GS MORTGAGE SECURITIES CORP.,
Depositor,
wilshire credit corporation,
Servicer,
nc capital corporation,
Responsible Party,
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
Co-Trustee
---------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2005
---------------------------------------------
GSAMP TRUST 2005-S1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-S1
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.............................................................................4
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans...........................................................40
Section 2.02 Acceptance by the Trustee of the Mortgage Loans........................................44
Section 2.03 Representations, Warranties and Covenants of the Responsible Party and the Servicer....44
Section 2.04 [RESERVED].............................................................................47
Section 2.05 Execution and Delivery of Certificates.................................................47
Section 2.06 REMIC Matters..........................................................................47
Section 2.07 Representations and Warranties of the Depositor........................................47
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans.....................................................49
Section 3.02 Subservicing Agreements between the Servicer and Subservicers..........................51
Section 3.03 Successor Subservicers.................................................................52
Section 3.04 Liability of the Servicer..............................................................52
Section 3.05 No Contractual Relationship between Subservicers and the Trustee.......................52
Section 3.06 Assumption or Termination of Subservicing Agreements by Trustee........................53
Section 3.07 Collection of Certain Mortgage Loan Payments...........................................53
Section 3.08 Subservicing Accounts..................................................................54
Section 3.09 Collection of Taxes, Assessments and Similar Items; Escrow Accounts....................55
Section 3.10 Collection Account.....................................................................56
Section 3.11 Withdrawals from the Collection Account................................................57
Section 3.12 Investment of Funds in the Collection Account and the Distribution Account.............59
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions and Fidelity Coverage............60
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption Agreements..............................61
Section 3.15 Realization upon Defaulted Mortgage Loans..............................................62
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Section 3.16 Release of Mortgage Files..............................................................66
Section 3.17 Title, Conservation and Disposition of REO Property....................................67
Section 3.18 [RESERVED].............................................................................69
Section 3.19 Access to Certain Documentation and Information Regarding the Mortgage Loans...........69
Section 3.20 Documents, Records and Funds in Possession of the Servicer to Be Held for the Trustee..69
Section 3.21 Servicing Compensation.................................................................70
Section 3.22 Annual Statement as to Compliance......................................................70
Section 3.23 Annual Independent Public Accountants' Servicing Statement; Financial Statements.......71
Section 3.24 Trustee to Act as Servicer.............................................................71
Section 3.25 Compensating Interest..................................................................72
Section 3.26 Credit Reporting; ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act...............................................72
Section 3.27 Excess Reserve Fund Account; Distribution Account......................................72
Section 3.28 Optional Purchase of Delinquent Mortgage Loans.........................................74
Section 3.29 Maintenance of Mortgage Pool Insurance Policy..........................................74
ARTICLE IV
DISTRIBUTIONS AND ADVANCES BY THE SERVICER
Section 4.01 Advances...............................................................................75
Section 4.02 Priorities of Distribution.............................................................76
Section 4.03 Monthly Statements to Certificateholders...............................................79
Section 4.04 Certain Matters Relating to the Determination of LIBOR.................................83
Section 4.05 Allocation of Applied Realized Loss Amounts............................................83
Section 4.06 Distributions on the REMIC I Regular Interests.........................................84
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.......................................................................85
Section 5.02 Certificate Register; Registration of Transfer and Exchange of
Certificates...........................................................................86
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates......................................91
Section 5.04 Persons Deemed Owners..................................................................92
Section 5.05 Access to List of Certificateholders' Names and Addresses..............................92
Section 5.06 Maintenance of Office or Agency........................................................92
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.01 Respective Liabilities of the Depositor and the Servicer...............................93
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Section 6.02 Merger or Consolidation of the Depositor or the Servicer...............................93
Section 6.03 Limitation on Liability of the Depositor, the Servicer and Others......................93
Section 6.04 Limitation on Resignation of the Servicer..............................................94
Section 6.05 Additional Indemnification by the Servicer; Third Party Claims.........................94
ARTICLE VII
DEFAULT
Section 7.01 Events of Default......................................................................95
Section 7.02 Trustee to Act; Appointment of Successor...............................................97
Section 7.03 Notification to Certificateholders.....................................................99
ARTICLE VIII
CONCERNING THE TRUSTEE AND CO-TRUSTEE
Section 8.01 Duties of the Trustee..................................................................99
Section 8.02 Certain Matters Affecting the Trustee.................................................100
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.................................101
Section 8.04 Trustee May Own Certificates..........................................................101
Section 8.05 Trustee's Fees and Expenses...........................................................101
Section 8.06 Eligibility Requirements for the Trustee..............................................102
Section 8.07 Resignation and Removal of the Trustee................................................103
Section 8.08 Successor Trustee.....................................................................103
Section 8.09 Merger or Consolidation of the Trustee................................................104
Section 8.10 Appointment of Co-Trustee or Separate Trustee.........................................104
Section 8.11 Tax Matters...........................................................................105
Section 8.12 Periodic Filings......................................................................108
Section 8.13 Tax Classification of the Excess Reserve Fund Account.................................110
Section 8.14 Duties of the Co-Trustee..............................................................110
Section 8.15 Co-Trustee's Fees and Expenses........................................................112
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage Loans........................113
Section 9.02 Final Distribution on the Certificates................................................114
Section 9.03 Additional Termination Requirements...................................................115
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment.............................................................................116
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Section 10.02 Recordation of Agreement; Counterparts................................................118
Section 10.03 Governing Law.........................................................................118
Section 10.04 Intention of Parties..................................................................118
Section 10.05 Notices...............................................................................119
Section 10.06 Severability of Provisions............................................................120
Section 10.07 Assignment; Sales; Advance Facilities.................................................120
Section 10.08 Limitation on Rights of Certificateholders............................................122
Section 10.09 Inspection and Audit Rights...........................................................123
Section 10.10 Certificates Nonassessable and Fully Paid.............................................123
Section 10.11 Third Party Beneficiary...............................................................123
Section 10.12 Waiver of Jury Trial..................................................................123
Section 10.13 Limitation of Damages.................................................................124
SCHEDULES
Schedule I Mortgage Loan Schedule
Schedule II Schedule Representations and Warranties of Wilshire Credit, as
Servicer
Schedule III Representations and Warranties of the Responsible Party as to
the Individual Mortgage Loans
Schedule IV Representations and Warranties of the Responsible Party
EXHIBITS
Exhibit A-1 Form of Class A, Class M and Class B Certificates
Exhibit B Form of Class P Certificate
Exhibit C Form of Class R Certificate
Exhibit D-1 Form of Class X Certificate
Exhibit D-2 Form of Class X-1 Certificate
Exhibit E Form of Initial Certification of Trustee
Exhibit F Form of Document Certification and Exception Report of Trustee
Exhibit G Form of Residual Transfer Affidavit
Exhibit H Form of Transferor Certificate
Exhibit I-1 Form of Rule 144A Letter
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Exhibit I-2 Form of Investment Letter (Non Rule 144A)
Exhibit J Form of Request for Release
Exhibit K Contents of Each Mortgage File
Exhibit L Charged Off Loan Data Report
Exhibit M Form of Certification to be provided with Form 10-K
Exhibit N Form of Trustee Certification to be provided to Depositor
Exhibit O Form of Servicer Certification to be provided to Depositor
Exhibit P Mortgage Pool Insurance Policy
Exhibit Q Form of Power of Attorney
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THIS POOLING AND SERVICING AGREEMENT, dated as of March 1,
2005, is among GS MORTGAGE SECURITIES CORP., a Delaware corporation (the
"Depositor"), WILSHIRE CREDIT CORPORATION, a Nevada corporation ("Wilshire
Credit" or the "Servicer"), NC CAPITAL CORPORATION, a California corporation
(the "Responsible Party"), DEUTSCHE BANK NATIONAL TRUST COMPANY, a national
banking association, as trustee (the "Trustee") and WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, as co-trustee (the "Co-Trustee").
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 Depositor intends to sell pass-through certificates to be
issued hereunder in multiple classes, which in the aggregate will evidence the
entire beneficial ownership interest of the Trust Fund created hereunder. The
Trust Fund will consist of a segregated pool of assets comprised of the Mortgage
Loans and certain other related assets subject to this Agreement.
REMIC I
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets subject to this Agreement (other than the Prepayment Premiums and
the Excess Reserve Fund Account) as a REMIC for federal income tax purposes, and
such segregated pool of assets will be designated as "REMIC I". The Class R-1
Certificates will be the sole class of "residual interests" in REMIC I for
purposes of the REMIC Provisions (as defined herein). The following table
irrevocably sets forth the designation, the REMIC I Remittance Rate, the initial
Uncertificated Balance and, for purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for each of the
REMIC I Regular Interests (as defined herein). None of the REMIC I Regular
Interests will be certificated.
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REMIC I
REMITTANCE INITIAL LATEST POSSIBLE
DESIGNATION RATE UNCERTIFICATED BALANCE MATURITY DATE (1)
-------------------------------- --------------------- ------------------------------- -----------------------
I-LTAA Variable(2) $251,188,854.31 December 25, 2034
I-LTA Variable(2) $1,873,660.00 December 25, 2034
I-LTM1 Variable(2) $215,300.00 December 25, 2034
I-LTM2 Variable(2) $199,930.00 December 25, 2034
I-LTB1 Variable(2) $169,170.00 December 25, 2034
I-LTB2 Variable(2) $47,420.00 December 25, 2034
I-LTB3 Variable(2) $55,100.00 December 25, 2034
I-LTZZ Variable(2) $2,565,723.15 December 25, 2034
----------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity
date for the Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each REMIC I
Regular Interest.
(2) Calculated in accordance with the definition of "REMIC I Remittance
Rate" herein.
REMIC II
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II." The Class R-2 Certificates will evidence the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions.
The following table irrevocably sets forth the designation, the Pass-Through
Rate, the initial aggregate Certificate Balance and, for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity
date" for the indicated Classes of Certificates. The Trust Fund will also issue
the Class X-1 Certificates and the Class P Certificates, which will not be
issued by any REMIC created hereunder.
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INITIAL AGGREGATE LATEST POSSIBLE
DESIGNATION PASS-THROUGH RATE CERTIFICATE BALANCE MATURITY DATE (1)
---------------------------- ------------------------- --------------------------- -------------------------
Class A Variable(2) $187,366,000.00 December 25, 2034
Class M-1 Variable(2) $21,530,000.00 December 25, 2034
Class M-2 Variable(2) $19,993,000.00 December 25, 2034
Class B-1 Variable(2) $16,917,000.00 December 25, 2034
Class B-2 Variable(2) $4,742,000.00 December 25, 2034
Class B-3 Variable(2) $5,510,000.00 December 25, 2034
Class X N/A(3) $257,157.46(3) December 25, 2034
----------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity
date for the Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each Class of
Certificates.
(2) Calculated in accordance with the definition of "Pass-Through Rate"
herein.
(3) The Class X Certificates will accrue interest at their variable
Pass-Through Rate on the Notional Amount of the Class X Certificates
outstanding from time to time which shall equal the Uncertificated
Balance of the REMIC I Regular Interests. The Class X Certificates will
not accrue interest on their Certificate Balance.
As of the Cut-off Date, the Mortgage Loans had an aggregate
Stated Principal Balance equal to approximately $256,315,157.
The minimum denomination for each Class of Offered
Certificates will be $25,000 initial Certificate Balance with integral multiples
of $1 in excess thereof. The minimum denomination for (a) the Class R-1
Certificates and Class R-2 Certificates will be a 100% Percentage Interest in
each such Class and (b) the Class P and Class X Certificates will be a 1%
Percentage Interest in each such Class. The Class X-1 Certificates will be
issued as a single Certificate and will not have a Class Certificate Balance.
It is expected that each Class of Certificates will receive
its final distribution of principal and interest on or prior to the Final
Scheduled Distribution Date.
Set forth below are designations of Classes of Certificates to
the categories used herein:
Book-Entry Certificates.....................All Classes of Certificates other
than the Physical Certificates.
Class A Certificates .......................Class A Certificates.
Class R Certificates .......................Class R-1 Certificates and Class R-2
Certificates.
Delay Certificates .........................The Fixed Rate Certificates.
3
ERISA-Restricted ...........................Certificates Class R-1, Class R-2,
Class P, Class X and Class X-1
Certificates; any Certificate with a
rating below the lowest applicable
permitted rating under the
Underwriters' Exemption.
Fixed Rate Certificates ....................Class M-2, Class B-1, Class B-2 and
Class B-3 Certificates.
LIBOR Certificates .........................The Class A Certificates and Class
M-1 Certificates.
Non-Delay Certificates .....................LIBOR Certificates and Class X
Certificates
Offered Certificates .......................All Classes of Certificates other
than the Private Certificates.
Physical Certificates ......................Class P, Class X, Class X-1, Class
R-1 and Class R-2 Certificates.
Private Certificates .......................Class P, Class X, Class X-1, Class
R-1 and Class R-2 Certificates.
Rating Agencies ............................Fitch and ▇▇▇▇▇'▇.
Regular ....................................Certificates All Classes of
Certificates other than the Class P,
Class X-1, Class R-1 and Class R-2
Certificates.
Residual Certificates ......................Class R-1 Certificates and Class R-2
Certificates.
Subordinated Certificates ..................Class M-1, Class M-2, Class B-1,
Class B-2 and Class B-3
Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Accepted Servicing Practices: (a) With respect to any Mortgage
Loan, those mortgage servicing practices set forth in Section 3.01 of this
Agreement.
Account: Any of the Collection Account, the Distribution
Account, any Escrow 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 Offered Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior to
such Distribution Date, as reduced by such Class's
4
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.
Advance: Any P&I Advance or Servicing Advance.
Advance Facility: A financing or other facility as described
in Section 10.07.
Advance Reimbursement Amounts: As defined in Section 10.07.
Advancing Person: The Person to whom the Servicer's rights
under this Agreement to be reimbursed for any P&I Advances or Servicing Advances
have been assigned pursuant to Section 10.07.
Affiliate: With respect to any Person, any other Person
controlling, controlled by or under common control with such first Person. For
the purposes of this definition, "control" means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all
amendments or supplements hereto.
Amount Held for Future Distribution: As to the Certificates on
any Distribution Date, the aggregate amount held in each Collection Account at
the close of business on the related Remittance Date on account of (i) Principal
Prepayments, Insurance Proceeds (including any proceeds under the Mortgage Pool
Insurance Policy), Condemnation Proceeds, Net Recoveries and Liquidation
Proceeds on the Mortgage Loans received after the end of the related Prepayment
Period and (ii) all Scheduled Payments on the Mortgage Loans due after the end
of the related Due Period.
Applied Realized Loss Amount: With respect to any Distribution
Date, the amount, if any, by which the aggregate Class Certificate Balance of
the Offered Certificates after distributions of principal on such Distribution
Date exceeds the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date.
Appraised Value: With respect to any Mortgage Loan, the value,
determined pursuant to the Underwriting Guidelines, of the related Mortgaged
Property as of the origination of such Second Lien Mortgage Loan; PROVIDED,
HOWEVER, that in the case of a refinanced Mortgage Loan, such value is based
solely upon the appraisal made at the time of origination of such refinanced
Mortgage Loan.
Assignment of Mortgage: An assignment of the Mortgage, notice
of transfer or equivalent instrument in recordable form (other than the
assignee's name and recording
5
information not yet returned from the recording office), reflecting the sale of
the Mortgage to the Trustee.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Trustee (x) the sum of (i) all
scheduled installments of interest (net of the related Expense Fees) and
principal due on the Due Date on such Mortgage Loans in the related Due Period
and received on or prior to the related Determination Date, together with any
P&I Advances in respect thereof; (ii) all Condemnation Proceeds, Insurance
Proceeds (including any proceeds under the Mortgage Pool Insurance Policy) and
Liquidation Proceeds received during the related Prepayment Period (in each
case, net of unreimbursed expenses incurred in connection with a liquidation or
foreclosure and unreimbursed Advances, if any) and any Net Recoveries received
during the related Prepayment Period; (iii) all partial or full prepayments on
the Mortgage Loans received during the related Prepayment Period together with
all Compensating Interest paid by the Servicer in connection therewith
(excluding Prepayment Premiums and Prepayment Interest Excess); (iv) all amounts
received with respect to such Distribution Date as the Substitution Adjustment
Amount or Repurchase Price in respect of a Deleted Mortgage Loan or a Mortgage
Loan repurchased by the Responsible Party as of such Distribution Date; and (v)
the proceeds received with respect to the termination of the Trust Fund pursuant
to clause (a) of Section 9.01, reduced by (y) all amounts in reimbursement for
P&I Advances and Servicing Advances previously made with respect to the Mortgage
Loans, and other amounts as to which the Servicer, the Depositor or the Trustee
(or co-trustee) 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 the LIBOR
Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of LIBOR Certificates is
based upon the WAC Cap, the excess of (i) the amount of interest such Class of
Offered Certificates would otherwise be entitled to receive on such Distribution
Date had the Pass-Through Rate not been subject to the WAC Cap, over (ii) the
amount of interest payable on such Class of Certificates at the WAC Cap, and (B)
the Basis Risk Carry Forward Amount for such Class of Offered Certificates for
all previous Distribution Dates not previously paid, together with interest
thereon at a rate equal to the applicable Pass-Through Rate for such Class of
LIBOR Certificates for such Distribution Date (without giving effect to the WAC
Cap).
Basis Risk Payment: For any Distribution Date, an amount equal
to the lesser of (i) the aggregate Basis Risk Carry Forward Amounts for such
Distribution Date and (ii) the Class X Distributable Amount (prior to any
reduction for Basis Risk Payments).
Best's: Best's Key Rating Guide, as the same shall be amended
from time to time.
Book-Entry Certificates: As specified in the Preliminary
Statement.
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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, Oregon and California, (b) the State in which the 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
Trustee in substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of
Certificates, other than the Class P, Class R-1 or Class R-2 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, and reduced by the amount of any
Applied Realized Loss Amounts previously allocated 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 P, Class R-1 and Class R-2 Certificates
have no Certificate Balance. With respect to each Class X Certificate as of any
date of determination, an amount equal to the Percentage Interest evidenced by
such Certificate times the excess, if any, of (A) the then aggregate
Uncertificated Balances of the REMIC I Regular Interests over (B) the then
aggregate Class Certificate Balance of the Class A Certificates, Class M
Certificates and Class B Certificates then outstanding. The aggregate initial
Class Certificate Balance of each Class of Regular Certificates is set forth in
the Preliminary Statement hereto.
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 Trustee 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.
7
Certification: As defined in Section 8.12(b).
Charged Off Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan for which coverage under the related Mortgage Pool
Insurance Policy is not available that has not yet been liquidated, giving rise
to a Realized Loss, on the date on which the related Servicer determines,
pursuant to the procedures set forth in Section 3.15, that there will be (i) no
Significant Net Recoveries with respect to such Mortgage Loan or (ii) the
potential Net Recoveries are anticipated to be an amount, determined by the
Servicer in its good faith judgment and in light of other mitigating
circumstances, that is insufficient to warrant proceeding through foreclosure or
other liquidation of the related Mortgaged Property.
Class: All Certificates bearing the same class designation as
set forth in the Preliminary Statement.
Class A Certificates: As specified in the Preliminary
Statement.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the Class Certificate Balance of the Class
A Certificates immediately prior to such Distribution Date over (ii) the lesser
of (A) 35.20% 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-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 Class Certificate
Balance 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
8
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 B-1 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 80.80% and (y)
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class B-2 Certificates: All Certificates bearing the class
designation of "Class B-2."
Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the 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 B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date), and (E) the Class Certificate Balance of the Class B-2 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 84.50% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class 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 Class Certificate
Balance 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 B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class B-2 Certificates (after
taking into account the distribution of the Class B-2 Principal Distribution
Amount on such Distribution Date), and (F) the Class Certificate Balance of the
Class B-3 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 88.80% and (y) 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 Certificate Balance: With respect to any Class and as to
any date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class M Certificates: The Class M-1 Certificates and Class M-2
Certificates.
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 Class Certificate
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date), and (B)
the Class Certificate Balance of the Class M-1 Certificates immediately prior to
such Distribution Date over (ii) the lesser of (A) the product of (x) 52.00% and
(y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date,
9
and (B) the excess, if any, of the 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 Class Certificate
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date), (B) the
Class Certificate Balance of the Class M-1 Certificates (after taking into
account the distribution of the Class M-1 Principal Distribution Amount on such
Distribution Date) and (C) the Class Certificate Balance of the Class M-2
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(A) the product of (x) 67.60% and (y) the aggregate Stated Principal Balance of
the Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
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: The Class R-1 Certificates and Class R-2
Certificates.
Class R-1 Certificates: All Certificates bearing the
designation of "Class R-1" and representing the Residual Interest in REMIC I.
Class R-2 Certificates: All Certificates bearing the
designation of "Class R-2" and representing the Residual Interest in REMIC II.
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.
Closing Date: April 7, 2005.
Code: The Internal Revenue Code of 1986, including any
successor or amendatory provisions.
Collection Accounts: As defined in Section 3.10(a).
Combined Loan-to-Value Ratio or CLTV: As of the date of
origination and as to any Mortgage Loan, the ratio, expressed as a percentage,
of (a) the sum of (i) the outstanding principal balance of the Mortgage Loan as
of the date of origination and (ii) the outstanding
10
principal balance as of the date of origination of any mortgage loan or mortgage
loans that are senior or equal in priority to the Mortgage Loan and which are
secured by the same Mortgaged Property to (b) the Appraised Value.
Compensating Interest: For any Distribution Date, the lesser
of (a) the Prepayment Interest Shortfall, if any, for such Distribution Date,
with respect to Principal Prepayments occurring during the related Prepayment
Period and in the calendar month preceding such Distribution Date, and (b)
one-half of the Servicing Fee payable to the Servicer for such Distribution
Date.
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: The designated office of the Trustee
in the State of California at which at any particular time its corporate trust
business with respect to this Agreement is administered, which office at the
date of the execution of this Agreement is located at ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: Trust Administration-GS05X1, facsimile
no. (▇▇▇) ▇▇▇-▇▇▇▇ and which is the address to which notices to and
correspondence with the Trustee should be directed.
Corresponding Certificate: With respect to each REMIC I
Regular Interest, as follows:
REMIC I Regular Interest Class
-------------------------------------------------- ---------------
REMIC I Regular Interest I-LTA A
REMIC I Regular Interest I-LTM1 M-1
REMIC I Regular Interest I-LTM2 M-2
REMIC I Regular Interest I-LTB1 B-1
REMIC I Regular Interest I-LTB2 B-2
REMIC I Regular Interest I-LTB3 B-3
Co-Trustee: Wachovia Bank, National Association, and its
successor in interest, or any successor Co-Trustee appointed as provided in this
Pooling and Servicing Agreement.
Cumulative Loss Event: With respect to any Distribution Date,
a Cumulative Loss Event occurs if the Cumulative Loss Percentage exceeds the
applicable percentage set forth below with respect to such Distribution Date:
DISTRIBUTION DATE OCCURRING IN LOSS PERCENTAGE
------------------------------ ---------------
April 2008 through March 2009 8.000% of the Cut off Date Pool Principal Balance
April 2009 through March 2010 12.000% of the Cut off Date Pool Principal Balance
April 2010 through March 2011 15.000% of the Cut off Date Pool Principal Balance
April 2011 and thereafter 16.500% of the Cut off Date Pool Principal Balance
11
Cumulative Loss Percentage: As of any date of determination,
the percentage equivalent of a fraction, the numerator of which is the aggregate
amount of Realized Losses on the Mortgage Loans for the period from the Cut-off
Date to the date of determination and the denominator of which is the Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
Custodial File: With respect to each Mortgage Loan, the file
retained by the Trustee consisting of items (a) - (h) as listed on Exhibit K
hereto.
Custodial File: With respect to each Mortgage Loan, any
Mortgage Loan Document which is delivered to the Trustee or which at any time
comes into the possession of the Trustee.
Cut-off Date: March 1, 2005.
Cut-off Date Pool Principal Balance: The aggregate Stated
Principal Balance 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, whether or not
received).
Data Tape Information: The information provided by the
Responsible Party as of the Cut-off Date to the Depositor setting forth the
following information with respect to each Mortgage Loan: (1) the Responsible
Party's Mortgage Loan identifying number; (2) the Mortgagor's name; (3) the
street address of the Mortgaged Property including the city, state and zip code;
(4) a code indicating whether the Mortgaged Property is owner-occupied, a second
home or investment property; (5) the number and type of residential units
constituting the Mortgaged Property (i.e., a single family residence, a 2-4
family residence, a unit in a condominium project or a unit in a planned unit
development, manufactured housing); (6) the original months to maturity or the
remaining months to maturity from the Cut-off Date, in any case based on the
original amortization schedule and, if different, the maturity expressed in the
same manner but based on the actual amortization schedule; (7) the Combined
Loan-to-Value Ratio at origination; (8) the Mortgage Interest Rate as of the
Cut-off Date; (9) the date on which the Scheduled Payment was due on the
Mortgage Loan and, if such date is not consistent with the Due Date currently in
effect, such Due Date; (10) the stated maturity date; (11) the amount of the
Scheduled Payment as of the Cut-off Date; (12) the last payment date on which a
Scheduled Payment was actually applied to pay interest and the outstanding
principal balance; (13) the original principal amount of the Mortgage Loan; (14)
the principal balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after deduction of payments of principal due and collected on or
before the Cut-off Date; (15) the type of Mortgage Loan (i.e., fixed rate,
second lien); (16) a code indicating the purpose of the loan (i.e., purchase,
rate and term refinance, equity take-out refinance); (17) a code indicating the
documentation style (i.e., full documentation, limited documentation or stated
income); (18) the loan credit classification (as described in the Underwriting
Guidelines); (19) whether such Mortgage Loan provides for a Prepayment Premium;
(20) the Prepayment Premium period of such Mortgage Loan, if
12
applicable; (21) a description of the Prepayment Premium, if applicable; (22)
the Mortgage Interest Rate as of origination; (23) the credit risk score (FICO
score) at origination; (24) the date of origination; (25) a code indicating
whether the Mortgage Loan has been modified; (26) the current Combined
Loan-to-Value Ratio; (27) the Due Date for the first Scheduled Payment; (28) the
original Scheduled Payment due; (29) with respect to the related Mortgagor, the
debt-to-income ratio; (30) the Appraised Value of the Mortgaged Property; (31)
the sales price of the Mortgaged Property if the Mortgage Loan was originated in
connection with the purchase of the Mortgaged Property; (32) a code indicating
whether a Mortgage Loan is or has been 30 days delinquent and (33) the
outstanding principal balance of the related First Lien Mortgage Loan. With
respect to the Mortgage Loans in the aggregate: (1) the number of Mortgage
Loans; (2) the current aggregate outstanding principal balance of the Mortgage
Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage Loans;
and (4) the weighted average maturity of the Mortgage Loans.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the United
States Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which
became final and non appealable, except for such a reduction resulting from a
Deficient Valuation or any reduction that results in a permanent forgiveness of
principal.
Deficient Valuation: With respect to any Mortgage Loan, a
valuation of the related Mortgaged Property by a court of competent jurisdiction
in an amount less than the then outstanding principal balance of the Mortgage
Loan, which valuation results from a proceeding initiated under the United
States Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a
Physical Certificate and any Certificate issued in lieu of a Book-Entry
Certificate pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Deleted Mortgage Loan: As defined in Section 2.03(d).
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, 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
13
(c) has outstanding unsecured commercial paper or other short-term unsecured
debt obligations that are rated P-1 by ▇▇▇▇▇'▇, F1+ by Fitch and A-1 by Standard
& Poor's, to the extent they are Rating Agencies hereunder.
Depository Participant: A broker, dealer, bank or other
financial institution or other Person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
Determination Date: With respect to any Distribution Date, the
18th day of the calendar month in which such Distribution Date occurs or, if
such day is not a Business Day, the immediately preceding Business Day.
Distribution Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Section 3.27(b) in the name of the
Trustee for the benefit of the Certificateholders and designated "Deutsche Bank
National Trust Company in trust for registered holders of GSAMP Trust 2005-S1
Mortgage Pass-Through Certificates, Series 2005-S1." Funds in the Distribution
Account shall be held in trust for the Certificateholders for the uses and
purposes set forth in this Agreement and may be invested in Permitted
Investments.
Distribution Date: The 25th day of each calendar month after
the initial issuance of the Certificates or, if such day is not a Business Day,
the next succeeding Business Day, commencing in April 2005.
Document Certification and Exception Report: The report
attached to Exhibit F hereto.
Due Date: The day of the month on which the Scheduled Payment
is due on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
the Distribution Date occurs and ending on the first day of the calendar month
in which the Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a
federal or state chartered depository institution or trust company 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 "F-1"
by Fitch and "P-1" by ▇▇▇▇▇'▇ (and 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 Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
14
ERISA-Qualifying Underwriting: A best efforts or firm
commitment underwriting or private placement that meets the requirements of
Prohibited Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002) (or
any successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established
and maintained pursuant to Section 3.09(b).
Escrow Payments: As defined in Section 3.09(b) of this
Agreement.
Event of Default: As defined in Section 7.01.
Excess Overcollateralized Amount: With respect to any
Distribution Date, the excess, if any, of (a) the Overcollateralized Amount on
such Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account
created and maintained by the Trustee pursuant to Sections 3.27(a) in the name
of the Trustee for the benefit of the Regular Certificateholders and designated
"Deutsche Bank National Trust Company in trust for registered holders of GSAMP
Trust 2005-S1, Mortgage Pass-Through Certificates, Series 2005-S1." Funds in the
Excess Reserve Fund Account shall be held in trust for the Regular
Certificateholders for the uses and purposes set forth in this Agreement.
Amounts on deposit in the Excess Reserve Fund Account shall not be invested.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate
equal to the sum of the Servicing Fee Rate and the Trustee Fee Rate.
Expense Fees: As to each Mortgage Loan, the sum of the
Servicing Fee and the Trustee Fee.
Extra Principal Distribution Amount: As of any Distribution
Date, the lesser of (x) the related Total Monthly Excess Spread for such
Distribution Date and (y) the related Overcollateralization Deficiency for such
Distribution Date; provided, however, that on the Distribution Date in April
2005, the amount determined pursuant to this clause (y) shall be limited to the
principal portion of Realized Losses for that Distribution Date.
Fair Value: The fair market value of all of the property of
the Trust, as agreed upon between the Servicer and a majority of the Class R-1
Certificateholders; provided, however, that if the Servicer and a majority of
the Class R-1 Certificateholders do not agree upon the fair market value of all
the property of the Trust, then the Depositor shall solicit competitive bids to
prospective purchasers that are recognized broker dealers. The Fair Market Value
shall be the highest bid received by the Trustee from the closed bids solicited
by the Depositor or its
15
designee, provided that the Depositor shall certify to the Trustee that it
received bids from no fewer than three prospective purchasers.
▇▇▇▇▇▇ Mae: The Federal National Mortgage Association and its
successors in interest.
▇▇▇▇▇▇ ▇▇▇ Guides: The ▇▇▇▇▇▇ Mae Seller's Guide and the
▇▇▇▇▇▇ ▇▇▇ Servicer's Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, and its
successors in interest.
Final Recovery Determination: With respect to any defaulted
Mortgage Loan (other than a Charged Off Loan) or any REO Property (other than a
Mortgage Loan or REO Property purchased by the Responsible Party as contemplated
by this Agreement), a determination made by the Servicer that all Insurance
Proceeds (including any proceeds under the Mortgage Pool Insurance Policy),
Condemnation Proceeds, Liquidation Proceeds and other payments or recoveries
which the Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer shall
maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
Final Scheduled Distribution Date: The Final Scheduled
Distribution Date for each Class of Certificates is the Distribution Date
occurring in December 2034:
First Lien Mortgage Loan: With respect to each Mortgage Loan,
any mortgage loan secured by a first lien Mortgage on the related Mortgaged
Property.
Fitch: Fitch, Inc., and its successors in interest. If Fitch
is designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Fitch shall be Fitch, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: MBS Monitoring - GSAMP
Trust 2005-S1, or such other address as Fitch may hereafter furnish to the
Depositor, the Servicer and the Trustee.
Forbearance: As defined in Section 3.07(a).
▇▇▇▇▇▇▇ 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.
▇▇▇▇▇▇▇ Mac Guides: The ▇▇▇▇▇▇▇ Mac Seller's & Servicer's
Guide and all amendments or additions thereto.
High Cost Mortgage Loan: A Mortgage Loan that is (a) covered
by the Home Ownership and Equity Protection Act of 1994, (b) identified,
classified or characterized as "high cost," "threshold," "covered", or
"predatory" under any other applicable state, federal or local law (or a
similarly identified, classified or characterized loan using different
terminology under a law imposing heightened regulatory scrutiny or additional
legal liability for residential mortgage
16
loans having high interest rates, points and/or fees) or (c) categorized as
"High Cost" or "Covered" pursuant to Appendix E of the Standard & Poor's
Glossary.
Home Loan: A Mortgage Loan categorized as "Home Loan" pursuant
to Appendix E of Standard & Poor's Glossary.
Insurance Proceeds: With respect to each Mortgage Loan,
proceeds of insurance policies insuring the Mortgage Loan or the related
Mortgaged Property and any proceeds from the Mortgage Pool Insurance Policy.
Interest Accrual Period: With respect to each Class of
Non-Delay Certificates and any Distribution Date, the period commencing on the
preceding Distribution Date (or, for the initial Distribution Date, the Closing
Date) and ending on the day preceding the current Distribution Date, and with
respect to the Delay Certificates and the REMIC I Regular Interests and any
Distribution Date, the calendar month preceding the month in which such
Distribution Date occurs. For purposes of computing interest accruals on each
Class of Non-Delay Certificates, each Interest Accrual Period has the actual
number of days in such period and each year is assumed to have 360 days. For
purposes of computing interest accruals on each Class of Delay Certificates,
each Interest Accrual Period has 30 days in such period and each year is assumed
to have 360 days.
Interest Remittance Amount: With respect to any Distribution,
that portion of Available Funds attributable to interest relating to the
Mortgage Loans.
Investment Account: As defined in Section 3.12(a).
Late Collections: With respect to any Mortgage Loan and any
Due Period, all amounts received after the Remittance Date immediately following
such Due Period, whether as late payments of Scheduled Payments or as Insurance
Proceeds (including any proceeds under the Mortgage Pool Insurance Policy),
Condemnation Proceeds, Liquidation Proceeds, Net Recoveries or otherwise, which
represent late payments or collections of principal and/or interest due (without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note) but delinquent for such Due Period and not previously recovered.
LIBOR: With respect to any Interest Accrual Period for the
LIBOR Certificates, the rate determined by the Trustee 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 Trustee 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 Trustee
17
(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.
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 calendar month preceding the month of such Distribution Date
and as to which the Servicer has certified (in accordance with this Agreement)
that it has made a Final Recovery Determination.
Liquidation Event: With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made as to such Mortgage Loan; or (iii) such Mortgage
Loan is removed from coverage under this Agreement by reason of its being
purchased, sold, transferred or replaced pursuant to or as contemplated by this
Agreement. With respect to any REO Property, either of the following events: (i)
a Final Recovery Determination is made as to such REO Property; or (ii) such REO
Property is removed from coverage under this Agreement by reason of its being
purchased pursuant to this Agreement.
Liquidation Proceeds: The amounts, including Insurance
Proceeds (including any proceeds under the Mortgage Pool Insurance Policy),
Condemnation Proceeds or those received following the acquisition of REO
Property, received in connection with the liquidation of a defaulted Mortgage
Loan, whether through a trustee's sale, foreclosure sale or otherwise, including
any Subsequent Recoveries.
London Business Day: Any day on which dealings in deposits of
United States dollars are transacted in the London interbank market.
Majority Class X Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class X Certificates.
Marker Rate: With respect to the Class X Certificates and any
Distribution Date, a per annum rate equal to two (2) times the weighted average
of the REMIC I Remittance Rate for each of REMIC I Regular Interest I-LTA, REMIC
I Regular I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular Interest
I-LTB1, REMIC I Regular Interest I-LTB2, REMIC I Regular Interest I-LTB3 and
REMIC I Regular Interest I-LTZZ, with the rate on each such REMIC I Regular
Interest (other than REMIC I Regular Interest I-LTZZ) subject to a cap equal to
the related Pass-Through Rate for the Corresponding Certificate for the purpose
of this calculation for such Distribution Date and with the rate on REMIC I
Regular Interest I-LTZZ subject to a cap of zero for the purpose of this
calculation; provided however, each such cap for REMIC I Regular Interest I-LTA
and REMIC I Regular Interest I-LTM1 shall be multiplied by a
18
fraction the numerator of which is the actual number of days in the related
Interest Accrual Period and the denominator of which is 30.
Maximum I-LTZZ Uncertificated Interest Deferral Amount: With
respect to any Distribution Date, the excess of (i) accrued interest at the
REMIC I Remittance Rate applicable to REMIC I Regular Interest I-LTZZ for such
Distribution Date on a balance equal to the Uncertificated Balance of REMIC I
Regular Interest I-LTZZ minus the REMIC I Overcollateralization Amount, in each
case for such Distribution Date, over (ii) Uncertificated Interest on REMIC I
Regular Interest I-LTA, REMIC I Regular Interest I-LTM1, REMIC I Regular
Interest I-LTM2, REMIC I Regular Interest I-LTB1, REMIC I Regular Interest
I-LTB2 and REMIC I Regular Interest I-LTB3 with the rate on each such REMIC I
Regular Interest subject to a cap equal to the related Pass-Through Rate for the
corresponding Certificate for the purpose of this calculation for such
Distribution Date; provided however, each such cap for REMIC I Regular Interest
I-LTA and REMIC I Regular Interest I-LTM1 shall be multiplied by a fraction the
numerator of which is the actual number of days in the related Interest Accrual
Period and the denominator of which is 30.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.03.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. If ▇▇▇▇▇'▇ is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(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, the Servicer and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument
identified on the Mortgage Loan Schedule as securing a Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage
Loan contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the
subject of this Agreement, each Mortgage Loan originally sold and subject to
this Agreement being identified on the Mortgage Loan Schedule, which Mortgage
Loan includes, without limitation, the Mortgage File, the Custodial File, the
Servicing File, the Scheduled Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds (including any proceeds
under the Mortgage Pool Insurance Policy), Net Recoveries, REO Disposition
proceeds, Prepayment Premiums and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan, excluding
replaced or repurchased Mortgage Loans.
19
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 as of the Cut-off Date: (1) the Responsible
Party's Mortgage Loan identifying number; (2) the Mortgagor's name; (3) the
street address of the Mortgaged Property including the city, state and zip code;
(4) a code indicating whether the Mortgaged Property is owner-occupied, a second
home or investment property; (5) the number and type of residential units
constituting the Mortgaged Property (i.e., a single family residence, a 2-4
family residence, a unit in a condominium project or a unit in a planned unit
development, manufactured housing); (6) the original months to maturity or the
remaining months to maturity from the Cut-off Date, in any case based on the
original amortization schedule and, if different, the maturity expressed in the
same manner but based on the actual amortization schedule; (7) the Combined
Loan-to-Value Ratio, at origination; (8) the Mortgage Interest Rate as of the
Cut-off Date; (9) the date on which the Scheduled Payment was due on the
Mortgage Loan and, if such date is not consistent with the Due Date currently in
effect, such Due Date; (10) the stated maturity date; (11) the amount of the
Scheduled Payment as of the Cut-off Date; (12) the last payment date on which a
Scheduled Payment was actually applied to pay interest and the outstanding
principal balance; (13) the original principal amount of the Mortgage Loan; (14)
the principal balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after deduction of payments of principal due and collected on or
before the Cut-off Date; (15) the type of Mortgage Loan (i.e., fixed rate,
second lien); (16) a code indicating the purpose of the loan (i.e., purchase,
rate and term refinance, equity take-out refinance); (17) a code indicating the
documentation style (i.e., full, limited or stated income); (18) the loan credit
classification (as described in the Underwriting Guidelines); (19) whether such
Mortgage Loan provides for a Prepayment Premium; (20) the Prepayment Premium
period of such Mortgage Loan, if applicable; (21) a description of the
Prepayment Premium, if applicable; (22) the Mortgage Interest Rate as of
origination; (23) the credit risk score (FICO score) at origination; (24) the
date of origination; (25) a code indicating whether the Mortgage Loan has been
modified; (26) the Due Date for the first Scheduled Payment; (27) the original
Scheduled Payment due; (28) with respect to the related Mortgagor, the
debt-to-income ratio; (29) the Appraised Value of the Mortgaged Property; (30)
the sales price of the Mortgaged Property if the Mortgage Loan was originated in
connection with the purchase of the Mortgaged Property; (31) a code indicating
whether such Mortgage Loan is a Home Loan; (32) a code indicating whether a
Mortgage Loan is or has been 30 days delinquent and (33) the outstanding
principal balance of the related First Lien Mortgage Loan. With respect to the
Mortgage Loans in the aggregate: (1) the number of Mortgage Loans; (2) the
current aggregate outstanding principal balance of the Mortgage Loans; (3) the
weighted average Mortgage Interest Rate of the Mortgage Loans; and (4) the
weighted average maturity of the Mortgage Loans.
Mortgage Note: The note or other evidence of the indebtedness
of a Mortgagor under a Mortgage Loan, including all riders thereto.
Mortgage Pool Insurance Policy: The mortgage pool insurance
policy number R0140017 provided by the Mortgage Pool Insurer having an initial
amount of coverage equal to
20
$8,971,030.51, and including any and all related endorsements, a copy of which
is attached hereto as Exhibit P.
Mortgage Pool Insurance Trigger: With respect to any date of
determination, the satisfaction of the Deductible (as defined in the Mortgage
Pool Insurance Policy), subject to the Maximum Aggregate Liability (as defined
in the Mortgage Pool Insurance Policy).
Mortgage Pool Insurer: Radian Insurance Inc., or any successor
thereto.
Mortgage Pool Insurer Fee: The one-time up-front amount
payable to the Mortgage Pool Insurer on or prior to the Closing Date by the
Co-Trustee in order to obtain coverage provided under the Mortgage Pool
Insurance Policy.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the
amount remaining for distribution pursuant to subsection 4.02(a)(iii) (before
giving effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date,
the amount by which the sum of the Prepayment Interest Shortfalls exceeds the
sum of the Compensating Interest payments made with respect to such Distribution
Date.
Net Recovery: Any proceeds received by the Servicer on a
delinquent or Charged Off Loan (including any Liquidation Proceeds received on a
Charged Off Loan), net of any Servicing Fee, ancillary income and any other
related expenses.
NIM Issuer: The entity established as the issuer of the NIM
Securities.
NIM Securities: Any debt securities secured or otherwise
backed by some or all of the Class X and Class P Certificates that are rated by
one or more Rating Agencies.
NIM Trustee: The trustee for the NIM Securities.
90+ Day Delinquent Mortgage Loan: Each Mortgage Loan with
respect to which any portion of a Scheduled Payment is, as of the last day of
the prior Due Period, three months or more 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.
Non-Delay Certificates: As specified in the Preliminary
Statement.
Nonrecoverable P&I Advance: Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Property that, in the
good faith business
21
judgment of the Servicer, will not or, in the case of a proposed P&I Advance,
would not be ultimately recoverable from related late payments, Insurance
Proceeds (including any proceeds under the Mortgage Pool Insurance Policy),
Condemnation Proceeds or Liquidation Proceeds on such Mortgage Loan or REO
Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advances
previously made or proposed to be made in respect of a Mortgage Loan or REO
Property, which, in the good faith business judgment of the Servicer, will not
or, in the case of a proposed Servicing Advance, would not, be ultimately
recoverable from related Insurance Proceeds (including any proceeds under the
Mortgage Pool Insurance Policy), Condemnation Proceeds, Liquidation Proceeds or
otherwise.
Notice of Final Distribution: The notice to be provided
pursuant to Section 9.02 to the effect that final distribution on any of the
Certificates shall be made only upon presentation and surrender thereof.
Notional Amount: With respect to the Class X Certificates and
any Distribution Date, the Uncertificated Balance of the REMIC I Regular
Interests for such Distribution Date. As of the Closing Date, the Notional
Amount of the Class X Certificates is equal to $256,315,157.46.
Notional Balance: With respect to the Class X Certificates for
purposes solely of the face thereof, the aggregate Stated Principal Balance of
the Mortgage Loans.
Offered Certificates: As specified in the Preliminary
Statement.
Officer's Certificate: A certificate signed by an officer of
the Servicer with responsibility for the servicing of the Mortgage Loans
required to be serviced by the Servicer and listed on a list delivered to the
Trustee pursuant to this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for the Servicer or a Subservicer, reasonably acceptable to the
Trustee; provided, that any Opinion of Counsel relating to (a) qualification of
either Trust REMIC as a REMIC or (b) compliance with the REMIC Provisions, must
(unless otherwise stated in such Opinion of Counsel) be an opinion of counsel
who (i) is in fact independent of the Servicer of the Mortgage Loans, (ii) does
not have any material direct or indirect financial interest in the Servicer of
the Mortgage Loans or in an affiliate of either and (iii) is not connected with
the Servicer of the Mortgage Loans as an officer, employee, director or person
performing similar functions.
Optional Termination Date: The date on which the Terminating
Entity, pursuant to Section 9.01, shall cause the Optional Termination Date to
occur on any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans, as of the last day of the related Due Period, is equal to
10% or less of the Cut off Date Pool Principal Balance.
OTS: Office of Thrift Supervision, and any successor thereto.
22
Outstanding: With respect to the Certificates as of any date
of determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of
which other Certificates have been executed and delivered by the Trustee
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 or Charged Off 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 Offered Certificates as of such Distribution Date (after giving
effect to the payment of the Principal Remittance Amount on such Certificates on
such 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.
Overcollateralization Floor: With respect to any Distribution
Date, 0.50% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date. Notwithstanding the foregoing, on and after any
Distribution Date following the reduction of the aggregate Class Certificate
Balance of the Class A Certificates, Class M Certificates and Class B
Certificates to zero, the Overcollateralization Floor shall be zero.
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 Cashflow.
Ownership Interest: As to any Residual Certificate, any
ownership interest in such Certificate including any interest in such
Certificate as the Holder thereof and any other interest therein, whether direct
or indirect, legal or beneficial.
P&I Advance: As to any Mortgage Loan or REO Property, any
advance made by the Servicer in respect of any Remittance Date representing the
aggregate of all payments of principal and interest, net of the Servicing Fee,
that were due during the related Due Period on the Mortgage Loans and that were
delinquent on the related Remittance Date, plus certain amounts representing
assumed payments not covered by any current net income on the Mortgaged
Properties acquired by foreclosure or deed in lieu of foreclosure as determined
pursuant to Section 4.01.
23
Par Value: The sum of (i) 100% of the unpaid principal balance
of each Mortgage Loan (other than in respect of REO Property) plus accrued and
unpaid interest thereon at the applicable Mortgage Interest Rate, and (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
Majority Class X Certificateholder, at the expense of the Majority Class X
Certificateholder, plus accrued and unpaid interest on the related Mortgage Loan
at the applicable Mortgage Interest Rates and (y) the unpaid principal balance
of each Mortgage Loan related to any REO Property, in each case plus accrued and
unpaid interest thereon at the applicable Mortgage Interest Rate.
