, to Securities Administrator or the Trustee referred to below or any
of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Master Servicing and
Trust Agreement dated as of the Cut-off Date specified above (the "Agreement")
among GS Mortgage Securities Corp., as depositor (the "Depositor"), Wachovia
Bank, National Association, as trustee (the "Trustee"), JPMorgan Chase Bank,
as Master Servicer (in such capacity, the "Master Servicer") and Securities
Administrator (in such capacity, the "Securities Administrator"), Deutsche
Bank National Trust Company, as a custodian and ▇.▇. ▇▇▇▇▇▇ Trust Company,
N.A., as a custodian. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the
Trust will be made only upon presentment and surrender of this Certificate at
the office designated by the Securities Administrator for such purposes or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor. No transfer of a
Certificate of this Class shall be
E-3
made unless the Securities Administrator shall have received either (i) a
representation letter from the transferee of such Certificate, acceptable to
and in form and substance satisfactory to the Securities Administrator, to the
effect that such transferee is not an employee benefit plan subject to Section
406 of ERISA or Section 4975 of the Code or any materially similar provisions
of applicable federal, state or local law ("Similar Law") or a person acting
on behalf of or investing plan assets of any such plan, which representation
letter shall not be an expense of the Securities Administrator, or (ii) if the
transferee is an insurance company and the certificate has been the subject of
an ERISA-Qualifying Underwriting, a representation letter that it is
purchasing such Certificates with the assets of its general account and that
the purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, or (iii) in the case
of a Certificate presented for registration in the name of an employee benefit
plan subject to ERISA, or a plan or arrangement subject to Section 4975 of the
Code (or comparable provisions of any subsequent enactments) or a plan subject
to Similar Law, or a trustee of any such plan or any other person acting on
behalf of any such plan or arrangement or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Securities Administrator,
which Opinion of Counsel shall not be an expense of the Securities
Administrator, the Depositor, the Trustee or the Trust Fund, addressed to the
Securities Administrator, the Trustee and the Depositor to the effect that the
purchase and holding of such Certificate will not constitute or result in a
non-exempt prohibited transaction within the meaning of ERISA, Section 4975 of
the Code or any Similar Law and will not subject the Trustee to any obligation
in addition to those expressly undertaken in this Agreement or to any
liability.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
E-4
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, not in its
individual capacity, but solely as
Securities Administrator
By:
---------------------------------
Authenticated:
By:
---------------------------------
Authorized Signatory of
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Securities Administrator
E-5
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-11
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2005-11 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
for each Distribution Date is the last Business Day of the month immediately
preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Trustee and the other parties to the Agreement with the consent of
the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent
by
E-6
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Trustee, the Depositor and the Securities Administrator and any
agent of the Trustee, the Depositor or the Securities Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof
for all purposes, and none of the Trustee, the Depositor, the Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Principal Balance, the Person specified in Section 11.01 of the Agreement will
have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined and in the manner as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-7
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
________________________________________
Signature by or on behalf of assignor
E-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ______________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number ______, or, if mailed by check, to ___________________________.
Applicable statements should be mailed to ___________________________________,
_____________________________________________________________________________.
This information is provided by _____________________________________________,
the assignee named above, or ________________________________________________,
as its agent.
E-9
EXHIBIT F
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
[Trustee]
_____________________
_____________________
Re: Master Servicing and Trust Agreement, dated as of September 1,
2005, among GS Mortgage Securities Corp., as depositor,
Wachovia Bank, National Association, as trustee, JPMorgan Chase
Bank, National Association, as Master Servicer and Securities
Administrator, Deutsche Bank National Trust Company, as a
custodian and ▇.▇. ▇▇▇▇▇▇ Trust Company, N.A., as a custodian
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Master
Servicing and Trust Agreement (the "Trust Agreement"), the undersigned, as
Custodian, for each Mortgage Loan listed in the Mortgage Loan Schedule for
which the undersigned is specified as the Custodian (other than any Mortgage
Loan listed in the attached exception report), it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) except with respect to a MERS Loan, a duly executed assignment
of the Mortgage (which may be included in a blanket assignment or
assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Trust Agreement. The Custodian makes no representations as to: (i) the
validity, legality, sufficiency, enforceability, recordability or genuineness
of any of the documents contained in each Mortgage File of any of the Mortgage
Loans identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan or the
perfection or priority of any Mortgage. Notwithstanding anything herein to the
contrary, the Custodian has made no determination and makes no representations
as to whether (i) any endorsement is sufficient to transfer all right, title
and interest of the party so endorsing, as noteholder or assignee thereof, in
and to that Mortgage Note or (ii) any assignment is in recordable form or
sufficient to effect the
F-1
assignment of and transfer to the assignee thereof, under the Mortgage to
which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement.