Pass-Through Margin: With respect to each Class of LIBOR
Certificates, the following percentages: Class A, 0.170%; and Class M-1, 0.470%.
On the first Distribution Date after the Optional Termination Date, the
Pass-Through Margins shall increase to: Class A, 0.340%; and Class M-1, 0.705%.
Pass-Through Rate: With respect to the Class A Certificates
and the Class M-1 Certificates, a rate per annum equal to the lesser of (i)
LIBOR plus the related Pass-Through Margin and (ii) the WAC Cap.
With respect to the Class M-2 Certificates, Class B-1
Certificates, Class B-2 Certificates and Class B-3 Certificates, a rate per
annum equal to (a) on or prior to the first possible Optional Termination Date,
5.887%, 6.208%, 6.548% and 6.750%, respectively or (b) after the first possible
Optional Termination Date, 6.387%, 6.708%, 7.048% and 7.250%, respectively.
With respect to the Class X Certificates and any Distribution
Date, a rate per annum equal to the percentage equivalent of a fraction, the
numerator of which is the sum of the amounts calculated pursuant to clauses (a)
through (h) below, and the denominator of which is the aggregate Uncertificated
Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTA,
REMIC I Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I
Regular Interest I-LTB1, REMIC I Regular Interest I-LTB2, REMIC I Regular
Interest I-LTB3 and REMIC I Regular Interest I-LTZZ. For purposes of calculating
the Pass-Through Rate for the Class X Certificates, the numerator is equal to
the sum of the following components:
(a) the REMIC I Remittance Rate for REMIC I Regular
Interest I-LTAA minus the Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC I Regular Interest I-LTAA;
(b) the REMIC I Remittance Rate for REMIC I Regular
Interest I-LTA minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest I-LTA;
(c) the REMIC I Remittance Rate for REMIC I Regular
Interest I-LTM1 minus the Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC I Regular Interest I-LTM1;
24
(d) the REMIC I Remittance Rate for REMIC I Regular
Interest I-LTM2 minus the Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC I Regular Interest I-LTM2;
(e) the REMIC I Remittance Rate for REMIC I Regular
Interest I-LTB1 minus the Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC I Regular Interest I-LTB1;
(f) the REMIC I Remittance Rate for REMIC I Regular
Interest I-LTM3 minus the Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC I Regular Interest I-LTM3;
(g) the REMIC I Remittance Rate for REMIC I Regular
Interest I-LTB2 minus the Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC I Regular Interest I-LTB2; and
(h) the REMIC I Remittance Rate for REMIC I Regular
Interest I-LTZZ minus the Marker Rate, applied to an amount equal to
the Uncertificated Balance of REMIC I Regular Interest I-LTZZ.
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 P-1 by Moody's, F-1 by Fitch and A-1+ by S&P (in each
case, to the extent they are designated as Rating Agencies in the Preliminary
Statement);
(iii) repurchase obligations with respect to any security
described in clause (i) above entered into with a Depository Institution (acting
as principal);
(iv) securities bearing interest or sold at a discount
that are issued by any corporation incorporated under the laws of the United
States of America or any state thereof and that are rated by each Rating Agency
that rates such securities in its highest long-term unsecured
25
rating categories at the time of such investment or contractual commitment
providing for such investment;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand or on a
specified date not more than 30 days after the date of acquisition thereof) that
is rated by each Rating Agency that rates such securities in its highest
short-term unsecured debt rating available at the time of such investment;
(vi) units of money market funds, including money market
funds advised by the Depositor or the Trustee or an Affiliate thereof, that have
been rated "Aaa" by Moody's, "AAAm" or "AAAm-G" by Standard & Poor's and at
least "AA" by Fitch (in each case, to the extent they are designated as Rating
Agencies in the Preliminary Statement); and
(vii) if previously confirmed in writing to the Trustee,
any other demand, money market or time deposit, or any other obligation,
security or investment, as may be acceptable to the Rating Agencies as a
permitted investment of funds backing "Aaa" or "AAA" rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
For investments in the Distribution Account (except during the Trustee Float
Period), only the obligations or securities (or instruments which invest in the
obligations or securities) specified in clause (i) above shall constitute
Permitted Investments.
Permitted Transferee: Any Person other than (i) the United
States, any State or political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
international organization or any agency or instrumentality of either of the
foregoing, (iii) an organization (except certain farmers' cooperatives described
in Section 521 of the Code) which is exempt from tax imposed by Chapter 1 of the
Code (including the tax imposed by Section 511 of the Code on unrelated business
taxable income) on any excess inclusions (as defined in Section 860E(c)(1) of
the Code) with respect to any Residual Certificate, (iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of the Code, (v) a
Person that is not a U.S. Person or a U.S. Person with respect to whom income
from a Residual Certificate is attributable to a foreign permanent establishment
or fixed base (within the meaning of an applicable income tax treaty) of such
Person or any other U.S. Person, (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 Trust REMIC
to fail to qualify as a REMIC at any time that the Certificates are outstanding.
The terms "United States," "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these
26
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.
Prepayment Interest Excess: With respect to any Remittance
Date, the sum of, for each Mortgage Loan that was, during the portion of the
Prepayment Period occurring in the same month as such Remittance Date, the
subject of a Principal Prepayment that was applied by the Servicer to reduce the
outstanding principal balance of such Mortgage Loan, an amount equal to the
product of (a) the Mortgage Interest Rate net of the Servicing Fee Rate for such
Mortgage Loan, (b) the amount of the Principal Prepayment for such Mortgage
Loan, (c) 1/360 and (d) the number of days commencing on the first day of the
calendar month in which such Remittance Date occurs and ending on the date on
which such Principal Prepayment is so applied.
Prepayment Interest Shortfall: With respect to any Remittance
Date, the sum of, for each Mortgage Loan that was, during the portion of the
related Prepayment Period occurring in the calendar month preceding such
Remittance Date, the subject of a Principal Prepayment, an amount equal to the
product of (a) the Mortgage Interest Rate net of the Servicing Fee Rate for such
Mortgage Loan, (b) the amount of the Principal Prepayment for such Mortgage
Loan, (c) 1/360 and (d) the number of days commencing on the date on which such
Principal Prepayment was applied and ending on the last day of the last day of
the related Prepayment Period.
Prepayment Period: With respect to any Distribution Date, the
period beginning on the 15th day of the month preceding the month in which such
Distribution Date occurs and ending on the 14th day of the month in which such
Distribution Date occurs.
Prepayment Premium: Any prepayment premium or charge collected
by the applicable Servicer with respect to a Mortgage Loan from a Mortgagor in
connection with any voluntary Principal Prepayment pursuant to the terms of the
related Mortgage Note.
Principal Distribution Amount: For any Distribution Date, the
sum of (i) the Basic Principal Distribution Amount for such Distribution Date
and (ii) on or after the Distribuiton Date in May 2005, the Extra Principal
Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other
recovery of principal on a Mortgage Loan (including upon liquidation of a
Mortgage Loan) which is received in advance of its scheduled Due Date, excluding
any Prepayment Premium and which is not
27
accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by
a Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution
Date, the amount equal to the sum of the following amounts (without duplication)
with respect to the related Due Period: (i) each scheduled payment of principal
on a Mortgage Loan due during such Due Period and received by the Servicer on or
prior to the related Determination Date or advanced by the Servicer for the
related Remittance Date (ii) all Principal Prepayments received during the
related Prepayment Period, (iii) all Liquidation Proceeds, Condemnation
Proceeds, Net Recoveries and Insurance Proceeds (including any proceeds under
the Mortgage Pool Insurance Policy) on the Mortgage Loans allocable to principal
actually collected by the Servicer during the related Prepayment Period, (iv)
the portion of the Repurchase Price allocable to principal with respect to each
Deleted Mortgage Loan, the repurchase obligation for which arose during the
related Prepayment Period, that was repurchased during the period from the prior
Distribution Date through the Remittance Date for the current Distribution Date,
(v) the portion of all Substitution Adjustment Amounts allocable to principal
with respect to the substitutions of Mortgage Loans that occur during the
calendar month in which such Distribution Date occurs, and (vi) the allocable
portion of the proceeds received with respect to the termination of the Trust
Fund pursuant to clause (a) of Section 9.01 (to the extent such proceeds relate
to principal).
Privacy Laws: Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999,
as amended, and all applicable regulations promulgated thereunder.
Private Certificates: As specified in the Preliminary
Statement.
Prospectus Supplement: The Prospectus Supplement, dated April
4, 2005, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchase Agreement: The Flow Mortgage Loan Purchase and
Warranties Agreement, dated as of August 25, 2004, between the Purchaser and the
Responsible Party.
Purchaser: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, a New York limited
partnership, and its successors in interest, as purchaser of the Mortgage Loans
under the Purchase Agreement.
Radian Guidelines: The current 2nd lien servicing guidelines
of the Mortgage Pool Insurer and the Service Level Agreement dated April 29,
2004 between the Mortgage Pool Insurer and the Servicer, referred to in the
Mortgage Pool Insurance Policy.
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
28
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. 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 10.05(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 (including any
proceeds under the Mortgage Pool Insurance Policy) with respect thereto net of
the expenses incurred by the Servicer in connection with the liquidation of such
Liquidated Mortgage Loan and net of the amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan. Any Charged Off Loan
will give rise to a Realized Loss (calculated as if clause (b) of the previous
sentence is equal to zero) at the time it is charged off, as described in
Section 3.15(c) hereof.
Record Date: With respect to any Distribution Date, the close
of business on the last day of the related Interest Accrual Period; provided,
however, that for any Certificate issued in definitive form, the Record Date
shall be the close of business on the last Business Day of the month preceding
the month in which such applicable Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary
Statement.
Released Loan: Any Charged Off Loan that is released by
Wilshire Credit to the Class X-1 Certificateholder pursuant to Section 3.15(d),
generally on the date that is six months after the date on which Wilshire Credit
begins using Wilshire Special Servicing on such Charged Off Loans. Any Released
Loan will no longer be an asset of any REMIC or the Trust Fund.
Relief Act Interest Shortfall: With respect to any
Distribution Date and any Mortgage Loan, any reduction in the amount of interest
or principal collectible on such Mortgage Loan for the most recently ended Due
Period as a result of the application of the Servicemembers Civil Relief Act, or
any similar state statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC I: As specified in the Preliminary Statement.
REMIC I Interest Loss Allocation Amount: With respect to any
Distribution Date, an amount equal to (a) the product of (i) the aggregate
Stated Principal Balance of the Mortgage Loans and REO Properties then
outstanding and (ii) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTAA minus the Marker Rate, divided by (b) 12.
29
REMIC I Overcollateralization Amount: With respect to any date
of determination, (i) 1.00% of the aggregate Uncertificated Balances of the
REMIC I Regular Interests minus (ii) the aggregate of the Uncertificated
Balances of REMIC I Regular Interest I-LTA, REMIC I Regular Interest I-LTM1,
REMIC I Regular Interest I-LTM2, REMIC I Regular Interest I-LTB1, REMIC I
Regular Interest I-LTB2 and REMIC I Regular Interest I-LTB3, in each case as of
such date of determination.
REMIC I Principal Loss Allocation Amount: With respect to any
Distribution Date, an amount equal to (a) the product of (i) 1.00% of the
aggregate Stated Principal Balance of the Mortgage Loans and REO Properties then
outstanding and (ii) 1 minus a fraction, the numerator of which is two times the
aggregate of the Uncertificated Balances of REMIC I Regular Interest I-LTA,
REMIC I Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I
Regular Interest I-LTB1, REMIC I Regular Interest I-LTB2 and REMIC I Regular
Interest I-LTB3 and the denominator of which is the aggregate of the
Uncertificated Balances of REMIC I Regular Interest I-LTA, REMIC I Regular
Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular Interest
I-LTB1, REMIC I Regular Interest I-LTB2, REMIC I Regular Interest I-LTB3 and
REMIC I Regular Interest I-LTZZ.
REMIC I Regular Interest: Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I. Each REMIC I Regular Interest shall accrue
interest at the related REMIC I Remittance Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto. The designations for
the respective REMIC I Regular Interests are set forth in the Preliminary
Statement hereto.
REMIC I Regular Interest I-LTAA: One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTAA
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
REMIC I Regular Interest I-LTA: One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTA
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
REMIC I Regular Interest I-LTM1: One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTM1
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal,
30
subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Balance as set forth in the Preliminary Statement hereto.
REMIC I Regular Interest I-LTM2: One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTM2
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
REMIC I Regular Interest I-LTB1: One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTB1
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
REMIC I Regular Interest I-LTB2: One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTB2
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
REMIC I Regular Interest I-LTB3: One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTB3
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
REMIC I Regular Interest I-LTZZ: One of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a Regular Interest in REMIC I. REMIC I Regular Interest I-LTZZ
shall accrue interest at the related REMIC I Remittance Rate in effect from time
to time, and shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
REMIC I Remittance Rate: With respect to each REMIC I Regular
Interest, a per annum rate equal to (i) 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.
REMIC I Required Overcollateralization Amount: 1% of the
Overcollateralization Floor.
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REMIC II: The segregated pool of assets consisting of all of
the REMIC I Regular Interests conveyed in trust to the Trustee, for the benefit
of the REMIC II Certificateholders pursuant to Section 2.07, and all amounts
deposited therein, with respect to which a separate REMIC election is to be
made.
REMIC II Certificate: Any Regular Certificate or Class R-2
Certificate.
REMIC II Certificateholder: The Holder of any REMIC II
Certificate.
REMIC Opinion: As defined in Section 9.03.
REMIC Provisions: Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations promulgated thereunder, as the foregoing may be in
effect from time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, no
later than 1:00 PM, Central Time on the Business Day immediately preceding such
Distribution Date.
REO Disposition: The final sale by the applicable Servicer of
any REO Property.
REO Imputed Interest: As to any REO Property, for any period,
an amount equivalent to interest (at the Mortgage Interest Rate net of the
Servicing Fee Rate that would have been applicable to the related Mortgage Loan
had it been outstanding) on the unpaid principal balance of the Mortgage Loan as
of the date of acquisition thereof (as such balance is reduced pursuant to
Section 3.15 by any income from the REO Property treated as a recovery of
principal).
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Reporting Date: The later of (i) the 18th day of each calendar
month and (ii) two Business Days after the 15th day of each month
Repurchase Price: With respect to any Mortgage Loan, an amount
equal to the sum of (i) the unpaid principal balance of such Mortgage Loan as of
the date of repurchase, (ii) interest on such unpaid principal balance of such
Mortgage Loan at the Mortgage Interest Rate from the last date through which
interest has been paid and distributed to the Trustee to the date of repurchase,
(iii) all unreimbursed Servicing Advances and (iv) all expenses incurred by the
Servicer, the Trust or the Trustee, as the case may be, in respect of a breach
or defect, including, without limitation, expenses arising out of the Servicer's
or Trustee's, as the case may be, enforcement of the Responsible Party's
repurchase obligations, as applicable, to the extent not included in clause
(iii), and (v) any costs and damages incurred by the Trust in connection with
any violation by such Mortgage Loan of any predatory lending law or abusive
lending law.
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Request for Release: The Request for Release submitted by the
Servicer to the Trustee, substantially in the form of Exhibit J.
Residual Certificates: As specified in the Preliminary
Statement.
Residual Interest: The sole class of "residual interests" in a
REMIC within the meaning of Section 860G(a)(2) of the Code.
Responsible Officer: When used with respect to the Trustee,
any vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any associate or any other officer of the Trustee
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.
Review Appraisal Value: As defined in the Underwriting
Guidelines.
Rule 144A Letter: As defined in Section 5.02(b).
Scheduled Payment: The scheduled monthly payment on a Mortgage
Loan due on any Due Date allocable to principal and/or interest on such Mortgage
Loan which, unless otherwise specified herein, shall give effect to any related
Debt Service Reduction and any Deficient Valuation that affects the amount of
the monthly payment due on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Senior Enhancement Percentage: With respect to any
Distribution Date, the percentage obtained by dividing (x) the sum of (i) the
aggregate Class Certificate Balance of the Subordinated Certificates and (ii)
the Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
Senior Specified Enhancement Percentage: As of any date of
determination, 64.80%.
Servicer: Wilshire Credit.
Servicer Remittance Report: As defined in Section 4.03(d).
Servicing Advances: The reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred prior to, on, or after the Cut-off Date
by the Servicer in the performance of its servicing obligations in connection
with a default, delinquency or other unanticipated event, including, but not
limited to, the cost of (i) the preservation, restoration, inspection and
protection of a Mortgaged Property, (ii) any enforcement or judicial
proceedings, including foreclosures and litigation, in respect of a particular
Mortgage Loan, (iii) the management (including reasonable fees in connection
therewith) and liquidation of any REO
33
Property and (iv) the performance of its obligations under Sections 3.01, 3.09,
3.13 and 3.15 (including the cost of obtaining any broker's price opinion
pursuant thereto). Servicing Advances also include any reasonable
"out-of-pocket" costs and expenses (including legal fees) incurred by the
Servicer in connection with (v) executing and recording instruments of
satisfaction, deeds of reconveyance or Assignments of Mortgage in connection
with any satisfaction or foreclosures in respect of any Mortgage Loan to the
extent not recovered from the Mortgagor or otherwise payable under this
Agreement, (vi) obtaining or correcting any legal documentation required to be
included in the Mortgage Files and necessary for the Servicer to perform its
obligations under this Agreement and (vii) any third party tax, insurance, and
flood tracking service, and flood certification fees incurred by the Servicer,
whether incurred on a life of loan basis, monthly, or otherwise; and costs
incurred by the Servicer in connection with correcting errors of prior
servicers, including amortization adjustments, delinquent taxes, penalties and
interest; custodian costs; and title research. The Servicer shall not be
required to make any Nonrecoverable Servicing Advances.
Servicing Fee: With respect to each Mortgage Loan and any
Distribution Date, an amount equal to the product of (i) one-twelfth of
Servicing Fee Rate and (ii) the applicable Stated Principal Balance of such
Mortgage Loan as of the first day of the calendar month preceding the month in
which such Distribution Date occurs. Such fee shall be payable monthly, and
shall be pro rated for any portion of a month during which the Mortgage Loan is
serviced by the Servicer under this Agreement. The Servicing Fee is payable
solely from the interest portion (including recoveries with respect to interest
from Liquidation Proceeds, Insurance Proceeds (including any proceeds under the
Mortgage Pool Insurance Policy), Condemnation Proceeds and proceeds received
with respect to REO Properties, to the extent permitted by Section 3.11) of such
Scheduled Payment collected by the Servicer or as otherwise provided under
Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.50%
per annum.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer consisting of originals or copies of all documents in
the Mortgage File which are not delivered to the Trustee in the Custodial File
and copies of the Mortgage Loan Documents set forth in Exhibit K hereto.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee by the Servicer on the Closing Date pursuant to this Agreement, as
such list may from time to time be amended.
Servicing Transfer Costs: All reasonable out-of-pocket costs
and expenses incurred by the Trustee in connection with the transfer of
servicing from a terminated Servicer, including, without limitation, any such
costs or expenses associated with the complete transfer of all servicing data
and the completion, correction or manipulation of such servicing data as may be
required by the Trustee to correct any errors or insufficiencies in the
servicing data or otherwise to enable the Trustee (or any successor Servicer
appointed pursuant to Section 7.02) to service the Mortgage Loans properly and
effectively.
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Significant Net Recoveries: With respect to a defaulted
Mortgage Loan, a determination by the Servicer that either (A) the potential Net
Recoveries are anticipated to be greater than or equal to the sum of (i) the
total indebtedness of the First Lien Mortgage Loan on the related Mortgaged
Property and (ii) $10,000 (after anticipated expenses and attorneys' fees) or
(B) the related Mortgagor has shown a willingness and ability to pay over the
previous six months.
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with
respect to which any portion of a Scheduled Payment is, as of the last day of
the prior Due Period, two months or more 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.
Specified Overcollateralized Amount: Prior to the Stepdown
Date, an amount equal to 5.60% of the Cut-off Date Pool Principal Balance. On
and after the Stepdown Date, an amount equal to 11.20% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, subject,
until the Class Certificate Balance of each Class of Offered 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 current aggregate Stated Principal Balance of
the Mortgage Loans until the Distribution Date on which a Trigger Event is no
longer occurring.
Standard & Poor's: Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors in interest. If
Standard & Poor's is designated as a Rating Agency in the Preliminary Statement,
for purposes of Section 10.05(b) the address for notices to Standard & Poor's
shall be Standard & Poor's, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Residential Mortgage Surveillance Group - GSAMP Trust 2005-S1, or
such other address as Standard & Poor's may hereafter furnish to the Depositor,
the Servicer and the Trustee.
Standard & Poor's Glossary: Version 5.6 of the Standard &
Poor's LEVELS(R)Glossary.
Start-up Day: As defined in Section 2.06.
Stated Principal Balance: As to each Mortgage Loan and as of
any date of determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date, minus (ii) all amounts previously remitted to the Trustee with respect to
the related Mortgage Loan representing payments or recoveries of principal
including advances in respect of scheduled payments of principal. For purposes
of any Distribution Date, the Stated Principal Balance of any Mortgage Loan will
give effect to any scheduled payments of principal received by the Servicer on
or prior to the related Determination Date or advanced by the Servicer for the
related Remittance Date and any unscheduled principal payments and other
unscheduled principal collections received during the
35
related Prepayment Period, and the Stated Principal Balance of any Mortgage Loan
that has prepaid in full or has become a Liquidated Mortgage Loan during the
related Prepayment Period shall be zero.
Stepdown Date: The earlier to occur of (a) the date on which
the 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 April 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: Amounts received with respect to any
Liquidated Mortgage Loan after it has become a Liquidated Mortgage Loan.
Subservicer: As defined in Section 3.02(a).
Subservicing Account: As defined in Section 3.08.
Subservicing Agreements: As defined in Section 3.02(a).
Substitute Mortgage Loan: A Mortgage Loan substituted by the
Responsible Party for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in a Request for Release, substantially in the form
of Exhibit J, (i) have a Stated Principal Balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution, not
in excess of, and not more than 10% less than, the Stated Principal Balance of
the Deleted Mortgage Loan; (ii) be accruing interest at a rate no lower than and
not more than 1% per annum higher than, that of the Deleted Mortgage Loan; (iii)
have a CLTV no higher than that of the Deleted Mortgage Loan; (iv) have a
remaining term to maturity no greater than (and not more than one year less than
that of) the Deleted Mortgage Loan; and (v) comply with each representation and
warranty set forth in Section 2.03.
Substitution Adjustment Amount: The meaning ascribed to such
term pursuant to Section 2.03(g).
Tax Service Contract: As defined in Section 3.09(a).
Telerate Page 3750: The display page currently so designated
on the Bridge Telerate Service (or such other page as may replace that page on
that service for displaying comparable rates or prices).
Terminating Entity: The Person that exercises a Terminating
Purchase pursuant to Section 9.01(a) hereof.
Terminating Purchase: The purchase of the Mortgage Loans and
all other property of the Trust Fund pursuant to Section 9.01(a) hereof.
36
Termination Price: The price paid by the Terminating Entity
for the Mortgage Loans and all other property of the Trust Fund pursuant to
Section 9.01(a) hereof.
30 Day Delinquency: The failure of the Mortgagor to make any
Scheduled Payment due under the Mortgage Note on or prior to the date which is
30 days after such payment's Due Date.
Total Monthly Excess Spread: As to any Distribution Date, an
amount equal to the excess if any, of (i) the interest collected on the Mortgage
Loans received by the Servicer on or prior to the related Determination Date or
advanced by the Servicer for the related Remittance Date (net of Expense Fees)
over (ii) the sum of amounts payable to the Offered Certificates on such
Distribution Date pursuant to Section 4.02(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).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a
Trigger Event exists if (i) the quotient (expressed as a percentage) of (1) the
rolling three month average of the aggregate unpaid principal balance of 60+ Day
Delinquent Mortgage Loans, divided by (2) the aggregate unpaid principal balance
of the Mortgage Loans as of the last day of the related Due Period, equals or
exceeds 17.00% 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 (as reduced by any Net Recoveries received
on Charged Off Loans) incurred since the Cut-off Date through the last day of
the related Prepayment Period divided by (y) the Cut-off Date Pool Principal
Balance, exceeds the applicable percentages set forth below with respect to such
Distribution Date:
DISTRIBUTION DATE OCCURRING IN LOSS PERCENTAGE
------------------------------ ---------------
April 2008 through March 2009 7.000% for the first month, plus an additional
1/12th of 4.000% for each month thereafter (e.g.,
approximately 7.333% in May 2008)
April 2009 through March 2010 11.000% for the first month, plus an additional
1/12th of 3.000% for each month thereafter (e.g.,
approximately 11.250% in May 2009)
April 2010 through March 2011 14.000% for the first month, plus an additional
1/12th of 1.500% for each month thereafter (e.g.,
approximately 14.125% in May 2010)
April 2011 and thereafter 15.500%
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
37
related Cut-off Date; (ii) the Collection Account, the Excess Reserve Fund
Account, the Distribution Account, and all amounts deposited therein pursuant to
the applicable provisions of this Agreement; (iii) property that secured a
Mortgage Loan and has been acquired by foreclosure, deed-in-lieu of foreclosure
or otherwise; (iv) the Mortgage Pool Insurance Policy and (v) all proceeds of
the conversion, voluntary or involuntary, of any of the foregoing.
Trust REMIC: Either REMIC I or REMIC II, as applicable.
Trustee: Deutsche Bank National Trust Company, and its
successors in interest and, if a successor trustee is appointed hereunder, such
successor.
Trustee Fee: As to each Mortgage Loan and any Distribution
Date, an amount equal to one month's interest at the related Trustee Fee Rate on
the Stated Principal Balance of such Mortgage Loan as of the preceding
Distribution Date (or as of the Closing Date in the case of the first
Distribution Date) or, in the event of any payment of interest which accompanies
a Principal Prepayment in Full made by the Mortgagor, interest at the Trustee
Fee Rate on the Stated Principal Balance of such Mortgage Loan for the period
covered by such payment of interest.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.01%
per annum.
Trustee Float Period: With respect to any Distribution Date
and the related amounts in the Distribution Account, the period commencing on
the Business Day immediately preceding such Distribution Date and ending on such
Distribution Date.
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.
Uncertificated Balance: The amount of the REMIC I Regular
Interests outstanding as of any date of determination. As of the Closing Date,
the Uncertificated Balance of each REMIC I Regular Interest shall equal the
amount set forth in the Preliminary Statement hereto as its initial
uncertificated balance. On each Distribution Date, the Uncertificated Balance of
the REMIC I Regular Interest shall be reduced by all distributions of principal
made on such REMIC I Regular Interest on such Distribution Date pursuant to
Section 4.06 and, if and to the extent necessary and appropriate, shall be
further reduced on such Distribution Date by Realized
38
Losses as provided in Section 4.05 and the Uncertificated Balance of REMIC I
Regular Interest I-LTZZ shall be increased by interest deferrals as provided in
Section 4.06. The Uncertificated Balance of each REMIC I Regular Interest shall
never be less than zero.
Uncertificated Interest: With respect to any REMIC I Regular
Interest for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the Uncertificated Balance thereof immediately
prior to such Distribution Date. Uncertificated Interest in respect of the REMIC
I Regular Interests shall accrue on the basis of a 360-day year consisting of
twelve 30-day months. Uncertificated Interest with respect to each Distribution
Date, as to any REMIC I Regular Interest, shall be reduced by an amount equal to
the sum of (a) the aggregate Prepayment Interest Shortfall, if any, for such
Distribution Date to the extent not covered by payments pursuant to Section 3.25
of this Agreement and (b) the aggregate amount of any Relief Act Interest
Shortfall, if any allocated, in each case, to such REMIC I Regular Interest
pursuant to Section 4.02. In addition, Uncertificated Interest with respect to
each Distribution Date, as to any Uncertificated REMIC Regular Interest, shall
be reduced by Realized Losses, if any, allocated to such Uncertificated REMIC
Regular Interest pursuant to Section 4.05.
Underwriters' Exemption: Any exemption listed in footnote 1
of, and amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487
(2002), or any successor exemption.
Underwriting Guidelines: The underwriting guidelines attached
to the Purchase Agreement.
Unpaid Interest Amounts: As of any Distribution Date and any
Class of Certificates, the sum of (a) the portion of the Accrued Certificate
Interest Distribution Amount from prior Distribution Dates remaining unpaid
immediately prior to the current Distribution Date and (b) interest on such
unpaid amount in clause (a) at the applicable Pass-Through Rate (to the extent
permitted by applicable law).
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any, and (c) the remaining Voting Rights shall be allocated
among Holders of the remaining Classes of Certificates (other than the Class
R-1, Class R-2 and Class X-1 Certificates) in proportion to the Certificate
Balances of their respective Certificates on such date. The Class R-1, Class R-2
and Class X-1 Certificates shall have no Voting Rights.
WAC Cap: With respect to the Mortgage Loans as of any
Distribution Date, a per annum rate equal to (i) 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 (ii) with respect to each Class of
LIBOR Certificates, multiplied by a fraction, the numerator of which is 30 and
the denominator of which is the actual number of days in the Interest Accrual
Period related to such
39
Distribution Date. For federal income tax purposes, the equivalent of the
foregoing shall be expressed as the weighted average of the REMIC I Remittance
Rates on each REMIC I Regular Interest, weighted on the basis of the
Uncertificated Balance of each such REMIC I Regular Interest.
Wilshire Credit: Wilshire Credit Corporation, a Nevada
corporation, and its successors in interest.
Wilshire Special Servicing: With regard to any Charged Off
Loans, the servicing of such Charged Off Loans using specialized collection
procedures (including foreclosure, if appropriate) to maximize recoveries.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 CONVEYANCE OF MORTGAGE LOANS. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust,
hereby accepts the Trust Fund. In addition, on the Closing Date, the Co-Trustee
shall pay the Mortgage Pool Insurer Fee to the Mortgage Pool Insurer, to the
extent of funds on deposit in the Distribution Account, and the Depositor shall
cause the Mortgage Pool Insurer to deliver the Mortgage Pool Insurance Policy to
the Co-Trustee.
(b) In connection with the transfer and assignment of
each Mortgage Loan, the Depositor has delivered or caused to be delivered to the
Trustee for the benefit of the Certificateholders the following documents or
instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note (except for up to 0.39% of
the Mortgage Notes for which there is a lost note affidavit and a copy
of the Mortgage Note) bearing all intervening endorsements, endorsed
"Pay to the order of _________, without recourse" and signed in the
name of the last endorsee. To the extent that there is no room on the
face of the Mortgage Notes for endorsements, the endorsement may be
contained on an allonge unless the Trustee is advised by the
Responsible Party that state law does not so allow. If the Mortgage
Loan was acquired by the Responsible Party in a merger, the endorsement
must be by "[last endorsee], successor by merger to [name of
predecessor]". If the Mortgage Loan was acquired or originated by the
last endorsee while doing business under another name, the endorsement
must be by "[last endorsee], formerly known as [previous name]";
(ii) the original of any guarantee executed in connection
with the Mortgage Note;
40
(iii) the original Mortgage with evidence of recording
thereon or a certified true copy of such Mortgage submitted for
recording. If in connection with any Mortgage Loan, the Responsible
Party, cannot deliver or cause to be delivered the original Mortgage
with evidence of recording thereon on or prior to the Closing Date
because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage
has been lost or because such public recording office retains the
original recorded Mortgage, the Responsible Party shall deliver or
cause to be delivered to the Trustee, a photocopy of such Mortgage,
together with (i) in the case of a delay caused by the public recording
office, an officer's certificate of the Responsible Party (or evidence
of certification on the face of such photocopy of such Mortgage) or
certified by the title company, escrow agent, or closing attorney
stating that such Mortgage has been dispatched to the appropriate
public recording office for recordation and that the original recorded
Mortgage or a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded Mortgage
will be promptly delivered to the Trustee upon receipt thereof by the
Responsible Party; or (ii) in the case of a Mortgage where a public
recording office retains the original recorded Mortgage or in the case
where a Mortgage is lost after recordation in a public recording
office, a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded
Mortgage;
(iv) the originals of all assumption, modification,
consolidation or extension agreements, (if provided), with evidence of
recording thereon or a certified true copy of such agreement submitted
for recording;
(v) the original Assignment of Mortgage for each Mortgage
Loan endorsed in blank and in recordable form;
(vi) the originals of all intervening assignments of
mortgage (if any) evidencing a complete chain of assignment from the
applicable originator to the last endorsee with evidence of recording
thereon, or if any such intervening assignment has not been returned
from the applicable recording office or has been lost or if such public
recording office retains the original recorded assignments of mortgage,
the Responsible Party shall deliver or cause to be delivered to the
Trustee, a photocopy of such intervening assignment, together with (A)
in the case of a delay caused by the public recording office, an
officer's certificate of the Responsible Party (or evidence of
certification on the face of such photocopy of such intervening
assignment of mortgage) or certified by the title company, escrow
agent, or closing attorney stating that such intervening assignment of
mortgage has been dispatched to the appropriate public recording office
for recordation and that such original recorded intervening assignment
of mortgage or a copy of such intervening assignment of mortgage
certified by the appropriate public recording office to be a true and
complete copy of the original recorded intervening assignment of
mortgage will be promptly delivered to the Trustee upon receipt thereof
by the Responsible Party; or (B) in the case of an intervening
assignment where a public recording office retains the original
recorded intervening assignment or in the case where an intervening
assignment is lost after recordation in a public recording office, a
copy of such intervening assignment certified by such public
41
recording office to be a true and complete copy of the original
recorded intervening assignment;
(vii) the original mortgagee policy of title insurance or,
in the event such original title policy is unavailable, a certified
true copy of the related policy binder or commitment for title
certified to be true and complete by the title insurance company; and
(viii) a security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage (if provided).
Each Mortgage Loan for which a Mortgage Note is missing shall
be evidenced by a lost note affidavit as of the Closing Date. In the event one
or more lost note affidavits are provided to cover multiple missing Mortgage
Notes on the Closing Date, the Responsible Party shall deliver to the Trustee
the applicable individual lost note affidavits within ten (10) Business Days of
the Closing Date. If the Responsible Party fails to deliver the required
individual lost note affidavits within the specified period of time, the Trustee
shall notify the Responsible Party to take such remedial actions, including,
without limitation, the repurchase by the Responsible Party within 30 days of
the Closing Date.
The Responsible Party shall deliver to the Trustee 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, the Responsible Party shall forward, with
respect to the Mortgage Loans, to the Trustee additional documents evidencing an
assumption, modification, consolidation or extension of a Mortgage Loan approved
by the Responsible Party in accordance with the terms of this Agreement. All
such mortgage documents held by the Trustee as to each Mortgage Loan shall
constitute the "Custodial File."
On or prior to the Closing Date, the Responsible Party shall
deliver to the Trustee Assignments of Mortgages, in blank, for each applicable
Mortgage Loan. The Responsible Party shall cause the Assignments of Mortgage
with completed recording information to be provided to the Servicer in a
reasonably acceptable manner. No later than thirty (30) Business Days following
the later of the Closing Date and the date of receipt by the Servicer of the
fully completed Assignments of Mortgages in recordable form, the Servicer shall
promptly submit or cause to be submitted for recording, at the expense of the
Responsible Party or the Depositor, at no expense to the Trust Fund or the
Trustee in the appropriate public office for real property records, each
Assignment of Mortgage referred to in Section 2.01(b)(v). Notwithstanding the
foregoing, however, for administrative convenience and facilitation of servicing
and to reduce closing costs, the Assignments of Mortgage shall not be required
to be completed and submitted for recording with respect to any Mortgage Loan if
the Trustee and each Rating Agency has received an opinion of counsel,
satisfactory in form and substance to the Trustee and each Rating Agency, to the
effect that the recordation of such Assignments of Mortgage in any specific
jurisdiction is not necessary to protect the Trustee's interest in the related
Mortgage Note. If the Assignment of Mortgage is to be recorded, the Mortgage
shall be assigned by the Responsible Party at the Responsible Party's or the
Depositor's expense to "Deutsche Bank National Trust
42
Company, as trustee under the Pooling and Servicing Agreement dated as of March
1, 2005, GSAMP Trust 2005-S1." In the event that any such assignment is lost or
returned unrecorded because of a defect therein, the Responsible Party shall
promptly prepare a substitute assignment to cure such defect and thereafter
cause each such assignment to be duly recorded at the expense of the Responsible
Party or the Depositor.
On or prior to the Closing Date, the Depositor shall deliver
to the Trustee and the Servicer a copy of the Data Tape Information in
electronic, machine readable medium in a form mutually acceptable to the
Depositor, the Servicer and the Trustee. Within ten (10) Business Days of the
Closing Date, the Depositor shall deliver a copy of the complete Mortgage Loan
Schedule to the Trustee and the Servicer.
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 Trustee within 90 days following the Closing Date, and in the
event that the Responsible Party does not cause such failure to be cured within
30 days of discovery of receipt of written notification of such failure from the
Depositor, the related Mortgage Loan shall, upon the request of the Depositor,
be repurchased by the Responsible Party at the price and in the manner specified
in Section 2.03. The foregoing repurchase obligation shall not apply in the
event that the Responsible Party cannot deliver such original or copy of any
document submitted for recordation to the appropriate public recording office
within the specified period due to a delay caused by the recording office in the
applicable jurisdiction; provided, that the Responsible Party shall instead
deliver a recording receipt of such recording office or, if such recording
receipt is not available, an officer's certificate of an officer of the
Responsible Party confirming that such document has been accepted for recording.
Notwithstanding anything to the contrary contained in this
Section 2.01, in those instances where the public recording office retains or
loses the original Mortgage or assignment after it has been recorded, the
obligations of the Resonsible Party shall be deemed to have been satisfied upon
delivery by the Responsbile Party to the Trustee prior to the Closing Date of a
copy of such Mortgage or assignment, as the case may be, certified (such
certification to be an original thereof) by the public recording office to be a
true and complete copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the
further provisions of this Agreement and the laws of the State of New York, an
express trust (the "Trust") to be known, for convenience, as "GSAMP Trust
2005-S1" and Deutsche Bank National Trust Company is hereby appointed as Trustee
in accordance with the provisions of this Agreement. The parties hereto
acknowledge and agree that it is the policy and intention of the Trust to
acquire only Mortgage Loans meeting the requirements set forth in this
Agreement, including without limitation, the representations and warranties set
forth in paragraph (47) of Schedule IV to this Agreement.
(d) The Trust shall have the capacity, power and
authority, and the Trustee on behalf of the Trust is hereby authorized, to
accept the sale, transfer, assignment, set over and conveyance by the Depositor
to the Trust of all the right, title and interest of the Depositor in and
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to the Trust Fund (including, without limitation, the Mortgage Loans and Fremont
Agreements) pursuant to Section 2.01(a).
Section 2.02 ACCEPTANCE BY THE TRUSTEE OF THE MORTGAGE LOANS.
The Trustee acknowledges receipt of the documents identified in the Initial
Certification in the form annexed hereto as Exhibit E, and declares that it
holds and will hold such documents and the other documents delivered to it
pursuant to Section 2.01, and that it holds or will hold such other assets as
are included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders. The Trustee acknowledges that it will
maintain possession of the related Mortgage Notes in the State of California
unless otherwise permitted by the Rating Agencies.
Prior to and as a condition to the Closing, the Trustee shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor and the Servicer an Initial Certification prior to the Closing Date,
or as the Depositor agrees to, on the Closing Date, certifying receipt of a
Mortgage Note and Assignment of Mortgage for each Mortgage Loan with any
exceptions thereon. The Trustee shall not be responsible to verify the validity,
sufficiency or genuineness of any document in any Custodial File.
On the Closing Date, the Trustee shall ascertain that all
documents required to be reviewed by it are in its possession, and shall deliver
to the Depositor and the Servicer an Initial Certification, in the form annexed
hereto as Exhibit E, and shall deliver to the Depositor and the Servicer a
Document Certification and Exception Report, in the form annexed hereto as
Exhibit F, within 90 days after the Closing Date to the effect that, as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or any Mortgage Loan specifically identified in such certification
as an exception and not covered by such certification): (i) all documents
required to be reviewed by it are in its possession; (ii) such documents have
been reviewed by it and appear regular on their face and relate to such Mortgage
Loan; (iii) based on its examination and only as to the foregoing documents, the
information set forth in items (1), (2) and (13) of the Mortgage Loan Schedule
and items (1), (2) and (13) of the Data Tape Information respecting such
Mortgage Loan is correct; and (iv) each Mortgage Note has been endorsed as
provided in Section 2.01 of this Agreement. The Trustee shall not be responsible
to verify the validity, sufficiency or genuineness of any document in any
Custodial File.
The Trustee shall retain possession and custody of each
Custodial File in accordance with and subject to the terms and conditions set
forth herein. The Servicer shall promptly deliver to the Trustee, 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.
Section 2.03 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
RESPONSIBLE PARTY AND THE SERVICER. (a) Wilshire Credit hereby makes the
representations and warranties set forth in Schedule II hereto to the Depositor
and the Trustee as of the Closing Date.
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(b) The Responsible Party hereby makes the
representations and warranties set forth in Schedule III and Schedule IV hereto,
to the Depositor, the Servicer and the Trustee.
(c) It is understood and agreed by the Servicer and the
Responsible Party that the representations and warranties set forth in this
Section 2.03 shall survive the transfer of the Mortgage Loans by the Depositor
to the Trustee, and shall inure to the benefit of the Depositor, and the Trustee
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment of Mortgage or the examination or failure to examine any Mortgage
File. Upon discovery by any of the Responsible Party, the Depositor, the
Trustee, or the Servicer of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the others.
(d) Within 30 days of the earlier of either discovery by
or notice to the Responsible Party that any Mortgage Loan does not conform to
the requirements as determined in the Trustee's review of the related Custodial
File or within 60 days of the earlier of either discovery by or notice to the
Responsible Party of any breach of a representation or warranty set forth in
Section 2.03(b) that materially and adversely affects the value of any Mortgage
Loan or the interest of the Trustee or the Certificateholders therein (without
taking into effect the Mortgage Pool Insurance Policy), the Responsible Party
shall use its best efforts to cause to be remedied a material defect in a
document constituting part of a Mortgage File or promptly to cure such breach in
all material respects and, if such defect or breach cannot be remedied, the
Responsible Party shall, (i) if such 30 or 60 day period, as applicable, expires
prior to the second anniversary of the Closing Date, remove such Mortgage Loan
(a "DELETED MORTGAGE LOAN") from the Trust Fund and substitute in its place a
Substitute Mortgage Loan, in the manner and subject to the conditions set forth
in this Section 2.03, or (ii) at the Depositor's option, repurchase such
Mortgage Loan at the Repurchase Price; PROVIDED, HOWEVER, that any such
substitution pursuant to clause (i) above shall not be effected prior to the
delivery to the Trustee of the Opinion of Counsel required by Section 2.04, if
any, and a Request for Release substantially in the form of Exhibit J, and the
Mortgage File for any such Substitute Mortgage Loan. In the event that a breach
shall involve any representation or warranty set forth in Schedule IV, and such
breach cannot be cured within 60 days of the earlier of either discovery by or
notice to the Responsible Party of such breach, all of the Mortgage Loans shall,
at the Depositor's option, be repurchased by the Responsible Party at the
Repurchase Price. Notwithstanding the foregoing, a breach which causes a
Mortgage Loan not to constitute a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code will be deemed automatically to materially and
adversely affect the value of such Mortgage Loan and the interests of the
Trustee and Certificateholders in such Mortgage Loan. In addition, in the event
the Servicer reasonably determines that there has been a breach of the
representation and warranty set forth in clause (47) of Schedule III with
respect to any Mortgage Loan, the Servicer's obligations with regard to such
Mortgage Loan will be limited to the acceptance and processing of payments made
thereunder.
(e) With respect to any Substitute Mortgage Loan or
Loans, the Responsible Party shall deliver to the Trustee for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment of
the Mortgage, and such other documents and agreements as are required by Section
2.01, with the Mortgage Note endorsed and the Mortgage assigned as required by
Section 2.01. No substitution is permitted to be made in any calendar month
after
45
the Determination Date for such month. Scheduled Payments due with respect to
Substitute Mortgage Loans in the Due Period of substitution shall not be part of
the Trust Fund and will be retained by the Responsible Party on the next
succeeding Distribution Date. For the Due Period of substitution, distributions
to Certificateholders will include the Scheduled Payment due on any Deleted
Mortgage Loan for such Due Period and thereafter the Responsible Party shall be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan.
(f) The Depositor shall, based on information provided by
the Responsible Party, amend the Mortgage Loan Schedule for the benefit of the
Certificateholders to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Substitute Mortgage Loan or Loans and the Depositor shall
deliver the amended Mortgage Loan Schedule to the Servicer and the Trustee. The
Depositor shall have no liability with respect to the information provided by
the Responsible Party related to the Substitute Mortgage Loan. Upon such
substitution, the Substitute Mortgage Loan or Loans shall be subject to the
terms of this Agreement in all respects, and the Responsible Party shall be
deemed to have made with respect to such Substitute Mortgage Loan or Loans, as
of the date of substitution, the representations and warranties made pursuant to
Section 2.03(b) with respect to such Mortgage Loan. Upon any such substitution
and the deposit to the Collection Account of the amount required to be deposited
therein in connection with such substitution as described in the following
paragraph, the Trustee shall release the Mortgage File held for the benefit of
the Certificateholders relating to such Deleted Mortgage Loan to the Responsible
Party and shall execute and deliver at the Responsible Party's direction such
instruments of transfer or assignment prepared by the Responsible Party, in each
case without recourse, as shall be necessary to vest title in the Responsible
Party, or its designee, the Trustee's interest in any Deleted Mortgage Loan
substituted for pursuant to this Section 2.03.
(g) For any month in which the Responsible Party
substitutes one or more Substitute Mortgage Loans for one or more Deleted
Mortgage Loans, the Depositor will determine the amount (if any) by which the
aggregate unpaid principal balance of all such Substitute Mortgage Loans as of
the date of substitution is less than the aggregate Stated Principal Balance of
all such Deleted Mortgage Loans (after application of the scheduled principal
portion of the Scheduled Payments due in the Due Period of substitution). The
amount of such shortage (the "SUBSTITUTION ADJUSTMENT AMOUNT") plus an amount
equal to the aggregate of any unreimbursed Advances and Servicing Advances with
respect to such Deleted Mortgage Loans shall be deposited into the Collection
Account by the Responsible Party on or before the next Remittance Date.
(h) In addition to such repurchase obligation, the
Responsible Party shall indemnify the Depositor, any of its Affiliates, the
Servicer, and the Trustee and hold such parties harmless against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from, a
breach by the Responsible Party of any of its representations and warranties
contained in the Purchase Agreement or this Agreement.