[DEUTSCHE BANK NATIONAL TRUST
COMPANY], [▇.▇. ▇▇▇▇▇▇ TRUST
COMPANY, N.A.]
By:_____________________________
Name:___________________________
Title:__________________________
F-2
EXHIBIT G
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF CUSTODIAN
[date]
[Depositor]
[Servicer]
[Originator]
_____________________
_____________________
Re: Master Servicing and Trust Agreement, dated as of September 1,
2005, among GS Mortgage Securities Corp., as depositor,
Wachovia Bank, National Association, as trustee, JPMorgan Chase
Bank, as Master Servicer and Securities Administrator, Deutsche
Bank National Trust Company, as a custodian and ▇.▇. ▇▇▇▇▇▇
Trust Company, N.A., as a custodian
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Master
Servicing and Trust Agreement (the "Trust Agreement"), the undersigned, as
Custodian, hereby certifies, subject to any exceptions listed on the exception
report attached hereto, that as to each Mortgage Loan listed in the Mortgage
Loan Schedule for which the undersigned is specified as the Custodian (other
than any Mortgage Loan paid in full) it has received:
(a) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(b) The original Assignment of Mortgage in blank, unless the
Mortgage Loan is a MERS Loan;
(c) personal endorsement and/or guaranty agreements executed in
connection with all non individual Mortgage Loans (corporations,
partnerships, trusts, estates, etc. (if any);
(d) the related original Mortgage and evidence of its recording or,
in certain limited circumstances, a certified copy of the mortgage with
evidence of recording with the standard ▇▇▇▇▇▇ Mae/FHLMC Condominium
Rider or PUD Rider be attached if the mortgaged property is a condominium
or is located in a PUD;
G-1
(e) except with respect to a MERS Loan, originals of any intervening
Mortgage assignment or certified copies in either case evidencing
recording; provided that the assignment may be in the form of a blanket
assignment or assignments, a copy of which with evidence of recording
shall be acceptable;
(f) originals of all assumption, modification, agreements or
certified copies thereof, in either case with evidence of recording if
required to maintain the lien of the mortgage or if otherwise required,
or, if recordation is not required, an original or copy of the agreement;
(g) an original or copy of a title insurance policy, a certificate
of title, or attorney's opinion of title and abstract of title;
(h) to the extent applicable, (1) an original power of attorney, or
a certified copy thereof, in either case with evidence of recordation
thereon if necessary to maintain the lien of the Mortgage or if the
document to which such power of attorney relates is required to be
recorded, or, if recordation is not so required, an original or copy of
such power of attorney, and (2) an original or copy of any surety
agreement or guaranty agreement;
(i) for each Mortgage Loan with respect to which the Mortgagor's
name as it appears on the note does not match the borrower's name on the
mortgage loan schedule, one of the following: the original of the
assumption agreement, or a certified copy thereof, in either case with
evidence of recording thereon if required to maintain the lien of the
mortgage or if otherwise required, or, if recordation is not so required,
an original or copy of such assumption agreement;
(j) a security agreement, chattel mortgage or equivalent document
executed in connection with the mortgage, if any.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items 2, 8, 33 and 34 of
the Mortgage Loan Schedule accurately reflects information set forth in the
Custodial File.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Trust Agreement. The Custodian makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such
Mortgage Loan or the perfection or priority of any Mortgage. Notwithstanding
anything herein to the contrary, the Custodian has made no determination and
makes no representations as to whether (i) any endorsement is sufficient to
transfer all right, title and interest of the party so endorsing, as
noteholder or assignee thereof, in and to that Mortgage Note or (ii) any
assignment is in recordable form or sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which the assignment
relates.
G-2
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement.
[DEUTSCHE BANK NATIONAL TRUST
COMPANY], [▇.▇. ▇▇▇▇▇▇ TRUST
COMPANY, N.A.] not in its individual
capacity, but
solely as Custodian
By:_________________________________
Name:_______________________________
Title:______________________________
G-3
EXHIBIT H
RESIDUAL TRANSFER AFFIDAVIT
GSAA Home Equity Trust 2005-11,
Asset-Backed Certificates, Series 2005-11
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in a Class [R-1][R-2] Certificate
(the "Certificate") issued pursuant to the Master Servicing and Trust
Agreement (the "Agreement"), among GS Mortgage Securities Corp., as depositor
(the "Depositor"), Wachovia Bank, National Association, as trustee (the
"Trustee"), JPMorgan Chase Bank, as Master Servicer (in such capacity, the
"Master Servicer") and Securities Administrator (in such capacity, the
"Securities Administrator"), Deutsche Bank National Trust Company, as a
custodian and ▇.▇. ▇▇▇▇▇▇ Trust Company, N.A., as a custodian. Capitalized
terms used, but not defined herein, shall have the meanings ascribed to such
terms in the Agreement. The Transferee has authorized the undersigned to make
this affidavit on behalf of the Transferee for the benefit of the Depositor,
the Securities Administrator and the Trustee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has
no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass through entity an
affidavit that such record holder is a Permitted Transferee and the pass
through entity does not have actual knowledge that such affidavit is false.
(For this purpose, a "pass through entity" includes a regulated investment
company, a real estate investment trust or common trust fund, a
H-1
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by
and to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in
the Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Securities Administrator a certificate
substantially in the form set forth as Exhibit H to the Agreement (a
"Transferor Certificate") to the effect that such Transferee has no actual
knowledge that the Person to which the Transfer is to be made is not a
Permitted Transferee.
7. The Transferee has historically paid its debts as they have come
due, intends to pay its debts as they come due in the future, and understands
that the taxes payable with respect to the Certificate may exceed the cash
flow with respect thereto in some or all periods and intends to pay such taxes
as they become due. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect
to the Certificate.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other
U.S. person.
12. Check one of the following:
| | The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
H-2
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on such
Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of
the highest rate specified in Section 11(b) of the Code if the Transferee has
been subject to the alternative minimum tax under Section 55 of the Code in
the preceding two years and will compute its taxable income in the current
taxable year using the alternative minimum tax rate) and (ii) present values
are computed using a discount rate equal to the short-term Federal rate
prescribed by Section 1274(d) of the Code for the month of the transfer and
the compounding period used by the Transferee.
| | The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from the
Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer, the
Transferee had gross assets for financial reporting purposes (excluding any
obligation of a person related to the Transferee within the meaning of U.S.
Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100 million and
net assets in excess of $10 million;
(iii) the Transferee will transfer the Certificate only to another
"eligible corporation," as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of
Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5) of the
U.S. Treasury Regulations; and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions (including, but
not limited to, borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates and other factors
specific to the Transferee) that it has determined in good faith.
| | None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any federal, state or local law that is substantially similar
to Title I of ERISA or Section 4975 of the Code, and the Transferee is not
acting on behalf of or investing plan assets of such a plan.
H-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ____ day of _______, 20__.
__________________________________
Print Name of Transferee
By:______________________________
Name:
Title:
[Corporate Seal]
ATTEST:
_______________________________
[Assistant] Secretary
Personally appeared before me the above-named __________, known or
proved to me to be the same person who executed the foregoing instrument and
to be the ___________ of the Transferee, and acknowledged that he executed the
same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of ________, 20__.
____________________________
NOTARY PUBLIC
My Commission expires the __ day
of _________, 20__
H-4
EXHIBIT I
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
JPMorgan Chase Bank, National Association
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: GSAA Home Equity Trust 2005-11, Asset-Backed Certificates
Series 2005-11, Class ___
---------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Residual Certificate, (A) we have no knowledge the Transferee is not a
Permitted Transferee and (B) after conducting a reasonable investigation of
the financial condition of the Transferee, we have no knowledge and no reason
to believe that the Transferee will not pay all taxes with respect to the
Residual Certificates as they become due and (C) we have no reason to believe
that the statements made in paragraphs 7, 10 and 11 of the Transferee's
Residual Transfer Affidavit are false.