(i) In the event that a Mortgage Loan shall have been
repurchased pursuant to this Agreement, the Repurchase Price thereof shall be
deposited in the Collection Account by the
46
Servicer pursuant to Section 3.10 on or before the next Remittance Date and upon
such deposit of the Repurchase Price, and receipt of a Request for Release in
the form of Exhibit J hereto, the Trustee shall release the related Custodial
File held for the benefit of the Certificateholders to such Person as directed
by the Servicer, and the Trustee shall execute and deliver at such Person's
direction such instruments of transfer or assignment prepared by such Person, in
each case without recourse, as shall be necessary to transfer title from the
Trustee. It is understood and agreed that the obligation under this Agreement of
any Person to cure, repurchase or replace any Mortgage Loan as to which a breach
has occurred and is continuing, together with any related indemnification
obligations, shall constitute the sole remedy against such Persons respecting
such breach available to Certificateholders, the Depositor, the Servicer or the
Trustee on their behalf.
The representations and warranties made pursuant to this
Section 2.03 shall survive delivery of the respective Custodial Files to the
Trustee for the benefit of the Certificateholders.
Section 2.04 [RESERVED].
Section 2.05 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, has executed and delivered to or
upon the order of the Depositor, the Certificates in authorized denominations
evidencing directly or indirectly the entire ownership of the Trust Fund. The
Trustee agrees to hold the Trust Fund and exercise the rights referred to above
for the benefit of all present and future Holders of the Certificates.
Section 2.06 REMIC MATTERS. The Preliminary Statement sets
forth the designations for federal income tax purposes of all interests created
hereby. The "Start-up Day" for purposes of the REMIC Provisions shall be the
Closing Date. The "latest possible maturity date" is the Distribution Date in
December 2034, which is the Distribution Date following the latest Mortgage Loan
maturity date.
Section 2.07 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
The Depositor hereby represents, warrants and covenants to the Trustee, the
Servicer and the Responsible Party 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 Servicer, and the Trustee, constitutes or will constitute the legal,
valid and binding agreement of the Depositor, enforceable against the
47
Depositor in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(d) No consent, approval, authorization or order of or
registration or filing with, or notice to, any governmental authority or court
is required for the execution, delivery and performance of or compliance by the
Depositor with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been made on or prior to the
Closing Date;
(e) None of the execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of trust, contract
or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound; (ii)
results or will result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Depositor of any court or governmental
authority having jurisdiction over the Depositor or its subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or encumbrance which
would have a material adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or
against or investigations of, the Depositor pending, or to the knowledge of the
Depositor, threatened, before any court, administrative agency or other
tribunal, and no notice of any such action, which, in the Depositor's reasonable
judgment, might materially and adversely affect the performance by the Depositor
of its obligations under this Agreement, or the validity or enforceability of
this Agreement;
(g) The Depositor is not in default with respect to any
order or decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency that may materially and adversely affect
its performance hereunder; and
(h) Immediately prior to the transfer and assignment by
the Depositor to the Trustee on the Closing Date, the Depositor had good title
to, and was the sole owner of each Mortgage Loan, free of any interest of any
other Person, and the Depositor has transferred all right, title and interest in
each Mortgage Loan to the Trustee. The transfer of each Mortgage Note and each
Mortgage as and in the manner contemplated by this Agreement is sufficient
either (i) fully to transfer to the Trustee, for the benefit of the
Certificateholders, all right, title, and interest of the Depositor thereto as
note holder and mortgagee or (ii) to grant to the Trustee, for the benefit of
the Certificateholders, the security interest referred to in Section 10.04, and
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It is understood and agreed that the representations,
warranties and covenants set forth in this Section 2.07 shall survive delivery
of the respective Custodial Files to the Trustee or to a custodian, as the case
may be, and shall inure to the benefit of the Trustee.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 SERVICER TO SERVICE MORTGAGE LOANS. (a) For and
on behalf of the Certificateholders, the Servicer shall service and administer
the Mortgage Loans in accordance with the terms of this Agreement, in accordance
with the Radian Guidelines (to the extent such Radian Guidelines are not
inconsistent with the terms of this Agreement) and in accordance with the
respective Mortgage Loans and, to the extent consistent with such terms, in
compliance with all applicable federal, state and local laws, and in the same
manner in which it services and administers similar mortgage loans for its own
portfolio, giving due consideration to customary and usual standards of practice
of mortgage lenders and loan servicers administering similar mortgage loans but
without regard to:
(i) any relationship that the Servicer, any Subservicer
or any Affiliate of the Servicer or any Subservicer may have with the
related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by
the Servicer or any Affiliate of the Servicer;
(iii) the Servicer's obligation to make P&I Advances or
Servicing Advances; or
(iv) the amount of the Servicer's or any Subservicer's
compensation for its services hereunder.
To the extent consistent with the foregoing, the Servicer
shall seek to maximize the timely and complete recovery of principal and
interest on the related Mortgage Notes. Subject only to the above-described
servicing standards and the terms of this Agreement and of the respective
Mortgage Loans, the Servicer shall have full power and authority, acting alone
or through Subservicers as provided in Section 3.02, to do or cause to be done
any and all things in connection with such servicing and administration which it
may deem necessary or desirable. Without limiting the generality of the
foregoing, the Servicer in its own name or in the name of a Subservicer is
hereby authorized and empowered by the Trustee when the Servicer believes it
appropriate in its best judgment in accordance with Accepted Servicing
Practices, to execute and deliver any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the related Mortgage Loans and the
Mortgaged Properties and to institute foreclosure proceedings or obtain a
deed-in-lieu of foreclosure so as to convert the ownership of such properties,
and to hold or cause to be held title to such properties, on behalf of the
Trustee and in the name of the Trust. The Servicer shall service and administer
the Mortgage Loans in accordance with applicable state and federal law
49
and shall provide to the Mortgagors any reports required to be provided to them
thereby. Subject to Section 3.16, the Trustee shall execute, at the written
request of the Servicer, and furnish to the Servicer and any Subservicer such
documents as are necessary or appropriate to enable the Servicer or any
Subservicer to carry out their servicing and administrative duties hereunder,
and the Trustee hereby grants to the Servicer, and this Agreement shall
constitute, a power of attorney to carry out such duties including a power of
attorney to take title to Mortgaged Properties after foreclosure on behalf of
the Trustee and in the name of the Trust. At the request of the Servicer, the
Trustee shall execute a reasonable number of powers of attorney in the form
attached hereto as Exhibit Q in favor of the Servicer for the purposes described
herein to the extent necessary or desirable to enable the Servicer to perform
its duties hereunder. The Trustee shall not be liable for the actions of the
Servicer or any Subservicers under such powers of attorney. If the Servicer
receives any notice of suit, litigation or proceeding in the name of Deutsche
Bank National Trust Company, then the Servicer shall promptly forward a copy of
same to the Trustee unless the notice of said suit, litigation or proceeding was
provided by the Trustee to the Servicer.
(b) Subject to Section 3.09(b), in accordance with the
standards of the preceding paragraph, the Servicer shall advance or cause to be
advanced funds as necessary for the purpose of effecting the timely payment of
taxes and assessments on the Mortgaged Properties (to the extent the Servicer
has received reasonable timely notice that such taxes or assessments have not
been paid by the related Mortgagor or the owner or the servicer of the related
First Lien Mortgage Loan), which advances shall be Servicing Advances
reimbursable in the first instance from related collections from the Mortgagors
pursuant to Section 3.09(b), and further as provided in Section 3.11. Any cost
incurred by the Servicer or by Subservicers in effecting the timely payment of
taxes and assessments on a Mortgaged Property shall not be added to the unpaid
principal balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit. Notwithstanding anything in this Agreement to
the contrary, however, the Servicer need not may make any future advances with
respect to a Mortgage Loan if the Servicer makes a good faith determination that
such advance would, if made, constitute a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance, as set forth in Section 4.01.
(c) The Servicer shall not (i) permit any modification
with respect to any Mortgage Loan that would change the Mortgage Interest Rate,
reduce or increase the principal balance (except for reductions resulting from
actual payments of principal) or change the final maturity date on such Mortgage
Loan (except for (A) a reduction of interest or principal payments resulting
from the application of the Servicemembers Civil Relief Act or any similar state
statutes or (B) as provided in Section 3.07, if the Mortgagor is in default with
respect to the Mortgage Loan or such default is, in the judgment of the
Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or
amendment of any term of any Mortgage Loan that would both (A) effect an
exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or
final, temporary or proposed Treasury regulations promulgated thereunder) and
(B) cause either Trust REMIC to fail to qualify as a REMIC under the Code or the
imposition of any tax on "prohibited transactions" or "contributions after the
start-up day" under the REMIC Provisions, or (iii) except as provided in Section
3.07(a), waive any Prepayment Premiums.
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(d) The Servicer may delegate its responsibilities under
this Agreement; PROVIDED, HOWEVER, that no such delegation shall release the
Servicer from the responsibilities or liabilities arising under this Agreement.
(e) If the Mortgage relating to a Mortgage Loan had a
related First Lien Mortgage Loan on the related Mortgaged Property as of the
Cut-off Date, then the Servicer, in such capacity, may consent to the
refinancing of the related First Lien Mortgage Loan, provided that the such
refinancing is consistent with the Radian Guidelines or, if the Mortgage Pool
Insurer has denied a claim with respect to the related Mortgage Loan, the
following requirements are met:
(i) the resulting Combined Loan-to-Value Ratio of such
Mortgage Loan is no higher than the Combined Loan-to-Value Ratio prior
to such refinancing;
(ii) the interest rate, or, in the case of an adjustable
rate related First Lien Mortgage Loan, the maximum interest rate, for
the loan evidencing the refinanced senior lien is no more than 2.0%
higher than the interest rate or the maximum interest rate, as the case
may be, on the existing First Lien Mortgage Loan immediately prior to
the date of such refinancing; and
(iii) the loan evidencing the refinanced senior lien is not
subject to negative amortization.
Section 3.02 SUBSERVICING AGREEMENTS BETWEEN THE SERVICER AND
SUBSERVICERS. (a) The Servicer may enter into subservicing agreements with
subservicers (each, a "Subservicer"), for the servicing and administration of
the Mortgage Loans ("Subservicing Agreements").
(b) Each Subservicer shall be (i) authorized to transact
business in the state or states in which the related Mortgaged Properties it is
to service are situated, if and to the extent required by applicable law to
enable the Subservicer to perform its obligations hereunder and under the
Subservicing Agreement, (ii) an institution approved as a mortgage loan
originator by the Federal Housing Administration or an institution that has
deposit accounts insured by the FDIC and (iii) a ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae
approved mortgage servicer. Each Subservicing Agreement must impose on the
Subservicer requirements conforming to the provisions set forth in Section 3.08
and provide for servicing of the Mortgage Loans consistent with the terms of
this Agreement. The Servicer will examine each Subservicing Agreement and will
be familiar with the terms thereof. The terms of any Subservicing Agreement will
not be inconsistent with any of the provisions of this Agreement. The Servicer
and the Subservicers may enter into and make amendments to the Subservicing
Agreements or enter into different forms of Subservicing Agreements; provided,
however, that any such amendments or different forms shall be consistent with
and not violate the provisions of this Agreement, and that no such amendment or
different form shall be made or entered into which could be reasonably expected
to be materially adverse to the interests of the Trustee, without the consent of
the Trustee. Any variation without the consent of the Trustee from the
provisions set forth in Section 3.08 relating to insurance or
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priority requirements of Subservicing Accounts, or credits and charges to the
Subservicing Accounts or the timing and amount of remittances by the
Subservicers to the Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. The Servicer shall deliver to the
Trustee and the Depositor copies of all Subservicing Agreements, and any
amendments or modifications thereof, promptly upon the Servicer's execution and
delivery of such instruments.
(c) As part of its servicing activities hereunder, the
Servicer (except as otherwise provided in the last sentence of this paragraph),
for the benefit of the Trustee, shall enforce the obligations of each
Subservicer under the related Subservicing Agreement, including, without
limitation, any obligation to make advances in respect of delinquent payments as
required by a Subservicing Agreement. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Subservicing
Agreements, and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as the Servicer, in its good
faith business judgment, would require were it the owner of the related Mortgage
Loans. The Servicer shall pay the costs of such enforcement at its own expense,
and shall be reimbursed therefor only (i) from a general recovery resulting from
such enforcement, to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loans or (ii) from a specific recovery of
costs, expenses or attorneys' fees against the party against whom such
enforcement is directed.
Section 3.03 SUCCESSOR SUBSERVICERS. The Servicer shall be
entitled to terminate any Subservicing Agreement and the rights and obligations
of any Subservicer pursuant to any Subservicing Agreement in accordance with the
terms and conditions of such Subservicing Agreement. In the event of termination
of any Subservicer, all servicing obligations of such Subservicer shall be
assumed simultaneously by the Servicer without any act or deed on the part of
such Subservicer or the Servicer, and the Servicer either shall service directly
the related Mortgage Loans or shall enter into a Subservicing Agreement with a
successor Subservicer which qualifies under Section 3.02.
Any Subservicing Agreement shall include the provision that
such agreement may be immediately terminated by the Depositor or the Trustee
without fee, in accordance with the terms of this Agreement, in the event that
the Servicer shall, for any reason, no longer be the Servicer (including
termination due to an Event of Default).
Section 3.04 LIABILITY OF THE SERVICER. Notwithstanding any
Subservicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a Subservicer or reference
to actions taken through a Subservicer or otherwise, the Servicer shall remain
obligated and primarily liable to the Trustee for the servicing and
administering of the Mortgage Loans in accordance with the provisions of Section
3.01 without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering such Mortgage Loans. The
Servicer shall be entitled to enter into any agreement with a Subservicer for
indemnification of the Servicer by such Subservicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
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Section 3.05 NO CONTRACTUAL RELATIONSHIP BETWEEN SUBSERVICERS
AND THE TRUSTEE. Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to be between the Subservicer and the
Servicer alone, and the Trustee (or any successor Servicer) shall not be deemed
a party thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Subservicer except as set forth in Section 3.06.
The Servicer shall be solely liable for all fees owed by it to any Subservicer,
irrespective of whether the Servicer's compensation pursuant to this Agreement
is sufficient to pay such fees.
Section 3.06 ASSUMPTION OR TERMINATION OF SUBSERVICING
AGREEMENTS BY TRUSTEE. In the event the Servicer at any time shall for any
reason no longer be the Servicer (including by reason of the occurrence of an
Event of Default), the Trustee, or its designee, or the successor Servicer if
the successor Servicer is not the Trustee, shall thereupon assume all of the
rights and obligations of the Servicer under each Subservicing Agreement that
the Servicer may have entered into, with copies thereof provided to the Trustee
prior to the Trustee assuming such rights and obligations, unless the Trustee
elects to terminate any Subservicing Agreement in accordance with its terms as
provided in Section 3.03.
Upon such assumption, the Trustee, its designee or the
successor servicer shall be deemed, subject to Section 3.03, to have assumed all
of the Servicer's interest therein and to have replaced the Servicer as a party
to each Subservicing Agreement to which the predecessor Servicer was a party to
the same extent as if each Subservicing Agreement had been assigned to the
assuming party, except that (i) the Servicer shall not thereby be relieved of
any liability or obligations under any Subservicing Agreement that arose before
it ceased to be the Servicer and (ii) none of the Depositor, the Trustee, their
designees or any successor to the Servicer shall be deemed to have assumed any
liability or obligation of the Servicer that arose before it ceased to be the
Servicer.
The Servicer at its expense shall, upon request of the
Trustee, deliver to the assuming party all documents and records relating to
each Subservicing Agreement and the Mortgage Loans then being serviced by it and
an accounting of amounts collected and held by or on behalf of it, and otherwise
use its best efforts to effect the orderly and efficient transfer of the
Subservicing Agreements to the assuming party.
Section 3.07 COLLECTION OF CERTAIN MORTGAGE LOAN PAYMENTS. (a)
The Servicer shall make reasonable efforts to collect all payments called for
under the terms and provisions of the Mortgage Loans and shall, to the extent
such procedures shall be consistent with this Agreement and the terms and
provisions of any applicable insurance policies, follow such collection
procedures as it would follow with respect to mortgage loans comparable to the
Mortgage Loans and held for its own account. Consistent with the foregoing and
Accepted Servicing Practices, the Servicer may (i) waive any late payment charge
or, if applicable, any penalty interest, or (ii) extend the due dates for the
Scheduled Payments due on a Mortgage Note for a period of not greater than 180
days; provided, that any extension pursuant to clause (ii) above shall not
affect the amortization schedule of any Mortgage Loan for purposes of any
computation hereunder, except as provided below. In the event of any such
arrangement pursuant to clause (ii) above, the Servicer shall make timely
advances on such Mortgage Loan
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during such extension to the extent required by Section 4.01 and in accordance
with the amortization schedule of such Mortgage Loan without modification
thereof by reason of such arrangements, subject to Section 4.01(d) pursuant to
which the Servicer shall not be required to make any such advances that are
Nonrecoverable P&I Advances. Notwithstanding the foregoing, in the event that
any Mortgage Loan is in default or in the judgment of the applicable Servicer,
such default is reasonably foreseeable, the Servicer, consistent with the
standards set forth in Section 3.01, may also waive, modify or vary any term of
such Mortgage Loan (including modifications that would change the Mortgage
Interest Rate, forgive the payment of principal or interest, extend the final
maturity date of such Mortgage Loan or waive, in whole or in part, a Prepayment
Premium), accept payment from the related Mortgagor of an amount less than the
Stated Principal Balance in final satisfaction of such Mortgage Loan, or consent
to the postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor (any and all such waivers, modifications, variances,
forgiveness of principal or interest, postponements, or indulgences collectively
referred to herein as "Forbearance"); provided, however, that the Servicer's
approval of a modification of a Due Date shall not be considered a modification
for purposes of this sentence; and provided, further, that the final maturity
date of any Mortgage Loan may not be extended beyond the Final Scheduled
Distribution Date for the Offered Certificates and no such modification will be
granted without the prior consent of the Mortgage Pool Insurer if so required in
the related Mortgage Pool Insurance Policy. The Servicer's analysis supporting
any Forbearance and the conclusion that any Forbearance meets the standards of
Section 3.01 shall be reflected in writing in the applicable Servicing File or
on the Servicer's servicing records. In addition, notwithstanding the foregoing,
the Servicer may also waive (or permit a Subservicer to waive), in whole or in
part, a Prepayment Premium if such waiver would, in the applicable Servicer's
judgment, maximize recoveries on the related Mortgage Loan or if such Prepayment
Premium is (i) not permitted to be collected by applicable law, or the
collection thereof or of a similar type of prepayment premium would be
considered "predatory" or "illegal" pursuant to written guidance published by
any applicable federal, state or local regulatory authority having jurisdiction
over such matters or has been challenged by any such authority, (ii) there is a
certified class action in which a similar type of prepayment premium is being
challenged or (iii) the enforceability thereof is limited (1) by bankruptcy,
insolvency, moratorium, receivership or other similar laws relating to
creditor's rights or (2) due to acceleration in connection with a foreclosure or
other involuntary payment. If a Prepayment Premium is waived other than as
permitted in this Section 3.07(a), then the Servicer is required to pay the
amount of such waived Prepayment Premium, for the benefit of the Holders of the
Class P Certificates, by depositing such amount into the Collection Account
together with and at the time that the amount prepaid on the related Mortgage
Loan is required to be deposited into the Collection Account; provided, however,
that the Servicer shall not have an obligation to pay the amount of any
uncollected Prepayment Premium if the failure to collect such amount is the
direct result of inaccurate or incomplete information on the Mortgage Loan
Schedule in effect at such time.
(b) The Servicer shall give notice to the Trustee, each
Rating Agency and the Depositor of any proposed change of the location of the
Collection Account within a reasonable period of time prior to any change
thereof.
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Section 3.08 SUBSERVICING ACCOUNTS. In those cases where a
Subservicer is servicing a Mortgage Loan pursuant to a Subservicing Agreement,
the Subservicer will be required to establish and maintain one or more accounts
(collectively, the "Subservicing Account"). The Subservicing Account shall be an
Eligible Account and shall otherwise be acceptable to the Servicer. The
Subservicer shall deposit in the clearing account (which account must be an
Eligible Account) in which it customarily deposits payments and collections on
mortgage loans in connection with its mortgage loan servicing activities on a
daily basis, and in no event more than one Business Day after the Subservicer's
receipt thereof, all proceeds of Mortgage Loans received by the Subservicer less
its servicing compensation to the extent permitted by the Subservicing
Agreement, and shall thereafter deposit such amounts in the Subservicing
Account, in no event more than two Business Days after the deposit of such funds
into the clearing account. The Subservicer shall thereafter deposit such
proceeds in the Collection Account of the Servicer or remit such proceeds to the
Servicer for deposit in the Collection Account not later than two Business Days
after the deposit of such amounts in the Subservicing Account. For purposes of
this Agreement, the Servicer shall be deemed to have received payments on the
Mortgage Loans when the Subservicer receives such payments.
Section 3.09 COLLECTION OF TAXES, ASSESSMENTS AND SIMILAR
ITEMS; ESCROW ACCOUNTS. To the extent the related Mortgage Loan provides for
Escrow Payments, the Servicer shall establish and maintain, or cause to be
established and maintained, one or more accounts (the "Escrow Accounts"), which
shall be Eligible Accounts. The Servicer shall deposit in the clearing account
(which account must be an Eligible Account) in which it customarily deposits
payments and collections on mortgage loans in connection with its mortgage loan
servicing activities on a daily basis, and in no event more than one Business
Day after the Servicer's receipt thereof, all collections from the Mortgagors
(or related advances from Subservicers) for the payment of taxes, assessments,
hazard insurance premiums and comparable items for the account of the Mortgagors
("Escrow Payments") collected on account of the Mortgage Loans and shall
thereafter deposit such Escrow Payments in the Escrow Accounts, in no event more
than two Business Days after the deposit of such funds in the clearing account,
for the purpose of effecting the payment of any such items as required under the
terms of this Agreement. Withdrawals of amounts from an Escrow Account may be
made only to (i) effect payment of taxes, assessments, fire and hazard insurance
premiums, condominium charges and comparable items; (ii) reimburse the Servicer
(or a Subservicer to the extent provided in the related Subservicing Agreement)
out of related collections for any advances made pursuant to Section 3.01 (with
respect to taxes and assessments) and Section 3.13 (with respect to hazard
insurance); (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) apply to the restoration or repair of the Mortgaged Property in
accordance with the Section 3.13; (v) transfer to the Collection Account and
application to reduce the principal balance of the Mortgage Loan in accordance
with the terms of the related Mortgage and Mortgage Note; (vi) pay interest to
the Servicer and, if required and as described below, to Mortgagors on balances
in the Escrow Account; (vii) clear and terminate the Escrow Account at the
termination of the Servicer's obligations and responsibilities in respect of the
Mortgage Loans under this Agreement; or (viii) recover amounts deposited in
error or for which amounts previously deposited are returned due to a "not
sufficient funds" or other denial of payment by the related Mortgagor's banking
institution. As part of its servicing duties, the Servicer or Subservicers shall
pay to the Mortgagors interest on funds in Escrow Accounts, to the extent
required by law
55
and, to the extent that interest earned on funds in the Escrow Accounts is
insufficient, to pay such interest from its or their own funds, without any
reimbursement therefor. To the extent that a Mortgage does not provide for
Escrow Payments and provided that the Servicer has had the later of (i) five (5)
Business Days written notice prior to such time period and (ii) thirty (30) days
after the Servicer began servicing such Mortgage Loan prior to such time period,
the Servicer shall advance such taxes to avoid loss of the Mortgaged Property
(provided that the Servicer has not determined that such Servicing Advance would
be a Nonrecoverable Servicing Advance). The Servicer assumes full responsibility
for the payment of all such bills within such time and shall effect payments of
all such bills irrespective of the Mortgagor's faithful performance in the
payment of same or the making of the Escrow Payments and shall make advances
from its own funds to effect such payments; provided, however, that such
advances are deemed to be Servicing Advances.
Section 3.10 COLLECTION ACCOUNT. (a) On behalf of the Trustee,
the Servicer shall establish and maintain, or cause to be established and
maintained, one or more segregated Eligible Accounts (each such account or
accounts, a "Collection Account"), held in trust for the benefit of the Trustee.
Funds in the Collection Account shall not be commingled with any other funds of
the Servicer. On behalf of the Trustee, the Servicer shall deposit or cause to
be deposited in the clearing account (which account must be an Eligible Account)
in which it customarily deposits payments and collections on mortgage loans in
connection with its mortgage loan servicing activities on a daily basis, and in
no event more than one Business Day after the Servicer's receipt thereof, and
shall thereafter deposit in the Collection Account, in no event more than two
Business Days after the deposit of such funds into the clearing account, as and
when received or as otherwise required hereunder, the following payments and
collections received or made by it subsequent to the Cut-off Date (other than in
respect of principal or interest on the related Mortgage Loans due on or before
the Cut-off Date), or payments (other than Principal Prepayments) received by it
on or prior to the related Cut-off Date but allocable to a Due Period subsequent
thereto:
(i) all payments on account of principal, including
Principal Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of the
Servicing Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds (other than any proceeds under
the Mortgage Pool Insurance Policy) and Condemnation Proceeds (to the
extent such Insurance Proceeds and Condemnation Proceeds are not to be
applied to the restoration of the related Mortgaged Property or
released to the related Mortgagor in accordance with the express
requirements of law or in accordance with prudent and customary
servicing practices), Net Recoveries and all Liquidation Proceeds;
(iv) any amounts required to be deposited pursuant to
Section 3.12 in connection with any losses realized on Permitted
Investments with respect to funds held in the Collection Account;
56
(v) any amounts required to be deposited by the Servicer
pursuant to the second paragraph of Section 3.13(a) in respect of any
blanket policy deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or
purchased in accordance with this Agreement; and
(vii) all Prepayment Premiums collected by the Servicer.
The foregoing requirements for deposit in the Collection
Accounts shall be exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, any Prepayment Interest Excess and
payments in the nature of late payment charges, NSF fees, reconveyance fees,
assumption fees and other similar fees and charges need not be deposited by the
Servicer in the Collection Account and shall, upon collection, belong to the
Servicer as additional compensation for its servicing activities. In the event
the Servicer shall deposit in the Collection Account any amount not required to
be deposited therein, it may at any time withdraw such amount from the
Collection Account, any provision herein to the contrary notwithstanding.
(b) Funds in the Collection Account may be invested in
Permitted Investments in accordance with the provisions set forth in Section
3.12. The Servicer shall give notice to the Trustee and the Depositor of the
location of the Collection Account maintained by it when established and prior
to any change thereof.
Section 3.11 WITHDRAWALS FROM THE COLLECTION ACCOUNT. (a) The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes or as described in Section 4.01:
(i) on or prior to the Remittance Date, to remit to the
Trustee (A) the Trustee Fee with respect to such Distribution Date and
(B) all Available Funds in respect of the related Distribution Date
together with all amounts representing Prepayment Premiums from the
Mortgage Loans received during the related Prepayment Period;
(ii) to reimburse the Servicer for P&I Advances, but only
to the extent of amounts received which represent Late Collections (net
of the related Servicing Fees) of Scheduled Payments on Mortgage Loans
with respect to which such P&I Advances were made in accordance with
the provisions of Section 4.01;
(iii) to pay the Servicer or any Subservicer (A) any unpaid
Servicing Fees (including such unpaid Servicing Fees as provided in
Section 3.15) or (B) any unreimbursed Servicing Advances with respect
to each Mortgage Loan serviced by the Servicer, but only to the extent
of any Late Collections, Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds (including any proceeds under the Mortgage Pool
Insurance Policy) or other amounts as may be collected by the Servicer
from a Mortgagor, or otherwise received with respect to such Mortgage
Loan (or the related REO Property);
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(iv) to pay to the Servicer as servicing compensation (in
addition to the Servicing Fee) on the Remittance Date any interest or
investment income earned on funds deposited in the Collection Account;
(v) to pay the Responsible Party or the Depositor, as
applicable, with respect to each Mortgage Loan that has previously been
repurchased or replaced pursuant to this Agreement all amounts received
thereon subsequent to the date of purchase or substitution, as the case
may be;
(vi) to reimburse the Servicer for (A) any P&I Advance or
Servicing Advance previously made which the Servicer has determined to
be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance in
accordance with the provisions of Section 4.01 and (B) any unpaid
Servicing Fees to the extent not recoverable from Liquidation Proceeds,
Insurance Proceeds (including any proceeds under the Mortgage Pool
Insurance Policy) or other amounts received with respect to the related
Mortgage Loan under Section 3.11(a)(iii);
(vii) to pay, or to reimburse the Servicer for advances in
respect of, expenses incurred in connection with any Mortgage Loan
serviced by the Servicer pursuant to Section 3.15;
(viii) to reimburse the Servicer, the Depositor or the
Trustee for expenses incurred by or reimbursable to the Servicer, the
Depositor or the Trustee, as the case may be, pursuant to Section 6.03,
Section 7.02 or Section 8.05;
(ix) to reimburse the Servicer or the Trustee, as the case
may be, for expenses reasonably incurred in respect of the breach or
defect giving rise to the repurchase obligation under Section 2.03 of
this Agreement that were included in the Repurchase Price of the
Mortgage Loan, including any expenses arising out of the enforcement of
the repurchase obligation, to the extent not otherwise paid pursuant to
the terms hereof;
(x) to withdraw any amounts deposited in the Collection
Account in error or for which amounts previously deposited are returned
due to a "not sufficient funds" or other denial of payment by the
related Mortgagor's banking institution;
(xi) to withdraw any amounts held in the Collection
Account and not required to be remitted to the Trustee on the
Remittance Date occurring in the month in which such amounts are
deposited into the Collection Account, to reimburse the Servicer for
▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances;
(xii) to invest funds in Permitted Investments in
accordance with Section 3.12;
(xiii) to pay itself any Prepayment Interest Excess (to the
extent deposited in the Collection Account by the Servicer); and
(xiv) to clear and terminate the Collection Account upon
termination of this Agreement.
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To the extent that the Servicer does not timely make the
remittance referred to in clause (i) above, the Servicer shall pay the Trustee
for the account of the Trustee interest on any amount not timely remitted at the
prime rate, from and including the applicable Remittance Date to but excluding
the date such remittance is actually made.
(b) the Servicer shall keep and maintain separate
accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of
justifying any withdrawal from the Collection Account, to the extent held by or
on behalf of it, pursuant to subclauses (a)(ii), (iii), (iv), (v), (vi), (vii),
(viii) and (ix) above. The Servicer shall provide written notification to the
Depositor, on or prior to the next succeeding Remittance Date, upon making any
withdrawals from the related Collection Account pursuant to subclause (a)(vi)
above.
Section 3.12 INVESTMENT OF FUNDS IN THE COLLECTION ACCOUNT AND
THE DISTRIBUTION ACCOUNT. (a) The Servicer may invest the funds in the
Collection Account and the Trustee may invest funds in the Distribution Account
during the Trustee Float Period, and shall (except during the Trustee Float
Period), invest such funds in the Distribution Account at the direction of the
Depositor (for purposes of this Section 3.12, each of the Collection Account and
the Distribution Accounts are 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, no later than the Business Day on which such funds are
required to be withdrawn from such account pursuant to this Agreement (except
for investments made at the Depositor's direction, which shall mature no later
than the Business Day immediately preceding the date of required withdrawal).
All such Permitted Investments shall be held to maturity, unless payable on
demand. Any investment of funds in an Investment Account shall be made in the
name of the Trustee. The Trustee shall be entitled to sole possession (except
with respect to investment direction of funds held in the related Account and
any income and gain realized thereon in any Account other than the Distribution
Account during the Trustee Float Period) over each such investment, and any
certificate or other instrument evidencing any such investment shall be
delivered directly to the Trustee or its agent, together with any document of
transfer necessary to transfer title to such investment to the Trustee. In the
event amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Trustee may:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on
the last day such Permitted Investment may otherwise
mature hereunder in an amount equal to the lesser of
(1) all amounts then payable thereunder and (2) the
amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder that
such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter
on deposit in the Investment Account.
(b) All income and gain realized from the investment of
funds deposited in the Collection Account and Escrow Account held by or on
behalf of the Servicer, shall be for the benefit of the Servicer and shall be
subject to its withdrawal in the manner set forth in Section 3.11. Any other
benefit derived from the Collection Account and Escrow Account
59
associated with the receipt, disbursement and accumulation of principal,
interest, taxes, hazard insurance, mortgage blanket insurance, and like sources,
shall accrue to the benefit of the Servicer, except that the Servicer shall not
realize any economic benefit from any forced charging of services except as
permitted by applicable law. The Servicer shall deposit in the Collection
Account and Escrow Account the amount of any loss of principal incurred in
respect of any such Permitted Investment made with funds in such accounts
immediately upon realization of such loss.
(c) All income and gain realized from the investment of
funds deposited in the Distribution Account held by the Trustee, shall be for
the benefit of the Depositor (except for any income or gain realized from the
investment of funds on deposit in the Distribution Account during the Trustee
Float Period, which shall be for the benefit of the Trustee). The Depositor
shall deposit in the Distribution Account (except with respect to the Trustee
Float Period, in which case the Trustee shall deposit) the amount of any loss of
principal incurred in respect of any such Permitted Investment made with funds
in such accounts immediately upon realization of such loss.
(d) Except as otherwise expressly provided in this
Agreement, if any default occurs in the making of a payment due under any
Permitted Investment, or if a default occurs in any other performance required
under any Permitted Investment, the Trustee shall take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings.
(e) The Trustee or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the Trustee's
economic self-interest for (i) serving as investment adviser, administrator,
shareholder, servicing agent, custodian or sub-custodian with respect to certain
of the Permitted Investments, (ii) using Affiliates to effect transactions in
certain Permitted Investments and (iii) effecting transactions in certain
Permitted Investments.
(f) The Trustee shall not be liable for the amount of any
loss incurred with respect of any investment (except that during the Trustee
Float Period, it will be responsible for reimbursing the Trust for such loss) or
lack of investment of funds held in any Investment Account or the Distribution
Account if made in accordance with this Section 3.12.
Section 3.13 MAINTENANCE OF HAZARD INSURANCE, ERRORS AND
OMISSIONS AND FIDELITY COVERAGE. (a) The Servicer shall obtain and maintain a
blanket policy insuring against losses arising from fire and hazards covered
under extended coverage on all of the Mortgage Loans, which policy shall provide
coverage in an amount which is at least equal to the least of (i) the
outstanding principal balance of such Mortgage Loan, (ii) the amount necessary
to fully compensate for any damage or loss to the improvements that are a part
of such property on a replacement cost basis, (iii) the maximum insurable value
of the improvements which are a part of such Mortgaged Property, and (iv) the
amount determined by applicable federal or state law, in each case in an amount
not less than such amount as is necessary to avoid the application of any
coinsurance clause contained in the related hazard insurance policy. Any amounts
to be collected by the Servicer under any such policy (other than amounts to be
applied to the restoration or repair of the property subject to the related
Mortgage or amounts to be released to
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the Mortgagor in accordance with the procedures that the Servicer would follow
in servicing loans held for its own account, subject to the terms and conditions
of the related Mortgage and Mortgage Note) shall be deposited in the Collection
Account, subject to withdrawal pursuant to Section 3.11.
In the event that such policy contains a deductible clause,
the Servicer shall, in the event that there shall not have been maintained on
the related Mortgaged Property or REO Property a standard hazard insurance
policy and there shall have been one or more losses which would have been
covered by such policy, the Servicer shall deposit to the Collection Account
from its own funds the amount above $1,500 that is not otherwise payable under
the blanket policy because of such deductible clause. In connection with its
activities as administrator and servicer of the Mortgage Loans, the Servicer
agrees to prepare and present, on behalf of itself, the Trustee claims under any
such blanket policy in a timely fashion in accordance with the terms of such
policy.
(b) The Servicer shall keep in force during the term of
this Agreement a policy or policies of insurance covering errors and omissions
for failure in the performance of the Servicer's obligations under this
Agreement, which policy or policies shall be in such form and amount that would
meet the requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac if it were the purchaser of
the Mortgage Loans, unless the Servicer has obtained a waiver of such
requirements from ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. The Servicer shall also maintain a
fidelity bond in the form and amount that would meet the requirements of ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac, unless the Servicer has obtained a waiver of such
requirements from ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. The Servicer shall provide the
Trustee upon request with copies of insurance certificates for any such
insurance policies and fidelity bond. The Servicer shall be deemed to have
complied with this provision if an Affiliate of the Servicer has such errors and
omissions and fidelity bond coverage and, by the terms of such insurance policy
or fidelity bond, the coverage afforded thereunder extends to the Servicer. The
Servicer shall provide the Trustee upon request with copies of insurance
certificates indicating that any such errors and omissions policy and fidelity
bond shall by its terms not be cancelable without thirty days' prior written
notice to the Trustee.. The Servicer shall also cause each Subservicer to
maintain a policy of insurance covering errors and omissions and a fidelity bond
which would meet such requirements.
Section 3.14 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION
AGREEMENTS. The Servicer will, to the extent it has knowledge of any conveyance
or prospective conveyance of any Mortgaged Property by any Mortgagor (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause, if any, applicable thereto; provided, however, that the
Servicer shall not be required to take such action if, in its sole business
judgment, the Servicer believes it is not in the best interests of the Trust
Fund and shall not exercise any such rights if prohibited by law from doing so.
If the Servicer reasonably believes it is unable under applicable law to enforce
such "due-on-sale" clause or if any of the other conditions set forth in the
proviso to the preceding sentence apply, the Servicer will, with the prior
written consent of the Mortgage Pool Insurer, enter into an assumption and
modification agreement from or with the person to whom such property has been
conveyed or is proposed to be conveyed, pursuant to which such person
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becomes liable under the Mortgage Note, and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. The Servicer is also
authorized to enter into a substitution of liability agreement with such person,
pursuant to which the original Mortgagor is released from liability and such
person is substituted as the Mortgagor and becomes liable under the Mortgage
Note; provided, that no such substitution shall be effective unless such person
satisfies the underwriting criteria of the Servicer and such substitution is in
the best interest of the Certificateholders as determined by the Servicer. In
connection with any assumption, modification or substitution, the Servicer shall
apply such underwriting standards and follow such practices and procedures as
shall be normal and usual in its general mortgage servicing activities and as it
applies to other mortgage loans owned solely by it. The Servicer shall not take
or enter into any assumption and modification agreement, however, unless (to the
extent practicable in the circumstances) it shall have received confirmation, in
writing, of the continued effectiveness of any applicable hazard insurance
policy, or a new policy meeting the requirements of this Section is obtained.
Any fee collected by the Servicer in respect of an assumption or substitution of
liability agreement will be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, no material term of the
Mortgage Note (including but not limited to the related Mortgage Interest Rate
and the amount of the Scheduled Payment) may be amended or modified, except as
otherwise required pursuant to the terms thereof or as otherwise permitted by
this Agreement. The Servicer shall notify the Trustee that any such
substitution, modification or assumption agreement has been completed by
forwarding to the Trustee the executed original of such substitution or
assumption agreement, which document shall be added to the related Mortgage File
and shall, for all purposes, be considered a part of such Mortgage File to the
same extent as all other documents and instruments constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision
of this Agreement, the Servicer shall not be deemed to be in default, breach or
any other violation of its obligations hereunder by reason of any assumption of
a Mortgage Loan by operation of law or by the terms of the Mortgage Note or any
assumption which the Servicer may be restricted by law from preventing, for any
reason whatsoever. For purposes of this Section 3.14, the term "assumption" is
deemed to also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
Section 3.15 REALIZATION UPON DEFAULTED MORTGAGE LOANS. (a)
The Servicer shall use its commercially reasonable efforts, consistent with
Accepted Servicing Practices and the requirements under the Mortgage Pool
Insurance Policy, to foreclose upon or otherwise comparably convert (which may
include an acquisition of REO Property) the ownership of properties securing
such of the Mortgage Loans as come into and continue in default and as to which
no satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07, and which are not released from this Agreement
pursuant to any other provision hereof. The Servicer shall use reasonable
efforts to realize upon such defaulted Mortgage Loans if the Servicer believes
there will be a Significant Net Recovery in such manner as will maximize the
receipt of principal and interest by the Trustee, taking into account, among
other things, the timing of foreclosure proceedings. The foregoing is subject to
the provisions that, in any case in which a Mortgaged Property shall have
suffered damage from an uninsured cause, the Servicer shall not be required to
expend its own funds toward the restoration of such property unless it
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shall determine in its sole discretion (i) that such restoration will increase
the net proceeds of liquidation of the related Mortgage Loan to the Trustee,
after reimbursement to itself for such expenses, and (ii) that such expenses
will be recoverable by the Servicer through Insurance Proceeds (including any
proceeds under the Mortgage Pool Insurance Policy), Condemnation Proceeds or
Liquidation Proceeds from the related Mortgaged Property, as contemplated in
Section 3.11. The Servicer shall be responsible for all other costs and expenses
incurred by it in any such proceedings; provided, however, that it shall be
entitled to reimbursement thereof from the related property, as contemplated in
Section 3.11.
In the event that the related First Lien Mortgage Loan is not
being serviced by the Servicer, the Servicer shall have no liability for any
losses resulting from a foreclosure on a Mortgage Loan in connection with the
foreclosure on the related First Lien Mortgage Loan where the Servicer did not
receive notice or otherwise had no actual knowledge regarding such foreclosure
on the related First Lien Mortgage Loan; provided, however, if the Servicer is
either notified or has actual knowledge that any holder of a First Lien Mortgage
Loan intends to accelerate the obligations secured by the First Lien Mortgage
Loan, or that any such holder intends to declare a default under the mortgage or
promissory note secured thereby, or has filed or intends to file an election to
have the related Mortgaged Property sold or foreclosed, the Servicer shall take,
on behalf of the Trust, whatever actions are necessary to protect the interests
of the Trust in accordance with Accepted Servicing Practices and the REMIC
Provisions if the Servicer believes there will be a Significant Net Recovery.
The Servicer shall not be required to make a Servicing Advance pursuant to
Section 4.01 with respect thereto except to the extent that it determines in its
reasonable good faith judgment that such advance would be recoverable from
Liquidation Proceeds on the related Mortgage Loan and in no event in an amount
that is greater than the then outstanding principal balance of the related
Mortgage Loan. The Servicer shall thereafter take such action as is reasonably
necessary to recover any amount so advanced and to otherwise reimburse itself as
a Servicing Advance from the Collection Account pursuant to Section 3.11.
The proceeds of any Liquidation Event, as well as any recovery
resulting from a partial collection of Insurance Proceeds, Condemnation Proceeds
or Liquidation Proceeds, will be applied in the following order of priority:
first, to reimburse the Servicer or any Subservicer for any related unreimbursed
Servicing Advances, pursuant to Section 3.11 or 3.17; second, to reimburse the
Servicer for any related ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances, pursuant to Section 3.11;
third, to accrued and unpaid interest on the Mortgage Loan, at the Mortgage
Interest Rate, to the date of the liquidation, or to the Due Date prior to the
Remittance Date on which such amounts are to be distributed if not in connection
with a Liquidation Event; and fourth, as a recovery of principal of the Mortgage
Loan. If the amount of the recovery so allocated to interest is less than a full
recovery thereof, that amount will be allocated as follows: first, to unpaid
Servicing Fees; and second, as interest at the Mortgage Interest Rate (net of
the Servicing Fee Rate). The portion of the recovery so allocated to unpaid
Servicing Fees shall be reimbursed to the Servicer or any Subservicer pursuant
to Section 3.11 or 3.17.
The proceeds of any REO Disposition, as well as any income
from an REO Property, will be applied in the following order of priority: first,
to reimburse the Servicer or any Subservicer for any related unreimbursed
Servicing Advances, pursuant to Section 3.11 or 3.17;
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second, to unpaid principal on the REO Property (including the principal portion
of any ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances); and third, to accrued and unpaid REO Imputed
Interest, at the Mortgage Interest Rate, to the date of the REO Disposition
(including the interest portion of any ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances). If the amount
of the recovery so allocated to interest is less than a full recovery thereof,
that amount will be allocated as follows: first, to unpaid Servicing Fees; and
second, as interest at the Mortgage Interest Rate (net of the Servicing Fee
Rate). The portion of the recovery so allocated to unpaid Servicing Fees shall
be reimbursed to the Servicer or any Subservicer pursuant to Section 3.11 or
3.17.
The portions of any recovery pursuant to the previous two
paragraphs so allocated to interest at the Mortgage Interest Rate (net of the
Servicing Fee Rate) and to principal of the Mortgage Loan shall be applied as
follows: first, to reimburse the Servicer or any Subservicer for any related
unreimbursed Servicing Advances in accordance with Section 3.11 or 3.17, and
second, to the Trustee in accordance with the provisions of Section 4.02,
subject to the last paragraph of Section 3.17 with respect to certain excess
recoveries from an REO Disposition.
(b) Notwithstanding anything to the contrary contained in
this Agreement, with respect to any Mortgage Loan that is one hundred twenty
(120) days delinquent, the Servicer shall obtain a broker's price opinion with
respect to the related Mortgaged Property and shall use reasonable efforts to
obtain a total indebtedness balance (including, but not limited to, unpaid
principal, interest, escrows, taxes and expenses) for any related First Lien
Mortgage Loan. The cost of obtaining any such broker's price opinion shall be
reimbursable to the Servicer as a Servicing Advance pursuant to Section
3.11(iii) or (vi). After obtaining the related broker's price opinion, the
Servicer will determine whether any Significant Net Recovery is possible through
foreclosure proceedings or other liquidation of the related Mortgaged Property.
If the Servicer determines that (x) no Significant Net Recovery is the
commercially reasonable outcome or (y) the potential Net Recoveries are
anticipated to be an amount, determined by the Servicer in its good faith
judgment and in light of other mitigating circumstances, that is insufficient to
warrant proceeding through foreclosure or other liquidation of the related
Mortgaged Property, it may, at its discretion, charge off such delinquent
Mortgage Loan in accordance with subsections (c) and (d) below.
(c) If the Servicer determines based on the broker's
price opinion obtained under paragraph (b) above and other relevant
considerations that (x) no Significant Net Recovery is possible through
foreclosure proceedings or other liquidation of the related Mortgaged Property
or (y) the potential Net Recoveries are anticipated to be an amount, determined
by the Servicer in its good faith judgment and in light of other mitigating
circumstances, that is insufficient to warrant proceeding through foreclosure or
other liquidation of the related Mortgaged Property, it will be obligated to
charge off the related Mortgage Loan at the time such Mortgage Loan becomes 210
days delinquent. Once a Mortgage Loan has been charged off, the Servicer will
discontinue making P&I Advances, the Servicer will not be entitled to any
additional servicing compensation (except as described in subsection (d) of this
Section 3.15), the Charged Off Loan will give rise to a Realized Loss, and the
Servicer will follow the procedures described in paragraph (d) below. If the
Servicer determines that (x) a Significant Net Recovery is the commercially
reasonable outcome through foreclosure proceedings or other liquidation of the
Mortgaged Property and (y) the potential Net Recoveries are anticipated to be
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an amount, determined by the Servicer in its good faith judgment and in light of
other mitigating circumstances, that is sufficient to warrant proceeding through
foreclosure or other liquidation of the related Mortgaged Property, the Servicer
may continue to make P&I Advances or Servicing Advances on the related Mortgage
Loan that has become 210 days delinquent.
(d) Any Charged Off Loan may continue to be serviced by
the Servicer for the Certificateholders using Wilshire Special Servicing. The
Servicer will accrue, but not be entitled to any Servicing Fees and
reimbursement of expenses in connection with such Charged Off Loans, except to
the extent of funds available from the aggregate amount of recoveries on all
Charged Off Loans. Such aggregate recovery amounts on Charged Off Loans shall be
paid to the Servicer first, as reimbursement of any outstanding and unpaid
expenses, and second, as any accrued and unpaid Servicing Fees. The Servicer
will only be entitled to previously accrued Servicing Fees and expenses on any
such Charged Off Loans. The Servicer will not be entitled to receive any future
unaccrued Servicing Fees or expenses from collections on such Charged Off Loans.
Any Charged Off Loan serviced by the Servicer using Wilshire Special Servicing
shall be so serviced until the Release Date described below. Any Net Recoveries
on such Charged Off Loans received prior to the Release Date will be included in
Available Funds.
On the date (the "Release Date") which is no more than six
months after the date on which the Servicer begins servicing any Charged Off
Loans using Wilshire Special Servicing, unless specific Net Recoveries are
anticipated by the Servicer on a particular Charged Off Loan (in which case the
Release Date will be delayed until all such specific anticipated Net Recoveries
are received), such Charged Off Loan will be released from the Trust Fund, will
no longer be an asset of any REMIC, and will be transferred to the Class X-1
Certificateholders, without recourse, and thereafter (i) the Class X-1
Certificateholder will be entitled to any amounts subsequently received in
respect of any such Released Loans, (ii) the Class X-1 Certificateholder may
designate any servicer to service any such Released Loan and (iii) the Class X-1
Certificateholder may sell any such Released Loan to a third party.
Notwithstanding the previous sentence, if at any time after a Mortgage Loan has
been Charged Off and prior to six months after the date on which the Servicer
begins servicing such Charged Off Loan using Wilshire Special Servicing, the
Servicer determines that the commercially reasonable outcome is that there will
not be any Net Recoveries on such Charged Off Loan under any circumstances, the
Servicer may release such Charged Off Loan to the Class X-1 Certificateholder in
accordance with the provisions set forth in the previous sentence.
Notwithstanding the foregoing, the procedures described above
in this subsection 3.15(d) relating to the treatment of Charged Off Loans may be
modified at any time at the discretion of the Majority Class X
Certificateholder, with the good faith agreement of the Servicer; provided,
however, that in no event shall the Majority Class X Certificateholder change
the fee structure relating to Charged Off Loans prior to the Release Date in a
manner that would cause fees to be paid to the Servicer other than from
recoveries on Charged Off Loans.
The Trustee shall, in order to allocate recoveries and
Realized Losses in accordance with Sections 4.02 and 4.05 hereof with respect to
Charged Off Loans, review the information provided to the Trustee by the
Servicer on each Reporting Date in a report in the form of Exhibit L hereto,
which identifies the Charged Off Loans as of the related Due Period that the
Servicer will continue to service until the related Release Date using Wilshire
Special Servicing. The Trustee shall be entitled to rely, without independent
verification, on the loan level data provided by the Servicer that identifies
the recovery amounts and the outstanding and unpaid expenses on any Charged Off
Loan in order to allocate such recoveries and Realized Losses in accordance with
Sections 4.02 and 4.05.
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(e) Notwithstanding anything to the contrary contained
herein, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the Servicer has received actual notice of, or has
actual knowledge of the presence of, hazardous or toxic substances or wastes on
the related Mortgaged Property, or if the Depositor or the Trustee otherwise
requests, the Servicer shall cause an environmental inspection or review of such
Mortgaged Property to be conducted by a qualified inspector. Upon completion of
the inspection, the Servicer shall promptly provide the Trustee and the
Depositor, with a written report of the environmental inspection.
After reviewing the environmental inspection report, the
Servicer shall determine consistent with Accepted Servicing Practices, to
proceed with respect to the Mortgaged Property. In the event (a) the
environmental inspection report indicates that the Mortgaged Property is
contaminated by hazardous or toxic substances or wastes and (b) the Servicer
determines, consistent with Accepted Servicing Practices, to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Servicer shall
be reimbursed for all reasonable costs associated with such foreclosure or
acceptance of a deed in lieu of foreclosure and any related environmental
clean-up costs, as applicable, from the related Liquidation Proceeds, or if the
Liquidation Proceeds are insufficient to fully reimburse the Servicer, the
Servicer shall be entitled to be reimbursed from amounts in the Collection
Account pursuant to Section 3.11. In the event the Servicer determines not to
proceed with foreclosure or acceptance of a deed in lieu of foreclosure, the
Servicer shall be reimbursed from general collections for all Servicing Advances
made with respect to the related Mortgaged Property from the Collection Account
pursuant to Section 3.11. The Trustee shall not be responsible for any
determination made by the Servicer pursuant to this paragraph or otherwise.
Section 3.16 RELEASE OF MORTGAGE FILES. (a) Upon the payment
in full of any Mortgage Loan, or the receipt by the Servicer of a notification
that payment in full shall be escrowed in a manner customary for such purposes,
the Servicer will, within five (5) Business Days of the payment in full, notify
the Trustee by a certification (which certification shall include a statement to
the effect that all amounts received or to be received in connection with such
payment which are required to be deposited in the Collection Account pursuant to
Section 3.10 have been or will be so deposited) of a Servicing Officer and shall
request delivery to it of the Custodial File by completing a Request for
Release. Upon receipt of such certification and Request for Release, the Trustee
shall promptly release the related Custodial File to the Servicer within three
(3) Business Days. Any "out-of-pocket" expenses incurred in
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connection with any instrument of satisfaction or deed of reconveyance shall be
reimbursable to the Servicer as a Servicing Advance.
(b) From time to time and as appropriate for the
servicing or foreclosure of any Mortgage Loan, including, for this purpose,
collection under any insurance policy relating to the Mortgage Loans, the
Trustee shall, upon request of the Servicer and delivery to the Trustee, of a
Request for Release, release the related Custodial File to the Servicer, and the
Trustee shall, at the direction of the Servicer, execute such documents provided
to it as shall be necessary to the prosecution of any such proceedings and the
Servicer shall retain the Mortgage File in trust for the benefit of the Trustee.
Such Request for Release shall obligate the Servicer to return each and every
document previously requested from the Custodial File to the Trustee when the
need therefor by the Servicer no longer exists, unless the Mortgage Loan has
been liquidated and the Liquidation Proceeds relating to the Mortgage Loan have
been deposited in the Collection Account or the Mortgage File or such document
has been delivered to an attorney, or to a public trustee or other public
official as required by law, for purposes of initiating or pursuing legal action
or other proceedings for the foreclosure of the Mortgaged Property either
judicially or non-judicially, and the Servicer has delivered to the Trustee a
certificate of a Servicing Officer certifying as to the name and address of the
Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. Upon receipt of a certificate of a
Servicing Officer stating that such Mortgage Loan was liquidated and that all
amounts received or to be received in connection with such liquidation that are
required to be deposited into the Collection Account have been so deposited, or
that such Mortgage Loan has become an REO Property, a copy of the Request for
Release shall be released by the Trustee to the Servicer or its designee. Upon
receipt of a Request for Release under this Section 3.16, the Trustee shall
deliver the related Custodial File to the requesting Servicer by overnight
courier (at the applicable Servicer's expense, which expense shall be
reimbursable as a Servicing Advance.
Upon written certification of a Servicing Officer, the Trustee
shall execute and deliver to the Servicer copies of any court pleadings,
requests for trustee's sale or other documents reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity, or shall exercise and deliver to the Servicer a power of attorney
sufficient to authorize the Servicer to execute such documents on its behalf.
Each such certification shall include a request that such pleadings or documents
be executed by the Trustee and a statement as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
Section 3.17 TITLE, CONSERVATION AND DISPOSITION OF REO
PROPERTY. (a) This Section shall apply only to REO Properties acquired for the
account of the Trustee and shall not apply to any REO Property relating to a
Mortgage Loan which was purchased or repurchased from the Trustee pursuant to
any provision hereof. In the event that title to any such REO Property is
acquired, the Servicer shall cause the deed or certificate of sale to be issued
in the name of the Trustee, on behalf of the Certificateholders, or the
Trustee's nominee.
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(b) The Servicer shall manage, conserve, protect and
operate each REO Property for the Trustee solely for the purpose of its prompt
disposition and sale. The Servicer, either itself or through an agent selected
by the Servicer, shall manage, conserve, protect and operate the REO Property in
the same manner that it manages, conserves, protects and operates other
foreclosed property for its own account, and in the same manner that similar
property in the same locality as the REO Property is managed. The Servicer shall
attempt to sell the same (and may temporarily rent the same for a period not
greater than one year, except as otherwise provided below) on such terms and
conditions as the Servicer deems to be in the best interest of the Trustee. (c)
As described in paragraph (h) below, the Servicer shall use its commercially
reasonable efforts to dispose of the REO Property as soon as possible and shall
sell such REO Property in any event within three years after title has been
taken to such REO Property, unless the Servicer determines, and gives an
appropriate notice to the Trustee to such effect, that a longer period is
necessary for the orderly liquidation of such REO Property. The Trustee has no
obligation with respect to REO Dispositions.
(d) The Servicer shall segregate and hold all funds
collected and received in connection with the operation of any REO Property
separate and apart from its own funds and general assets and shall deposit such
funds in the Collection Account.
(e) The Servicer shall deposit net of reimbursement to
the Servicer for any related outstanding Servicing Advances and unpaid Servicing
Fees provided in Section 3.11, or cause to be deposited, on a daily basis in the
Collection Account all revenues received with respect to the related REO
Property and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of the REO Property.
(f) The Servicer, upon an REO Disposition, shall be
entitled to reimbursement for any related unreimbursed Servicing Advances as
well as any unpaid Servicing Fees from proceeds received in connection with the
REO Disposition, as further provided in Section 3.11.
(g) Any net proceeds from an REO Disposition which are in
excess of the unpaid principal balance of the related Mortgage Loan plus all
unpaid REO Imputed Interest thereon through the date of the REO Disposition
shall be retained by the Servicer as additional servicing compensation.
(h) The Servicer shall use its commercially reasonable
efforts to sell, or cause the Subservicer to sell, in accordance with Accepted
Servicing Practices, any REO Property as soon as possible, but in no event later
than the conclusion of the third calendar year beginning after the year of its
acquisition by the REMIC unless (i) the Servicer applies for an extension of
such period from the Internal Revenue Service pursuant to the REMIC Provisions
and Code Section 856(e)(3), in which event such REO Property shall be sold
within the applicable extension period, or (ii) the Servicer obtains for the
Trustee an Opinion of Counsel, addressed to the Depositor, the Trustee and the
Servicer, to the effect that the holding by the Lower-Tier REMIC of such REO
Property subsequent to such period will not result in the imposition of
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taxes on "prohibited transactions" as defined in Section 860F of the Code or
cause either Trust REMIC to fail to qualify as a REMIC under the REMIC
Provisions or comparable provisions of relevant state laws at any time. The
Servicer shall manage, conserve, protect and operate each REO Property serviced
by the Servicer for the Trustee solely for the purpose of its prompt disposition
and sale in a manner which does not cause such REO Property to fail to qualify
as "foreclosure property" within the meaning of Section 860G(a)(8) or result in
the receipt by the Lower-Tier REMIC of any "income from non-permitted assets"
within the meaning of Section 860F(a)(2)(B) of the Code or any "net income from
foreclosure property" which is subject to taxation under Section 860G(a)(1) of
the Code. Pursuant to its efforts to sell such REO Property, the Servicer shall
either itself or through an agent selected by the Servicer protect and conserve
such REO Property in the same manner and to such extent as is customary in the
locality where such REO Property is located and may, incident to its
conservation and protection of the interests of the Trustee on behalf of the
Certificateholders, rent the same, or any part thereof, as the Servicer deems to
be in the best interest of the Trustee on behalf of the Certificateholders for
the period prior to the sale of such REO Property; provided, however, that any
rent received or accrued with respect to such REO Property qualifies as "rents
from real property" as defined in Section 856(d) of the Code.
Section 3.18 [RESERVED].
Section 3.19 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION
REGARDING THE MORTGAGE LOANS. The Servicer shall provide, or cause the
applicable Subservicer to provide, to the Depositor, the Trustee, the Mortgage
Pool Insurer, the OTS or the FDIC and the examiners and supervisory agents
thereof, access to the documentation regarding the Mortgage Loans in its
possession required by applicable regulations of the OTS. Such access shall be
afforded without charge, but only upon reasonable and prior written request and
during normal business hours at the offices of the Servicer. Nothing in this
Section shall derogate from the obligation of any such party to observe any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of any such party to provide access as provided in this Section
as a result of such obligation shall not constitute a breach of this Section.
Nothing in this Section 3.19 shall require the Servicer to
collect, create, collate or otherwise generate any information that it does not
generate in its usual course of business. The Servicer shall not be required to
make copies of or to ship documents to any Person who is not a party to this
Agreement, and then only if provisions have been made for the reimbursement of
the costs thereof. The Servicer, however, may provide copies of information
provided to the Trustee or Depositor to any party designated by the Depositor.
Section 3.20 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF THE
SERVICER TO BE HELD FOR THE TRUSTEE. The Servicer shall account fully to the
Trustee for any funds received by the Servicer or which otherwise are collected
by the Servicer as Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds (including any proceeds under the Mortgage Pool Insurance Policy) in
respect of any Mortgage Loan. All Mortgage Files and funds collected or held by,
or under the control of, the Servicer in respect of any Mortgage Loans, whether
from the collection of principal and interest payments or from Liquidation
Proceeds, including, but not limited to, any funds on deposit in the Collection
Account, shall be held by the Servicer for and
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on behalf of the Trustee and shall be and remain the sole and exclusive property
of the Trustee, subject to the applicable provisions of this Agreement. The
Servicer also agrees that it shall not create, incur or subject any Mortgage
File or any funds that are deposited in the Collection Account, the Distribution
Account or any Escrow Account, or any funds that otherwise are or may become due
or payable to the Trustee for the benefit of the Certificateholders, to any
claim, lien, security interest, judgment, levy, writ of attachment or other
encumbrance, or assert by legal action or otherwise any claim or right of setoff
against any Mortgage File or any funds collected on, or in connection with, a
Mortgage Loan, except, however, that the Servicer shall be entitled to set off
against and deduct from any such funds any amounts that are properly due and
payable to the Servicer under this Agreement.
Section 3.21 SERVICING COMPENSATION. (a) As compensation for
its activities hereunder, the Servicer shall, with respect to each Mortgage
Loan, be entitled to retain from deposits to the Collection Account and from
Liquidation Proceeds, Insurance Proceeds (including any proceeds under the
Mortgage Pool Insurance Policy), and Condemnation Proceeds related to such
Mortgage Loan, the Servicing Fee with respect to each Mortgage Loan (less any
portion of such amounts retained by any Subservicer). In addition, the Servicer
shall be entitled to recover unpaid Servicing Fees out of related Late
Collections and as otherwise permitted in Section 3.11. The right to receive the
Servicing Fee may not be transferred in whole or in part except as provided in
Section 10.07 or in connection with the transfer of all of the Servicer's
responsibilities and obligations under this Agreement; provided, however, that
the Servicer may pay from the Servicing Fee any amounts due to a Subservicer
pursuant to a Subservicing Agreement entered into under Section 3.02.
(b) Additional servicing compensation in the form of
Prepayment Interest Excess, proceeds described in Section 3.17(g), assumption or
modification fees, late payment charges, NSF fees, reconveyance fees and other
similar fees and charges (other than Prepayment Premiums) shall be retained by
the Servicer only to the extent such fees or charges are received by the
Servicer. The Servicer shall also be entitled pursuant to Section 3.09(b)(vi)
and Section 3.11(a)(iv) to withdraw from the Collection Account, as additional
servicing compensation, interest or other income earned on deposits therein.
(c) Except as otherwise provided in this Agreement, the
Servicer shall be required to pay all expenses incurred by it in connection with
its servicing activities hereunder (including payment of premiums for any
blanket policy insuring against hazard losses pursuant to Section 3.13,
servicing compensation of the Subservicer to the extent not retained by it and
the fees and expenses of independent accountants and any agents appointed by the
Servicer), and shall not be entitled to reimbursement therefor except as
specifically provided in Section 3.11.
Section 3.22 ANNUAL STATEMENT AS TO COMPLIANCE. The Servicer
will deliver or cause to be delivered to the Depositor, the Rating Agencies, and
the Trustee on or before March 15th of each calendar year, commencing in 2006,
an Officer's Certificate stating, as to each signatory thereof, that (i) a
review of the activities of the Servicer during the preceding calendar year and
of performance under this Agreement or a similar agreement has been made under
such officers' supervision, and (ii) to the best of such officers' knowledge,
based on such review, the Servicer has fulfilled all of its obligations under
this Agreement throughout such
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year, or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officers and the nature and status
thereof. Promptly after receipt of such Officer's Certificate, the Depositor
shall review such Officer's Certificate and, if applicable, consult with the
Servicer as to the nature of any defaults by the Servicer in the fulfillment of
any of the Servicer's obligations. The obligations of the Servicer under this
Section apply to each Servicer that serviced during the applicable period,
whether or not the Servicer is acting as a Servicer at the time such Officer's
Certificate is required to be delivered.
Section 3.23 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING
STATEMENT; FINANCIAL STATEMENTS. Not later than March 15th of each calendar year
commencing in 2006, the Servicer, at its expense, shall cause a nationally
recognized firm of independent certified public accountants to furnish to the
Depositor, the Rating Agencies, and the Trustee a report stating that (i) it has
obtained a letter of representation regarding certain matters from the
management of the Servicer which includes an assertion that the Servicer has
complied with certain minimum residential mortgage loan servicing standards,
identified in the Uniform Single Attestation Program for Mortgage Bankers
established by the Mortgage Bankers Association of America, with respect to the
servicing of residential mortgage loans during the most recently completed
calendar year and (ii) on the basis of an examination conducted by such firm in
accordance with standards established by the American Institute of Certified
Public Accountants, such representation is fairly stated in all material
respects, subject to such exceptions and other qualifications that may be
appropriate. In rendering its report such firm may rely, as to matters relating
to the direct servicing of residential mortgage loans by Subservicers, upon
comparable reports of firms of independent certified public accountants rendered
on the basis of examinations conducted in accordance with the same standards
(rendered within one year of such report) with respect to those Subservicers.
Promptly after receipt of such report, the Depositor shall review such report
and, if applicable, consult with the Servicer as to the nature of any defaults
by the Servicer in the fulfillment of any of the Servicer's obligations. The
obligations of the Servicer under this Section apply to each Servicer that
serviced during the applicable period, whether or not the Servicer is acting as
a Servicer at the time such report is required to be delivered.
Section 3.24 TRUSTEE TO ACT AS SERVICER. (a) In the event that
the Servicer shall for any reason no longer be the Servicer hereunder (including
by reason of an Event of Default), the Trustee or its successor shall, thereupon
assume all of the rights and obligations of the Servicer hereunder arising
thereafter (except that the Trustee shall not be (i) liable for losses of the
predecessor Servicer pursuant to Section 3.10 or any acts or omissions of the
predecessor Servicer hereunder, (ii) obligated to make Advances if it is
prohibited from doing so by applicable law, (iii) obligated to effectuate
repurchases or substitutions of Mortgage Loans hereunder, including but not
limited to repurchases or substitutions pursuant to Section 2.03, (iv)
responsible for expenses of the Servicer pursuant to Section 2.03 or (v) deemed
to have made any representations and warranties of the Servicer hereunder). Any
such assumption shall be subject to Section 7.02.
(b) Every Subservicing Agreement entered into by the
Servicer shall contain a provision giving the successor Servicer the option to
terminate such agreement in the event a successor Servicer is appointed.
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(c) If the Servicer shall for any reason no longer be the
Servicer (including by reason of any Event of Default), the Trustee (or any
other successor Servicer) may, at its option, succeed to any rights and
obligations of the Servicer under any Subservicing Agreement in accordance with
the terms thereof; provided, that the Trustee (or any other successor Servicer)
shall not incur any liability or have any obligations in its capacity as
successor Servicer under a Subservicing Agreement arising prior to the date of
such succession unless it expressly elects to succeed to the rights and
obligations of the Servicer thereunder; and the Servicer shall not thereby be
relieved of any liability or obligations under the Subservicing Agreement
arising prior to the date of such succession.
(d) The Servicer shall, upon request of the Trustee, but
at the expense of the Servicer, deliver to the assuming party all documents and
records relating to each Subservicing Agreement (if any) to which it is a party
and the Mortgage Loans then being serviced thereunder and an accounting of
amounts collected and held by it and otherwise use its best efforts to effect
the orderly and efficient transfer of such Subservicing Agreement to the
assuming party.
Section 3.25 COMPENSATING INTEREST. The Servicer shall remit
to the Trustee on each Remittance Date an amount from its own funds equal to
Compensating Interest payable by the Servicer for such Remittance Date.
Section 3.26 CREDIT REPORTING; ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ ACT. (a)
With respect to each Mortgage Loan, the Servicer shall fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on the
related Mortgagor credit files to the three national credit repositories, on a
monthly basis.
(b) Each party shall comply with all applicable
provisions of the Privacy Laws relating to the Mortgage Loans, the related
borrowers and any "nonpublic personal information" (as defined in the Privacy
Laws) received by such party incidental to it being a party to this Agreement,
including, maintaining adequate information security procedures to protect such
nonpublic personal information. Without limitation, the Servicer shall provide
all privacy notices required of the Servicer under the Privacy Laws.
Section 3.27 EXCESS RESERVE FUND ACCOUNT; DISTRIBUTION
ACCOUNT. (a) The Trustee shall establish and maintain the Excess Reserve Fund
Account, on behalf of the Class X Certificateholders, to receive any Basis Risk
Payment and to pay to the LIBOR Certificateholders any Basis Risk Carry Forward
Amounts.
On each Distribution Date on which there exists a Basis Risk
Carry Forward Amount on any Class of LIBOR Certificates, the Trustee shall (1)
withdraw from the Distribution Account and deposit in the Excess Reserve Fund
Account, as set forth in Section 4.02(a)(iii)(H), the lesser of the Class X
Distributable Amount (to the extent remaining after the distributions specified
in Sections 4.02(a)(iii)(A)-(G)) and the aggregate Basis Risk Carry Forward
Amount and (2) withdraw from the Excess Reserve Fund Account amounts necessary
to pay to such Class or Classes of LIBOR Certificates the applicable Basis Risk
Carry Forward Amounts. Such payments shall be allocated to those Classes based
upon the amount of
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Basis Risk Carry Forward Amount owed to each such Class and shall be paid in the
priority set forth in Sections 4.02(a)(iii)(I)-(J). In the event that the Class
Certificate Balance of any Class of Certificates is reduced because of Applied
Realized Loss Amounts, the applicable Certificateholders will not be entitled to
receive Basis Risk Carry Forward Amounts on the written down amounts on such
Distribution Date or any future Distribution Dates (except to the extent such
Class Certificate Balance is increased as a result of any Subsequent
Recoveries), even if funds are otherwise available for distribution.
The Trustee shall account for the Excess Reserve Fund Account
as an outside reserve fund within the meaning of Treasury Regulations Section
1.860G-2(h) and not as an asset of either Trust REMIC created pursuant to this
Agreement. The beneficial owners of the Excess Reserve Fund Account are the
Class X Certificateholders. For all federal income tax purposes, amounts
transferred by the Upper-Tier REMIC to the Excess Reserve Fund Account shall be
treated as first distributed by the Trustee 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 paid by the Trustee to
the LIBOR Certificateholders shall be accounted for by the Trustee as amounts
paid first to the Holders of the Class X Certificates and then to the respective
Class or Classes of LIBOR Certificates. In addition, the Trustee shall account
for the rights of Holders of each Class of LIBOR Certificates to receive
payments of Basis Risk Carry Forward Amounts 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.
Notwithstanding any provision contained in this Agreement, the
Trustee shall not be required to make any payments from the Excess Reserve Fund
Account except as expressly set forth in this Section 3.27(a).
(b) The Trustee shall establish and maintain the
Distribution Account on behalf of the Certificateholders. The Trustee shall,
promptly upon receipt on the Business Day received, deposit in the Distribution
Account and retain therein the following:
(i) the aggregate amount remitted by the Servicer to the
Trustee pursuant to Section 3.11;
(ii) any amount deposited by the Servicer pursuant to
Section 3.12(b) in connection with any losses on Permitted Investments;
(iii) amounts received from the Mortgage Pool Insurer under
the Mortgage Pool Insurance Policy; and
(iv) any other amounts deposited hereunder which are
required to be deposited in the Distribution Account.
In the event that the Servicer shall remit any amount not
required to be remitted, the Servicer may at any time direct the Trustee in
writing to withdraw such amount from the
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Distribution Account, any provision herein to the contrary notwithstanding. Such
direction may be accomplished by delivering notice to the Trustee which
describes the amounts deposited in error in the Distribution Account. All funds
deposited in the Distribution Account shall be held by the Trustee in trust for
the Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 4.02.
(c) In order to comply with its duties under the USA
Patriot Act of 2001, the Trustee 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.
Section 3.28 OPTIONAL PURCHASE OF DELINQUENT MORTGAGE LOANS.
While the Mortgage Pool Insurance Trigger is in effect, the Mortgage Pool
Insurance Company, in its sole discretion, shall have the option, but shall not
be obligated, to purchase any 90+ Delinquent Mortgage Loans from the Trust Fund
for which it has not paid a claim, regardless of whether a claim has been
approved for such Mortgage Loan or a Realized Loss on such Mortgage Loan has
been applied to the Deductible (as defined in the Mortgage Pool Insurance
Policy), on a servicing-released basis. The purchase price for any such Mortgage
Loan shall be 100% of the unpaid principal balance of such Mortgage Loan (or, in
the case of a Mortgage Loan for which any Loss (as defined under the Mortgage
Pool Insurance Policy) has been charged, the amount of such Loss) plus other
than in the case of a Mortgage Loan for which a Loss under the Mortgage Pool
Insurance Policy has been charged, accrued and unpaid interest on the related
Mortgage Loan at the applicable Mortgage Interest Rate plus the amount of any
unreimbursed Servicing Advances made by the Servicer. Any such purchase shall
reduce the amount of available coverage under the Mortgage Pool Insurance Policy
by the amount of such purchase price. If a Mortgage Pool Insurance Trigger is
not in effect or, if a Mortgage Pool Insurance Trigger is in effect and if the
Mortgage Pool Insurer does not exercise its option pursuant to this Section with
respect to any Mortgage Loan, the Depositor, in its sole discretion, shall have
the option, but shall not be obligated, to purchase any such 90+ Delinquent
Mortgage Loan from the Trust Fund. The purchase price for any such Mortgage Loan
shall be 100% of the unpaid principal balance of such Mortgage Loan plus accrued
and unpaid interest on the related Mortgage Loan at the applicable Mortgage
Interest Rate, plus the amount of any unreimbursed Servicing Advances made by
the Servicer. Upon receipt of such purchase price, the Servicer shall provide to
the Trustee a Request for Release and the Trustee shall promptly release to the
Mortgage Pool Insurance Company or the Depositor, as applicable, the Mortgage
File relating to the Mortgage Loan being repurchased.
Section 3.29 MAINTENANCE OF MORTGAGE POOL INSURANCE POLICY.
The Servicer shall exercise its commercially reasonable efforts to maintain and
keep the Mortgage Pool Insurance Policy in full force and effect until (a) each
Mortgage Loan has been paid in full, liquidated or is no longer an asset of the
Trust Fund or (b) the Certificates are no longer outstanding, unless coverage
thereunder has been exhausted through payment of claims.
In connection with its activities as administrator and
servicer of the Mortgage Loans, the Servicer agrees to file, on behalf of
itself, the Trustee, the Co-Trustee, the Depositor and the Certificateholders
claims and provide notices and other information to the Mortgage Pool
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Insurer in a timely fashion in accordance with the terms of the Mortgage Pool
Insurance Policy and, in this regard, to take such action as shall be necessary
to permit recovery under the Mortgage Pool Insurance Policy respecting a
defaulted Mortgage Loan. The Servicer shall comply will all applicable terms of
the Mortgage Pool Insurance Policy and the claims-filing procedures of the
Mortgage Pool Insurer, to the extent necessary to avoid any adjustments to
claims paid under the Mortgage Pool Insurance Policy.
In accordance with the terms of the Mortgage Pool Insurance
Policy, claims will be payable under the Mortgage Pool Insurance Policy only to
the extent that the Mortgage Pool Insurance Trigger is in effect. No later than
each Reporting Date, the Mortgage Pool Insurer will notify each of the
Depositor, the Servicer, the Trustee and the Co-Trustee, in writing, whether the
Mortgage Pool Insurance Trigger is in effect. The Mortgage Pool Insurer will
determine whether to pay claims under the Mortgage Pool Insurance Policy and
will pay such claims by remitting, by wire transfer in immediately available
funds, the amount of such claims to the Co-Trustee, who will forward such
amounts to the Trustee for deposit in the Distribution Account. To the extent
the Mortgage Pool Insurer does not pay any claims while the Servicer has been
notified in writing by the Mortgage Pool Insurer that the Mortgage Pool
Insurance Trigger is satisfied, the Servicer shall notify the Depositor, the
Mortgage Pool Insurer, the Trustee and the Co-Trustee of such failure to pay.
The original amount of coverage under the Mortgage Pool Insurance Policy will be
reduced over the life of the Certificates by the aggregate dollar amount of
claims paid.
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 ADVANCES. (a) The amount of P&I Advances to be
made by the Servicer for any Remittance Date shall equal, subject to Section
4.01(c), the sum of (i) the aggregate amount of Scheduled Payments (with each
interest portion thereof net of the related Servicing Fee), due during the Due
Period immediately preceding such Remittance Date in respect of the Mortgage
Loans, which Scheduled Payments were not received as of the close of business on
the related Determination Date, plus (ii) with respect to each REO Property,
which REO Property was acquired during or prior to the related Prepayment Period
and as to which such REO Property an REO Disposition did not occur during the
related Prepayment Period, an amount equal to the excess, if any, of the
Scheduled Payments (with REO Imputed Interest) that would have been due on the
related Due Date in respect of the related Mortgage Loan, over the net income
from such REO Property transferred to the Collection Account for distribution on
such Remittance Date.
(b) On each Remittance Date, the Servicer shall remit in
immediately available funds to the Trustee an amount equal to the aggregate
amount of P&I Advances, if any, to be made in respect of the Mortgage Loans and
REO Properties for the related Remittance Date either (i) from its own funds or
(ii) from the Collection Account, to the extent of funds held therein for future
distribution (in which case, it will cause to be made an appropriate entry in
the records of the Collection Account that Amounts Held for Future Distribution
have been, as
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permitted by this Section 4.01, used by the Servicer in discharge of any such
P&I Advance) or (iii) in the form of any combination of (i) and (ii) aggregating
the total amount of P&I Advances to be made by the Servicer with respect to the
Mortgage Loans and REO Properties. Any Amounts Held for Future Distribution and
so used shall be appropriately reflected in the Servicer's records and replaced
by the Servicer by deposit in the Collection Account on or before any future
Remittance Date to the extent required.
(c) The obligation of the Servicer to make such P&I
Advances is mandatory, notwithstanding any other provision of this Agreement but
subject to (d) below, and, with respect to any Mortgage Loan or REO Property,
shall continue until (i) to the extent coverage under the Mortgage Pool
Insurance Policy is available, through a Final Recovery Determination in
connection therewith or the removal thereof from coverage under this Agreement,
except as otherwise provided in this Section, and (ii) if coverage under the
Mortgage Pool Insurance Policy is not available, through the time at which the
related Mortgage Loan becomes 120 days delinquent.
(d) Notwithstanding anything herein to the contrary, no
P&I Advance or Servicing Advance shall be required to be made hereunder by the
Servicer if such P&I Advance or Servicing Advance would, if made, constitute a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. The
determination by the Servicer that it has made a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance or that any proposed P&I Advance or Servicing
Advance, if made, would constitute a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance, respectively, shall be evidenced by an
Officer's Certificate of the Servicer delivered to the Trustee. In addition the
Servicer shall not be required to advance any Relief Act Interest Shortfalls.
(e) Except as otherwise provided herein, the Servicer
shall be entitled to reimbursement pursuant to Section 3.11 for Advances from
recoveries from the related Mortgagor or from all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds (including any proceeds
under the Mortgage Pool Insurance Policy) and Condemnation Proceeds) with
respect to the related Mortgage Loan.
Section 4.02 PRIORITIES OF DISTRIBUTION. (a) On each
Distribution Date, the Trustee shall make the disbursements and transfers from
amounts then on 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 Offered Certificates
in the following order of priority:
(A) from the Interest Remittance Amount, to the
Class A Certificates, the Accrued Certificate Interest
Distribution Amount for such Class and Unpaid Interest Amount
for such Class and such Distribution Date;
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(B) from any remaining Interest Remittance
Amounts, to the Class M-1 Certificates, the Accrued
Certificate Interest Distribution Amount for such Class;
(C) from any remaining Interest Remittance
Amounts, to the Class M-2 Certificates, the Accrued
Certificate Interest Distribution Amount for such Class;
(D) from any remaining Interest Remittance
Amounts, to the Class B-1 Certificates, the Accrued
Certificate Interest Distribution Amount for such Class;
(E) from any remaining Interest Remittance
Amounts, to the Class B-2 Certificates, the Accrued
Certificate Interest Distribution Amount for such Class; and
(F) from any remaining Interest Remittance
Amounts, to the Class B-3 Certificates, the Accrued
Certificate Interest Distribution Amount for such Class;
(ii) (A) on each Distribution Date (a) before the Stepdown
Date or (b) with respect to which a Trigger Event is in effect, to the
holders of the related Class or Classes of Offered Certificates then
entitled to distributions of principal as set forth below, 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:
(a) to the Class A Certificates, until
the Class Certificate Balance thereof is reduced to
zero; and
(b) sequentially to the Class M-1,
Class M-2, Class B-1, Class B-2 and Class B-3
Certificates, in that order, until the respective
Class Certificate Balances thereof are reduced to
zero;
(B) on each Distribution Date (a) on and after
the Stepdown Date and (b) as long as a Trigger Event is not in
effect, to the holders of the related Class or Classes of
Offered 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 amounts
and order of priority:
(a) to the Class A Certificates, the
lesser of (x) the Principal Distribution Amount and
(y) the Class A Principal Distribution Amount, until
the Class Certificate Balance thereof is reduced to
zero;
(b) to the Class M-1 Certificates, the
lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed
to the Class A Certificates in clause (ii)(B)(a)
above and (y) the Class M-1 Principal Distribution
Amount, until the Class Certificate Balance thereof
has been reduced to zero;
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(c) to the Class M-2 Certificates, the
lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed
to the Class A Certificates in clause (ii)(B)(a)
above and to the Class M-1 Certificates in clause
(ii)(B)(b) above and (y) the Class M-2 Principal
Distribution Amount, until the Class Certificate
Balance thereof has been reduced to zero;
(d) 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)(a)
above, to the Class M-1 Certificates in clause
(ii)(B)(b) above and to the Class M-2 Certificates in
clause (ii)(B)(c) above and (y) the Class B-1
Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(e) 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)(a)
above, to the Class M-1 Certificates in clause
(ii)(B)(b) above, to the Class M-2 Certificates in
clause (ii)(B)(c) above and to the Class B-1
Certificates in clause (ii)(B)(d) above and (y) the
Class B-2 Principal Distribution Amount, until the
Class Certificate Balance thereof has been reduced to
zero; and
(f) to the Class B-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)(a)
above, to the Class M-1 Certificates in clause
(ii)(B)(b) above, to the Class M-2 Certificates in
clause (ii)(B)(c) above, to the Class B-1
Certificates in clause (ii)(B)(d) above and to the
Class B-2 Certificates in clause (ii)(B)(e) above and
(y) the Class B-3 Principal Distribution Amount,
until the Class Certificate Balance thereof has been
reduced to zero;
(iii) any amount remaining after the distributions in
clauses (i) and (ii) above, plus as specifically indicated below, from
amounts on deposit in the Excess Reserve Account, shall be distributed
in the following order of priority beginning on the Distribution Date
in May 2005:
(A) to the holders of the Class M-1
Certificates, any Unpaid Interest Amount for such Class;
(B) to the holders of the Class M-2
Certificates, any Unpaid Interest Amount for such Class;
(C) to the holders of the Class B-1
Certificates, any Unpaid Interest Amount for such Class;
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(D) to the holders of the Class B-2
Certificates, any Unpaid Interest Amount for such Class;
(E) to the holders of the Class B-3
Certificates, any Unpaid Interest Amount for such Class;
(F) to the Excess Reserve Fund Account, the
amount of any Basis Risk Payment for such Distribution Date;
(G) from funds on deposit in the Excess Reserve
Fund Account, an amount equal to any Basis Risk Carry Forward
Amount with respect to the LIBOR Certificates for that
Distribution Date, first, to the Class A Certificates, and
second, to the Class M-1 Certificates, in each case up to
their respective unpaid remaining Basis Risk Carry Forward
Amounts;
(H) to the holders of the Class X Certificates,
the remainder of the Class X Distributable Amount not
distributed pursuant to Sections 4.02(a)(iii)(A)-(G); and
(I) to the holders of the Class R-1 Certificates
and Class R-2 Certificates, any remaining amount.
If on any Distribution Date, as a result of the foregoing
allocation rules, the Class A Certificates do 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 that
Class, 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 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.
(b) On each Distribution Date, all amounts representing
Prepayment Premiums from the Mortgage Loans received during the related
Prepayment Period shall be distributed by the Trustee to the holders of the
Class P Certificates.
(c) On any Distribution Date, any Relief Act Interest
Shortfalls and Net Prepayment Interest Shortfalls for such Distribution Date
will be allocated pro rata, as a reduction of the Accrued Certificate Interest
Distribution Amounts for the Offered Certificates, based on the amount of
interest to which such Classes would otherwise be entitled on such Distribution
Date.
Section 4.03 MONTHLY STATEMENTS TO CERTIFICATEHOLDERS. (a) Not
later than each Distribution Date, the Trustee shall make available to each
Certificateholder, the Servicer, the Depositor, the Mortgage Pool Insurer and
each Rating Agency a statement setting forth with respect to the related
distribution:
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(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any Unpaid
Interest Amounts included in such distribution and any remaining Unpaid
Interest Amounts after giving effect to such distribution, any Basis
Risk Carry Forward Amount for such Distribution Date and the amount of
all Basis Risk Carry Forward Amount covered by withdrawals from the
Excess Reserve Fund Account on such Distribution Date;
(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;
(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 Servicer or Subservicer (with respect to the Subservicers, in
the aggregate) with respect to such Distribution Date;
(vii) the Pass-Through Rate for each such Class of
Certificates with respect to such Distribution Date;
(viii) the amount of Advances included in the distribution
on such Distribution Date and the aggregate amount of Advances reported
by the Servicer as outstanding as of the close of business on the
Determination Date immediately preceding such Distribution Date;
(ix) the number and aggregate outstanding principal
balances of Mortgage Loans (1) as to which the Scheduled 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;
(x) for each of the preceding 12 calendar months, or all
calendar months since the related Cut-off Date, whichever is less, the
aggregate dollar amount of the Scheduled Payments (A) due on all
Outstanding Mortgage Loans on each of the Due Dates in each such month
and (B) delinquent 60 days or more on each of the Due Dates in each
such month;
(xi) with respect to all Mortgage Loans that became REO
Properties during the preceding calendar month, the aggregate number of
such Mortgage Loans and the
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aggregate Stated Principal Balance of such Mortgage Loans as of the
close of business on the Determination Date preceding such Distribution
Date and the date of acquisition thereof;
(xii) the total number and principal balance of any REO
Properties (and market value, if available) as of the close of business
on the Determination Date preceding such Distribution Date;
(xiii) 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);
(xiv) the amount on deposit in the Excess Reserve Fund
Account (after giving effect to distributions on such Distribution
Date);
(xv) in the aggregate and for each Class of Certificates,
the aggregate amount of Applied Realized Loss Amounts incurred during
the preceding calendar month and aggregate Applied Realized Loss
Amounts through such Distribution Date;
(xvi) the amount of any Net Monthly Excess Cash Flow on
such Distribution Date and the allocation thereof to the
Certificateholders with respect to Applied Realized Loss Amounts and
Unpaid Interest Amounts;
(xvii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xviii) Prepayment Premiums collected by or paid by the
Servicer;
(xix) the Cumulative Loss Percentage;
(xx) the amount distributed on the Class X Certificates;
(xxi) the amount of any Subsequent Recoveries for such
Distribution Date;
(xxii) whether a Mortgage Pool Insurance Trigger is in
effect;
(xxiii) each Mortgage Loan that has been released to the
Class X-1 Certificateholder pursuant to Section 3.15(d);
(xxiv) the amount paid under the Mortgage Pool Insurance
Policy included in the distribution on such Distribution Date; and
(xxv) the amount of remaining coverage under the Mortgage
Pool Insurance Policy as of the Determination Date.
(b) The Trustee's responsibility for providing the above
statement to the Certificateholders, each Rating Agency, the Servicer, the
Responsible Party and the Depositor is limited to the availability, timeliness
and accuracy of the information derived from the Servicer
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or the Responsible Party. The Trustee will provide the above statement via the
Trustee's internet website. The Trustee's website will initially be located at
▇▇▇▇▇://▇▇▇.▇▇▇.▇▇.▇▇▇/▇▇▇▇ and assistance in using the website can be obtained
by calling the Trustee's investor relations desk at ▇-▇▇▇-▇▇▇-▇▇▇▇. A paper copy
of the above statement will also be made available upon request.
(c) Within a reasonable period of time after the end of
each calendar year, the Trustee 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) and (a)(ii) of this
Section 4.03 aggregated for such calendar year or applicable portion thereof
during which such Person was a Certificateholder. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
(d) Not later than the Reporting Date, the Servicer shall
furnish to the Trustee and the Mortgage Pool Insurer a monthly remittance advice
statement (in a format mutually agreed upon by the Servicer and the Trustee)
containing such information as shall be reasonably requested by the Trustee to
provide the reports required by Section 4.03(a) as to the accompanying
remittance and the period ending on the close of business on the last Business
Day of the immediately preceding month (the "Servicer Remittance Report").
The Servicer shall furnish to the Trustee and the Mortgage
Pool Insurer an individual loan accounting report, as of the last Business Day
of each month, to document Mortgage Loan payment activity on an individual
Mortgage Loan basis. With respect to each month, the corresponding individual
loan accounting report (in electronic format) shall be received by the Trustee
no later than the Reporting Date, which report shall contain the following:
(i) with respect to each Scheduled Payment, the amount of
such remittance allocable to principal (including a separate breakdown
of any Principal Prepayment, including the date of such prepayment, and
any Prepayment Premiums, along with a detailed report of interest on
principal prepayment amounts remitted in accordance with Section 3.25);
(ii) with respect to each Scheduled Payment, the amount of
such remittance allocable to interest;
(iii) the amount of servicing compensation received by the
Servicer during the prior distribution period;
(iv) the individual and aggregate Stated Principal Balance
of the Mortgage Loans;
(v) the aggregate of any expenses reimbursed to the
Servicer during the prior distribution period pursuant to Section 3.11;
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(vi) the number and aggregate outstanding principal
balances of Mortgage Loans (a) delinquent (1) 31 to 60 days, (2) 61 to
90 days, or (3) 91 days or more; (b) as to which foreclosure has
commenced; and (c) as to which REO Property has been acquired;
(vii) each Mortgage Loan which has been altered, modified
or varied during such month, and the reason for such modification
(i.e., extension of maturity date, Mortgage Interest Rate);
(viii) with respect to each Mortgage Loan, the amount of any
Realized Losses for such Mortgage Loan;
(ix) each Mortgage Loan that has been coded as terminated
and therefore will be released to the Class X-1 Certificateholder
pursuant to Section 3.15(d); and
(x) any other information reasonably required by the
Trustee to enable it to prepare the monthly statement referred to in
Section 4.03(a).
Section 4.04 CERTAIN MATTERS RELATING TO THE DETERMINATION OF
LIBOR. LIBOR shall be calculated by the Trustee in accordance with the
definition of "LIBOR." Until all of the LIBOR Certificates are paid in full, the
Trustee will at all times retain at least four Reference Banks for the purpose
of determining LIBOR with respect to each LIBOR Determination Date. The Trustee
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
Trustee 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 Trustee
should terminate its appointment as Reference Bank, the Trustee shall promptly
appoint or cause to be appointed another Reference Bank (after consultation with
the Depositor). The Trustee 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 Trustee 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 Trustee 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 Trustee shall (in the
absence of manifest error) be final, conclusive and binding upon each Holder of
a Certificate and the Trustee.
Section 4.05 ALLOCATION OF APPLIED REALIZED LOSS AMOUNTS. Any
Applied Realized Loss Amounts will be allocated to the most junior Class of
Subordinated Certificates
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then outstanding in reduction of the Class Certificate Balance thereof. In the
event Applied Realized Loss Amounts are allocated to any Class of Offered
Certificates, their Class Principal Balances shall be reduced by the amount so
allocated, and no funds will be distributable with respect to the written down
amounts (including without limitation Basis Risk Carry Forward Amounts) or with
respect to interest on the written down amounts on that Distribution Date or any
future Distribution Dates, even if funds are otherwise available for
distribution. Notwithstanding the foregoing, the Class Certificate Balance of
each Class of Subordinated Certificates that has been previously reduced by
Applied Realized Loss Amounts will be increased, in order of seniority, by the
amount of the Subsequent Recoveries (but not in excess of the Applied Realized
Loss Amount allocated to the applicable Class of Subordinated Certificates).
All Realized Losses on the Mortgage Loans shall be allocated
by the Trustee on each Distribution Date to the following REMIC I Regular
Interests in the specified percentages, as follows: first, to Uncertificated
Interest payable to the REMIC I Regular Interest I-LTAA and REMIC I Regular
Interest I-LTZZ up to an aggregate amount equal to the REMIC I Interest Loss
Allocation Amount, 98.00% and 2.00%, respectively; second, to the Uncertificated
Balances of the REMIC I Regular Interest I-LTAA and REMIC I Regular Interest
I-LTZZ up to an aggregate amount equal to the REMIC I Principal Loss Allocation
Amount, 98.00% and 2.00%, respectively; third, to the Uncertificated Balances of
REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTB3 and REMIC I
Regular Interest I-LTZZ, 98.00%, 1.00% and 1.00%, respectively, until the
Uncertificated Balance of REMIC I Regular Interest I-LTB3 has been reduced to
zero; fourth, to the Uncertificated Balances of REMIC I Regular Interest I-LTAA,
REMIC I Regular Interest I-LTB2 and REMIC I Regular Interest I-LTZZ, 98.00%,
1.00% and 1.00%, respectively, until the Uncertificated Balance of REMIC I
Regular Interest I-LTB2 has been reduced to zero; fifth, to the Uncertificated
Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTB1 and
REMIC I Regular Interest I-LTZZ, 98.00%, 1.00% and 1.00%, respectively, until
the Uncertificated Balance of REMIC I Regular Interest I-LTB2 has been reduced
to zero; sixth, to the Uncertificated Balances of REMIC I Regular Interest
I-LTAA, REMIC I Regular Interest I-LTM2 and REMIC I Regular Interest I-LTZZ,
98.00%, 1.00% and 1.00%, respectively, until the Uncertificated Balance of REMIC
I Regular Interest I-LTM2 has been reduced to zero; and seventh, to the
Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTM1 and REMIC I Regular Interest I-LTZZ, 98.00%, 1.00% and 1.00%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM1 has been reduced to zero.