Very truly yours,
__________________________________
Print Name of Transferor
By:_______________________________
Authorized Officer
I-1
EXHIBIT J
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
JPMorgan Chase Bank, National Association.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: GSAA Home Equity Trust 2005-11, Asset-Backed Certificates,
Series 2005-11, Class [__]
----------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either we are purchasing a Class
1A1 Certificate, Class 1A2 Certificate, Class 2A1 Certificate, Class 2A2
Certificate, Class 3A1 Certificate, Class 3A2 Certificate, Class 3A3
Certificate, Class 3A4 Certificate, Class 3A5 Certificate, Class M-1
Certificate, Class M-2 Certificate, Class M-3 Certificate, Class M-4, Class
B-1, Class B-2 or a Class B-3 Certificate, or we are not an employee benefit
plan that is subject to Title I of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or a plan or arrangement that is subject to
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or
a plan subject to any federal, state or local law materially similar to the
foregoing provisions of ERISA or the Code, nor are we acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement
to effect such acquisition, or, with respect to a Class B-4, Class X
Certificate or Class P Certificate that has been the subject of an
ERISA-Qualifying Underwriting, the purchaser is an insurance company that is
purchasing this certificate with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and the purchase and holding
of such Certificates satisfy the requirements for exemptive relief under
Sections I and III of PTCE 95-60, (e) we have not, nor has anyone acting on
our behalf offered, transferred, pledged, sold or otherwise disposed of the
Certificates, any interest in the
J-1
Certificates or any other similar security to, or solicited any offer to buy
or accept a transfer, pledge or other disposition of the Certificates, any
interest in the Certificates or any other similar security from, or otherwise
approached or negotiated with respect to the Certificates, any interest in the
Certificates or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Certificates under the Securities Act or that would render the disposition of
the Certificates a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will act, nor has authorized or will
authorize any person to act, in such manner with respect to the Certificates
and (f) we are a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act and have completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. We are
aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge
or transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
J-2
ANNEX 1 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $___________(1) in securities (except
for the excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance with Rule
144A and (ii) the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a bank, savings
and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the
business of which is substantially confined to banking and is supervised by
the State or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial statements, a
copy of which is attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934.
____ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision
by the insurance commissioner or a similar official or agency of a State,
territory or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and maintained by a
State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
---------------------
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case, Buyer
must own and/or invest on a discretionary basis at least $10,000,000 in
securities.
J-3
____ ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor registered under
the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business investment
company licensed by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development company as
defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph, except (i) where the Buyer
reports its securities holdings in its financial statements on the basis of
their market value, and (ii) no current information with respect to the cost
of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market. Further, in
determining such aggregate amount, the Buyer may have included securities
owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance
with generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such securities
were not included if the Buyer is a majority-owned, consolidated subsidiary of
another enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of
this certification as of the date of such purchase. In addition, if the Buyer
is a bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after
they become available.
_____________________________
Print Name of Transferee
J-4
By:
-------------------------------
Name:
Title:
Date:
-----------------------------
J-5
ANNEX 2 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Buyer or the Buyer's Family of Investment Companies, the cost of such
securities was used, except (i) where the Buyer or the Buyer's Family of
Investment Companies reports its securities holdings in its financial
statements on the basis of their market value, and (ii) no current information
with respect to the cost of those securities has been published. If clause
(ii) in the preceding sentence applies, the securities may be valued at
market.
____ The Buyer owned $___________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned in the
aggregate $__________ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue
of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed
by the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii)
currency, interest rate and commodity swaps.
J-6
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to
which this certification relates of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's purchase of the
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
__________________________________
Print Name of Transferee
By:_______________________________
Name:
Title:
IF AN ADVISER:
__________________________________
Print Name of Buyer
Date:_____________________________
J-7
EXHIBIT K
FORM CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
-----------------------
GSAA Home Equity Trust 2005-11 (the "Trust")
Asset-Backed Certificates
Series 2005-11
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K (the "Annual Report"),
and all reports on Form 8-K containing distribution date reports
(collectively with this Annual Report, the "Reports") filed in respect of
periods included in the year covered by this Annual Report, of the Trust;
2. Based on my knowledge, the information in these Reports, taken as a
whole, does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in light
of the circumstances under which such statements were made, not
misleading as of the last day of the period covered by this Annual
Report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to the Securities Administrator by the Master Servicer
under the Trust Agreement for inclusion in the Reports is included in the
Reports;
4. Based on my knowledge and upon the annual compliance statement included
in this Annual Report and required to be delivered to the Master Servicer
in accordance with the terms of the Trust Agreement, and except as
disclosed in the Reports, the Master Servicer has fulfilled its
obligations under the Trust Agreement; and; and
5. The Reports disclose all significant deficiencies relating to the Master
Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a
review in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar procedure, as set forth in the Trust
Agreement, that is included in the Reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: the
Securities Administrator and the Master Servicer.