Section 4.06 DISTRIBUTIONS ON THE REMIC I REGULAR INTERESTS.
(a) (1) On each Distribution Date, the following amounts,
in the following order of priority, shall be distributed by REMIC I to REMIC II
on account of the REMIC I Regular Interests or withdrawn from the Distribution
Account and distributed to the holders of the Class R-1 Certificates, as the
case may be:
(i) to Holders of REMIC I Regular Interest I-LTAA, REMIC
I Regular Interest I-LTA, REMIC I Regular Interest I-LTM1, REMIC I
Regular Interest I-LTM2, REMIC I Regular Interest I-LTB1, REMIC I
Regular Interest I-LTB2, REMIC I Regular
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Interest I-LTB3 and REMIC I Regular Interest I-LTZZ, PRO RATA, in an
amount equal to (A) the Uncertificated Interest for such Distribution
Date, plus (B) any amounts in respect thereof remaining unpaid from
previous Distribution Dates. Amounts payable as Uncertificated Interest
in respect of REMIC I Regular Interest I-LTZZ shall be reduced when the
REMIC I Overcollateralization Amount is less than the REMIC I Required
Overcollateralization Amount, by the lesser of (x) the amount of such
difference and (y) the Maximum I-LTZZ Uncertificated Interest Deferral
Amount and such amount will be payable to the REMIC I Regular Interest
I-LTA, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest
I-LTM2, REMIC I Regular Interest I-LTB1, REMIC I Regular Interest
I-LTB2 and REMIC I Regular Interest I-LTB3 in the same proportion as
the Overcollateralization Deficiency is allocated to the Corresponding
Certificates and the Uncertificated Balance of REMIC I Regular Interest
I-LTZZ shall be increased by such amount;
to the Holders of REMIC I Regular Interests, in an amount equal to the remainder
of the Available Distribution Amount funds for such Distribution Date after the
distributions made pursuant to clause (i) above, allocated as follows:
(A) 98.00% of such remainder to the
Holders of REMIC I Regular Interest I-LTAA, until the
Uncertificated Balance of such Uncertificated REMIC I Regular
Interest is reduced to zero;
(B) 2.00% of such remainder, first, to
the Holders of REMIC I Regular Interest I-LTA, REMIC I Regular
Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I
Regular Interest I-LTB1, REMIC I Regular Interest I-LTB2 and
REMIC I Regular Interest I-LTB3, 1% of and in the same
proportion as principal payments are allocated to the
Corresponding Certificates, until the Uncertificated Balances
of such REMIC I Regular Interests are reduced to zero and
second to the Holders of REMIC I Regular Interest I-LTZZ,
until the Uncertificated Balance of such REMIC I Regular
Interest is reduced to zero; then
(C) any remaining amount to the Holders
of the Class R-1 Certificates;
provided, however, that 98.00% and 2.00% of any principal payments that are
attributable to an Overcollateralization Reduction Amount shall be allocated to
Holders of REMIC I Regular Interest I-LTAA and REMIC I Regular Interest I-LTZZ,
respectively.
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
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Class may be issued in a different amount which must be in excess of the
applicable minimum denomination) and aggregate denominations per Class set forth
in the Preliminary Statement.
The Depositor hereby directs the Trustee to register the Class
X, Class X-1 and Class P Certificates in the name of the Depositor or its
designee. On a date as to which the Depositor notifies the Trustee, the
Depositor hereby directs the Trustee to transfer the Class X and Class P
Certificates in the name of the NIM Trustee, or such other name or names as the
Depositor shall request, and to deliver such Class X and Class P Certificates to
Deutsche Bank National Trust Company, as NIM Trustee, or to such other Person or
Persons as the Depositor shall request.
Subject to Section 9.02 respecting the final distribution on
the Certificates, on each Distribution Date the Trustee 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 Trustee or (y),
in the event that no wire instructions are provided to the Trustee, 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 Trustee 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 Trustee shall
bind the Trustee, notwithstanding that such individuals or any of them have
ceased to be so authorized prior to the authentication and delivery of any such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless authenticated by the Trustee 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 Trustee shall authenticate the Certificates to be issued
at the direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the
Trustee on a continuous basis, an adequate inventory of Certificates to
facilitate transfers.
Section 5.02 CERTIFICATE REGISTER; REGISTRATION OF TRANSFER
AND EXCHANGE OF CERTIFICATES. (a) The Trustee 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
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee 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
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the Trustee. Whenever any Certificates are so surrendered for exchange, the
Trustee 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
Trustee 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
Trustee in writing of the affiliated status of the transferee. The Trustee 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 Trustee in
accordance with the Trustee'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 transfer of the Class X, Class X-1, Class P
or Class R Certificates, to the Depositor or an Affiliate of the Depositor, (ii)
the transfer of the Class X or Class P Certificates to the NIM Issuer or the NIM
Trustee, or (iii) a transfer of the Class X or Class P Certificates from the NIM
Issuer or the NIM Trustee to the Depositor or an Affiliate of the Depositor, 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 Trustee in writing the facts surrounding the transfer in substantially the
form set forth in Exhibit H (the "Transferor Certificate") and either (i) there
shall be delivered to the Trustee a letter in substantially the form of Exhibit
I-1 (the "Rule 144A Letter") or Exhibit I-2 (the "Non-Rule 144A Investment
Letter") or (ii) in the case of the Class X Certificates or Class X-1
Certificates, there shall be delivered to the Trustee at the expense of the
transferor an Opinion of Counsel that such transfer may be made without
registration under the Securities Act. In the event that a transfer of a Private
Certificate which is a Book-Entry Certificate is to be made in reliance upon an
exemption from the Securities Act and such laws, in order to assure compliance
with the Securities Act and such laws, the Certificateholder desiring to effect
such transfer will be deemed to have made as of the transfer date each of the
certifications set forth in the Transferor Certificate in respect of such
Certificate and the transferee will be deemed to have made as of the transfer
date each of the certifications set forth in the Rule 144A Letter in respect of
such Certificate, in each case as if such Certificate were evidenced by a
Physical Certificate. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) for transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
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exemption provided by Rule 144A. The Trustee and the Servicer shall cooperate
with the Depositor in providing the Rule 144A information referenced in the
preceding sentence, including providing to the Depositor such information
regarding the Certificates, the Mortgage Loans and other matters regarding the
Trust Fund as the Depositor shall reasonably request to meet its obligation
under the preceding sentence. Each Holder of a Private Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee and
the Depositor and the Servicer against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
Except with respect to (i) the transfer of the Class R, Class
X, Class X-1 or Class P Certificates to the Depositor or an affiliate of the
Depositor, (ii) the transfer of the Class X or Class P Certificates to the NIM
Issuer or the NIM Trustee, or (iii) a transfer of the Class X or Class P
Certificates from the NIM Issuer or the NIM Trustee to the Depositor or an
Affiliate of the Depositor, no transfer of an ERISA-Restricted Certificate shall
be made unless the Trustee shall have received either (i) a representation from
the transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trustee (in the event such Certificate is a Private
Certificate or a Residual Certificate, such requirement is satisfied only by the
Trustee's receipt of a representation letter from the transferee substantially
in the form of Exhibit I-1 or Exhibit I-2), to the effect that such transferee
is not an employee benefit plan subject to Section 406 of ERISA, a plan or
arrangement subject to Section 4975 of the Code or a plan subject to any
Federal, state or local law ("Similar Law") materially similar to the foregoing
provisions of ERISA or the Code, nor a person acting on behalf of any such plan
or arrangement nor using the assets of any such plan or arrangement to effect
such transfer, (ii) in the case of an ERISA-Restricted Certificate other than a
Residual Certificate or a Class P Certificate that has been the subject of an
ERISA-Qualifying Underwriting and the purchaser is an insurance company, a
representation that the purchaser is an insurance company that is purchasing
such Certificates with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in the
case of any such ERISA-Restricted Certificate 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 and the Depositor, which Opinion of Counsel shall not be an
expense of the Trustee, the Depositor, the Servicer or the Trust Fund, addressed
to the Trustee, 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 or the Servicer
to any obligation in addition to those expressly undertaken in this Agreement or
to any liability. For purposes of the preceding sentence, with respect to an
ERISA-Restricted Certificate that is not a 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 Trustee by the transferee's (including an initial acquirer's) acceptance
of the ERISA-Restricted Certificates. Notwithstanding anything else to the
contrary herein, (a) any purported transfer of an ERISA Restricted Certificate,
other than a Class P Certificate or Residual
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Certificate, to or on behalf of an employee benefit plan subject to ERISA, the
Code or Similar Law without the delivery to the Trustee of an Opinion of Counsel
satisfactory to the Trustee as described above shall be void and of no effect
and (b) any purported transfer of a Class P Certificate or Residual Certificate
to a transferee that does not make the representation in clause (i) above shall
be void and of no effect.
The Class R, Class R-1 and Class P Certificates may not be
sold to any employee benefit plan subject to Title I of ERISA, any plan or
arrangement subject to Section 4975 of the Code, or any plan subject to any
Similar Law or any person investing on behalf of or with plan assets of such
plan.
To the extent permitted under applicable law (including, but
not limited to, ERISA), the Trustee shall be under no liability to any Person
for any registration of transfer of any ERISA-Restricted Certificate that is in
fact not permitted by this Section 5.02(b) or for making any payments due on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the transfer
was registered by the Trustee 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 Trustee 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
Trustee shall not register the Transfer of any Residual Certificate
unless, in addition to the certificates required to be delivered to the
Trustee under subparagraph (b) above, the Trustee 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
G;
(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
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absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored
to all rights as Holder thereof retroactive to the date of registration
of Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to
the Holder thereof or taking any other action with respect to such
Holder under the provisions of this Agreement so long as the Transfer
was registered after receipt of the related Transfer Affidavit,
Transferor Certificate and the Rule 144A Letter. The Trustee 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
Trustee shall be paid and delivered by the Trustee 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 Trustee, 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 Trustee of an Opinion of Counsel,
which Opinion of Counsel shall not be an expense of the Trust Fund, the Trustee,
the Responsible Party or the Servicer, 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 Counsel furnished to the Trustee, 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 Trustee except to another Depository; (ii) the Depository
shall maintain book-entry records with respect to the Certificate Owners and
with respect to ownership and transfers of such Book-Entry Certificates; (iii)
ownership and transfers
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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 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 Trustee may rely
and shall be fully protected in relying upon information furnished by the
Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and persons
shown on the books of such indirect participating firms as direct or indirect
Certificate Owners.
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 Trustee
in writing that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository, and (ii) the Trustee or the
Depositor is unable to locate a qualified successor, or (y) the Depositor
notifies the Depository of its intent to terminate the book-entry system through
the Depository and, upon receipt of notice of such intent from the Depository,
the Depository Participants holding beneficial interests in the Book-Entry
Certificates agree to initiate such termination, the Trustee 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 Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. None of the Servicer, the
Depositor or the Trustee shall be liable for any delay in delivery of such
instruction and each may conclusively rely on, and shall be protected in relying
on, such instructions. The Depositor shall provide the Trustee 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 Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Trustee 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 Trustee and the
Certificate Registrar, 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 cancelled and subsequently
disposed of by the Certificate
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Registrar in accordance with its customary practice. No service charge shall be
made for any registration of transfer or exchange of Private Certificates, but
the Trustee or the Certificate Registrar 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 Trustee, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) there is delivered to the Depositor, the
Servicer, and the Trustee such security or indemnity as may be required by them
to hold each of them harmless, then, in the absence of notice to the Trustee
that such Certificate has been acquired by a bona fide purchaser, the Trustee
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 Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 5.03 shall constitute complete and indefeasible evidence of
ownership, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 5.04 PERSONS DEEMED OWNERS. The Servicer, the Trustee,
the Depositor, and any agent of the Servicer, the Depositor or the Trustee may
treat the Person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and none of the Servicer, the
Trustee, the Depositor or any agent of the Servicer, the Depositor or the
Trustee shall be affected by any notice to the contrary.
Section 5.05 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. If three or more Certificateholders (a) request such information in
writing from the Trustee, (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 the Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, the Servicer or such Certificateholders at
such recipients' expense the most recent list of the Certificateholders of such
Trust Fund held by the Trustee, if any. The Depositor and every
Certificateholder, by receiving and holding a Certificate, agree that the
Trustee 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 Trustee will
maintain or cause to be maintained at its expense an office or offices or agency
or agencies in New York City where Certificates may be surrendered for
registration of transfer or exchange. The Trustee initially designates the
offices of its agent for such purposes, located at DTC Transfer Agent Services,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The Trustee
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will give prompt written notice to the Certificateholders of any change in such
location of any such office or agency.
The Co-Trustee will maintain or cause to be maintained at its
expense an office or offices or agency or agencies in Pennsylvania where the
Mortgage Pool Insurance Policy shall be delivered. The Co-Trustee initially
designates its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Street, 11th Floor, PA 1328,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance Trust
Services/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ for such purposes. The Co-Trustee will give
prompt written notice to the Certificateholders and the Mortgage Pool Insurer of
any change in such location of any such office or agency. The Co-Trustee will
pay the Mortgage Pool Insurer Fee in accordance with Section 8.14(c).
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.01 RESPECTIVE LIABILITIES OF THE DEPOSITOR AND THE
SERVICER. The Depositor and the Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them herein.
Section 6.02 MERGER OR CONSOLIDATION OF THE DEPOSITOR OR THE
SERVICER. The Depositor and the Servicer will each keep in full effect its
existence, rights and franchises as a corporation, national banking association,
federally chartered savings bank or limited partnership 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 or limited partnership, as applicable, in each jurisdiction
in which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor or the Servicer may be
merged or consolidated, or any Person resulting from any merger or consolidation
to which the Depositor or the Servicer shall be a party, or any person
succeeding to the business of the Depositor or the Servicer, shall be the
successor of the Depositor or the Servicer, as the case may be, hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or surviving Person to the Servicer shall
be qualified to sell mortgage loans to, and to service mortgage loans on behalf
of, ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, and meets the requirements of Section 7.02, and
provided, further, that such merger, consolidation or succession does not
adversely affect the then current rating or ratings on the Offered Certificates.
Section 6.03 LIMITATION ON LIABILITY OF THE DEPOSITOR, THE
SERVICER AND OTHERS. Neither the Depositor, the Servicer nor any of their
respective directors, officers, employees or agents shall be under any liability
to the Certificateholders for any action taken or for refraining from the taking
of any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor, the Servicer or any such Person against any breach of representations
or warranties made by it herein or protect the
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Depositor, the Servicer or any such Person from any liability which would
otherwise be imposed by reasons of willful misfeasance, bad faith or negligence
(or gross negligence in the case of the Depositor) in the performance of duties
or by reason of reckless disregard of obligations and duties hereunder. The
Depositor, the Servicer and any director, officer, employee or agent of the
Depositor and the Servicer may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Depositor, the Servicer and any director, officer,
employee, Affiliate or agent of the Depositor and the Servicer shall be
indemnified by the Trust Fund and held harmless against any loss, liability or
expense incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Certificates or any other unanticipated or
extraordinary expense, other than any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence (or gross negligence in
the case of the Depositor) in the performance of duties hereunder or by reason
of reckless disregard of obligations and duties hereunder. Neither the Depositor
nor the Servicer shall be under any obligation to appear in, prosecute or defend
any legal action that is not incidental to its respective duties hereunder and
which in its opinion may involve it in any expense or liability; provided,
however, that each of the Depositor and the Servicer may in its discretion
undertake any such action (or direct the Trustee to undertake such actions
pursuant to Section 2.03 for the benefit of the Certificateholders) that it may
deem necessary or desirable in respect of this Agreement and the rights and
duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, and the Servicer shall be
entitled to be reimbursed therefor out of the Collection Account.
Section 6.04 LIMITATION ON RESIGNATION OF THE SERVICER. (a)
Except as contemplated by Section 6.02 or in connection with the transfer of
substantially all of the assets of the Servicer, the Servicer shall not assign
this Agreement or resign from the obligations and duties hereby imposed on it
except (x) (i) by mutual consent of the Servicer, the Depositor and the Trustee
or (ii) upon the determination that its duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by the
Servicer and (y) it has the written approval of the Mortgage Pool Insurer as
contemplated under the Mortgage Pool Insurance Policy. Any such determination
permitting the resignation of the Servicer under clause (x)(ii) above shall be
evidenced by an Opinion of Counsel to such effect delivered to the Depositor and
the Trustee which Opinion of Counsel shall be in form and substance acceptable
to the Depositor and the Trustee. No such resignation shall become effective
until a successor shall have assumed the Servicer's responsibilities and
obligations hereunder.
Section 6.05 ADDITIONAL INDEMNIFICATION BY THE SERVICER; THIRD
PARTY CLAIMS. The Servicer shall indemnify the Responsible Party, the Depositor
(and any Affiliate, director, officer, employee or agent of the Depositor) and
the Trustee and hold each of them harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that any of
them may sustain in any way related to (i) any breach by the Servicer of its
representations and warranties referred to in Section 2.03(a), (ii) any error in
any tax or information return prepared by the Servicer, or (iii) the failure of
the Servicer to perform its duties and service the Mortgage
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Loans in compliance with the terms of this Agreement; provided that such
indemnification shall be limited to instances in which the Servicer acts with
willful misfeasance, bad faith or negligence. The Servicer immediately shall
notify the Responsible Party, the Depositor and the Trustee if such claim is
made by a third party with respect to this Agreement or the Mortgage Loans,
assume (with the prior written consent of the Responsible Party, the Depositor
and the Trustee) the defense of any such claim and pay all expenses in
connection therewith, including reasonable counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
the Responsible Party, the Depositor, or the Trustee in respect of such claim.
ARTICLE VII
DEFAULT
Section 7.01 EVENTS OF DEFAULT. "Event of Default," wherever
used herein, means any one of the following events:
(a) any failure by the Servicer to remit to the Trustee
any payment required to be made under the terms of this Agreement which
continues unremedied for a period of one Business Day after the date upon which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by the Depositor, or by the Trustee, or to the
Servicer, the Depositor and the Trustee by Certificateholders entitled to at
least 25% of the Voting Rights; or
(b) the failure on the part of the Servicer duly to
observe or perform in any material respect any other of the covenants or
agreements on the part of the Servicer set forth in this Agreement, which
continues unremedied for a period of thirty days (except that such number of
days shall be ten in the case of a failure to observe or perform any of the
obligations set forth in Sections 3.22, 3.23 or 8.12) after the earlier of (i)
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Depositor or by the
Trustee, or to the Servicer, the Depositor and the Trustee by Certificateholders
of Certificates entitled to at least 25% of the Voting Rights and (ii) actual
knowledge of such failure by a Servicing Officer of the Servicer; provided,
however, that (except with respect to the parenthetical above) in the case of a
failure or breach that cannot be cured within 30 days after notice or actual
knowledge by the Servicer, the cure period may be extended for an additional 30
days upon delivery by the Servicer to the Trustee of a certificate to the effect
that the Servicer believes in good faith that the failure or breach can be cured
within such additional time period and the Servicer is diligently pursuing
remedial action; or
(c) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
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(d) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Servicer or of or relating to all or
substantially all of its property; or
(e) the Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take advantage of
any applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(f) any failure of the Servicer to make any P&I Advance
on any Remittance Date required to be made from its own funds pursuant to
Section 4.01 which continues unremedied for one Business Day immediately
following the Remittance Date; or
(g) a breach of any representation and warranty of the
Servicer referred to in Section 2.03(a), which materially and adversely affects
the interests of the Certificateholders or the Mortgage Pool Insurer and which
continues unremedied for a period of thirty days after the date upon which
written notice of such breach is given to the Servicer by the Trustee or by the
Depositor, or to the Servicer, the Trustee and the Depositor by
Certificateholders entitled to at least 25% of the Voting Rights in the
Certificates; or
(h) any reduction, withdrawal or qualification of the
servicer rating of Servicer by any rating agency which results in the inability
of the Servicer to act as a primary or special servicer for any mortgage-backed
or asset-backed transaction rated or to be rated by any rating agency.
If an Event of Default described in clauses (a) through (h) of
this Section 7.01 shall occur, then, and in each and every such case, so long as
such Event of Default shall not have been remedied, the Trustee may, or at the
direction of Certificateholders entitled to a majority of the Voting Rights the
Trustee shall, by notice in writing to the Servicer (with a copy to each Rating
Agency and the Mortgage Pool Insurer), terminate all of the rights and
obligations of the Servicer under this Agreement and in and to the Mortgage
Loans and the proceeds thereof, other than its rights as a Certificateholder
hereunder; provided, however, that the Trustee shall not be required to give
written notice to the Servicer of the occurrence of an Event of Default
described in clauses (b) through (h) of this Section 7.01 unless and until a
Responsible Officer of the Trustee has actual knowledge of the occurrence of
such an Event of Default. In the event that a Responsible Officer of the Trustee
has actual knowledge of the occurrence of an Event of Default described in
clause (a) of this Section 7.01, the Trustee shall give written notice to the
Servicer of the occurrence of such an event within one Business Day of the first
day on which such Responsible Officer obtains actual knowledge of such
occurrence; provided that failure to give such notice shall not constitute a
waiver of such Event of Default. The Trustee, upon a Responsible Officer having
actual knowledge of such default, shall deliver a written notice to the Servicer
of the default on any Remittance Date on which the Servicer fails to make any
deposit or payment required pursuant to this Agreement (including, but not
limited to Advances, to the extent required by this Agreement); provided,
however, that if an Event of Default occurs due to the failure of the Servicer
to make an Advance to the extent required, the Trustee, as successor
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Servicer, or another successor Servicer shall, prior to the next Distribution
Date, immediately make such Advance. Any such notice to the Servicer shall also
be given to each Rating Agency and the Depositor. Notwithstanding any other
provision of this Agreement, any remedy with respect to clauses (a) or (f) of
this Section 7.01 shall be effective only if taken no later than 3:00 PM Eastern
time on the Business Day immediately following (i) with respect to clause (a) of
this Section 7.01, the date of written notice to the Servicer, or (ii) with
respect to clause (f) of this Section 7.01, the related Remittance Date. On and
after the receipt by the Servicer of such written notice, all authority and
power of the Servicer hereunder, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in the Trustee. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. Unless expressly provided in such written notice, no such termination
shall affect any obligation of the Servicer to pay amounts owed pursuant to
Article VIII. The Servicer agrees to cooperate with the Trustee in effecting the
termination of the Servicer's responsibilities and rights hereunder, including,
without limitation, the transfer to the Trustee of all cash amounts which shall
at the time be credited to the Collection Account of the predecessor Servicer,
or thereafter be received with respect to the Mortgage Loans.
Notwithstanding any termination of the activities of the
Servicer hereunder, the Servicer shall be entitled to receive from the Trust
Fund, prior to transfer of its servicing obligations hereunder, payment of all
accrued and unpaid portion of the Servicing Fees to which the Servicer would
have been entitled and to continue to receive reimbursement for all outstanding
P&I Advances and Servicing Advances, including Servicing Advances incurred prior
to but not invoiced until after the date of termination, in accordance with the
terms of this Agreement. In addition, the Servicer shall continue to be entitled
to the benefits of Section 6.03, notwithstanding any termination hereunder, with
respect to events occurring prior to such termination.
Section 7.02 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR. On and
after the time the Trustee gives, and the Servicer receives a notice of
termination pursuant to Section 7.01, the Trustee shall, subject to and to the
extent provided in Sections 3.06 and 7.03, and subject to the written approval
of the Mortgage Pool Insurer and the rights of the Trustee to appoint a
successor Servicer, be the successor to the Servicer in its capacity as servicer
under this Agreement and the transactions set forth or provided for herein and
shall immediately assume all of the obligations of the Servicer to make P&I
Advances and Servicing Advances as successor Servicer and shall assume and be
subject to all the other responsibilities, duties and liabilities relating
thereto placed on the Servicer by the terms and provisions hereof and applicable
law as soon as practicable but in no event later than 90 days after the receipt
by the Servicer of the notice of termination pursuant to Section 7.01. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans that the Servicer would have been entitled to charge to its
Collection Account if the Servicer had continued to act hereunder including, if
the Servicer was receiving the Servicing Fee, the Servicing Fee and the income
on investments or gain related to the Collection Account (in addition to income
on investments or gain related to the Distribution Account for the benefit of
the Trustee as provided herein). Notwithstanding the
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foregoing, if the Trustee has become the successor to the Servicer in accordance
with this Section 7.02, the Trustee may, if it shall be unwilling to so act, or
shall, if it is prohibited by applicable law from making P&I Advances and
Servicing Advances pursuant to Section 4.01 or if it is otherwise unable to so
act, or, at the written request of Certificateholders entitled to a majority of
the Voting Rights, appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution the appointment of
which does not adversely affect the then current rating of the Certificates by
each Rating Agency, as the successor to the Servicer hereunder in the assumption
of all or any part of the responsibilities, duties or liabilities of the
Servicer hereunder. No such appointment of a successor to the Servicer hereunder
shall be effective until the Depositor shall have consented thereto. Any
successor to the Servicer shall be an institution which is a ▇▇▇▇▇▇ ▇▇▇- and
▇▇▇▇▇▇▇ Mac-approved seller/servicer in good standing, which has a net worth of
at least $30,000,000, which is willing to service the Mortgage Loans, which is
approved in writing by the Mortgage Pool Insurer and which executes and delivers
to the Depositor and the Trustee an agreement accepting such delegation and
assignment, containing an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the terminated Servicer
(other than liabilities of the terminated Servicer under Section 6.03 incurred
prior to termination of the Servicer under Section 7.01), with like effect as if
originally named as a party to this Agreement; provided, that each Rating Agency
acknowledges that its rating of the Certificates in effect immediately prior to
such assignment and delegation will not be qualified or reduced, as a result of
such assignment and delegation. Pending appointment of a successor to the
Servicer hereunder, the Trustee, unless the Trustee is prohibited by law from so
acting, shall, subject to Section 3.05, act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the Trustee may
make such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it, the Depositor and such successor shall agree; provided,
however, that no such compensation shall be in excess of the Servicing Fee and
amounts paid to the predecessor Servicer from investments. The Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. Neither the Trustee nor any other
successor Servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any distribution hereunder or any
portion thereof or any failure to perform, or any delay in performing, any
duties or responsibilities hereunder, in either case caused by the failure of
the predecessor Servicer to deliver or provide, or any delay in delivering or
providing, any cash, information, documents or records to it.
In the event that the Servicer is terminated pursuant to
Section 7.01, the terminated Servicer shall provide notices to the Mortgagors,
transfer the Servicing Files to a successor Servicer and pay all of its own
out-of-pocket costs and expenses related to such obligations. In addition, all
Servicing Transfer Costs incurred by parties other than the terminated Servicer
shall be paid by the successor Servicer (in which case the successor Servicer
shall be entitled to reimbursement therefor from the Trust Fund or if the
successor Servicer fails to pay, the Trustee pays such amounts from the Trust
Fund). If the Trustee is the predecessor Servicer (except in the case where the
Trustee in its role as successor Servicer is being terminated pursuant to
Section 7.01 by reason of an Event of Default caused solely by the Trustee as
the successor Servicer and not by the predecessor Servicer's actions or
omissions), such costs shall be paid by the successor Servicer (in which case
the successor Servicer shall be entitled to reimbursement therefor from the
Trust Fund or if the successor Servicer fails to pay,
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the Trustee pays such amounts from the Trust Fund) promptly upon presentation of
reasonable documentation of such costs.
Any successor to the Servicer as servicer shall give notice to
the Mortgagors of such change of Servicer, in accordance with applicable federal
and state law, and shall, during the term of its service as Servicer, maintain
in force the policy or policies that the Servicer is required to maintain
pursuant to Section 3.13.
Any such successor Servicer shall be required to satisfy the
requirements of a successor Servicer under this Section 7.02.
Section 7.03 NOTIFICATION TO CERTIFICATEHOLDERS. (a) Upon any
termination of or appointment of a successor to the Servicer, the Trustee shall
give prompt written notice thereof to Certificateholders, the Mortgage Pool
Insurer and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of
Default, the Trustee shall transmit by mail to all Certificateholders, the
Mortgage Pool Insurer and each Rating Agency notice of each such Event of
Default hereunder known to the Trustee, unless such Event of Default shall have
been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE AND CO-TRUSTEE
Section 8.01 DUTIES OF THE TRUSTEE. The Trustee, before the
occurrence of an Event of Default and after the curing of all 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 an Event of
Default has occurred and remains uncured, the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own bad faith or willful misfeasance.
Unless an Event of Default known to the Trustee has occurred
and is continuing,
(a) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the Trustee shall
not be liable except for the performance
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of the duties and obligations specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement against the
Trustee, and the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement which it believed in good faith to be genuine and
to have been duly executed by the proper authorities respecting any matters
arising hereunder;
(b) the Trustee shall not be liable for an error of
judgment made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it is finally proven that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken, suffered, or omitted to be taken by it in good faith in accordance
with the direction of the Holders of Certificates evidencing not less than 25%
of the Voting Rights relating to the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Agreement.
Section 8.02 CERTAIN MATTERS AFFECTING THE TRUSTEE. Except as
otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(b) the Trustee may consult with counsel, financial
advisers or accountants and the advice of any such counsel, financial advisers
or accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion of
Counsel;
(c) the Trustee 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 to do so
by Holders of Certificates evidencing not less than 25% of the Voting Rights
allocated to each Class of Certificates;
(e) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, accountants or attorneys and the
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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) the Trustee 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;
(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 and except with respect to the investment of funds in the
Distribution Account not made at the direction of the Depositor during the
Trustee Float Period);
(h) the Trustee shall not be deemed to have knowledge of
an Event of Default until a Responsible Officer of the Trustee shall have
received written notice thereof except as otherwise provided in Section 7.01;
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.
Section 8.03 TRUSTEE NOT LIABLE FOR CERTIFICATES OR MORTGAGE
LOANS. The recitals contained herein and in the Certificates shall be taken as
the statements of the Depositor and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document other than with respect to the Trustee's execution and
authentication of the Certificates. The Trustee shall not be accountable for the
use or application by the Depositor or the Servicer of any funds paid to the
Depositor or the Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or the Servicer.
The Trustee shall have no responsibility for filing or
recording any financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection of any security interest
or lien granted to it hereunder (unless the Trustee shall have become the
successor Servicer).
The Trustee 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.
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Section 8.04 TRUSTEE MAY OWN CERTIFICATES. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
Section 8.05 TRUSTEE'S FEES AND EXPENSES. As compensation for
its activities under this Agreement, the Trustee may withdraw from the
Distribution Account on each Distribution Date the Trustee Fee for the
Distribution Date and, during the Trustee Float Period, any interest or
investment income earned on funds deposited in the Distribution Account. The
Trustee and any director, officer, employee, or agent of the Trustee shall be
indemnified by the Trust Fund and held harmless 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 the
Servicer's obligations in connection with this Agreement for which the Servicer
has performed its obligation to indemnify the Trustee pursuant to Section 6.05,
(ii) resulting from any breach of the Responsible Party's obligations in
connection with this Agreement for which the Responsible Party has performed its
obligation to indemnify the Trustee pursuant to Section 2.03(g) this Agreement,
or (iii) 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;
(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; and
(C) printing and engraving expenses in connection with
preparing any Definitive Certificates.
Except as otherwise provided in this Agreement or a separate
letter agreement between the Trustee and the Depositor, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
paying agent under this Agreement or for any other expenses.
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Section 8.06 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE. The
Trustee hereunder shall at all times be a corporation or association organized
and doing business under the laws of a state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause any of the Rating Agencies to reduce their respective then current
ratings of the Certificates (or having provided such security from time to time
as is sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.06
the combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
entity serving as Trustee may have normal banking and trust relationships with
the Depositor and its affiliates or the Servicer and their affiliates; provided,
however, that such entity cannot be an affiliate of the Depositor or the
Servicer other than the Trustee in its role as successor to the Servicer.
Section 8.07 RESIGNATION AND REMOVAL OF THE TRUSTEE. The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice of resignation to the Depositor, the Servicer, and each
Rating Agency not less than 60 days before the date specified in such notice,
when, subject to Section 8.08, such resignation is to take effect, and
acceptance by a successor trustee in accordance with Section 8.08 meeting the
qualifications set forth in Section 8.06. If no successor trustee meeting such
qualifications shall have been so appointed and have accepted appointment within
30 days after the giving of such notice or resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee.
If at any time the Trustee shall cease to be eligible in
accordance with Section 8.06 and shall fail to resign after written request
thereto by the Depositor, or if at any time the Trustee shall become incapable
of acting, or shall be adjudged as bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, or a tax is imposed with respect
to the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor or the Servicer may remove the Trustee and
appoint a successor trustee by written instrument, in triplicate, one copy of
which shall be delivered to the Trustee, one copy to the Servicer and one copy
to the successor trustee.
The Holders of Certificates entitled to a majority of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to the Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. The
successor trustee shall notify each Rating Agency of any removal of the Trustee.
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Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.08.
Section 8.08 SUCCESSOR TRUSTEE. Any successor trustee
appointed as provided in Section 8.07 shall execute, acknowledge and deliver to
the Depositor and to its predecessor trustee and the Servicer an instrument
accepting such appointment hereunder and thereupon the resignation or removal of
the predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as trustee herein. The Depositor, the
Servicer and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for more fully and
certainly vesting and confirming in the successor trustee all such rights,
powers, duties, and obligations.
No successor trustee shall accept appointment as provided in
this Section 8.08 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the Depositor shall mail notice of the succession
of such trustee hereunder to all Holders of Certificates. If the Depositor fails
to mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Depositor.
Section 8.09 MERGER OR CONSOLIDATION OF THE TRUSTEE. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.06
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding.
Section 8.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider appropriate. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by the Servicer
of a request to do so, or in the case an Event of Default shall have occurred
and be continuing, the Trustee alone shall have the power to make such
appointment.
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No co-trustee or separate trustee hereunder shall be required to meet the terms
of eligibility as a successor trustee under Section 8.06 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) To the extent necessary to effectuate the purposes of
this Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee, except for the obligation of the Trustee under this
Agreement to advance funds on behalf of the 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 Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the applicable Trust
Fund or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) No trustee hereunder shall be held personally liable
because of any act or omission of any other trustee hereunder and such
appointment shall not, and shall not be deemed to, constitute any such separate
trustee or co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable
for the payment of reasonable compensation, reimbursement and indemnification to
any such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the separate trustees and
co-trustees, when and as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article VIII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee and a copy thereof given to the Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of
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its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 8.11 TAX MATTERS. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of each Trust REMIC described in the
Preliminary Statement and that in such capacity it shall:
(a) prepare and 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 described in the Preliminary Statement containing such information
and at the times and in the manner as may be required by the Code or state or
local tax laws, regulations, or rules, and furnish to Certificateholders the
schedules, statements or information at such times and in such manner as may be
required thereby;
(b) within thirty days of the Closing Date, the Trustee
will apply for an employer identification number from the Internal Revenue
Service via Form SS-4 or any other acceptable method for all tax entities and
shall also furnish to the Internal Revenue Service, on Form 8811 or as otherwise
may be required by the Code, the name, title, address, and telephone number of
the person that the holders of the Certificates may contact for tax information
relating thereto, together with such additional information as may be required
by such Form, and update such information at the time or times in the manner
required by the Code;
(c) make an election that each 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);
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(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
either Trust REMIC created hereunder;
(h) pay, from the sources specified in the last paragraph
of this Section 8.11, 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 Trustee or any other appropriate Person from
contesting any such tax in appropriate proceedings and shall not prevent the
Trustee from withholding payment of such tax, if permitted by law, pending the
outcome of such proceedings);
(i) cause federal, state or local income tax or
information returns to be signed by the Trustee or such other person as may be
required to sign such returns by the Code or state or local laws, regulations or
rules;
(j) maintain records relating to each of the Trust
REMICs, including the income, expenses, assets, and liabilities thereof on a
calendar year basis and on the accrual method of accounting and the fair market
value and adjusted basis of the assets determined at such intervals as may be
required by the Code, as may be necessary to prepare the foregoing returns,
schedules, statements or information; and
(k) as and when necessary and appropriate, represent
either 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 either 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 Trustee shall treat the rights of the Class P
Certificateholders to receive Prepayment Premiums, the rights of the Class X
Certificateholders to receive amounts from the Excess Reserve Fund Account
(subject to the obligation to pay Basis Risk Carry Forward Amounts) and the
rights of the LIBOR Certificateholders to receive Basis Risk Carry Forward
Amounts as the beneficial ownership of interests in a grantor trust and not as
obligations of either Trust REMIC created hereunder, for federal income tax
purposes.
To enable the Trustee to perform its duties under this
Agreement, the Depositor shall provide to the Trustee within ten days after the
Closing Date all information or data that the Trustee 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 Trustee concerning the value, if any,
to each Class of LIBOR Certificates of the right to receive Basis Risk Carry
Forward Amounts from the Excess Reserve
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Fund Account. Unless otherwise advised by the Depositor in writing, for federal
income tax purposes, the Trustee is hereby directed to assign a value of zero to
the right of each Holder of a LIBOR Certificate to receive the related Basis
Risk Carry Forward Amount for purposes of allocating the purchase price of a
LIBOR Certificate acquired by an initial Holder thereof between such right and
the related REMIC II Regular Certificate. Thereafter, the Depositor shall
provide to the Trustee promptly upon written request therefor any additional
information or data that the Trustee may, from time to time, reasonably request
to enable the Trustee to perform its duties under this Agreement. The Depositor
hereby indemnifies the Trustee for any losses, liabilities, damages, claims, or
expenses of the Trustee arising from any errors or miscalculations of the
Trustee that result from any failure of the Depositor to provide, or to cause to
be provided, accurate information or data to the Trustee on a timely basis.
If any tax is imposed on "prohibited transactions" of either
Trust REMIC as defined in Section 860F(a)(2) of the Code, on the "net income
from foreclosure property" of REMIC I as defined in Section 860G(c) of the Code,
on any contribution to either Trust REMIC after the Start-up Day pursuant to
Section 860G(d) of the Code, or any other tax is imposed, including, if
applicable, any minimum tax imposed on any Trust REMIC pursuant to Sections
23153 and 24874 of the California Revenue and Taxation Code, if not paid as
otherwise provided for herein, the tax shall be paid by (i) the Trustee if such
tax arises out of or results from negligence of the Trustee in the performance
of any of its obligations under this Agreement, (ii) the Servicer, if such tax
arises out of or results from the negligence of the Servicer in the performance
of any of its obligations under this Agreement, or (iii) the Responsible Party
if such tax arises out of or results from the Responsible Party's obligation to
repurchase a Mortgage Loan pursuant to Section 2.03, or (iv) in all other cases,
or if the Trustee, the Responsible Party or the Servicer fails to honor its
obligations under the preceding clause (i), (ii) or (iii) any such tax will be
paid with amounts otherwise to be distributed to the Certificateholders, as
provided in Section 4.02(a).
For as long as each Trust REMIC shall exist, the Trustee shall
act in accordance with this Agreement and shall comply with any directions of
the Depositor or the Servicer as provided herein so as to assure such continuing
treatment. The Trustee shall not (a) sell or permit the sale of all or any
portion of the Mortgage Loans unless pursuant to a repurchase in accordance with
this Agreement, or of any investment of deposits in an Account, and (b) accept
any contribution to either Trust REMIC after the Startup Day without receipt of
a REMIC Opinion.
Section 8.12 PERIODIC FILINGS. (a) The Trustee and the
Servicer shall reasonably cooperate with the Depositor in connection with the
Trust's satisfying the reporting requirements under the Exchange Act. Except as
provided for in Section 8.12(b), the Trustee shall prepare on behalf of the
Trust any Forms 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 Trustee shall sign and file (via the Securities
and Exchange Commission's Electronic Data Gathering and Retrieval System) such
Forms on behalf of the Depositor, if an officer of the Depositor signs the
Certification pursuant to paragraph (b) of this Section 8.12, or otherwise on
behalf of the Trust. In the event the Trustee is signing on behalf of the
Depositor pursuant to the preceding sentence, the Depositor hereby grants to the
Trustee a limited power of
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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
Trustee from the Depositor of written termination of such power of attorney and
(ii) the termination of the Trust. Notwithstanding the foregoing, the Trustee
shall prepare such Form 10-K to be signed by the Depositor and the Depositor
shall sign such form unless the Securities and Exchange Commission has indicated
that it will accept a Certification signed by the Depositor where the related
Form 10-K is signed by the Trustee on behalf of the Depositor.
(b) The Depositor shall prepare or cause to be prepared
and file the current Report on Form 8-K attaching this Agreement as an exhibit
and, thereafter, each Form 8-K shall be filed by the Trustee within 15 days
after each Distribution Date, including a copy of the statement to the
Certificateholders for such Distribution Date as an exhibit thereto. On or 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 Trustee shall file a Form 10-K, in substance as required by
applicable law or applicable Securities and Exchange Commission staff's
interpretations. Such Form 10-K shall include as exhibits the Servicer's annual
statement of compliance described under Section 3.22 and the accountant's report
described under Section 3.23, in each case to the extent they have been timely
delivered to the Trustee (and upon which the Trustee may rely in delivering its
certification hereunder). If they are not so timely delivered, the Trustee shall
file an amended Form 10-K including such documents as exhibits reasonably
promptly after they are delivered to the Trustee. The Trustee shall have no
liability with respect to any failure to properly prepare or file such periodic
reports resulting from or relating to the Trustee'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 M (the "Certification"), which shall, except as
described below, be signed by the senior officer of the Depositor in charge of
securitization. Notwithstanding the foregoing, if it is determined by the
Depositor that the Certification may be executed by multiple persons, the
Trustee shall sign the Certification in respect of items 1 through 3 thereof and
the Servicer shall cause the senior officer in charge of servicing at the
Servicer to sign the Certification in respect of items 4 and 5 thereof, solely
and with respect to the Servicer and the Trustee may rely on the Certification
signed by the Servicer to the same extent as provided in subsection (c) below.
(c) In the event the Certification is to be signed by an
officer of the Depositor, the Trustee shall sign a certification (in the form
attached hereto as Exhibit N) for the benefit of the Depositor and its officers,
directors and Affiliates in respect of items 1 through 3 of the Certification
(provided, however, that the Trustee shall not undertake an analysis of the
accountant's report attached as an exhibit to the Form 10-K), and the Servicer
shall sign a certification solely with respect to the Servicer (in the form
attached hereto as Exhibit O) for the benefit of the Depositor, the Trustee and
their officers, directors and Affiliates in respect of items 4 and 5 of the
Certification. Each such certification shall be delivered to the Depositor and
the Trustee by March 20th of each year (or if not a Business Day, the
immediately preceding Business Day). The Certification attached hereto as
Exhibit M shall be delivered to the Trustee by March 25th for filing on or prior
to March 30th of each year (or if not a Business Day, the immediately preceding
Business Day). In addition, (i) the Trustee shall indemnify and hold harmless
the Depositor and its officers, directors and Affiliates from and against any
losses,
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damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of the Trustee's obligations under this Section 8.12(c) or the
Trustee's negligence, bad faith or willful misconduct in connection therewith,
and (ii) the Servicer shall indemnify and hold harmless the Depositor, the
Trustee and their respective officers, directors, employees, agents and
Affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon a breach of the Servicer's obligations
under this Section 8.12(c) or the Servicer's negligence, bad faith or willful
misconduct in connection therewith. If the indemnification provided for herein
is unavailable or insufficient to hold harmless the indemnified party, then (i)
the Trustee agrees in connection with a breach of the Trustee's obligations
under this Section 8.12(c) or the Trustee's negligence, bad faith or willful
misconduct in connection therewith that it shall contribute to the amount paid
or payable by the Depositor as a result of the losses, claims, damages or
liabilities of the Depositor in such proportion as is appropriate to reflect the
relative fault of the Depositor on the one hand and the Trustee on the other and
(ii) the Servicer agrees that it shall contribute to the amount paid or payable
by the Depositor and/or the Trustee as a result of the losses, claims, damages
or liabilities of the Depositor and/or the Trustee in such proportion as is
appropriate to reflect the relative fault of the Depositor or the Trustee, as
the case may be, on the one hand and the Servicer on the other in connection
with a breach of the Servicer's obligations under this Section 8.12(c) or the
Servicer's negligence, bad faith or willful misconduct in connection therewith.
(d) Upon any filing with the Securities and Exchange
Commission, the Trustee 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
Trustee is able to do so under applicable law, the Trustee shall file a Form 15
Suspension Notification with respect to the Trust.
Section 8.13 TAX CLASSIFICATION OF THE EXCESS RESERVE FUND
ACCOUNT. For federal income tax purposes, the Trustee shall treat the Excess
Reserve Fund Account as beneficially owned by the holders of the Class X
Certificates. The Trustee shall treat the rights that each Class of LIBOR
Certificates has to receive payments of Basis Risk Carry Forward Amounts from
the Excess Reserve Fund Account as rights to receive payments under an interest
rate cap contract written by the Class X Certificateholders in favor of each
Class. Accordingly, each Class of LIBOR Certificates will be comprised of two
components - a REMIC II Regular Certificate and an interest in an interest rate
cap contract, and the Class X Certificateholders will be comprised of two
components - a REMIC II Regular Certificate and ownership of the Excess Reserve
Fund Account, subject to an obligation to pay Basis Risk Carry Forward Amounts.
The Trustee shall allocate the issue price for a Class of Certificates among the
respective components for purposes of determining the issue price of the
applicable REMIC II Regular Certificates based on information received from the
Depositor. Unless otherwise advised by the Depositor in writing, for federal
income tax purposes, the Trustee is hereby directed to assign a value of zero to
the right of each Holder of a LIBOR Certificate to receive the related Basis
Risk Carry
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Forward Amount for purposes of allocating the purchase price of an initial LIBOR
Certificateholder between such right and the related REMIC II Regular
Certificate.
Section 8.14 DUTIES OF THE CO-TRUSTEE.
(a) The Issuer hereby acknowledges that the Depositor, on
behalf of the Issuer, has retained the services of the Co-Trustee at a
Pennsylvania office solely to (i) receive and hold the Mortgage Pool Insurance
Policy on behalf of the Certificateholders and (ii) make and receive payments
and claims with respect to the Mortgage Pool Insurance Policy. The Co-Trustee
acknowledges receipt of the Mortgage Pool Insurance Policy and agrees to perform
such services at such office in the manner described below.
(b) The parties to this Pooling and Servicing Agreement
acknowledge that except as otherwise provided in this Section 8.14 of this
Pooling and Servicing Agreement, the Co-Trustee shall not undertake nor have any
of the duties or responsibilities of the Trustee and shall have no duties or
obligations under this Pooling and Servicing Agreement other than as set forth
in this Section 8.14.
(c) On the Closing Date, the Depositor shall pay to the
Co-Trustee an amount equal to the Mortgage Pool Insurer Fee by wire transfer of
immediately available funds in accordance with the instructions provided below,
and the Co-Trustee shall pay such amount to the Mortgage Pool Insurer on the
Closing Date by wire transfer of immediately available funds in accordance with
such instructions as are furnished by the Mortgage Pool Insurer. The Co-Trustee
shall execute and deliver claims pursuant to and in accordance with the Mortgage
Pool Insurance Policy on behalf of the Trustee and for the benefit of the
Certificateholders. If the Co-Trustee receives any payments under the Mortgage
Pool Insurance Policy or this Pooling and Servicing Agreement from the Mortgage
Pool Insurer, the Co-Trustee shall pay such proceeds to the Trustee by wire
transfer of immediately available funds on the date of receipt for deposit in
the Distribution Account.
The wiring instructions for the Co-Trustee are:
Wachovia Bank, National Association
Charlotte, NC ABA# ▇▇▇▇▇▇▇▇▇
D/5000000016439
FFC: GSAMP 2005-S1
Attention to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CT 2845
(d) The Co-Trustee hereunder shall, at all times, be a
corporation or association organized and doing business under the laws of a
state or the United States of America, authorized under such laws to exercise
corporate trust powers having aggregate capital surplus and undivided profits of
at least $50,000,000, and subject to supervision or examination by a federal or
state authority, and otherwise acceptable to the Mortgage Pool Insurer. In case
at any time the Co-Trustee shall cease to be eligible in accordance with the
provisions of this
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Section, the Co-Trustee shall resign immediately in the manner and with the
effect specified in Section 8.14(e) hereof. The corporation or national banking
association serving as Co-Trustee may have normal banking and trust
relationships with the Depositor and its affiliates.
(e) The Co-Trustee may at any time resign and be
discharged from the trusts hereby created (1) by giving written notice of
resignation to the Mortgage Pool Insurer and the Trustee, not less than 60 days
before the date specified in such notice when such resignation is to take
effect, and (2) upon acceptance of appointment by a successor Co-Trustee in
accordance with this Section 8.14(e) and meeting the qualifications set forth in
Section 8.14(d). If no successor Co-Trustee shall have been so appointed and
have accepted appointment within 60 days after the giving of such notice or
resignation, the resigning Co-Trustee may petition any court of competent
jurisdiction for the appointment of a successor Co-Trustee.
If at any time (i) the Co-Trustee shall cease to be eligible
in accordance with the provisions of Section 8.14(d) hereof and shall fail to
resign after written request thereto by the Mortgage Pool Insurer or the
Trustee, or (ii) the Co-Trustee shall become incapable of acting, or shall be
adjudged as bankrupt or insolvent, or a receiver of the Co-Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Co-Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Mortgage Pool Insurer or
the Trustee, at the direction of the Mortgage Pool Insurer, may remove the
Co-Trustee and appoint a successor Co-Trustee by written instrument, with copies
delivered to the Co-Trustee, the Trustee, the Mortgage Pool Insurer, the Issuer
and the successor Co-Trustee. Any successor Co-Trustee shall be paid pursuant to
an agreement with the Depositor and the assets of the Trust Estate shall not be
used to satisfy any obligation to pay the compensation of such successor
Co-Trustee.
Any resignation or removal of the Co-Trustee and appointment
of a successor Co-Trustee pursuant to any of the provisions of this Section
8.14(e) shall become effective only upon acceptance of appointment by the
successor Co-Trustee as provided in this Section 8.14(e) hereof.
(f) Any successor Co-Trustee appointed as provided in
Section 8.14(e) hereof shall execute, acknowledge and deliver to the Mortgage
Pool Insurer, the Trustee and to its predecessor Co-Trustee an instrument
accepting such appointment hereunder and thereupon the resignation or removal of
the predecessor Co-Trustee shall become effective and such successor Co-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 Co-Trustee herein. The Co-Trustee
shall deliver the Mortgage Pool Insurance Policy and any amounts held in its
possession for the benefit of the Mortgage Pool Insurer to the successor
Co-Trustee upon the appointment of such successor Co-Trustee.
Section 8.15 CO-TRUSTEE'S FEES AND EXPENSES.
(a) Pursuant to a side letter between the Depositor and
the Co-Trustee (which shall be applicable to any successor Co-Trustee), the
Depositor has agreed to (i) pay the Co-Trustee as compensation for its duties
under this Pooling and Servicing Agreement, a one-time
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fee on or prior to the Closing Date and (ii) to pay or reimburse the Co-Trustee,
upon its request, for all reasonable expenses, disbursements and advances
incurred or made by the Co-Trustee in accordance with any of the provisions of
this Pooling and Servicing Agreement (including reasonable counsel fees). Except
as set forth in Section 8.15(b), the assets of the Trust Estate shall not be
used to satisfy any obligation to pay or reimburse compensation, expenses,
disbursements or advances to the Co-Trustee.
(b) The Co-Trustee and any director, officer, employee or
agent of the Co-Trustee shall be indemnified by the Trust Fund and held harmless
against any loss, liability or expense incurred in connection with any legal
action relating to this Pooling and Servicing Agreement, or in connection with
the performance of any of the Co-Trustee'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 Co-Trustee's duties hereunder or
by reason of reckless disregard of the Co-Trustee's obligations and duties
hereunder. Such indemnity shall survive the termination of this Pooling and
Servicing Agreement or the resignation or removal of the Co-Trustee hereunder.
The obligations set forth in this Section 8.15(b) are nonrecourse obligations
solely of the Trust Fund and will be payable only from the Trust Fund with
respect to the Certificates. The Co-Trustee hereby agrees that it has no rights
or claims against any third party directly and shall only look to the Trust Fund
to satisfy the obligations under this Section 8.15(b). The Co-Trustee also
hereby agrees not to file or join in filing any petition in bankruptcy or
commence any similar proceeding in respect of the Trust Fund.
ARTICLE IX
TERMINATION
Section 9.01 TERMINATION UPON LIQUIDATION OR PURCHASE OF THE
MORTGAGE LOANS. Subject to Section 9.03, the obligations and responsibilities of
the Depositor, the Servicer and the Trustee created hereby with respect to the
Trust Fund shall terminate upon the earlier of (a) a Terminating Purchase as
described below and (b) the later of (i) the maturity or other Liquidation Event
(or any Advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Fund and the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement. In no event shall the trusts created hereby continue beyond the
expiration of 21 years from the death of the survivor of the descendants of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof.
On the Optional Termination Date, the Servicer shall have the option to
purchase all of the Mortgage Loans (and REO Properties) at a price equal to the
greater of (a) Fair Value and (b) Par Value. If the Servicer does not exercise
such option, the Depositor shall begin to solicit bids in a commercially
reasonable manner for the purchase of the Mortgage Loans and all other property
of the Trust Fund on a non-recourse basis with no representations or warranties
of any nature whatsoever by the Trustee (such event, the "Auction Call"). To
effectuate such sale, the Depositor shall make reasonable efforts to sell all of
the property of the Trust Fund for its fair market value in a commercially
reasonable manner and on commercially reasonable terms, which shall include the
good faith solicitation of competitive bids to prospective purchasers that
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are recognized broker dealers. The Trustee shall sell all of the property of the
Trust Fund to the entity with the highest bid received by the Trustee from the
closed bids solicited by the Depositor or its designee by such date as mutually
agreed upon by the Depositor and the Trustee; provided, that, (i) the sale price
shall not be less than the Par Value as certified by the Depositor, (ii) the
Depositor shall certify to the Trustee that it received bids from no fewer than
three prospective purchasers and (iii) such sale price shall be deposited with
the Trustee prior to the Distribution Date following the month in which such bid
is received. The Depositor shall be entitled to reimbursement from the Trust
Fund for all reasonable costs and expenses incurred by it under this Section
9.01(a). Neither the Depositor, the Class R-1 Certificateholder, nor any
Affiliate of the Depositor or the Class R-1 Certificateholder may participate in
the bidding process.
If after following the procedures set forth in the immediately
preceding paragraph the Depositor is unable to identify a prospective purchaser
of the property of the Trust Fund that is willing to pay Par Value therefor, the
Auction Call shall be repeated at three-month intervals until the earlier of (i)
all of the property of the Trust Fund has been sold or (ii) the occurrence of
clause (b) in the second preceding paragraph.
In connection with any optional termination pursuant to this Section
9.01(a), all amounts, if any, in excess of the Par Value shall be distributed by
the Trustee directly to the Class R-1 Certificateholders.
Section 9.02 FINAL DISTRIBUTION ON THE CERTIFICATES. If on any
Remittance Date, the Servicer notifies the Trustee that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than the
funds in the Collection Account, the Servicer shall direct the Trustee promptly
to send a Notice of Final Distribution to each Certificateholder. If the
Terminating Entity elects to terminate the Trust Fund pursuant to clause (a) of
Section 9.01, by the 25th day of the month preceding the month of the final
distribution, the Terminating Entity shall notify the Depositor, the Servicer,
the Mortgage Pool Insurer and the Trustee of the date the Terminating Entity
intends to terminate the Trust Fund and of the applicable Termination Price of
the Mortgage Loans and REO Properties.
A Notice of Final Distribution, specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment of
the final distribution and cancellation, shall be given promptly by the Trustee
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 Trustee will give such Notice
of Final Distribution to each Rating Agency at the time such Notice of Final
Distribution is given to Certificateholders.
In the event such Notice of Final Distribution is given, the
Terminating Entity shall remit the applicable Termination Price in immediately
available funds to the Servicer at
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least two Business Days prior to the applicable Distribution Date, and, upon
receipt of such funds from the Terminating Entity, the Servicer shall promptly
deposit such funds in the Collection Account. In connection with any such
termination of the Trust Fund, the Servicer shall cause all funds in the
Collection Account (other than any amounts that the Servicer is entitled to
withdraw pursuant to this Agreement), including the applicable Termination Price
for the Mortgage Loans and REO Properties, to be remitted to the Trustee for
deposit in the Distribution Account on the Business Day prior to the applicable
Distribution Date. Upon such final deposit with respect to the Trust Fund and
the receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Terminating Entity, or its designee, the Custodial Files
for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed to the Certificateholders of each Class
(after payment and reimbursement of all amounts due to the Servicer (including
all unreimbursed Advances and any Servicing Fees accrued and unpaid as of the
date the Termination Price is paid), the Depositor and the Trustee hereunder),
in each case on the final Distribution Date and in the order set forth in
Section 4.02, in proportion to their respective Percentage Interests, with
respect to Certificateholders of the same Class, an amount up to an amount equal
to (i) as to each Class of Regular Certificates (except the Class X
Certificates), the Certificate Balance thereof plus for each such Class and the
Class X Certificates accrued interest thereon in the case of an interest bearing
Certificate and all other amounts to which such Classes are entitled pursuant to
Section 4.02, (ii) as to the Residual Certificates, the amount, if any, which
remains on deposit in the Distribution Account (other than the amounts retained
to meet claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain 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-1 Certificateholders shall be entitled to all unclaimed funds and
other assets of the Trust Fund which remain subject hereto.
In connection with any termination pursuant to Section 9.01,
unless the Servicer previously has notified the Trustee that it has entered into
a servicing agreement for the servicing after the termination date of the Trust
Fund assets, at least twenty (20) days prior to any termination of the Trust
Fund, the Trustee or the Depositor shall notify the Servicer in writing to
transfer the assets of the Trust Fund as of the termination date to the person
specified in the notice, or if such person is not then known, to continue
servicing the assets until the date that is twenty (20) days after the
termination date, and on the termination date the Depositor shall notify the
Servicer of the person to whom the assets should be transferred on that date. In
the latter event, the Servicer shall be entitled to recover its servicing fee
and any advances made for the interim servicing period from the collections on
the assets which have been purchased from the
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Trust, and the agreements for the new owner to obtain ownership of the assets of
the Trust Fund from the Terminating Entity shall so provide.
Section 9.03 ADDITIONAL TERMINATION REQUIREMENTS. In the event
the Terminating Entity elects to terminate the Trust Fund as provided in Section
9.01, the Trust Fund shall be terminated in accordance with the following
additional requirements, unless the Trustee has been supplied with an Opinion of
Counsel, at the expense of the electing Person, to the effect that the failure
to comply with the requirements of this Section 9.03 will not (i) result in the
imposition of taxes on "prohibited transactions" on any Trust REMIC as defined
in Section 860F of the Code, or (ii) cause any Trust REMIC to fail to qualify as
a REMIC at any time that any Certificates are outstanding:
(a) The Trustee shall sell all of the assets of the Trust
Fund to the Person electing to terminate the Trust Fund, or its designee, and,
within 90 days of such sale, shall distribute to the Certificateholders the
proceeds of such sale in complete liquidation of each of the Trust REMICs; and
(b) The Trustee 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 Trustee sold the
assets of the Trust Fund to the electing Person.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 AMENDMENT. This Agreement may be amended from
time to time by the Depositor, the Responsible Party, the Servicer and the
Trustee without the consent of any of the Certificateholders (i) to cure any
ambiguity or mistake, (ii) to correct any defective provision herein or to
supplement any provision herein which may be inconsistent with any other
provision herein, (iii) to add to the duties of the Depositor or the Servicer,
(iv) to add any other provisions with respect to matters or questions arising
hereunder or (v) to modify, alter, amend, add to or rescind any of the terms or
provisions contained in this 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 not be an expense of the Trustee 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 and the Servicer also may at any time and from time to time amend this
Agreement, but without the consent of the Certificateholders to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
or helpful to (i) maintain the qualification of each Trust REMIC under the REMIC
Provisions, (ii) avoid or minimize the risk
116
of the imposition of any tax on any Trust REMIC pursuant to the Code that would
be a claim at any time prior to the final redemption of the Certificates or
(iii) comply with any other requirements of the Code; provided, that the Trustee
has been provided an Opinion of Counsel, which opinion shall be an expense of
the party requesting such opinion but in any case shall not be an expense of the
Trustee or the Trust Fund, to the effect that such action is necessary or
helpful to, as applicable, (i) maintain such qualification, (ii) avoid or
minimize the risk of the imposition of such a tax or (iii) comply with any such
requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Servicer, the Responsible Party and the Trustee with the consent
of the Holders of Certificates evidencing Percentage Interests aggregating not
less than 662/3% of each Class of Certificates affected thereby for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
clause (i), without the consent of the Holders of Certificates of such Class
evidencing, as to such Class, Percentage Interests aggregating not less than
662/3%, or (iii) reduce the aforesaid percentages of Certificates the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless (i) it shall
have first received an Opinion of Counsel, which opinion shall not be an expense
of the Trustee or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on any Trust REMIC or the Certificateholders or
cause any Trust REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding and (ii) the party seeking such amendment shall
have provided written notice to the Rating Agencies (with a copy of such notice
to the Trustee) of such amendment, stating the provisions of the Agreement to be
amended.
The Responsible Party shall be obligated to execute any
amendment to this Agreement, unless such amendment would adversely affect in any
material respect a right or obligation of the Responsible Party.
Notwithstanding the foregoing provisions of this Section
10.01, with respect to any amendment that significantly modifies the permitted
activities of the Trustee or the Servicer, any Certificate beneficially owned by
the Depositor or any of its Affiliates 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 10.01 have been obtained.
Promptly after the execution of any amendment to this
Agreement requiring the consent of Certificateholders, the Trustee shall furnish
written notification of the substance or a
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copy of such amendment to each Certificateholder, the Mortgage Pool Insurer and
each Rating Agency.
It shall not be necessary for the consent of
Certificateholders under this Section 10.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee 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 or the Trust Fund), satisfactory to the
Trustee that (i) such amendment is permitted and is not prohibited by this
Agreement and that all requirements for amending this Agreement have been
complied with; and (ii) either (A) the amendment does not adversely affect in
any material respect the interests of any Certificateholder or (B) the
conclusion set forth in the immediately preceding clause (A) is not required to
be reached pursuant to this Section 10.01.
Section 10.02 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 to be
effected by the Servicer at the expense of the Trust.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 10.03 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 10.04 INTENTION OF PARTIES. It is the express intent
of the parties hereto that the conveyance (i) of the Mortgage Loans by the
Depositor and (ii) of the Trust Fund by the Depositor to the Trustee each be,
and be construed as, an absolute sale thereof. It is, further, not the intention
of the parties that such conveyances be deemed a pledge thereof. However, in the
event that, notwithstanding the intent of the parties, such assets are held to
be the property of the Depositor, as the case may be, or if for any other reason
this Agreement is held or deemed to create a security interest in either such
assets, then (i) this Agreement shall be deemed to be a security agreement
within the meaning of the Uniform Commercial Code of the State of New York and
(ii) the conveyances provided for in this Agreement shall be deemed to be an
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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 10.05 NOTICES. (a) The Trustee shall use its best
efforts to promptly provide notice to each Rating Agency and the Mortgage Pool
Insurer with respect to each of the following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not
been cured;
3. The resignation or termination of the Servicer, the
Trustee or the Co-Trustee and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans
pursuant to Sections 2.03, 2.07 or 3.28; and
5. The final payment to Certificateholders.
(b) In addition, the Trustee shall promptly furnish to
each Rating Agency copies of the following:
1. Each report to Certificateholders described in
Section 4.03.
2. Any notice of a purchase of a Mortgage Loan pursuant
to Section 3.28.
All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to (a) in the
case of the Depositor, to GS Mortgage Securities Corp., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Principal Finance Group/▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and Asset Management Group/Senior Asset Manager (and, in the case of the
Officer's Certificate delivered pursuant to Section 3.22, to
PricewaterhouseCoopers LLP, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇), or such other address as may be
hereafter furnished to the Trustee, the Co-Trustee and the Servicer by the
Depositor in writing; (b) in the case of Wilshire Credit, to Wilshire Credit
Corporation, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇ ▇▇▇▇▇▇▇, CEO, or such other address as may be hereafter furnished
to the Depositor, Trustee and the Co-Trustee by Wilshire Credit in writing; (c)
in the case of the Trustee, to the Corporate Trust Office, or such other address
as the Trustee may hereafter furnish to the Depositor, the Co-Trustee and the
Servicer, (d) in the case of the Co-Trustee, Wachovia
119
Bank, National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ 1328,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance Trust
Services/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, or such other address as the Co-Trustee may
hereafter furnish to the Trustee, the Depositor and the Servicer, (e) in the
case of the Responsible Party, NC Capital Corporation, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇, Executive Vice
President, or such other address as the Responsible Party may hereafter furnish
to the Depositor, the Trustee, the Co-Trustee and the Servicer, (f) in the case
of the Mortgage Pool Insurer, the address specified in the Mortgage Pool
Insurance Policy, or such other address as the Mortgage Pool Insurer may
hereafter furnish to the Trustee, the Co-Trustee, the Depositor and the Servicer
and (g) 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 10.06 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 10.07 ASSIGNMENT; SALES; ADVANCE FACILITIES. (a)
Notwithstanding anything to the contrary contained herein, except as provided in
Section 6.04, this Agreement may be assigned by the Servicer with the prior
written consent of the Depositor, and the Trustee. In addition, for so long as
the Servicer is acting as the Servicer hereunder (i) the Servicer is hereby
authorized to enter into an advance facility ("Advance Facility") under which
(A) the Servicer sells, assigns or pledges to an Advancing Person the Servicer's
rights under this Agreement to be reimbursed for any P&I Advances or Servicing
Advances and/or (B) an Advancing Person agrees to fund some or all P&I Advances
or Servicing Advances required to be made by the Servicer pursuant to this
Agreement and (ii) the Servicer is hereby authorized to assign its rights to the
Servicing Fee; it being understood neither the Trust Fund nor any party hereto
shall have a right or claim to an Advance Reimbursement Amount so assigned or to
the portion of the Servicing Fee so assigned; it being further understood that
upon resignation or termination of the Servicer and reimbursement of all amounts
due to the Servicer hereunder, the assignment of further Advance reimbursement
rights to such Advance Facility (in the case of clause (i)) and such assignment
(in the case of clause (ii)) shall be terminated with respect to amounts due
related to this Agreement. No consent of the Trustee, Certificateholders, or any
other party is required before the Servicer may enter into an Advance Facility.
Notwithstanding the existence of any Advance Facility under which an Advancing
Person agrees to fund P&I Advances and/or Servicing Advances on the Servicer's
behalf, the Servicer shall remain obligated pursuant to this Agreement to make
P&I Advances and Servicing Advances pursuant to and as required by this
Agreement, and shall not be relieved of such obligations by virtue of such
Advance Facility.
(b) For purposes of this Section 10.07, advance
reimbursement amounts that may be assigned under this Section 10.07 ("Advance
Reimbursement Amounts") shall consist
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solely of amounts in respect of P&I Advances and/or Servicing Advances made with
respect to the Mortgage Loans for which the Servicer would be permitted to
reimburse itself in accordance with this Agreement, assuming the Servicer had
made the related P&I Advance(s) and/or Servicing Advance(s).
(c) Notwithstanding the foregoing, and for the avoidance
of doubt, for purposes of this Section 10.07 (i) the Servicer shall only be
entitled to reimbursement of Advance Reimbursement Amounts hereunder from
withdrawals from the Collection Account pursuant to Section 3.11 of this
Agreement and shall not otherwise be entitled to make withdrawals of, or
receive, amounts that shall be deposited in the Distribution Account pursuant to
Sections 3.11(a)(i) and 3.27(b) hereof, and (ii) none of the Trustee or the
Certificateholders shall have any right to, or otherwise be entitled to, receive
any Advance Reimbursement Amounts to which the Servicer shall be entitled
pursuant to Section 3.11 hereof. An Advance Facility may be terminated by the
joint written direction of the Servicer and the related Advancing Person.
Written notice of such termination shall be delivered to the Trustee in the
manner set forth in Section 10.05 hereof. None of the Depositor or the Trustee
shall, as a result of the existence of any Advance Facility, have any additional
duty or liability with respect to the calculation or payment of any Advance
Reimbursement Amount, nor, as a result of the existence of any Advance Facility,
shall the Depositor or the Trustee have any additional responsibility to track
or monitor the administration of the Advance Facility or the payment of Advance
Reimbursement Amounts to the Advancing Person. The Servicer shall indemnify the
Depositor, the Trustee, any successor Servicer and the Trust Fund for any claim,
loss, liability or damage resulting from any claim by the related Advancing
Person, except to the extent that such claim, loss, liability or damage resulted
from or arose out of negligence, recklessness or willful misconduct on the part
of the Depositor, the Trustee or any successor Servicer, as the case may be, or
with respect to any successor Servicer, failure by the successor Servicer to
remit funds as required by this Agreement. The Servicer shall maintain and
provide to any successor Servicer a detailed accounting on a loan-by-loan basis
as to amounts advanced by, pledged or assigned to, and reimbursed to any
Advancing Person. The successor Servicer shall be entitled to rely on any such
information provided by the predecessor Servicer, and the successor Servicer
shall not be liable for any errors in such information.
(d) An Advancing Person who purchases or receives an
assignment or pledge of the rights to be reimbursed for P&I Advances and/or
Servicing Advances, and/or whose obligations hereunder are limited to the
funding of P&I Advances and/or Servicing Advances shall not be required to meet
the criteria for qualification of a Subservicer set forth in this Agreement.
(e) Advance Reimbursement Amounts distributed with
respect to each Mortgage Loan shall be allocated to outstanding ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇
Advances or Servicing Advances (as the case may be) made with respect to that
Mortgage Loan on a "first-in, first out" (FIFO) basis. Such documentation shall
also require the Servicer to provide to the related Advancing Person or its
designee loan-by-loan information with respect to each such Advance
Reimbursement Amount distributed to such Advancing Person or Advance Facility
trustee on each Distribution Date, to enable the Advancing Person or Advance
Facility trustee to make the FIFO allocation of each such Advance Reimbursement
Amount with respect to each Mortgage
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Loan. The Servicer shall remain entitled to be reimbursed by the Advancing
Person or Advance Facility trustee for all P&I Advances and Servicing Advances
funded by the Servicer to the extent the related rights to be reimbursed
therefor have not been sold, assigned or pledged to an Advancing Person.
(f) Any amendment to this Section 10.07 or to any other
provision of this Agreement that may be necessary or appropriate to effect the
terms of an Advance Facility as described generally in this Section 10.07,
including amendments to add provisions relating to a successor Servicer, may be
entered into by the Trustee, the Depositor and the Servicer without the consent
of any Certificateholder, notwithstanding anything to the contrary in this
Agreement, provided, that the Trustee has been provided an Opinion of Counsel
that such amendment has no material adverse effect on the Certificateholders
which opinion shall be an expense of the Servicer entering into the Advance
Facility but in any case shall not be an expense of the Trustee or the Trust
Fund; 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
(instead of obtaining an Opinion of Counsel) 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
rating 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. Prior to entering into an Advance
Facility, the Servicer shall notify the lender under such facility in writing
that: (a) the Advances financed by and/or pledged to the lender are obligations
owed to the Servicer on a non-recourse basis payable only from the cash flows
and proceeds received under this Agreement for reimbursement of Advances only to
the extent provided herein, and the Trustee and the Trust are not otherwise
obligated or liable to repay any Advances financed by the lender; (b) the
Servicer will be responsible for remitting to the lender the applicable amounts
collected by it as reimbursement for Advances funded by the lender, subject to
the restrictions and priorities created in this Agreement; and (c) the Trustee
shall not have any responsibility to track or monitor the administration of the
financing arrangement between the Servicer and the lender.
Section 10.08 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS. The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
122
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 10.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 10.09 INSPECTION AND AUDIT RIGHTS. The Servicer agrees
that, on reasonable prior notice, it will permit any representative of the
Depositor, the Mortgage Pool Insurer or the Trustee during the Servicer's normal
business hours, to examine all the books of account, records, reports and other
papers of the Servicer relating to the Mortgage Loans, to make copies and
extracts therefrom, to cause such books to be audited by independent certified
public accountants selected by the Depositor, the Mortgage Pool Insurer or the
Trustee and to discuss its affairs, finances and accounts relating to the
Mortgage Loans with its officers, employees and independent public accountants
(and by this provision the Servicer hereby authorizes said accountants to
discuss with such representative such affairs, finances and accounts), all at
such reasonable times and as often as may be reasonably requested. Any
reasonable out-of-pocket expense of the Servicer incident to the exercise by the
Depositor, the Mortgage Pool Insurer or the Trustee of any right under this
Section 10.09 shall be borne by the party making the request. The Servicer may
impose commercially reasonable restrictions on dissemination of information the
Servicer defines as confidential.
Nothing in this Section 10.09 shall limit the obligation of
the Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of the Servicer to provide access as
provided in this Section as a result of such obligation shall not constitute a
breach of this Section. Nothing in this Section 10.09 shall require the Servicer
to collect, create, collate or otherwise generate any information that it does
not generate in its usual course of business. The Servicer shall not be required
to make copies of or to ship documents to any Person who is not a party to this
Agreement, and then only if provisions have been made for the reimbursement of
the costs thereof.
Section 10.10 CERTIFICATES NONASSESSABLE AND FULLY PAID. It is
the intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund,
123
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 10.11 THIRD PARTY BENEFICIARY. The Mortgage Pool
Insurer shall be an express third-party beneficiary of Section 2.03 of this
Agreement, entitled to enforce the provisions thereof as if a party hereto.
Section 10.12 WAIVER OF JURY TRIAL. EACH PARTY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY
APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING
UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE
TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
Section 10.13 LIMITATION OF DAMAGES. NOTWITHSTANDING ANYTHING
CONTAINED HEREIN TO THE CONTRARY, THE PARTIES AGREE THAT NO PARTY SHALL BE
LIABLE TO ANY OTHER PARTY FOR ANY PUNITIVE DAMAGES WHATSOEVER, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL
OR EQUITABLE PRINCIPLE, PROVIDED, HOWEVER, THAT SUCH LIMITATION SHALL NOT BE
APPLICABLE WITH RESPECT TO THIRD PARTY CLAIMS MADE AGAINST A PARTY.
* * * * * * *
124
IN WITNESS WHEREOF, the Depositor, the Trustee, the
Responsible Party and the Servicer have caused their names to be signed hereto
by their respective officers thereunto duly authorized as of the day and year
first above written.
GS MORTGAGE SECURITIES CORP.,
as Depositor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
solely as Trustee and not in its individual capacity
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Trustee
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
NC CAPITAL CORPORATION,
as Responsible Party
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President
WILSHIRE CREDIT CORPORATION,
as Servicer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
SCHEDULE I
Mortgage Loan Schedule
S-I-1
SCHEDULE II
GSAMP Mortgage Loan Trust 2005-S1,
Mortgage Pass-Through Certificates
Representations and Warranties of Wilshire Credit Corporation,
as Servicer
Wilshire Credit Corporation ("Wilshire Credit") hereby makes
the representations and warranties set forth in this Schedule II to the
Depositor, and the Trustee, as of the Closing Date, or if so specified herein,
as of the Cut-off Date:
(1) Wilshire Credit is duly organized as a corporation
and is validly existing and in good standing under the laws of the State of
Nevada, and is licensed and qualified to transact any and all business
contemplated by this Pooling and Servicing Agreement to be conducted by Wilshire
Credit in any state in which a Mortgaged Property is located or is otherwise not
required under applicable law to effect such qualification and, in any event, is
in compliance with the doing business laws of any such State, to the extent
necessary to ensure its ability to enforce each Mortgage Loan and to service
each Mortgage Loan in accordance with the terms of this Pooling and Servicing
Agreement;
(2) Wilshire Credit has the full power and authority to
service each Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by this Pooling and Servicing
Agreement and has duly authorized by all necessary action on the part of
Wilshire Credit the execution, delivery and performance of this Pooling and
Servicing Agreement; and this Pooling and Servicing Agreement, assuming the due
authorization, execution and delivery thereof by the Depositor, the Responsible
Party and the Trustee, constitutes a legal, valid and binding obligation of
Wilshire Credit, enforceable against Wilshire Credit in accordance with its
terms, except to the extent that (a) the enforceability thereof may be limited
by bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(3) The execution and delivery of this Pooling and
Servicing Agreement by Wilshire Credit, the servicing of the Mortgage Loans by
Wilshire Credit hereunder, the consummation by Wilshire Credit of any other of
the transactions herein contemplated, and the fulfillment of or compliance with
the terms hereof are in the ordinary course of business of Wilshire Credit and
will not (A) result in a breach of any term or provision of the organizational
documents of Wilshire Credit or (B) conflict with, result in a breach, violation
or acceleration of, or result in a default under, the terms of any other
material agreement or instrument to which Wilshire Credit is a party or by which
it may be bound, or any statute, order or regulation applicable to Wilshire
Credit of any court, regulatory body, administrative agency or governmental body
having jurisdiction over Wilshire Credit; and Wilshire Credit is not a party to,
bound by, or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and
S-II-1
adversely affects or, to Wilshire Credit's knowledge, would in the future
materially and adversely affect, (x) the ability of Wilshire Credit to perform
its obligations under this Pooling and Servicing Agreement or (y) the business,
operations, financial condition, properties or assets of Wilshire Credit taken
as a whole;
(4) Wilshire Credit is an approved seller/servicer for
▇▇▇▇▇▇ ▇▇▇ and an approved servicer for ▇▇▇▇▇▇▇ Mac in good standing;
(5) No litigation is pending against Wilshire Credit that
would materially and adversely affect the execution, delivery or enforceability
of this Pooling and Servicing Agreement or the ability of Wilshire Credit to
service the Mortgage Loans or to perform any of its other obligations hereunder
in accordance with the terms hereof;
(6) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery and
performance by Wilshire Credit of, or compliance by Wilshire Credit with, this
Pooling and Servicing Agreement or the consummation by Wilshire Credit of the
transactions contemplated by this Pooling and Servicing Agreement, except for
such consents, approvals, authorizations or orders, if any, that have been
obtained prior to the Closing Date; and
(7) Wilshire Credit covenants that its computer and other
systems used in servicing the Mortgage Loans operate in a manner such that
Wilshire Credit can service the Mortgage Loans in accordance with the terms of
this Pooling and Servicing Agreement.
With respect to each Mortgage Loan, to the extent Wilshire
Credit serviced such Mortgage Loan and to the extent Wilshire Credit provided
monthly reports to the three credit repositories, Wilshire Credit has fully
furnished, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and unfavorable)
on its borrower credit files to Equifax, Experian, and Trans Union Credit
Information Company (three of the credit repositories), on a monthly basis.
S-II-2
SCHEDULE III
GSAMP Mortgage Loan Trust 2005-S1,
Mortgage Pass-Through Certificates
Representations and Warranties of the Responsible Party as to
the Individual Mortgage Loans
The Responsible Party hereby makes the representations and
warranties set forth in this Schedule IV as to the individual Mortgage Loans
only to the Depositor, ▇▇▇▇▇▇, New Century and the Trustee, as of the Closing
Date (or such other date as may be expressly set forth below):
(1) MORTGAGE LOANS AS DESCRIBED. The Responsible Party
has delivered to the Purchaser the Data Tape Information and that Data Tape
Information is true and correct, including, without limitation, the terms of the
Prepayment Penalties, if any, as of the Cut-off Date;
(2) PAYMENTS CURRENT. All payments required to be made up
to the related Cut-off Date for the Mortgage Loan under the terms of the
Mortgage Note, other than payments not yet 30 days delinquent, have been made
and credited;
(3) NO OUTSTANDING CHARGES. There are no defaults in
complying with the terms of the Mortgage, and all taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges, leasehold
payments or ground rents which previously became due and owing have been paid,
or an escrow of funds has been established in an amount sufficient to pay for
every such item which remains unpaid and which has been assessed but is not yet
due and payable. The Responsible Party has not advanced funds, or induced,
solicited or knowingly received any advance of funds by a party other than the
Mortgagor, directly or indirectly, for the payment of any amount required under
the Mortgage Loan, except for interest accruing from the date of the Mortgage
Note or date of disbursement of the Mortgage Loan proceeds, whichever is
earlier, to the day which precedes by one month the Due Date of the first
Scheduled Payment;
(4) ORIGINAL TERMS UNMODIFIED. The terms of the Mortgage
Note and Mortgage have not been impaired, waived, altered or modified in any
respect from the date of origination, except by a written instrument which has
been recorded, if necessary to protect the interests of the Purchaser, and which
has been delivered to the Trustee and the terms of which are reflected in the
Mortgage Loan Schedule, the Data Tape Information or included in the Mortgage
File. No Mortgage Loan has been modified so as to restructure the payment
obligations or re-age the Mortgage Loan. The substance of any such waiver,
alteration or modification has been approved by the title insurer, if any, to
the extent required by the policy, and its terms are reflected on the Mortgage
Loan Schedule. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement, approved by the title insurer, to the
extent required by the policy, and which assumption agreement is part of the
Mortgage Loan File delivered to the Trustee and the terms of which are reflected
in the Mortgage Loan Schedule and the Data Tape Information;
S-III-1
(5) NO DEFENSES. The Mortgage Loan is not subject to any
right of rescission, set-off, counterclaim or defense, including, without
limitation, the defense of usury, nor will the operation of any of the terms of
the Mortgage Note or the Mortgage, or the exercise of any right thereunder,
render either the Mortgage Note or the Mortgage unenforceable, in whole or in
part, or subject to any right of rescission, set-off, counterclaim or defense,
including without limitation the defense of usury, and no such right of
rescission, set-off, counterclaim or defense has been asserted with respect
thereto, and no Mortgagor was a debtor in any state or Federal bankruptcy or
insolvency proceeding at the time the Mortgage Loan was originated;
(6) HAZARD INSURANCE. Pursuant to the terms of the
Mortgage, all buildings or other improvements upon the Mortgaged Property are
insured by a generally acceptable insurer against loss by fire, hazards of
extended coverage and such other hazards as are provided for in the ▇▇▇▇▇▇ Mae
Guides or by ▇▇▇▇▇▇▇ Mac, as well as all additional requirements set forth in
Section 3.13 of the Pooling and Servicing Agreement. If required by the National
Flood Insurance Act of 1968, as amended, each Mortgage Loan is covered by a
flood insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration is in effect which policy conforms to ▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇ Mac, as well as all additional requirements set forth in Section
3.13 of the Pooling and Servicing Agreement. All individual insurance policies
contain a standard mortgagee clause naming the Responsible Party and its
successors and assigns as mortgagee, and all premiums thereon have been paid.
The Mortgage obligates the Mortgagor thereunder to maintain the hazard insurance
policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to obtain and maintain such insurance
at such Mortgagor's cost and expense, and to seek reimbursement therefor from
the Mortgagor. Where required by state law or regulation, the Mortgagor has been
given an opportunity to choose the carrier of the required hazard insurance,
provided the policy is not a "master" or "blanket" hazard insurance policy
covering a condominium, or any hazard insurance policy covering the common
facilities of a planned unit development. The hazard insurance policy is the
valid and binding obligation of the insurer, is in full force and effect, and
will be in full force and effect and inure to the benefit of the Trustee on the
Closing Date. The Responsible Party has not engaged in, and has no knowledge of
the Mortgagor or any servicer having engaged in, any act or omission which would
impair the coverage of any such policy, the benefits of the endorsement provided
for herein, or the validity and binding effect of such policy, without
limitation, no unlawful fee, commission, kickback or other unlawful compensation
or value of any kind has been or will be received, retained or realized by any
attorney, firm or other person or entity, and no such unlawful items have been
received, retained or realized by the Responsible Party;
(7) COMPLIANCE WITH APPLICABLE LAWS. Any and all
requirements of any federal, state or local law, including, without limitation,
usury, truth-in-lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity and disclosure laws, all applicable
predatory lending and abusive lending laws or unfair and deceptive practices
laws applicable to the Mortgage Loan, including, without limitation, any
provisions relating to Prepayment Premiums have been complied with, the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations, and the
S-III-2
Responsible Party shall maintain in its possession, available for the
Purchaser's inspection, and shall deliver to the Purchaser upon demand, evidence
of compliance with all such requirements;
(8) NO SATISFACTION OF MORTGAGE. The Mortgage has not
been satisfied, cancelled, subordinated or rescinded, in whole or in part, and
the Mortgaged Property has not been released from the lien of the Mortgage, in
whole or in part, nor has any instrument been executed that would effect any
such release, cancellation, subordination or rescission. The Responsible Party
has not waived the performance by the Mortgagor of any action, if the
Mortgagor's failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Responsible Party waived any default resulting from any
action or inaction by the Mortgagor;
(9) LOCATION AND TYPE OF MORTGAGED PROPERTY. The
Mortgaged Property is located in the state identified in the Mortgage Loan
Schedule and consists of real property with a detached single family residence
erected thereon, or a two- to four-family dwelling, or an individual condominium
unit in a low rise condominium project, or an individual unit in a planned unit
development or a de minimis planned unit development which is in each case four
stories or less; PROVIDED, HOWEVER, that any mobile home (double wide only) or
manufactured dwelling shall conform with the applicable ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇
Mac requirements regarding such dwellings and that no Mortgage Loan is secured
by a single parcel of real property with a cooperative housing corporation, a
log home or, a mobile home erected thereon or by a mixed use property, a
property in excess of 10 acres or other unique property types. As of the date of
origination, no portion of the Mortgaged Property was used for commercial
purposes, and since the date of origination, no portion of the Mortgaged
Property has been used for commercial purposes; PROVIDED, that Mortgaged
Properties which contain a home office shall not be considered as being used for
commercial purposes as long as the Mortgaged Property has not been altered for
commercial purposes and is not storing any chemicals or raw materials other than
those commonly used for homeowner repair, maintenance and/or household purposes.
With respect to any Mortgage Loan secured by a Mortgaged Property improved by
manufactured housing, (i) the related manufactured housing unit is permanently
affixed to the land, and (ii) the related manufactured housing unit and the
related land are subject to a Mortgage properly filed in the appropriate public
recording office and naming the Responsible Party as mortgagee;
(10) VALID SECOND LIEN. The Mortgage is a valid,
subsisting, enforceable and perfected first or second lien (as applicable) on
the Mortgaged Property, including all buildings and improvements on the
Mortgaged Property and all installations and mechanical, electrical, plumbing,
heating and air conditioning systems located in or annexed to such buildings,
and all additions, alterations and replacements made at any time with respect to
the foregoing. The lien of the Mortgage is subject only to:
(a) the lien of current real property taxes and
assessments not yet due and payable;
(b) covenants, conditions and restrictions,
rights of way, easements and other matters of the public
record as of the date of recording acceptable to prudent
mortgage lending institutions generally and specifically
referred to in the
S-III-3
lender's title insurance policy delivered to the originator of
the Mortgage Loan and (a) specifically referred to or
otherwise considered in the appraisal made for the originator
of the Mortgage Loan or (b) which do not adversely affect the
Appraised Value of the Mortgaged Property set forth in such
appraisal; and
(c) other matters to which like properties are
commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the
Mortgage or the use, enjoyment, value or marketability of the
related Mortgaged Property; and
(d) the lien of the first mortgage on the
Mortgaged Property.
Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, subsisting, enforceable and perfected
second lien and second priority security interest on the property
described therein and the Responsible Party has full right to sell and
assign the same to Purchaser;
(11) VALIDITY OF MORTGAGE DOCUMENTS. The Mortgage Note and
the Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its terms
(including, without limitation, any provisions therein relating to Prepayment
Premiums). All parties to the Mortgage Note, the Mortgage and any other such
related agreement had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note, the Mortgage and any such agreement, and
the Mortgage Note, the Mortgage and any other such related agreement have been
duly and properly executed by other such related parties. No fraud, error,
omission, misrepresentation, negligence or similar occurrence with respect to a
Mortgage Loan has taken place on the part of any Person, including without
limitation, the Mortgagor, any appraiser, any builder or developer, or any other
party involved in the origination or servicing of the Mortgage Loan. The
Responsible Party has reviewed all of the documents constituting the Servicing
File and has made such inquiries as it deems necessary to make and confirm the
accuracy of the representations set forth herein;
(12) FULL DISBURSEMENT OF PROCEEDS. The Mortgage Loan has
been closed and the proceeds of the Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder, and any and all
requirements as to completion of any on-site or off-site improvement and as to
disbursements of any escrow funds therefor have been complied with. All costs,
fees and expenses incurred in making or closing the Mortgage Loan and the
recording of the Mortgage were paid, and the Mortgagor is not entitled to any
refund of any amounts paid or due under the Mortgage Note or Mortgage;
(13) OWNERSHIP. Immediately prior to the transfer
contemplated by the Purchase Agreement, the Responsible Party was the sole owner
of record and holder of the Mortgage Loan and the indebtedness evidenced by each
Mortgage Note. The Mortgage Loan
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was not assigned or pledged, and the Responsible Party had good, indefeasible
and marketable title thereto, and has full right to transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest, and
has full right and authority subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Mortgage Loan pursuant
to the Purchase Agreement and following the sale of each Mortgage Loan, the
Purchaser will own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest;
(14) DOING BUSINESS. All parties which have had any
interest in the Mortgage Loan, whether as mortgagee, assignee, pledgee or
otherwise, are (or, during the period in which they held and disposed of such
interest, were) (1) in compliance with any and all applicable licensing
requirements of the laws of the state wherein the Mortgaged Property is located,
and (2) either (i) organized under the laws of such state, or (ii) qualified to
do business in such state, or (iii) a federal savings and loan association, a
savings bank or a national bank having a principal office in such state, or (3)
not doing business in such state;
(15) CLTV. No Mortgage Loan has a CLTV in excess of 100%;
(16) TITLE INSURANCE. The Mortgage Loan is covered by an
ALTA lender's title insurance policy, or with respect to any Mortgage Loan for
which the related Mortgaged Property is located in California a CLTA lender's
title insurance policy, or other generally acceptable form of policy or
insurance acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac and each such title insurance
policy is issued by a title insurer acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and
qualified to do business in the jurisdiction where the Mortgaged Property is
located, insuring the Responsible Party, its successors and assigns, as to the
first priority lien (with respect to First Lien Mortgage Loans) or second
priority lien (with respect to Second Lien Mortgage Loans) of the Mortgage in
the original principal amount of the Mortgage Loan, subject only to the
exceptions contained in clauses (a), (b), (c) and (d) of representation 10 of
this Schedule IV. Where required by state law or regulation, the Mortgagor has
been given the opportunity to choose the carrier of the required mortgage title
insurance. Additionally, such lender's title insurance policy affirmatively
insures ingress and egress, and against encroachments by or upon the Mortgaged
Property or any interest therein. The title policy does not contain any special
exceptions (other than the standard exclusions) for zoning and uses and has been
marked to delete the standard survey exceptions or to replace the standard
survey exception with a specific survey reading. The Responsible Party, its
successors and assigns, are the sole insureds of such lender's title insurance
policy, and such lender's title insurance policy is valid and remains in full
force and effect and will be in force and effect upon the consummation of the
transactions contemplated by this Agreement. No claims have been made under such
lender's title insurance policy, and no prior holder of the related Mortgage,
including the Responsible Party, has done, by act or omission, anything which
would impair the coverage of such lender's title insurance policy, including,
without limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other person or entity, and no such unlawful
items have been received, retained or realized by the Responsible Party;
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(17) NO DEFAULTS. There is no default, breach, violation
or event which would permit acceleration existing under the Mortgage or the
Mortgage Note and no event which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute a default, breach,
violation or event which would permit acceleration, and neither the Responsible
Party nor any of its Affiliates nor any of their respective predecessors have
waived any default, breach, violation or event which would permit acceleration.
With respect to each Mortgage Loan, (i) the prior mortgage is in full force and
effect, (ii) there is no default, breach, violation or event of acceleration
existing under such prior mortgage or the related mortgage note, (iii) no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event of
acceleration thereunder, and either (A) the prior mortgage contains a provision
which allows or (B) applicable law requires, the mortgagee under the Mortgage
Loan to receive notice of, and affords such mortgagee an opportunity to cure any
default by payment in full or otherwise under the prior mortgage;
(18) NO MECHANICS' LIENS. There are no mechanics' or
similar liens or claims which have been filed for work, labor or material (and
no rights are outstanding that under law could give rise to such liens)
affecting the related Mortgaged Property which are or may be liens prior to, or
equal or coordinate with, the lien of the related Mortgage;
(19) LOCATION OF IMPROVEMENTS; NO ENCROACHMENTS. All
improvements which were considered in determining the Appraised Value of the
Mortgaged Property lay wholly within the boundaries and building restriction
lines of the Mortgaged Property, and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or being part of
the Mortgaged Property is in violation of any applicable zoning law or
regulation;
(20) ORIGINATION; PAYMENT TERMS. Either (a) the Mortgage
Loan was originated by a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to Sections 203 and 211 of the National Housing Act,
a savings and loan association, a savings bank, a commercial bank, credit union,
insurance company or other similar institution which is supervised and examined
by a federal or state authority, or (b) the following requirements have been met
with respect to the Mortgage Loan: the Responsible Party meets the requirements
set forth in clause (a), and (i) such Mortgage Loan was underwritten in
accordance with standards established by the Responsible Party, using
application forms and related credit documents approved by the Responsible
Party, (ii) the Responsible Party approved each application and the related
credit documents before a commitment by the correspondent was issued, and no
such commitment was issued until the Responsible Party agreed to fund such
Mortgage Loan, (iii) the closing documents for such Mortgage Loan were prepared
on forms approved by the Responsible Party, and (iv) such Mortgage Loan was
actually funded by the Responsible Party and was purchased by the Responsible
Party at closing or soon thereafter. The documents, instruments and agreements
submitted for loan underwriting were not falsified and contain no untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the information and statements therein not
misleading. No Mortgage Loan contains terms or provisions which would result in
negative amortization.