Date: _________________________
_________________________________
K-1
[Signature]
[Title]
K-2
EXHIBIT L
FORM OF CERTIFICATION TO BE PROVIDED TO THE DEPOSITOR BY THE
SECURITIES ADMINISTRATOR
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
RE: GSAA Home Equity Trust 2005-11 (the "Trust") Asset-Backed
Certificates Series 2005-11
Reference is made to the Master Servicing and Trust Agreement, dated
as of September 1, 2005 (the "Trust Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Wachovia Bank, National Association, as
trustee (the "Trustee"), JPMorgan Chase Bank, National Association, as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), Deutsche Bank National Trust Company, as a custodian and ▇.▇.
▇▇▇▇▇▇ Trust Company, N.A., as a custodian (each, a "Custodian"). The
Securities Administrator hereby certifies to the Depositor and its officers,
directors and affiliates, and with the knowledge and intent that they will
rely upon this certification, that:
(i) The Securities Administrator has reviewed the annual report on
Form 10-K for the fiscal year [____], and all reports on Form 8-K containing
distribution reports filed in respect of periods included in the year covered
by that annual report, relating to the above-referenced trust;
(ii) Subject to paragraph (iv), the distribution information in the
distribution reports contained in all Monthly Form 8-K's included in the year
covered by the annual report on Form 10-K for the calendar year [____], taken
as a whole, does not contain any untrue statement of a material fact or omit
to state a material fact required by the Trust Agreement to be included
therein and necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by that annual report;
(iii) The distribution information required to be provided by the
Securities Administrator under the Trust Agreement is included in these
reports; and
(iv) In compiling the distribution information and making the
foregoing certifications, the Securities Administrator has relied upon
information furnished to it by the Master Servicer under the Trust Agreement.
The Securities Administrator shall have no responsibility or liability for any
inaccuracy in such reports resulting from information so provided by the
Master Servicer; and
L-1
Date:
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION
By:_______________________________
Name:
Title:
L-2
EXHIBIT M
Amended and Restated Flow Seller's Warranties and Servicing
Agreement, dated as of August 1, 2003, as amended by an
Amendment thereto, dated as of July 1, 2004,
between National City Mortgage Co. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company
M-1
EXHIBIT N
Master Mortgage Loan Purchase Agreement, dated April 1, 2004,
as amended by Amendment No. 1, dated as of July 1, 2004, and as
amended by Amendment No. 2, dated as of January 1, 2005,
between GreenPoint Mortgage Funding, Inc. and ▇▇▇▇▇▇▇ Sachs
Mortgage Company
N-1
EXHIBIT O
Servicing Agreement, dated as of April 1, 2004, as amended by
Amendment No. 1, dated as of July 1, 2004, and as amended by
Amendment No. 2, dated as of January 1, 2005, between
GreenPoint Mortgage Funding, Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Company
O-1
EXHIBIT P
Flow Seller's Warranties and Servicing Agreement, dated
November 1, 2004, between ▇▇▇▇▇▇▇ Sachs Mortgage Company
and SunTrust Mortgage, Inc.
P-1
EXHIBIT Q
Master Mortgage Loan Purchase Agreement, dated July 1, 2004
between Countrywide Home Loans, Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Company
Q-1
EXHIBIT R
Flow Servicing Agreement, dated as of May 1, 2005, between
Countrywide Home Loans Servicing LP and ▇▇▇▇▇▇▇ Sachs
Mortgage Company
R-1
EXHIBIT S
Form of Master Loan Purchase Agreement, between various sellers
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company
S-1
EXHIBIT T
Flow Servicing Rights Purchase and Servicing Agreement, dated
as of April 16, 2004, among ▇▇▇▇▇▇▇ Sachs Mortgage Company,
Countrywide Home Loans Servicing LP and Countrywide Home
Loans, Inc.
T-1
EXHIBIT U
Servicing Agreement, dated July 1, 2004, between Countrywide
Home Loans Servicing LP and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Company
U-1
EXHIBIT V
Master Seller's Warranties and Servicing Agreement, dated August
1, 2004, as amended by Amendment No. 1, dated as of April 26,
2005, between ▇▇▇▇▇▇▇ Sachs Mortgage Company and ▇▇▇▇▇
Fargo Bank, N.A.
V-1
EXHIBIT W
Amended and Restated Master Seller's Warranties
and Servicing Agreement, dated as of June 1, 2005,
between ▇▇▇▇▇▇▇ Sachs Mortgage Company
and ▇▇▇▇▇ Fargo Bank, N.A.
W-1