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Principal payments on the Mortgage Loan commenced no more than sixty days after
funds were disbursed in connection with the Mortgage Loan. The Mortgage Interest
Rate is as set forth on Mortgage Loan Schedule hereto. All Mortgage Loans have
Due Dates on the first day of each month except as specified on the Mortgage
Loan Schedule. Each Mortgage Note is payable in equal monthly installments of
principal and/or interest, with interest calculated and payable in arrears and
is not calculated on a simple interest basis. The monthly principal payments on
each Mortgage Loan is sufficient to amortize the Mortgage Loan fully by the
stated maturity date, over an original term of not more than thirty years from
commencement of amortization. Each Mortgage Loan is payable on the first day of
each month.
(21) CUSTOMARY PROVISIONS. The Mortgage contains customary
and enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the Mortgaged Property of
the benefits of the security provided thereby, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and
foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver good
and merchantable title to the Mortgaged Property. There is no homestead or other
exemption available to a Mortgagor which would interfere with the right to sell
the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage, subject to applicable federal and state laws and judicial precedent
with respect to bankruptcy and right of redemption or similar law;
(22) OCCUPANCY OF THE MORTGAGED PROPERTY. As of the
Closing Date the Mortgaged Property is lawfully occupied under applicable law.
All inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect to
the use and occupancy of the same, including, but not limited to, certificates
of occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities;
(23) NO ADDITIONAL COLLATERAL. The Mortgage Note is not
and has not been secured by any collateral except the lien of the corresponding
Mortgage and the security interest of any applicable security agreement or
chattel mortgage, referred to in paragraph (10);
(24) DEEDS OF TRUST. In the event the Mortgage constitutes
a deed of trust, a trustee, authorized and duly qualified under applicable law
to serve as such, has been properly designated and currently so serves and is
named in the Mortgage, and no fees or expenses are or will become payable by the
Purchaser to the trustee under the deed of trust, except in connection with a
trustee's sale after default by the Mortgagor;
(25) DELIVERY OF MORTGAGE DOCUMENTS. The Mortgage Note,
the Mortgage, the Assignment of Mortgage and any other documents required to be
delivered under this Agreement for each Mortgage Loan have been delivered to the
Purchaser;
(26) TRANSFER OF MORTGAGE LOANS. The Assignment of
Mortgage is in recordable form and is acceptable for recording under the laws of
the jurisdiction in which the Mortgaged Property is located. The transfer,
assignment and conveyance of the Mortgage Notes
S-III-7
and the Mortgages by the Responsible Party are not subject to the bulk transfer
or similar statutory provisions in effect in any applicable jurisdiction;
(27) DUE-ON-SALE. With respect to each Fixed Rate Mortgage
Loan, the Mortgage contains an enforceable provision for the acceleration of the
payment of the unpaid principal balance of the Mortgage Loan in the event that
the Mortgaged Property is sold or transferred without the prior written consent
of the mortgagee thereunder, and to the best of the Responsible Party's
knowledge, such provision is enforceable;
(28) NO BUYDOWN PROVISIONS NO GRADUATED PAYMENTS OR
CONTINGENT INTERESTS. The Mortgage Loan does not contain provisions pursuant to
which Scheduled Payments are paid or partially paid with funds deposited in any
separate account established by the Responsible Party, the Mortgagor, or anyone
on behalf of the Mortgagor, or paid by any source other than the Mortgagor nor
does it contain any other similar provisions which may constitute a "buydown"
provision. The Mortgage Loan is not a graduated payment mortgage loan and the
Mortgage Loan does not have a shared appreciation or other contingent interest
feature;
(29) [RESERVED].
(30) CONSOLIDATION OF FUTURE ADVANCES. Any future advances
made to the Mortgagor prior to the Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first or second lien priority (as applicable) by a title
insurance policy, an endorsement to the policy insuring the mortgagee's
consolidated interest or by other title evidence acceptable to ▇▇▇▇▇▇ ▇▇▇ and
▇▇▇▇▇▇▇ Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(31) MORTGAGED PROPERTY UNDAMAGED; NO CONDEMNATION
PROCEEDINGS. There is no proceeding pending or threatened for the total or
partial condemnation of the Mortgaged Property. The Mortgaged Property is
undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
tornado or other casualty so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the premises
were intended and each Mortgaged Property is in good repair. There have not been
any condemnation proceedings with respect to the Mortgaged Property and the
Responsible Party has no knowledge of any such proceedings in the future;
(32) COLLECTION PRACTICES; ESCROW PAYMENTS. The
origination, servicing and collection practices used by the Servicer, the
Responsible Party and its Affiliates and any prior servicer with respect to the
Mortgage Loan have been in all respects in compliance with Accepted Servicing
Practices, applicable laws and regulations, and have been in all respects legal
and proper and prudent in the mortgage origination and servicing business. With
respect to escrow deposits and Escrow Payments, if any, all such payments are in
the possession of, or under the control of, the Servicer or the Responsible
Party and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been
S-III-8
made. All Escrow Payments have been collected in full compliance with state and
federal law and the provisions of the related Mortgage Note and Mortgage. An
escrow of funds is not prohibited by applicable law and has been established in
an amount sufficient to pay for every item that remains unpaid and has been
assessed but is not yet due and payable. No escrow deposits or Escrow Payments
or other charges or payments due to the Responsible Party have been capitalized
under the Mortgage or the Mortgage Note. The Responsible Party and its
Affiliates executed and delivered any and all notices required under applicable
law and the terms of the related Mortgage Note and Mortgage regarding the
Mortgage Interest Rate and the Scheduled Payment adjustments. Any interest
required to be paid pursuant to state, federal and local law has been properly
paid and credited;
(33) [RESERVED].
(34) OTHER INSURANCE POLICIES. No action, inaction or
event has occurred and no state of facts exists or has existed that has resulted
or will result in the exclusion from, denial of, or defense to coverage under
any applicable special hazard insurance policy or bankruptcy bond, irrespective
of the cause of such failure of coverage. In connection with the placement of
any such insurance, no commission, fee, or other compensation has been or will
be received by the Responsible Party or by any officer, director, or employee of
the Responsible Party or any designee of the Responsible Party or any
corporation in which the Responsible Party or any officer, director, or employee
had a financial interest at the time of placement of such insurance;
(35) NO VIOLATION OF ENVIRONMENTAL LAWS. The Mortgaged
Property is free from any and all toxic or hazardous substances and there exists
no violation of any local, state or federal environmental law, rule or
regulation. There is no pending action or proceeding directly involving the
Mortgaged Property in which compliance with any environmental law, rule or
regulation is an issue; there is no violation of any environmental law, rule or
regulation with respect to the Mortgaged Property; and nothing further remains
to be done to satisfy in full all requirements of each such law, rule or
regulation constituting a prerequisite to use and enjoyment of said property;
(36) SERVICEMEMBERS CIVIL RELIEF ACT. The Mortgagor has
not notified the Responsible Party, and the Responsible Party has no knowledge
of any relief requested or allowed to the Mortgagor under the Servicemembers
Civil Relief Act;
(37) APPRAISAL. The Mortgage File contains an appraisal of
the related Mortgaged Property signed by a qualified appraiser, acceptable to
the Responsible Party, who had no interest, direct or indirect in the Mortgaged
Property or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan, and the
appraisal and appraiser both satisfy the requirements of ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac and Title XI of the Financial Institutions Reform, Recovery, and Enforcement
Act of 1989 and the regulations promulgated thereunder, all as in effect on the
date the Mortgage Loan was originated;
S-III-9
(38) DISCLOSURE MATERIALS. The Mortgagor has executed a
statement to the effect that the Mortgagor has received all disclosure materials
required by, and the Responsible Party has complied with all applicable law with
respect to the making of the Mortgage Loans;
(39) CONSTRUCTION OR REHABILITATION OF MORTGAGED PROPERTY.
No Mortgage Loan was made in connection with the construction or rehabilitation
of a Mortgaged Property or facilitating the trade-in or exchange of a Mortgaged
Property;
(40) VALUE OF MORTGAGED PROPERTY. The Responsible Party
has no knowledge of any circumstances existing that could reasonably be expected
to adversely affect the value or the marketability of any Mortgaged Property or
Mortgage Loan or to cause the Mortgage Loans to prepay during any period
materially faster or slower than similar mortgage loans held by the Responsible
Party generally secured by properties in the same geographic area as the related
Mortgaged Property;
(41) NO DEFENSE TO INSURANCE COVERAGE. The Responsible
Party has caused or will cause to be performed any and all acts required to
preserve the rights and remedies of the Purchaser in any insurance policies
applicable to the Mortgage Loans including, without limitation, any necessary
notifications of insurers, assignments of policies or interests therein, and
establishments of coinsured, joint loss payee and mortgagee rights in favor of
the Purchaser. No action has been taken or failed to be taken, no event has
occurred and no state of facts exists or has existed on or prior to the Closing
Date (whether or not known to the Responsible Party on or prior to such date)
which has resulted or will result in an exclusion from, denial of, or defense to
coverage under any primary mortgage insurance (including, without limitation,
any exclusions, denials or defenses which would limit or reduce the availability
of the timely payment of the full amount of the loss otherwise due thereunder to
the insured) whether arising out of actions, representations, errors, omissions,
negligence, or fraud of the Responsible Party, the related Mortgagor or any
party involved in the application for such coverage, including the appraisal,
plans and specifications and other exhibits or documents submitted therewith to
the insurer under such insurance policy, or for any other reason under such
coverage, but not including the failure of such insurer to pay by reason of such
insurer's breach of such insurance policy or such insurer's financial inability
to pay;
(42) ESCROW ANALYSIS. With respect to each Mortgage, the
Responsible Party or its Affiliate has within the last twelve months (unless
such Mortgage was originated within such twelve month period) analyzed the
required Escrow Payments for each Mortgage and adjusted the amount of such
payments so that, assuming all required payments are timely made, any deficiency
will be eliminated on or before the first anniversary of such analysis, or any
overage will be refunded to the Mortgagor, in accordance with RESPA and any
other applicable law;
(43) PRIOR SERVICING. Each Mortgage Loan has been serviced
in strict compliance with Accepted Servicing Practices;
(44) CREDIT INFORMATION. As to each consumer report (as
defined in the Fair Credit Reporting Act, Public Law 91-508) or other credit
information furnished by the
S-III-10
Responsible Party to the Purchaser, that the Responsible Party has full right
and authority and is not precluded by law or contract from furnishing such
information to the Purchaser. The Responsible Party has or has caused the
related servicer to, for each Mortgage Loan, fully furnish, in accordance with
the Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (e.g., favorable and unfavorable) on its borrower credit
files to Equifax, Experian and Trans Union Credit Information Company (three of
the credit repositories), on a monthly basis;
(45) LEASEHOLDS. If the Mortgage Loan is secured by a
long-term residential lease, (1) the lessor under the lease holds a fee simple
interest in the land; (2) the terms of such lease expressly permit the
mortgaging of the leasehold estate, the assignment of the lease without the
lessor's consent and the acquisition by the holder of the Mortgage of the rights
of the lessee upon foreclosure or assignment in lieu of foreclosure or provide
the holder of the Mortgage with substantially similar protections; (3) the terms
of such lease do not (a) allow the termination thereof upon the lessee's default
without the holder of the Mortgage being entitled to receive written notice of,
and opportunity to cure, such default, (b) allow the termination of the lease in
the event of damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving proceeds of
insurance) under the hazard insurance policy or policies relating to the
Mortgaged Property or (d) permit any increase in rent other than pre-established
increases set forth in the lease; (4) the original term of such lease is not
less than 15 years; (5) the term of such lease does not terminate earlier than
five years after the maturity date of the Mortgage Note; and (6) the Mortgaged
Property is located in a jurisdiction in which the use of leasehold estates in
transferring ownership in residential properties is a generally accepted
practice;
(46) PREPAYMENT PENALTY. Each Mortgage Loan is subject to
a Prepayment Penalty as provided in the related Mortgage Note unless otherwise
indicated on the Mortgage Loan Schedule. With respect to each Mortgage Loan that
has a prepayment penalty feature, each such prepayment penalty is enforceable
and has been enforced by the Responsible Party for the benefit of the Purchaser,
and each prepayment penalty is permitted pursuant to federal, state and local
law. Each such prepayment penalty is in an amount equal to the maximum amount
permitted under applicable law and no such prepayment penalty may be imposed for
a term in excess of five (5) years. With respect to any Mortgage Loan that
contains a provision permitting imposition of a premium upon a prepayment prior
to maturity: (i) prior to the loan's origination, the borrower agreed to such
premium in exchange for a monetary benefit, including but not limited to a rate
or fee reduction, (ii) prior to the loan's origination, the borrower was offered
the option of obtaining a mortgage loan that did not require payment of such a
premium, (iii) the prepayment premium is disclosed to the borrower in the loan
documents pursuant to applicable state and federal law, and (iv) notwithstanding
any state or federal law to the contrary, the Servicer shall not impose such
prepayment premium in any instance when the mortgage debt is accelerated as the
result of the borrower's default in making the loan payments;
(47) PREDATORY LENDING REGULATIONS. No Mortgage Loan is a
High Cost Mortgage Loan. No predatory or deceptive lending practices, including,
without limitation, the extension of credit without regard to the ability of the
Mortgagor to repay and the extension of
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credit which has no apparent benefit to the Mortgagor, were employed in the
origination of the Mortgage Loan;
(48) SINGLE-PREMIUM CREDIT LIFE INSURANCE POLICY. In
connection with the origination of any Mortgage Loan, no proceeds from any
Mortgage Loan were used to finance a single-premium credit life insurance
policy;
(49) TAX SERVICE CONTRACT; FLOOD CERTIFICATION CONTRACT.
Each Mortgage Loan is covered by a paid in full, life of loan, tax service
contract and a paid in full, life of loan, flood certification contract and each
of these contracts is assignable to the Purchaser;
(50) QUALIFIED MORTGAGE. The Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code;
(51) REGARDING THE MORTGAGOR. The Mortgagor is one or more
natural persons and/or trustees for an Illinois land trust or a trustee under a
"living trust" and such "living trust" is in compliance with ▇▇▇▇▇▇ Mae
guidelines for such trusts;
(52) RECORDATION. Each original Mortgage was recorded and
all subsequent assignments of the original Mortgage (other than the assignment
to the Purchaser) have been recorded in the appropriate jurisdictions wherein
such recordation is necessary to perfect the lien thereof as against creditors
of the Responsible Party, or is in the process of being recorded;
(53) FICO SCORES. Each Mortgagor has a non-zero FICO
score. No Mortgage Loan has a Mortgagor with a FICO score of less than 500; and
(54) COMPLIANCE WITH ANTI-MONEY LAUNDERING LAWS. The
Responsible Party has complied with all applicable anti-money laundering laws
and regulations, including without limitation the USA Patriot Act of 2001
(collectively, the "ANTI-MONEY LAUNDERING LAWS"); the Responsible Party has
established an anti-money laundering compliance program as required by the
Anti-Money Laundering Laws, has conducted the requisite due diligence in
connection with the origination of each Mortgage Loan for purposes of the
Anti-Money Laundering Laws, including with respect to the legitimacy of the
applicable Mortgagor and the origin of the assets used by the said Mortgagor to
purchase the property in question, and maintains, and will maintain, sufficient
information to identify the applicable Mortgagor for purposes of the Anti-Money
Laundering Laws.
(55) CONFORMANCE WITH AGENCY AND UNDERWRITING GUIDELINES.
The Mortgage Loan was underwritten in accordance with the Underwriting
Guidelines. The Mortgage Note and Mortgage are on forms acceptable to ▇▇▇▇▇▇▇
Mac or ▇▇▇▇▇▇ Mae and the Responsible Party has not made any representations to
a Mortgagor that are inconsistent with the mortgage instruments used;
(56) ACCEPTABLE INVESTMENT. There are no circumstances or
conditions with respect to the Mortgage, the Mortgaged Property, the Mortgagor,
the Mortgage File or the Mortgagor's credit standing that can reasonably be
expected to cause private institutional
S-III-12
investors who invest in sub-prime mortgage loans to regard the Mortgage Loan as
an unacceptable investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value or marketability of the Mortgage Loan, or cause the
Mortgage Loans to prepay during any period materially faster or slower than the
mortgage loans originated by the Responsible Party generally;
(57) CONDOMINIUMS/PLANNED UNIT DEVELOPMENTS. If the
Mortgaged Property is a condominium unit or a planned unit development (other
than a de minimis planned unit development) such condominium or planned unit
development project such Mortgage Loan was originated in accordance with, and
the Mortgaged Property meets the guidelines set forth in the Responsible Party's
and its Affiliates' underwriting guidelines;
(58) GEORGIA FAIR LENDING ACT. There is no Mortgage Loan
that was originated on or after October 1, 2002 and on or prior to March 7,
2003, which is secured by property located in the State of Georgia. There is no
Mortgage Loan that was originated on or after March 7, 2003 that is a "high cost
home loan" as defined under the Georgia Fair Lending Act;
(59) NEW YORK STATE BANKING LAW. There is no Mortgage Loan
that (a) is secured by property located in the State of New York; (b) had an
original principal balance of $300,000 or less, and (c) has an application date
on or after October 1, 2003, the terms of which loan equal or exceed either the
annual percentage rate or the points and fees threshold for "high cost home
loans," as defined in Section 6-L of the New York State Banking Law;
(60) NEW JERSEY MORTGAGE LOANS. All Mortgage Loans
originated in New Jersey are ratable by Standard & Poor's, Fitch and ▇▇▇▇▇'▇.
All Mortgage Loans originated in New Jersey conform with the Purchaser's New
Jersey Loan Stipulations set forth on EXHIBIT M to the Purchase Agreement;
(61) ORIGINATION PRACTICES. No borrower was encouraged or
required to select a Mortgage Loan product offered by the Mortgage Loan's
originator which is a higher cost product designed for less creditworthy
borrowers, unless at the time of the Mortgage Loan's origination, such borrower
did not qualify taking into account credit history and debt-to-income ratios for
a lower-cost credit product then offered by the Mortgage Loan's originator or
any affiliate of the Mortgage Loan's originator. If, at the time of loan
application, the borrower may have qualified for a for a lower-cost credit
product then offered by any mortgage lending affiliate of the Mortgage Loan's
originator, the Mortgage Loan's originator referred the borrower's application
to such affiliate for underwriting consideration;
(62) UNDERWRITING METHODOLOGY. The methodology used in
underwriting the extension of credit for each Mortgage Loan employs, in part,
objective mathematical principles which relate the borrower's income, assets and
liabilities to the proposed payment and such underwriting methodology does not
rely on the extent of the borrower's equity in the collateral as the principal
determining factor in approving such credit extension. Such underwriting
methodology confirmed that at the time of origination (application/approval) the
borrower had a reasonable ability to make timely payments on the Mortgage Loan;
S-III-13
(63) ▇▇▇▇▇▇ MAE GUIDES ANTI PREDATORY LENDING ELIGIBILITY.
Each Mortgage Loan is in compliance with the anti predatory lending eligibility
for purchase requirements of ▇▇▇▇▇▇ ▇▇▇ Guides;
(64) PURCHASE OF INSURANCE. No Mortgagor was required to
purchase any credit life, disability, accident or health insurance product as a
condition of obtaining the extension of credit. No Mortgagor obtained a prepaid
single premium credit life, disability, accident or health insurance policy in
connection with the origination of the Mortgage Loan. No proceeds from any
Mortgage Loan were used to purchase single premium credit insurance policies as
part of the origination of, or as a condition to closing, such Mortgage Loan;
(65) POINTS AND FEES. All points and fees related to each
Mortgage Loan were disclosed in writing to the Mortgagor in accordance with
applicable state and federal law and regulation. Except in the case of a
Mortgage Loan in an original principal amount of less than $60,000 which would
have resulted in an unprofitable origination, no Mortgagor was charged "points
and fees" (whether or not financed) in an amount greater than 5% of the
principal amount of such Mortgage Loan, such 5% limitation is calculated in
accordance with ▇▇▇▇▇▇ Mae's anti predatory lending requirements as set forth in
the ▇▇▇▇▇▇ ▇▇▇ Guides;
(66) DISCLOSURE OF FEES AND CHARGES. All fees and charges
(including finance charges), whether or not financed, assessed, collected or to
be collected in connection with the origination and servicing of each Mortgage
Loan, have been disclosed in writing to the Mortgagor in accordance with
applicable state and federal law and regulation; and
(67) ARBITRATION. With respect to any Mortgage Loan
originated on or after August 1, 2004, neither the related Mortgage nor the
related Mortgage Note requires the Mortgagor to submit to arbitration to resolve
any dispute arising out of or relating in any way to the Mortgage Loan
transaction.
S-III-14
SCHEDULE IV
GSAMP Mortgage Loan Trust 2005-S1,
Mortgage Pass-Through Certificates
The Responsible Party hereby makes the representations and
warranties set forth in this Schedule IV to the Depositor, the Servicer and the
Trustee, as of the Closing Date.
(1) DUE ORGANIZATION AND AUTHORITY. The Responsible Party
is a corporation duly organized, validly existing and in good standing under the
laws of the state of California and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good standing
in each state wherein it owns or leases any material properties or where a
Mortgaged Property is located, if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by the
Responsible Party, and in any event the Responsible Party is in compliance with
the laws of any such state to the extent necessary; the Responsible Party has
the full corporate power, authority and legal right to execute and deliver this
Agreement and to perform its obligations hereunder; the execution, delivery and
performance of this Agreement by the Responsible Party and the consummation of
the transactions contemplated hereby have been duly and validly authorized; this
Agreement and all agreements contemplated hereby have been duly executed and
delivered and constitute the valid, legal, binding and enforceable obligations
of the Responsible Party, regardless of whether such enforcement is sought in a
proceeding in equity or at law; and all requisite corporate action has been
taken by the Responsible Party to make this Agreement and all agreements
contemplated hereby valid and binding upon the Responsible Party in accordance
with their terms;
(2) NO CONFLICTS. Neither the execution and delivery of
this Agreement, the consummation of the transactions contemplated hereby, nor
the fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Responsible Party's charter or by-laws or any
legal restriction or any agreement or instrument to which the Responsible Party
is now a party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Responsible Party or
its property is subject, or result in the creation or imposition of any lien,
charge or encumbrance that would have an adverse effect upon any of its
properties pursuant to the terms of any mortgage, contract, deed of trust or
other instrument;
(3) NO LITIGATION PENDING. There is no action, suit,
proceeding or investigation pending or threatened against the Responsible Party,
before any court, administrative agency or other tribunal asserting the
invalidity of this Agreement, seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or which, either in any one instance
or in the aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Responsible Party,
or in any material impairment of the right or ability of the Responsible Party
to carry on its business substantially as now conducted, or in any material
liability on the part of the Responsible Party, or which would draw into
question the validity of this Agreement or of any action taken or to be taken in
connection with the obligations of the Responsible Party contemplated herein, or
which
S-IV-1
would be likely to impair materially the ability of the Responsible Party to
perform under the terms of this Agreement;
(4) NO CONSENT REQUIRED. No consent, approval,
authorization or order of, or registration or filing with, or notice to any
court or governmental agency or body including HUD, the FHA or the VA is
required for the execution, delivery and performance by the Responsible Party of
or compliance by the Responsible Party with this Agreement or the consummation
of the transactions contemplated by this Agreement, or if required, such
approval has been obtained prior to the Closing Date;
S-IV-2
EXHIBIT A-1
FORM OF CLASS A, CLASS M AND CLASS B CERTIFICATES
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.
Certificate No. :
Cut-off Date : March 1, 2005
First Distribution Date : April 25, 2005
Initial Certificate Balance of this
Certificate ("Denomination") :
Initial Certificate Balances of all
Certificates of this Class : CLASS
CERTIFICATE
CLASS BALANCE
Class A $
Class M-1 $
Class M-2 $
Class B-1 $
Class B-2 $
Class B-3 $
A-1-1
CUSIP : CLASS CUSIP NO.
Class A 36242D B6 9
Class M-1 36242D B7 7
Class M-2 36242D B8 5
Class B-1 36242D B9 3
Class B-2 36242D C2 7
Class B-3 36242D C3 5
ISIN : CLASS ISIN
Class A US36242DB693
Class M-1 US36242DB776
Class M-2 US36242DB859
Class B-1 US36242DB933
Class B-2 US36242DC279
Class B-3 US36242DC352
A-1-2
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-S1
Mortgage Pass-Through Certificates, Series 2005-S1
[Class A] [Class M-] [Class B-]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable
monthly as set forth herein. Accordingly, the Certificate Balance at any time
may be less than the Certificate Balance as set forth herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed by
the Depositor, the Servicer, the Responsible Party or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that 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 Pooling and Servicing Agreement, dated as of March
1, 2005 (the "Agreement"), among GS Mortgage Securities Corp., as depositor (the
"Depositor"), Wilshire Credit Corporation, as servicer (the "Servicer"), NC
Capital Corporation, as responsible party (the "Responsible Party"), Deutsche
Bank National Trust Company, as trustee (the "Trustee") and Wachovia Bank,
National Association, as co-trustee (the "Co-Trustee"). 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 Trustee.
* * *
A-1-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authenticated:
By:
----------------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
A-1-4
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2005-S1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2005-S1 Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (herein collectively
called the "Certificates"), and representing a beneficial ownership interest in
the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the 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.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire
transfer of immediately available funds to the account of the Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Trustee 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 Servicers and the
A-1-5
Trustee with the consent of the Holders of Certificates affected by such
amendment evidencing the requisite Percentage Interest, as provided in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Trustee upon surrender of this Certificate
for registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class 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 Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor
or the Trustee may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
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 Terminating Entity will have the option
to repurchase, in whole, from the Trust Fund all remaining Mortgage Loans and
all property acquired in respect of the Mortgage Loans at a purchase price
determined as provided in the Agreement. The obligations and responsibilities
created by the Agreement will terminate as provided in Section 9.01 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-1-6
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 Trustee to issue a new Certificate
of a like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________.
_____________________________________
Signature by or on behalf of assignor
A-1-7
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.
A-1-8
EXHIBIT B
FORM OF CLASS P CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I-1 OR A NON-RULE 144-A
INVESTMENT LETTER IN THE FORM OF EXHIBIT I-2 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 TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE, OR A PERSON INVESTING ON BEHALF OF OR
WITH PLAN ASSETS OF SUCH A PLAN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR
SIMILAR LAW WITHOUT THE REPRESENTATION LETTER SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : March 1, 2005
First Distribution Date : April 25, 2005
Percentage Interest of this
Certificate ("Denomination") : 100%
CUSIP : 36242D C6 8
ISIN : US36242DC683
B-1
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-S1
Mortgage Pass-Through Certificates, Series 2005-S1
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 Servicer, the
Responsible Party or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that [___] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement dated as of March 1,
2005 (the "Agreement") among GS Mortgage Securities Corp., as depositor (the
"Depositor"), Wilshire Credit Corporation, as servicer (the "Servicer"), NC
Capital Corporation, as responsible party (the "Responsible Party"), Deutsche
Bank National Trust Company, as trustee (the "Trustee") and Wachovia Bank,
National Association, as co-trustee (the "Co-Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Trustee for such purpose.
No transfer of a Certificate of this Class shall be made
unless such disposition is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and any applicable state
securities laws or is made in accordance with the 1933 Act and such laws. In the
event of any such transfer, the Trustee shall require the transferor to execute
a transferor certificate (in substantially the form attached to the Pooling and
Servicing Agreement) and deliver either (i) a Rule 144A Letter or a Non-Rule
144A Investment Letter, in either case substantially in the form attached to the
Agreement, or (ii) a written Opinion of Counsel to the Trustee 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.
B-2
No transfer of a Certificate of this Class shall be made
unless the Trustee shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan or other plan or arrangement subject to Section 406 of
ERISA, Section 4975 of the Code or any materially similar provisions of
applicable Federal, state or local law ("Similar Law"), or a person acting on
behalf of or investing plan assets of any such plan, which representation letter
shall not be an expense of the Trustee.
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 Trustee.
* * *
B-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authenticated:
By:
----------------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
B-4
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2005-S1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2005-S1 Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (herein collectively
called the "Certificates"), and representing a beneficial ownership interest in
the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the 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.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire
transfer of immediately available funds to the account of the Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Trustee 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
B-5
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Trustee upon surrender of this Certificate
for registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class 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 Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor
or the Trustee may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
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 Terminating Entity will have the option
to repurchase, in whole, from the Trust Fund all remaining Mortgage Loans and
all property acquired in respect of the Mortgage Loans at a purchase price
determined as provided in the Agreement. The obligations and responsibilities
created by the Agreement will terminate as provided in Section 9.01 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-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 Trustee to issue a new Certificate
of a like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________.
_____________________________________
Signature by or on behalf of assignor
B-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.
B-8
EXHIBIT C
FORM OF CLASS R CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN TWO "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE 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 TRUSTEE 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 OR
ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY
SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR
A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT
THAT SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A
PLAN OR ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, SECTION 4975 OF THE CODE OR
SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR
USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT, SUCH ATTEMPTED TRANSFER OR
ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : March 1, 2005
First Distribution Date : April 25, 2005
Percentage Interest of this :
Certificate ("Denomination") 100%
CUSIP : [36242D C7 6]
[36242D R2 1]
ISIN : [US36242DC766]
[US36242DR210]
C-1
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2005-S1
Mortgage Pass-Through Certificates, Series 2005-S1
Class [R-1][R-2]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class [R-1][R-2] Certificate has no
Certificate Balance and is not entitled to distributions in respect of principal
or interest. This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Servicer, the Responsible Party
or the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [______] is the registered owner of the
Percentage Interest specified above of any monthly distributions due to the
Class [R-1][R-2] Certificates pursuant to a Pooling and Servicing Agreement
dated as of March 1, 2005 (the "Agreement") among GS Mortgage Securities Corp.,
as depositor (the "Depositor"), Wilshire Credit Corporation, as servicer (the
"Servicer"), NC Capital Corporation, as responsible party (the "Responsible
Party"), Deutsche Bank National Trust Company, as trustee (the "Trustee") and
Wachovia Bank, National Association, as co-trustee (the "Co-Trustee"). 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 offices designated by the Trustee for such
purposes.
No transfer of a Class [R-1][R-2] Certificate shall be made
unless the Trustee shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA, a plan or arrangement
subject to Section 4975 of the Code or a plan subject to Similar Law, or a
person acting on behalf of any such plan or arrangement nor using the assets of
any such plan or arrangement to effect such transfer, which representation
letter shall not be an expense of the Trustee, the Servicer or the Trust Fund.
In the event that such representation is violated, or any attempt is made to
transfer to a plan or arrangement subject to Section 406 of ERISA, Section 4975
of the Code or Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement, such attempted
transfer or acquisition shall be void and of no effect.
C-2
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
Trustee 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 Trustee
shall not register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Trustee under Section 5.02(b) of
the Agreement, the Trustee shall have been furnished with a Transfer Affidavit
of the initial owner or the proposed transferee in the form attached as Exhibit
G 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 Trustee.
C-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authenticated:
By:
----------------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
C-4
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2005-S1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2005-S1 Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (herein collectively
called the "Certificates"), and representing a beneficial ownership interest in
the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the 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.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire
transfer of immediately available funds to the account of the Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Trustee 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
C-5
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Trustee upon surrender of this Certificate
for registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class 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 Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor
or the Trustee may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
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 Terminating Entity will have the option
to repurchase, in whole, from the Trust Fund all remaining Mortgage Loans and
all property acquired in respect of the Mortgage Loans at a purchase price
determined as provided in the Agreement. The obligations and responsibilities
created by the Agreement will terminate as provided in Section 9.01 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 Trustee to issue a new Certificate
of a like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________.
_____________________________________
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.
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
DIRECT OR INDIRECT 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.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I-1 OR A NON-RULE 144-A
INVESTMENT LETTER IN THE FORM OF EXHIBIT I-2 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 TRUSTEE 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
OR ARRANGEMENT 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 ARE COVERED UNDER SECTIONS I
AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AND THE SERVICER, TO THE EFFECT THAT THE PURCHASE
AND HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR
LAW AND WILL NOT SUBJECT THE TRUSTEE OR THE SERVICER TO ANY OBLIGATION IN
ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THE AGREEMENT OR TO ANY LIABILITY.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR
ARRANGEMENT SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
WITHOUT THE
D-1-1
REPRESENTATION LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. :
Cut-off Date : March 1, 2005
First Distribution Date : April 25, 2005
Percentage Interest of this Certificate
("Denomination") : 100%
Notional Balance : $256,315,157.46
CUSIP : 36242D C4 3
ISIN : US36242DC436
D-1-2
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2005-S1
Mortgage Pass-Through Certificates, Series 2005-S1
Class X
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class X Certificate has a Notional Balance
equal to the aggregate Stated Principal Balance of the Mortgage Loans. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer, the Responsible Party or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. is the registered
owner of the Percentage Interest specified above of any monthly distributions
due to the Class X Certificates pursuant to a Pooling and Servicing Agreement
dated as of March 1, 2005 (the "Agreement") among GS Mortgage Securities Corp.,
as depositor (the "Depositor"), Wilshire Credit Corporation, as servicer (the
"Servicer"), NC Capital Corporation, as responsible party (the "Responsible
Party"), Deutsche Bank National Trust Company, as trustee (the "Trustee") and
Wachovia Bank, National Association, as co-trustee (the "Co-Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Any distribution of the proceeds of any remaining assets of
the Trust Fund will be made only upon presentment and surrender of this Class X
Certificate at the offices designated by the Trustee for such purposes.
No transfer of a Class X Certificate shall be made unless the
Trustee shall have received (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA, a plan or arrangement subject to Section 4975
of the Code or a plan subject to Similar Law, or a person acting on behalf of
any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer, (ii) if the transferee is an insurance
company (and the Certificates have been offered in an ERISA-Qualifying
Underwriting), a representation letter that the transferee is using the assets
of its general account and that the purchase and holding of this Certificate are
covered under Section I and III of Prohibited Transaction Class Exemption 95-60
or (iii) an Opinion of Counsel satisfactory to the Trustee and the Servicer, to
the effect that the purchase and holding of this Certificate will not constitute
or result in a prohibited transaction within the meaning of ERISA, Section 4975
of the Code or any Similar Law and will not subject the Trustee or the Servicer
to
D-1-3
any obligation in addition to those expressly undertaken in the Agreement or to
any liability, which representation letter or Opinion of Counsel shall not be an
expense of the Trustee, the Servicer or the Trust Fund. In the event that such
representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to Section 406 of ERISA, Section 4975 of the Code or Similar
Law, or a person acting on behalf of any such plan or arrangement or using the
assets of any such plan or arrangement, such attempted transfer or acquisition
shall be void and of no effect.
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 Trustee shall require the transferor to execute
a transferor certificate (in substantially the form attached to the Pooling and
Servicing Agreement) and deliver either (i) a Rule 144A Letter or a Non-Rule
144A Investment Letter, in either case substantially in the form attached to the
Agreement, or (ii) a written Opinion of Counsel to the Trustee that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act or is being made pursuant to
the 1933 Act, which Opinion of Counsel shall be an expense of the transferor.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
D-1-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authenticated:
By:
----------------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
D-1-5
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2005-S1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2005-S1 Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (herein collectively
called the "Certificates"), and representing a beneficial ownership interest in
the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the 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.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire
transfer of immediately available funds to the account of the Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Trustee 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
D-1-6
Certificateholders under the Agreement at any time by the Depositor, the
Servicers and the Trustee with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Trustee upon surrender of this Certificate
for registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class 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 Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor, the Servicers and the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee, 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 Terminating Entity will have the option
to repurchase, in whole, from the Trust Fund all remaining Mortgage Loans and
all property acquired in respect of the Mortgage Loans at a purchase price
determined as provided in the Agreement. The obligations and responsibilities
created by the Agreement will terminate as provided in Section 9.01 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-1-7
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 Trustee to issue a new Certificate
of a like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________.
_____________________________________
Signature by or on behalf of assignor
D-1-8
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.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS X-1 CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I-1 OR A NON-RULE 144-A
INVESTMENT LETTER IN THE FORM OF EXHIBIT I-2 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 TRUSTEE 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
OR ARRANGEMENT 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 CERTIFICATES HAVE BEEN OFFERED IN AN
ERISA-QUALIFYING UNDERWRITING), 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 ARE COVERED UNDER SECTIONS I
AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AND THE SERVICER, TO THE EFFECT THAT THE PURCHASE
AND HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR
LAW AND WILL NOT SUBJECT THE TRUSTEE OR THE SERVICER TO ANY OBLIGATION IN
ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THE AGREEMENT OR TO ANY LIABILITY.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN OR
ARRANGEMENT 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
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. :
Cut-off Date : March 1, 2005
First Distribution Date : April 25, 2005
D-2-1
Initial Certificate Balance of this
Certificate ("Denomination") : 0.00
Initial Certificate Balances of all
Certificates of this Class : 0.00
CUSIP : 36242D C50
ISIN : US36242DC501
D-2-2
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2005-S1
Mortgage Pass-Through Certificates, Series 2005-S1
Class X-1
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class X-1 Certificate is entitled to
distributions with respect to certain Mortgage Loans that are initially assets
of the Trust. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Servicer, the
Responsible Party or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that [___] is the registered owner of any
monthly distributions due to the Class X-1 Certificates pursuant to a Pooling
and Servicing Agreement dated as of March 1, 2005 (the "Agreement") among GS
Mortgage Securities Corp., as depositor (the "Depositor"), Wilshire Credit
Corporation, as servicer (the "Servicer"), NC Capital Corporation, as
responsible party (the "Responsible Party"), Deutsche Bank National Trust
Company, as trustee (the "Trustee") and Wachovia Bank, National Association, as
co-trustee (the "Co-Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of
the Trust Fund will be made only upon presentment and surrender of this Class
X-1 Certificate at the offices designated by the Trustee for such purposes.
No transfer of a Class X-1 Certificate shall be made unless
the Trustee shall have received (i) a representation letter from the transferee
of such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA, a plan or arrangement subject to Section 4975
of the Code or a plan subject to Similar Law, or a person acting on behalf of
any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer (ii) if the transferee is an insurance
company (and the Certificates have been offered in an ERISA-Qualifying
Underwriting), a representation letter that the transferee is using the assets
of its general account and that the purchase and holding of this Certificate are
covered under Section I and III of Prohibited Transaction Class Exemption 95-60
or (iii) an Opinion of Counsel satisfactory to the Trustee and the Servicer, to
the effect that the purchase and holding of this Certificate will not constitute
or result in a prohibited transaction within the meaning of ERISA, Section 4975
of the Code or any Similar Law and will not subject the Trustee or the Servicer
to any obligation in addition to those expressly undertaken in the Agreement or
to any liability,
D-2-3
which representation letter or Opinion of Counsel shall not be an expense of the
Trustee, the Servicer or the Trust Fund. In the event that such representation
is violated, or any attempt is made to transfer to a plan or arrangement subject
to Section 406 of ERISA, Section 4975 of the Code or Similar Law, or a person
acting on behalf of any such plan or arrangement or using the assets of any such
plan or arrangement, such attempted transfer or acquisition shall be void and of
no effect.
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 Trustee shall require the transferor to execute
a transferor certificate (in substantially the form attached to the Pooling and
Servicing Agreement) and deliver either (i) a Rule 144A Letter or a Non-Rule
144A Investment Letter, in either case substantially in the form attached to the
Agreement, or (ii) a written Opinion of Counsel to the Trustee that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act or is being made pursuant to
the 1933 Act, which Opinion of Counsel shall be an expense of the transferor.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
D-2-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as Trustee
By:
---------------------------------
Authenticated:
By:
----------------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
D-2-5
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2005-S1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2005-S1 Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (herein collectively
called the "Certificates"), and representing a beneficial ownership interest in
the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the assets of the Trust Fund 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.
Pursuant to the terms of the Agreement, a distribution will be
made to the Person in whose name this Certificate is registered at the close of
business on the applicable Record Date. The Record Date for each Distribution
Date is the last Business Day of the applicable Interest Accrual Period for the
related Distribution Date; provided, however, that for any Definitive
Certificates, the Record Date shall be the last Business Day of the month
immediately preceding the month of such Distribution Date (or if such day is not
a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire
transfer of immediately available funds to the account of the Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Trustee 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 Servicers and the Trustee with the
consent of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The
D-2-6
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 Trustee upon surrender of this Certificate
for registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class 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 Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor, the Servicers and the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee, 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 Terminating Entity will have the option
to repurchase, in whole, from the Trust Fund all remaining Mortgage Loans and
all property acquired in respect of the Mortgage Loans at a purchase price
determined as provided in the Agreement. The obligations and responsibilities
created by the Agreement will terminate as provided in Section 9.01 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-2-7
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 Trustee to issue a new Certificate
of a like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________.
_____________________________________
Signature by or on behalf of assignor
D-2-8
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-2-9
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
__________________________
__________________________
Pooling and Servicing Agreement among GS Mortgage
Securities Corp., as Depositor, Wilshire Credit
Corporation, as Servicer, NC Capital Corporation, as
Responsible Party, Deutsche Bank National Trust
Company, as Trustee and Wachovia Bank, National
Association, as ▇▇-▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇-▇▇
▇▇▇▇▇▇▇▇▇:
In accordance with Section 2.02 of the above-captioned Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Trustee, for each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan listed in the attached schedule of
exceptions), it has received:
(i) the original Mortgage Note, endorsed as provided in
the following form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed Assignment of Mortgage (which may be
included in a blanket assignment or assignments).
Based on its review and examination and only as to the
foregoing documents, such documents appear regular on their face and related to
such Mortgage Loan.
The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement. The Trustee 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 Trustee has made no determination and makes
no representations as to whether (i) any endorsement is sufficient to transfer
all right, title and interest of the party so endorsing, as Noteholder or
assignee thereof, in and to that Mortgage Note or (ii) any assignment is in
recordable form or sufficient to effect the assignment of and transfer to the
assignee thereof, under the Mortgage to which the assignment relates.
E-1
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:
--------------------------------
Name:
Title:
E-2
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF TRUSTEE
[date]
[Depositor]
[Servicer]
__________________________
__________________________
Pooling and Servicing Agreement among GS Mortgage
Securities Corp., as Depositor, Wilshire Credit
Corporation, as Servicer, NC Capital Corporation, as
Responsible Party, Deutsche Bank National Trust
Company, as Trustee and Wachovia Bank, National
Association, as ▇▇-▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇-▇▇
▇▇▇▇▇▇▇▇▇:
In accordance with Section 2.02 of the above-captioned Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Trustee, hereby certifies that as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or
listed on the attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form
provided in Section 2.01 of the Pooling and Servicing Agreement, with all
intervening endorsements showing a complete chain of endorsement from the
originator to the last endorsee.
(ii) The original recorded Mortgage.
(iii) A duly executed Assignment of Mortgage in the form
provided in Section 2.01 of the Pooling and Servicing Agreement; or, if the
Responsible Party has certified or the Trustee has actual knowledge that the
related Mortgage has not been returned from the applicable recording office, a
copy of the Assignment of Mortgage (excluding information to be provided by the
recording office).
(iv) The original or duplicate original recorded
assignment or assignments of the Mortgage showing a complete chain of assignment
from the originator to the last endorsee.
(v) The original or duplicate original lender's title
policy and all riders thereto or, any one of an original title binder, an
original preliminary title report or an original title commitment, or a copy
thereof certified by the title company.
Based on its review and examination and only as to the
foregoing documents, (a) such documents appear regular on their face and related
to such Mortgage Loan, and (b) the
F-1
information set forth in items (1), (2) and (13) of the Mortgage Loan Schedule
and the Data Tape Information accurately reflects information set forth in the
Custodial File.
The Trustee has made no independent examination of any
documents contained in each Mortgage File beyond the review of the Custodial
File specifically required in the Pooling and Servicing Agreement. The Trustee
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 Trustee has made
no determination and makes no representations as to whether (i) any endorsement
is sufficient to transfer all right, title and interest of the party so
endorsing, as Noteholder or assignee thereof, in and to that Mortgage Note or
(ii) any assignment is in recordable form or sufficient to effect the assignment
of and transfer to the assignee thereof, under the Mortgage to which the
assignment relates.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:
---------------------------------
Name:
Title:
F-2
EXHIBIT G
RESIDUAL TRANSFER AFFIDAVIT
GSAMP Trust 2005-S1,
Mortgage Pass-Through Certificates
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________,
the proposed Transferee of an Ownership Interest in a Residual Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement dated as
of March 1, 2005 (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Wilshire Credit Corporation, as servicer (the
"Servicer"), NC Capital Corporation, as responsible party (the "Responsible
Party"), Deutsche Bank National Trust Company, as trustee (the "Trustee") and
Wachovia Bank, National Association, as co-trustee (the "Co-Trustee").
Capitalized terms used, but not defined herein or in Exhibit 1 hereto, shall
have the meanings ascribed to such terms in the Agreement. The Transferee has
authorized the undersigned to make this affidavit on behalf of the Transferee
for the benefit of the Depositor and the 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
G-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 Trustee 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:
G-2
[_] The present value of the anticipated tax liabilities
associated with holding the Certificate, as applicable, does not exceed the sum
of:
(i) the present value of any consideration given to the
Transferee to acquire such Certificate;
(ii) the present value of the expected future
distributions on such Certificate; and
(iii) the present value of the anticipated tax savings
associated with holding such Certificate as the related REMIC generates
losses.
For purposes of this calculation, (i) the Transferee is
assumed to pay tax at the highest rate currently specified in Section 11(b) of
the Code (but the tax rate in Section 55(b)(1)(B) of the Code may be used in
lieu of the highest rate specified in Section 11(b) of the Code if the
Transferee has been subject to the alternative minimum tax under Section 55 of
the Code in the preceding two years and will compute its taxable income in the
current taxable year using the alternative minimum tax rate) and (ii) present
values are computed using a discount rate equal to the short-term Federal rate
prescribed by Section 1274(d) of the Code for the month of the transfer and the
compounding period used by the Transferee.
[_] The transfer of the Certificate complies with U.S.
Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as
defined in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to
which income from the Certificate will only be taxed in the United
States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer, the
Transferee had gross assets for financial reporting purposes (excluding
any obligation of a person related to the Transferee within the meaning
of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of
$100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Certificate only to
another "eligible corporation," as defined in U.S. Treasury Regulations
Section 1.860E-1(c)(6)(i), in a transaction that satisfies the
requirements of Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section
1.860E-1(c)(5) of the U.S. Treasury Regulations; and
(iv) the Transferee determined the consideration paid to
it to acquire the Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment rates,
prepayment and loss assumptions, expense and reinvestment assumptions,
tax rates and other factors specific to the Transferee) that it has
determined in good faith.
[_] None of the above.
G-3
13. The Transferee is not an employee benefit plan that
is subject to Title I of ERISA or a plan or arrangement that is subject to
Section 4975 of the Code or a plan subject to any Federal, state or local law
that is substantially similar to Title I of ERISA or Section 4975 of the Code,
and the Transferee is not acting on behalf of or investing plan assets of such a
plan.
G-4
IN WITNESS WHEREOF, the Transferee has caused this instrument
to be executed on its behalf, pursuant to authority of its Board of Directors,
by its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this __ day of ________, 20__.
------------------------------------
Print Name of Transferee
By:
---------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
-----------------------------------
[Assistant] Secretary
Personally appeared before me the above-named __________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the ___________ of the Transferee, and acknowledged that he
executed the same as his free act and deed and the free act and deed of the
Transferee.
Subscribed and sworn before me this __ day of ________, 20__.
------------------------------------
NOTARY PUBLIC
My Commission expires the __ day
of _________, 20__
G-5
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Deutsche Bank National Trust Company,
as Trustee
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: GSAMP Trust, 2005-S1, Mortgage Pass-Through
Certificates, Class [ ]
Ladies and Gentlemen:
In connection with our disposition of the above Certificates
we certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (C) we have no
reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
------------------------------------
Print Name of Transferor
By:
---------------------------------
Authorized Officer
H-1
EXHIBIT I-1
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Deutsche Bank National Trust Company,
as Trustee
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
GSAMP Trust 2005-S1, Mortgage Pass-Through
Certificates, 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 (i) we are not an employee benefit plan
that is subject to Title I of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or a plan or arrangement that is subject to Section
4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or a plan
subject to any Federal, state or local law materially similar to the foregoing
provisions of ERISA or the Code, nor are we acting on behalf of any such plan or
arrangement nor using the assets of any such plan or arrangement to effect such
acquisition, or, (ii) with respect to a Class X or Class X-1 Certificate that
has been the subject of an "ERISA-Qualifying Underwriting", (A) we are 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 that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60 or (B) we have provided the Opinion of Counsel required in Section
5.02 of the Pooling and Servicing Agreement, (e) we have not, nor has anyone
acting on our behalf offered, transferred, pledged, sold or otherwise disposed
of the Certificates, any interest in the Certificates or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Certificates, any interest in the Certificates or any other
similar security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general
I-1-1
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, we understand that such
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
I-1-2
ANNEX 1 TO EXHIBIT I-1
----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President,
Chief Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer
is a "qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer
owned and/or invested on a discretionary basis $ 1 in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A and (ii)
the Buyer satisfies the criteria in the category marked below.
____ CORPORATION, ETC. The Buyer is a corporation (other
than a bank, savings and loan association or similar institution), Massachusetts
or similar business trust, partnership, or charitable organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
____ BANK. The Buyer (a) is a national bank or banking
institution organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to banking and is
supervised by the State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an audited net worth of
at least $25,000,000 as demonstrated in its latest annual financial statements,
A COPY OF WHICH IS ATTACHED HERETO.
____ SAVINGS AND LOAN. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined by a State
or Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, A COPY OF WHICH IS ATTACHED HERETO.
____ BROKER-DEALER. The Buyer is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of 1934.
----------
1 Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case, Buyer
must own and/or invest on a discretionary basis at least $10,000,000 in
securities.
I-1-3
____ INSURANCE COMPANY. The Buyer is an insurance company
whose primary and predominant business activity is the writing of insurance or
the reinsuring of risks underwritten by insurance companies and which is subject
to supervision by the insurance commissioner or a similar official or agency of
a State, territory or the District of Columbia.
____ STATE OR LOCAL PLAN. The Buyer is a plan established
and maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit of
its employees.
____ ERISA PLAN. The Buyer is an employee benefit plan
within the meaning of Title I of the Employee Retirement Income Security Act of
1974.
____ INVESTMENT ADVISOR. The Buyer is an investment
advisor registered under the Investment Advisors Act of 1940.
____ SMALL BUSINESS INVESTMENT COMPANY. Buyer is a small
business investment company licensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small Business Investment Act of 1958.
____ BUSINESS DEVELOPMENT COMPANY. Buyer is a business
development company as defined in Section 202(a)(22) of the Investment Advisors
Act of 1940.
3. The term "securities" as used herein does not include
(i) securities of issuers that are affiliated with the Buyer, (ii) securities
that are part of an unsold allotment to or subscription by the Buyer, if the
Buyer is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Buyer, the
Buyer used the cost of such securities to the Buyer and did not include any of
the securities referred to in the preceding paragraph, except (i) where the
Buyer reports its securities holdings in its financial statements on the basis
of their market value, and (ii) no current information with respect to the cost
of those securities has been published. If clause (ii) in the preceding sentence
applies, the securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by subsidiaries
of the Buyer, but only if such subsidiaries are consolidated with the Buyer in
its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Buyer's direction. However, such securities were not included if the
Buyer is a majority-owned, consolidated subsidiary of another enterprise and the
Buyer is not itself a reporting company under the Securities Exchange Act of
1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule
144A and understands that the seller to it and other parties related to the
Certificates are relying and will
I-1-4
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 Transferor
By:
---------------------------------
Name:
Title:
Date:
-------------------------------
I-1-5
ANNEX 2 TO EXHIBIT I-1
----------------------
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
I-1-6
agreements, (vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands
that the parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the
undersigned will notify the parties listed in the Rule 144A Transferee
Certificate to which this certification relates of any changes in the
information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
------------------------------------
Print Name of Transferor
By:
---------------------------------
Name:
Title:
IF AN ADVISER:
------------------------------------
Print Name of Buyer
Date:
-------------------------------
I-1-7
EXHIBIT I-2
FORM OF INVESTMENT LETTER (NON RULE 144A)
-----------------
Date
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: GSAMP Trust 2005-S1, Mortgage Pass Through
Certificates, Series 2005-S1, 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 are an
institutional "accredited investor" (within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Act, and have such knowledge and experience
in financial and business matters that we are capable of evaluating the merits
and risks of investments in the Certificates, (c) we have had the opportunity to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates, (d)
either (i) we are not an employee benefit plan that is subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or a plan
or arrangement that is subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a plan subject to any Federal, state or local
law materially similar to the foregoing provisions of ERISA or the Code, nor are
we acting on behalf of any such plan or arrangement nor using the assets of any
such plan or arrangement to effect such acquisition, or, (ii) with respect to a
Class X or Class X-1 Certificate that has been the subject of an
"ERISA-Qualifying Underwriting", (A) we are 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 that the purchase and
holding of such Certificates are covered under Sections I and III of PTCE 95-60
or (B) we have provided the Opinion of Counsel required in Section 5.02 of the
Pooling and Servicing Agreement, (e) we are acquiring
I-2-1
the Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory to
the addressees of this Certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser or
transferee has otherwise complied with any conditions for transfer set forth in
the Pooling and Servicing Agreement.
Very truly yours,
------------------------------------
Print Name of Transferee
By:
---------------------------------
Authorized Officer
I-2-2
EXHIBIT J
FORM OF REQUEST FOR RELEASE
(FOR TRUSTEE)
To: [Address]
In connection with the administration of the Mortgage Loans
held by you as the Trustee on behalf of the Certificateholders we request the
release, and acknowledge receipt, of the (Custodial File/[specify documents])
for the Mortgage Loan described below, for the reason indicated.
Mortgagor's Name, Address & Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
____1. Mortgage Loan Paid in Full. (The Company hereby certifies that all
amounts received in connection therewith have been credited to the
Collection Account as provided in the Pooling and Servicing Agreement.)
____2. Mortgage Loan Repurchase Pursuant to Section 2.03 of the Pooling and
Servicing Agreement. (The Company hereby certifies that the repurchase
price has been credited to the Collection Account as provided in the
Pooling and Servicing Agreement.)
____3. Mortgage Loan Liquidated by _________________. (The Company hereby
certifies that all proceeds of foreclosure, insurance, condemnation or
other liquidation have been finally received and credited to the
Collection Account pursuant to the Pooling and Servicing Agreement.)
____4. Mortgage Loan in Foreclosure.
____5. Other (explain).
If box 1, 2 or 3 above is checked, and if all or part of the Custodial File was
previously released to us, please release to us our previous request and receipt
on file with you, as well as any additional documents in your possession
relating to the specified Mortgage Loan.
If Box 4 or 5 above is checked, upon our return of all of the above documents to
you as the Trustee, please acknowledge your receipt by signing in the space
indicated below, and returning this form, if requested.
Address to which Trustee should
Deliver the Trustee's Mortgage File: ____________________________________
J-1
____________________________________
____________________________________
By:
---------------------------------
(authorized signer)
Issuer:
-----------------------------
Address:
----------------------------
Date:
-------------------------------
Trustee
-------
Acknowledged receipt by:
Deutsche Bank National Trust Company, as Trustee
By:________________________________________
Name:
Title:
Date
J-2
EXHIBIT K
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall
include each of the following items, which shall be available for inspection by
the Purchaser and which shall be retained by the Servicer or delivered to and
retained by the Trustee, as applicable:
(a) the original Mortgage Note (except for up to 0.39% of
the Mortgage Notes for which there is a lost note affidavit and a copy of the
Mortgage Note) bearing all intervening endorsements, endorsed "Pay to the order
of _________, without recourse" and signed in the name of the last endorsee. To
the extent that there is no room on the face of the Mortgage Notes for
endorsements, the endorsement may be contained on an allonge unless the Trustee
is advised by the Responsible Party that state law does not allow. If the
Mortgage Loan was acquired by the Responsible Party in a merger, the endorsement
must be by "[last endorsee], successor by merger to [name of predecessor]". If
the Mortgage Loan was acquired or originated by the last endorsee while doing
business under another name, the endorsement must be by "[last endorsee],
formerly known as [previous name]";
(b) the original of any guarantee executed in connection
with the Mortgage Note;
(c) the original Mortgage with evidence of recording
thereon or a certified true copy of such Mortgage submitted for recording. If in
connection with any Mortgage Loan, the Responsible Party cannot deliver or cause
to be delivered the original Mortgage with evidence of recording thereon on or
prior to the Closing Date because of a delay caused by the public recording
office where such Mortgage has been delivered for recordation or because such
Mortgage has been lost or because such public recording office retains the
original recorded Mortgage, the Responsible Party shall deliver or cause to be
delivered to the Trustee, a photocopy of such Mortgage, together with (i) in the
case of a delay caused by the public recording office, an officer's certificate
of the Responsible Party (or evidence of certification on the face of such
photocopy of such Mortgage) or certified by the title company, escrow agent, or
closing attorney stating that such Mortgage has been dispatched to the
appropriate public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded Mortgage will be
promptly delivered to the Trustee upon receipt thereof by the Responsible Party;
or (ii) in the case of a Mortgage where a public recording office retains the
original recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such Mortgage certified by
such public recording office to be a true and complete copy of the original
recorded Mortgage;
(d) the originals of all assumption, modification,
consolidation or extension agreements, if any, with evidence of recording
thereon or a certified true copy of such agreement submitted for recording;
K-1
(e) the original Assignment of Mortgage for each Mortgage
Loan endorsed in blank and in recordable form;
(f) the originals of all intervening assignments of
mortgage (if any) evidencing a complete chain of assignment from the originator
to the last endorsee with evidence of recording thereon, or if any such
intervening assignment has not been returned from the applicable recording
office or has been lost or if such public recording office retains the original
recorded assignments of mortgage, the Responsible Party shall deliver or cause
to be delivered to the Trustee, a photocopy of such intervening assignment,
together with (i) in the case of a delay caused by the public recording office,
an officer's certificate of the Responsible Party (or evidence of certification
on the face of such photocopy of such intervening assignment of mortgage) or
certified by the title company, escrow agent, or closing attorney stating that
such intervening assignment of mortgage has been dispatched to the appropriate
public recording office for recordation and that such original recorded
intervening assignment of mortgage or a copy of such intervening assignment of
mortgage certified by the appropriate public recording office to be a true and
complete copy of the original recorded intervening assignment of mortgage will
be promptly delivered to the Trustee upon receipt thereof by the Responsible
Party; or (ii) in the case of an intervening assignment where a public recording
office retains the original recorded intervening assignment or in the case where
an intervening assignment is lost after recordation in a public recording
office, a copy of such intervening assignment certified by such public recording
office to be a true and complete copy of the original recorded intervening
assignment;
(g) the original mortgagee policy of title insurance or,
in the event such original title policy is unavailable, a certified true copy of
the related policy binder or commitment for title certified to be true and
complete by the title insurance company; and
(h) a security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage (if provided).
Evidence of payment of taxes and insurance, insurance claim
files, correspondence, current and historical computerized data files (which
include records of tax receipts and payment history from the date of
origination), and all other processing, underwriting and closing papers and
records which are customarily contained in a mortgage loan file and which are
required to document the Mortgage Loan or to service the Mortgage Loan.
K-2
EXHIBIT L
CHARGED OFF LOAN DATA REPORT
L-1
Activity Report Charge-Off Collections
Security: GSAMP 2005-S1
Remmittance Period __/__/200_
Servicing Fee 0.500%
-----------------------------------------------------------------------------------------------------------------------------------
Beginning Ending
Loan Number Active in Beginning Next Due Months in Collection Collection
(Wilshire) Collections UPB Date Collections Period Period
-----------------------------------------------------------------------------------------------------------------------------------
1 Yes/No - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
2 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
3 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
4 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
5 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
6 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
7 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
8 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
9 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
10 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
11 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
12 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
13 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
14 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
15 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
16 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
17 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
18 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
19 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
20 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
21 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
22 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
23 - __/__/__ __/__/__ __/__/__
-----------------------------------------------------------------------------------------------------------------------------------
23 -
-----------------------------------------------------------------------------------------------------------------------------------
[TABLE CONTINUED]
-----------------------------------------------------------------------------------------------------------
Gross Accrued
Loan Number Payments Servicing Collection Ending Expense
(Wilshire) Received Fee Expenses UPB Description
-----------------------------------------------------------------------------------------------------------
1 - - - -
-----------------------------------------------------------------------------------------------------------
2 - - - -
-----------------------------------------------------------------------------------------------------------
3 - - - -
-----------------------------------------------------------------------------------------------------------
4 - - - -
-----------------------------------------------------------------------------------------------------------
5 - - - -
-----------------------------------------------------------------------------------------------------------
6 - - - -
-----------------------------------------------------------------------------------------------------------
7 - - - -
-----------------------------------------------------------------------------------------------------------
8 - - - -
-----------------------------------------------------------------------------------------------------------
9 - - - -
-----------------------------------------------------------------------------------------------------------
10 - - - -
-----------------------------------------------------------------------------------------------------------
11 - - - -
-----------------------------------------------------------------------------------------------------------
12 - - - -
-----------------------------------------------------------------------------------------------------------
13 - - - -
-----------------------------------------------------------------------------------------------------------
14 - - - -
-----------------------------------------------------------------------------------------------------------
15 - - - -
-----------------------------------------------------------------------------------------------------------
16 - - - -
-----------------------------------------------------------------------------------------------------------
17 - - - -
-----------------------------------------------------------------------------------------------------------
18 - - - -
-----------------------------------------------------------------------------------------------------------
19 - - - -
-----------------------------------------------------------------------------------------------------------
20 - - - -
-----------------------------------------------------------------------------------------------------------
21 - - - -
-----------------------------------------------------------------------------------------------------------
22 - - - -
-----------------------------------------------------------------------------------------------------------
23 - - - -
-----------------------------------------------------------------------------------------------------------
23 - - - -
-----------------------------------------------------------------------------------------------------------
----------------------------------
Gross
Collections -
----------------------------------
Accrued
Servicing Fee -
----------------------------------
Collection
Expenses -
----------------------------------
Net
Collections
Remitted -
----------------------------------
EXHIBIT M
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM-10-K
Re: GSAMP Trust 2005-S1 (the "Trust") Mortgage Pass-Through
Certificates, Series 2005-S1, issued pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2005 (the
"Pooling and Servicing Agreement"), among GS Mortgage
Securities Corp., as depositor (the "Depositor"), Wilshire
Credit Corporation, as servicer (the "Servicer"), NC Capital
Corporation, as responsible party (the "Responsible Party"),
Deutsche Bank National Trust Company, as trustee (the
"Trustee") and Wachovia Bank, National Association, as
co-trustee (the "Co-Trustee")
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K
("Annual Report"), and all reports on Form 8-K containing distribution 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 the
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 Trustee by the Servicer under the
Pooling and Servicing 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
Trustee in accordance with the terms of the Pooling and Servicing Agreement, and
except as disclosed in the Reports, the Servicer has fulfilled its obligations
under the Pooling and Servicing Agreement; and
5. The Reports disclose all significant deficiencies
relating to the 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 Pooling and Servicing
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 Trustee
and the Servicer.
Date:__________________________
__________________________
[Signature]
[Title]
M-1
EXHIBIT N
FORM OF TRUSTEE CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAMP Trust 2005-S1 (the "Trust") Mortgage Pass-Through
Certificates, Series 2005-S1, issued pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2005 (the
"Pooling and Servicing Agreement"), among GS Mortgage
Securities Corp., as depositor (the "Depositor"), Wilshire
Credit Corporation, as servicer (the "Servicer"), NC Capital
Corporation, as responsible party (the "Responsible Party"),
Deutsche Bank National Trust Company, as trustee (the
"Trustee") and Wachovia Bank, National Association, as
co-trustee (the "Co-Trustee")
I, [identify the certifying individual], a [title] of Deutsche Bank National
Trust Company certify to the Depositor and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed the annual report on Form 10-K (the
"Annual Report") 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 the Annual Report (collectively with the Annual Report, the
"Reports"), of the Trust;
2. Based on my knowledge, the information in the
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 the Annual Report; and
3. Based on my knowledge, the distribution or servicing
information required to be provided to the Trustee by the Servicer under the
Pooling and Servicing Agreement for inclusion in the Reports is included in the
Reports.
Date:__________________
DEUTSCHE BANK NATIONAL TRUST COMPANY
By:____________________________
Name:__________________________
Title:_________________________
N-1
EXHIBIT O
FORM OF SERVICER CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAMP Trust 2005-S1 (the "Trust") Mortgage Pass-Through
Certificates, Series 2005-S1, issued pursuant to the Pooling
and Servicing Agreement, dated as of March 1, 2005 (the
"Pooling and Servicing Agreement"), among GS Mortgage
Securities Corp., as depositor (the "Depositor"), Wilshire
Credit Corporation, as servicer (the "Servicer"), NC Capital
Corporation, as responsible party (the "Responsible Party"),
Deutsche Bank National Trust Company, as trustee (the
"Trustee") and Wachovia Bank, National Association, as
co-trustee (the "Co-Trustee")
Wilshire Credit Corporation, certifies to the Depositor and the Trustee, and
their respective officers, directors and affiliates, and with the knowledge and
intent that they will rely upon this certification, that:
1. Based on our knowledge, the information prepared by
Wilshire Credit Corporation and relating to the mortgage loans serviced by
Wilshire Credit Corporation pursuant to the Pooling And Servicing Agreement and
provided by Wilshire Credit Corporation to the Trustee in its reports to the
Trustee is accurate and complete in all material respects as of the last day of
the period covered by such report;
2. Based on our knowledge, the servicing information
required to be provided to the Trustee by Wilshire Credit Corporation pursuant
to the Pooling and Servicing Agreement has been provided to the Trustee;
3. Based upon the review required under the Pooling and
Servicing Agreement, and except as disclosed in its annual compliance statement
required to be delivered pursuant to the Pooling and Servicing Agreement,
Wilshire Credit Corporation as of the last day of the period covered by such
annual compliance statement has fulfilled its obligations under the Pooling and
Servicing Agreement; and
4. Wilshire Credit Corporation has disclosed to its
independent auditor, who issues the independent auditor's report on the Uniform
Single Attestation Program for Mortgage Bankers for Wilshire Credit Corporation,
any significant deficiencies relating to Wilshire Credit Corporation's
compliance with minimum servicing standards.
WILSHIRE CREDIT CORPORATION
Date:_____________________________
__________________________________
[Signature]
[Title]
O-1
EXHIBIT P
MORTGAGE POOL INSURANCE POLICY
P-1
Radian Insurance Inc.
Second Mortgage Pool Insurance Policy
Radian Insurance Inc. o ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ o 19103
=====================================================
Radian Insurance Inc., a Pennsylvania corporation and
a stock insurance company (herein called the
"Company") agrees to pay to the Insured identified
below, in consideration of the premium paid or to be
paid as specified herein, the Loss sustained by
reason of the Default by a Borrower on any Loan
insured under this Policy and listed in the attached
Schedule, subject to the terms and conditions
contained herein.
Insured WACHOVIA BANK, NATIONAL ASSOCIATION, as co-trustee
(the "Co-Trustee") of GSAMP Trust 2005-S1 (the
"Trust") under a Pooling and Servicing Agreement,
dated as of March 1, 2005 (the "Pooling and Servicing
Agreement"), among GS Mortgage Securities Corp., as
depositor, Wilshire Credit Corporation, as servicer
(the "Servicer"), NC Capital Corporation, Deutsche
Bank National Trust Company, as trustee, and the
Co-Trustee providing for the issuance by the Trust of
its Mortgage Pass-Through Certificates, Series
2005-S1 (collectively, the "Securities"), through its
Pennsylvania office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ (the "Pennsylvania
Office").
R0140017 March 1, 2005
-----------------------------------------------------
Policy number Effective date of policy
=====================================================
Premium rate and payments 1.20% of the Total Insured Loan Amount, payable in a
one-time installment.
Premium payment date April 7, 2005.
Total Insured Loan Amount $256,315,157.46
Deductible percentage 12.00%
Deductible dollar amount $30,757,818.90
Aggregate loss percentage 3.50%
Maximum aggregate
liability $8,971,030.51
Page 1 of 17
Terms and Conditions
1. Definitions
1.1 Amortized Insured Loan Amount means the unpaid
principal balance of the Loan outstanding as of the
first day of the month. On or before the tenth day of
each month, the Insured shall provide the Company
with a report, made on a form or in a format provided
or approved by the Company, specifying the Amortized
Insured Loan Amount of each Loan.
1.2 Borrower means any individual legally obligated to
repay the debt obligation created by a Loan,
including any co-borrower, co-signer, co-obligor, or
guarantor of the Loan.
1.3 Claim means the timely filed written request, made on
a form or in a format provided or approved by the
Company, to receive the benefits of this Policy.
1.4 Claim Amount means the amount calculated in
accordance with Section 6.2 of this Policy.
1.5 Combined Loan-to-Value means that ratio, expressed as
a percentage, equal to:
a. the sum of:
1. the outstanding principal balance of the
Loan as of the date the Loan was
Consummated; and
2. the outstanding principal balance, as of
the date the Loan was Consummated, of the
loan secured by the First Deed of Trust;
divided by
b. the Fair Market Value of the Property.
1.6 Consummated means the date on which the loan was
closed and all related loan documents were executed.
1.7 Deductible means 12.00% of the Total Insured Loan
Amount.
1.8 Default means the failure by a Borrower (s) to pay
when due a scheduled periodic payment due under the
terms of a Loan, or (b) to pay all amounts due on
acceleration of the Loan by the Insured after breach
by the Borrower of a due-on-sale provision in the
Loan, granting the Insured the right to accelerate
the Loan upon transfer of title to, or an interest
in, the Property, or (c) to pay when due any
scheduled periodic payment or any other amount due on
any debt or other obligation representing an
encumbrance or lien superior to the Loan (including,
but not limited to, the First Deed of Trust and tax
or other liens or encumbrances).
A Loan is deemed to be in Default for that month, as
appropriate: (a) as of the close of business on the
installment due date for which a scheduled periodic
payment has not been made; (b) as of the close of
business on the due date stated in the notice of
acceleration given pursuant to the due-on-sale
provision in the Loan; (c) as of the installment due
date for which a scheduled periodic payment has not
been made under the First Deed of Trust; or (d) as of
the due date for payment of any amount due on any
other debt or other obligation representing an
encumbrance or lien superior to the Loan. The Loan
shall be considered to remain in Default until filing
of a Claim so long as such scheduled periodic payment
has not been made or violation of the due-on-sale
clause continues. For example, a Loan is "four (4)
months in Default" if the monthly installments due on
January 1 through April 1 remain unpaid as of the
close of business on April 1 or if a basis for
acceleration exists for a continuous period of four
(4) months.
1.9 Eligibility Criteria means the criteria set forth in
Exhibit A attached hereto.
Page 2 of 17
1.10 Eligible Note means the written evidence of
indebtedness, unless otherwise amended or limited by
the Eligibility Criteria:
a. under which the Borrower is obligated to repay a
Loan in amortizing monthly installments of
principal and interest;
b. with an initial term of at least twelve (12)
months;
c. secured by a Second Deed of Trust; and
d. containing therein or in the Second Deed of Trust,
where permitted by law,
1. a clause providing for the acceleration of
maturity, at the option of the holder, upon
default,
2. a due-on-sale clause,
3. a clause permitting the Insured to make
payments on any debt or other obligation
representing a lien or other encumbrance which
is in default and which has priority over any
Second Deed of Trust,
4. a clause providing that the Borrower agrees not
to take additional advances under any loan
secured by a lien or other encumbrance with
priority over the Second Deed of Trust,
5. a waiver of the Borrower's homestead exemption,
and
6. clause providing that any default of the
scheduled periodic payment under the First Deed
of Trust is considered to be a default under
the Loan.
1.11 Fair Market Value means the appraised value of the
Property, or other acceptable evidence of value of
the Property, as of the date of Consummation;
provided that, if the Loan is for the purpose of
purchasing the Property, the Fair Market Value shall
be the lesser of the sales price or the appraised
value as of the date of Consummation.
1.12 First Deed of Trust means a mortgage, deed of trust,
or other instrument which: a. constitutes or is
equivalent to a first lien or encumbrance on the
Property, subject only to the Permitted Encumbrances,
and b. will allow the Person secured thereby,
directly or by a trustee or other Person, to
foreclose on the Property (by power-of-sale,
judicially or otherwise) upon default thereunder or
under the loan secured by such instrument and thereby
acquire title to the Property, subject only to the
Permitted Encumbrances.
1.13 Insured means the Person designated on the face of
this Policy.
1.14 Insured Loan Amount means the unpaid principal
balance of the Loan as of the Effective Date as set
forth on the attached Schedule or, in the case of a
substituted Loan, on the date of substitution.
1.15 Loan means a disbursement of proceeds or advance of
credit by the Insured to or for the benefit of a
Borrower who promises to repay the principal amount
of such disbursement, or any future disbursement,
plus interest, if any, at a stated annual rate over
time, which is evidenced, in any event, by an
Eligible Note secured by a Second Deed of Trust, and
which is listed on the attached Schedule (or
substituted therefor with the Company's prior written
approval) and to which coverage under this Policy has
been extended.
1.16 Loan File means, with respect to a Loan, the
documents (including all documents in electronic
format) created or received in connection with the
origination and closing of the Loan, including the
Loan File Documents.
1.17 Loan File Documents mean:
a. the original, fully-completed Loan application,
dated and signed by the Borrower,
Page 3 of 17
b. the original credit bureau report on the Borrower
obtained in the Loan application process and any
updated credit bureau reports on the Borrower
obtained by the Insured,
c. the original verification of the Borrower's income
obtained in the Loan application process,
d. the original evidence of Property improvements to
be completed, if applicable, which was obtained
before or at the time the Loan was Consummated,
and the original applicable completion
certificates signed by the Borrower,
e. a copy of the tax assessment, warranty deed or
recorded land contract for sale, if applicable,
obtained before or at the time the Loan was
Consummated,
f. the original Eligible Note,
g. the original, recorded Second Deed of Trust,
h. the original loan history record, maintained by
the Insured in its normal course of business, of
payments made on the Loan,
i. the original documentary evidence of the Insured's
efforts to effect a cure of any Default and to
collect the Loan,
j. the original appraisal, or other acceptable
evidence of value of the Property approved by the
Company,
k. the original documentary evidence obtained by the
Insured, before or at the time the Loan was
Consummated, that the Combined Loan-to-Value did
not exceed the percentage as set forth in the
Eligibility Criteria which is applicable to the
Loan,
l. the original Regulation Z disclosure statement,
m. the original documentary evidence (such as
cancelled checks) that any debts to be paid with
the Loan proceeds were paid directly by the
Insured, and
n. the original documentary evidence of the normal
and customary title search obtained by the Insured
showing that the Loan was, or was to be
immediately after the Loan was Consummated,
secured by a mortgage, deed of trust, or other
instrument which constituted or was equivalent to
a Second Deed of Trust.
1.18 Loss means the liability of the Company with respect
to a Loan for payment of a Perfected Claim which is
calculated in accordance with Section 6.3. A Loss
shall be deemed to have occurred when a Default on a
Loan occurs, even though the amount of Loss is not
then either presently ascertainable or due and
payable.
1.19 Maximum Aggregate Liability means the Aggregate Loss
Percentage of the Total Insured Loan Amount. The
Maximum Aggregate Liability shall not be increased
by, nor shall the Insured otherwise receive any
credit for, any recoveries by the Company from any
Borrower or any other Person or in any other respect
in connection with the Loan or in connection with any
payment made by the Company under this Policy.
1.20 Perfected Claim means a Claim received by the Company
which contains all information and proof required by
the Company and for which all requirements of this
Policy applicable to payment of a Claim are
satisfied.
Page 4 of 17
1.21 Permitted Encumbrances means only the following
liens, encumbrances, covenants, conditions,
restrictions, easements and rights of redemption:
a. Any lien established by public bond, assessment
or tax, when no installment, call or payment of
or under such bond, assessment or tax is
delinquent;
b. Any municipal and zoning ordinances and
exceptions to title waived by the regulations of
federal mortgage insurers and guarantors with
respect to mortgages on one-to-four family
residences in effect on the date on which the
Loan was closed and all documents were executed;
and
c. Any other impediments which will not have a
materially adverse effect on either the
transferability of the Property or the sale
thereof to a bona fide purchaser.
1.22 Person means any individual, corporation,
partnership, association or other entity.
1.23 Physical Damage means any tangible injury to a
Property, whether caused by accident, natural
occurrence, or any other reason, including damage
caused by defects in construction, land subsidence,
earth movement or slippage, fire, flood, earthquake,
riot, vandalism or any environmental condition
including contamination by toxic or hazardous waste,
chemicals or other substances.
1.24 Policy means this contract of insurance and all
commitments, applications, endorsements and
schedules, which are incorporated in this Policy,
related to Loans insured under this Policy.
1.25 Property means a Residential real property and all
improvements thereon which secure the Loan, together
with all easements and appurtenances, all rights of
access, all rights to use common areas, recreational
and other facilities, and all of their replacements
or additions.
1.26 Purchase Price means, as to any Loan which the
Company has exercised its right to purchase under
Section 6.7, the sum of (a) the unpaid principal
balance of such Loan as of the date of purchase or in
the case of a Loan for which any such Loss has been
so charged, the amount of such Loss, (b) other than
in the case of a Loan for which any such Loss has
been so charged, accrued and unpaid interest thereon
through the date of payment for such purchase and (c)
other than in the case of a Loan for which any such
Loss has been so charged, any unreimbursed servicing
advances related to such Loan. In calculating any
Purchase Price, the same shall not include any amount
in respect of the Servicemembers Civil Relief Act,
the California Military and Veterans Code and/or any
similar state or local law.
1.27 Residential means a type of building or a portion
thereof which is designed for occupancy by not more
than four (4) families, or a single-family
condominium, of a unit in a planned unit development.
1.28 Schedule means the schedule attached hereto listing
the Loans secured by Second Deeds of Trust for which
coverage under this Policy has been extended.
1.29 Second Deed of Trust means a mortgage, deed of trust,
or other similar instrument which constitutes or is
equivalent to a lien or encumbrance on the related
Property and which secures a Loan, subject only to
the related First Deed of Trust and the Permitted
Encumbrances, and allows the Person secured thereby,
directly or by a trustee or other Person, to
foreclose on the Property (by power-of-sale,
judicially or otherwise) upon Default thereunder or
under the Loan secured by such instrument and thereby
acquire title to the Property, subject only to the
First Deed of Trust and the Permitted Encumbrances.
1.30 Servicer means that Person acting on behalf of the
owner of a Loan (or on behalf of the owner's
designee, if any) to service the Loan and of whom the
Company has been notified. The Servicer acts as a
representative of the owner of the Loan (and the
owner's designee, if any) and will bind the owner and
its designee for all purposes of this Policy,
including providing information to the Company,
receiving any notices, paying premiums, accepting
Loss payments and performing any other acts under
this Policy. References in this Policy to a
Servicer's obligations will not be construed as
relieving the owner or its designee of responsibility
for the Servicer's performance.
Page 5 of 17
1.31 Total Amortized Insured Loan Amount means the sum of
the Amortized Insured Loan Amounts of all the Loans.
1.32 Total Insured Loan Amount means the sum of the
Insured Loan Amounts of all the Loans.
1.33 Trailing Payment mean any payment on the Loan
received by the Insured after a Claim has been filed
with the Company.
Any pronouns, when used in this Policy, shall mean
the singular or plural, masculine or feminine, as the
case may be.
Page 6 of 17
2. Obtaining Coverage and Payment of Premiums; Insured's
Representations and Warranties
2.1 Coverage - The Effective Date of this Policy shall be
the date specified on the face hereof. Subject to the
Company's right to cancel as set forth in Section 2.2
and applicable law, this Policy shall continue in
force until (a) each Loan has been paid in full or is
otherwise liquidated or, whether because the transfer
of the Loans by the depositor pursuant to the Pooling
and Servicing Agreement has been disregarded or for
any other reason, is no longer owned by, or pledged
by the depositor pursuant to Section 2.01 of the
Pooling and Servicing Agreement to, the Co-Trustee
for the benefit of the holders of the Securities or
(b) the Securities no longer remain outstanding,
whether because the Securities have been redeemed,
have been paid in full or otherwise have had their
respective principal balances reduced to zero.
2.2 Premium - The premium for this Policy shall be paid
in the manner and at the rate specified on the face
hereof. Failure to pay any installment of the premium
within thirty (30) days of the Premium Payment Date
shall terminate the liability of the Company with
respect to the coverage contained in the Policy,
which Policy shall be canceled. There shall be no
refund of premium under this Policy. If the liability
of the Company for all Losses under this Policy
reaches the Maximum Aggregate Liability, the total
premium under this Policy is due and payable and
shall remain due and payable; provided, however, that
the premium shall continue to be calculated and paid
in the manner specified on the face hereof.
2.3 Insured - This Policy shall be delivered to and held
by the Insured through it's Pennsylvania Office, any
premiums shall be paid by the Insured through the
Insured's Pennsylvania Office, and any claims shall
be paid to the Insured through the Insured's
Pennsylvania Office. .
3. Changes in Various Loan Terms, Servicing and Insured;
Co-ordination and Duplication of Insurance Benefits
3.1 Loan Modifications - Unless advance written approval
is provided by, or obtained from, the Company, the
Insured may not make any change in the terms of a
Loan, including the borrowed amount, interest rate,
term or amortization schedule of the Loan, except as
permitted by terms of the Loan; nor make any change
in the Property or other collateral securing the
Loan; nor release the Borrower from liability on a
Loan; nor subordinate the Second Deed of Trust.
3.2 Open-End Provisions - The Insured may not increase
the principal balance of a Loan, unless the written
approval of the Company has been obtained.
3.3 Assumptions - If a Loan is assumed with the Insured's
approval, the Company's liability for coverage of
such Loan shall terminate as of the date of such
assumption, unless the Company approves the
assumption in writing. The Company shall not
unreasonably withhold approval of an assumption.
3.4 Change of Servicing and Servicing Guidelines - Each
Loan shall be serviced by Wilshire Credit Corporation
("Wilshire") in accordance with the Pooling and
Servicing Agreement, the Company's 2nd lien servicing
guidelines as attached hereto as Exhibit A and the
service level agreement dated April 29, 2004 between
the Company and Wilshire, to the extent not
inconsistent with the Pooling and Servicing
Agreement. Any change in the servicer or material
change to guidelines requires prior written approval
by the Company.
3.5 Loan Assignment - The sale, assignment or transfer of
a Loan by the Insured shall terminate coverage of the
Loan hereunder.
3.6 Co-ordination and Duplication of Insurance Benefits -
The coverage under this Policy shall be excess over
any other insurance, including any primary mortgage
insurance, which may apply to the Property or to the
Loan.
Page 7 of 17
4. Exclusions From Coverage
The Company will not be liable for, and this Policy
will not apply to, extend to or cover the following:
4.1 Eligibility Criteria- Any Claim relating to any Loan
which does not satisfy the criteria set forth on
Exhibit A attached hereto.
4.2 Effective Date - Any Claim resulting from a Default
existing at the Effective Date or occurring after
cancellation of this Policy.
4.3 Incomplete Construction - Any Claim when, as of the
date of such Claim: (a) construction of a Property is
not completed in accordance with the construction
plans and specifications upon which the Fair Market
Value of the Property was based, or (b) a required
completion certificate was falsely certified by the
Borrower.
4.4 Negligence - Any Claim where there was negligence by
the Insured, the Servicer or any other Person with
respect to the Loan.
4.5 Non-Approved Servicer - Any Claim occurring when, at
time of Default or thereafter, the Servicer is not
approved in writing by the Company.
4.6 Physical Damage - Any Claim where, at any time after
the Effective Date, Physical Damage to a Property
(other than reasonable wear and tear) occurs or
manifests itself.
4.7 Combined Loan-to-Value - Any Claim if the Combined
Loan-to-Value exceeded the percentage as set forth in
the Eligibility Criteria which is applicable to the
Loan.
4.8 Second Lien Status - Any Claim, if the mortgage, deed
of trust or other similar instrument executed by the
Borrower and Insured hereunder does not provide the
Insured with a Second Deed of Trust.
4.9 Future Advances - Any Claim, if the First Deed of
Trust allows for future advances, after the date the
loan was consummated.
4.10 Breach of the Insured's Obligations or
Representations or Failure to Comply with Terms - Any
Claim involving or arising out of any breach by the
Insured of its obligations, representations or
warranties under, or its failure to comply with the
terms of, this Policy the Servicing Guidelines or the
Pooling and Servicing Agreement or of its obligations
as imposed by operation of law.
4.11 Borrower Defenses - Any Claim if, under applicable
law, the Borrower did successfully assert or may have
successfully asserted any defense against the Insured
so as to release in whole or in part the Borrower's
obligation to repay the Loan, provided, however, that
this exclusion shall only apply to the extent and
amount of such release.
4.12 Non-Eligible Loans - Any Claim if the Loan did not
meet the Eligibility Criteria on the Effective Date
or the date a Loan was substituted for another Loan
with the Company's written approval.
4.13 Failure to Provide Loan File - Any Claim if the
Insured does not provide the Company with the Loan
File upon the Company's request therefore; provided
however, that at any time prior to the Deductible
being exhausted, the copies rather than originals of
the documents referenced in clauses (a),(d),(g),(h)
and (m) of Section 1.18 may be provided.
4.14 Fraud - Any Claim where fraud, error, omission,
misrepresentation, dishonesty, negligence or similar
occurrence with respect to any Loan has taken place
on the part of any person, including without
limitation, the mortgagor, any appraiser, any builder
or developer, or any other party involved in the
origination or servicing of the Loan.
Page 8 of 17
5. Conditions Precedent to Payment of Claim
It is a condition precedent to the Company's
obligation to pay a Loss that the Insured comply with
all of the following requirements:
5.1 Notice of Default - The Insured must give the Company
written notice within fifteen (15) days after either
the end of each calendar month or such other day of
the month agreed to by the Company and the Insured,
of:
1. Each Loan on which the Borrower has become two (2)
months in Default on the Loan during the period
covered by such notice; or
2. Each Loan on which any proceedings which affect
the Loan or the Property or the Insured's or
Borrower's interest therein have been started
during the period covered by such notice, by
either the Insured or the holder (owner) of the
first or any subordinate mortgage lien on the
Property.
5.2 Monthly Reports - Following a notice of Default on
the Loan, the Insured must give the Company monthly
reports on forms or in a format acceptable to the
Company on the status of the Loan and on the
servicing efforts undertaken to remedy the Default.
These monthly reports must continue until the
Borrower is no longer in Default, any proceedings
terminate, or until the Company has settled a Claim
with respect to such Loan.
5.3 Company's Option to Accelerate Filing of a Claim - If
the Company so directs, at any time after receiving
the Insured's notice of Default, the Insured shall
file a Claim within thirty (30) days after notice
from the Company. The Company shall then make a
payment of Loss in accordance with Section 6.3. If a
Loan for which the Company has paid a Claim is
subsequently brought current by the Borrower, the
Insured shall refund to the Company the Loss paid by
the Company with respect to that Loan.
5.4 Mitigation of Damages - The Insured shall:
a. Actively pursue reasonable opportunities to
prevent and/or mitigate the Loss, including,
without limitation good faith efforts by the
Insured to: (i) obtain a cure of the Default; (ii)
collect amounts due under the Loan; (iii) inspect
and appraise the Property; and (iv) implement a
short payoff, deed in lieu of foreclosure, note
sale or lump sum cash settlement (collectively
referred to herein as a "Liquidating Workout"),
including, as necessary, waiver of any prepayment
penalties, late fees, or similar charges.
Notwithstanding the foregoing, the Insured shall
not finalize or implement any Liquidating Workout
without the Company's prior written approval.
b. Following payment of any Claim Amount, promptly
forward to the Company any and all Trailing
Payments, First Deed of Trust foreclosure notices,
and any other information or documentation
reasonably likely to assist the Company in
mitigating Loss
c. Without limiting the foregoing, assert its rights
in any bankruptcy or similar state proceeding,
including filing a proof of claim, filing a
responsive pleading, and otherwise taking
appropriate steps to protect its interest, whether
a priority interest or not, to any potential
excess proceeds in any foreclosure or similar
action involving the Property, and
d. In the event the Insured acquires the Property,
which acquisition shall be made only upon receipt
of prior written approval of the Company, use good
faith efforts to timely dispose of the Property at
the then fair market value of the Property.
Page 9 of 17
5.5 Claim Information and Other Requirements - At the
time of filing of the Claim, the Insured must provide
the Company with:
a. All information reasonably requested by the
Company, including, but not limited to, the Loan
File;
b. A completed form furnished by or acceptable to the
Company for payment of a Claim; and
c. An assignment, containing customary
representations and warranties, duly and properly
executed and in recordable form, of all the
Insured's ownership right, title and interest in
and to
1. the Loan,
2. the Eligible Note, properly endorsed in blank,
and
3. the originals (or in the case of recorded
documents which have not been returned by the
recording office, certified copies) of any and
all documents executed and delivered by or to
the Borrower or by any holder of such Loan
including,
(i) any Second Deed of Trust, and
(ii) any policies of title insurance, letter
reports of title, or opinions of title and
surveys.
The obligation of the Insured to provide the Company
with information reasonably requested by the Company
shall continue until payment of the Claim. Upon
assignment of the Second Deed of Trust to the
Company, the Insured shall notify the Borrower of any
change in the servicer.
5.6 Collection and Loss Mitigation Assistance - The
Insured shall permit the Company to cooperatively
assist the Insured in the collection of moneys due
under the Loan and the identification of loss
mitigation opportunities, including obtaining
information from the Borrower and/or any other
appropriate source, and attempting to develop
repayment plans and/or workout strategies acceptable
to the Insured. Without limiting the foregoing, at
its sole discretion the Company shall have the right
to instruct the Insured to waive any prepayment
penalties, late fees, or similar charges.
6. Loss Payment Procedure
6.1 Filing of Claim - The Insured must file a Claim: (i)
no earlier than the date on which the Loan becomes
five (5) months in Default; and (ii) no later than
thirty (30) days after the Loan becomes six (6)
months in Default or within the thirty (30) day
period specified in Section 5.3 (Company's Option to
Accelerate Filing of a Claim), unless a written
extension has been granted by the Company. If the
Insured fails to file a Claim within the applicable
time, such failure shall be deemed to have been an
election by the Insured to waive any right to any
benefit under this Policy with respect to such Loan.
6.2 Calculation of Claim Amount - The Claim Amount shall
be an amount equal to the lesser of:
a. one hundred and ten percent (110%) of the unpaid
principal balance due under the Loan as of the
date of Default without capitalization of
delinquent interest, penalties or advances
and
b. the sum of one hundred percent (100%) of the
unpaid principal balance due under the Loan as of
the date of Default, plus the amount of the
accumulated delinquent interest computed to the
date of Claim payment at the Loan rate of
interest, plus foreclosure costs, including court
costs and reasonable attorneys' fees, paid by the
Insured and approved by the Company.
Subject to Sections 3.1 and 3.2, in calculating such
amounts, the unpaid principal balance shall not
exceed the Insured Loan Amount and the unpaid
principal balance and interest shall be reduced by
any amounts obtained by a short payoff or other
transaction approved in writing by the Company, and
by any reduction under the Servicemembers Civil
Relief Act and/or any similar state or local law.
Page 10 of 17
6.3 Claim Withdrawal -
a. If, at any time prior to payment of the Claim
Amount by the Company, the Insured receives any
payment(s) which either: (i) cures the Default on
the Loan; or (ii) results in the Loan being less
than three (3) months in Default, the Insured
shall apply such payment(s) to the Loan and shall
withdraw the related Claim by providing prompt
written notice to the Company of such withdrawal.
b. If, at any time prior to payment of the Claim
Amount, the Insured receives payment(s)
constituting full payoff of the Loan, the Insured
shall apply such payment(s) to the Loan and shall
withdraw the related Claim by providing prompt
written notice to the Company of such withdrawal.
In such event, the Loan shall no longer be covered
under this Policy and shall be removed from the
Schedule.
6.4 Payment of Loss - Whenever a Loss becomes payable,
the Company shall pay to the Insured, within sixty
(60) days after the Insured has filed a Claim in
accordance with Section 5.3 (Company's Option to
Accelerate Filing of a Claim) or Section 6.1 (Filing
of Claim) the Claim Amount less any payments
previously made by the Company with respect to that
Loan; provided, however, that on or after the date on
which the aggregate Losses paid by the Company under
this Policy is an amount equal to the Maximum
Aggregate Liability, the liability of the Company to
pay any additional Losses under this Policy ceases,
notwithstanding the payment of additional premium due
under this Policy. All payments by the Company
hereunder shall be made either by wire transfer or by
check, at the Insured's election and as so specified
in a written notice to the Company. In the event that
payments shall be made by wire transfer, the Insured
shall provide written wiring instructions to the
Company.
6.5 Trailing Payments - After payment by the Company of
any Claim Amount hereunder, any and all Trailing
Payments (appropriately endorsed) shall be promptly
remitted by the Insured to the Company.
6.6 Discharge of Obligation - Payment by the Company of
the amount of Loss required to be paid in accordance
with this Policy will be full and final discharge of
its obligation with respect to such Loss under this
Policy.
6.7 Option to Purchase a Loan - After the Deductible is
no longer available and the Company is required to
pay Claims, the Company shall have the first right
but not the obligation to purchase on a
servicing-released basis and without recourse, any
Loan that is ninety (90) days or more delinquent and
as to which the Company has not paid a Claim for a
Loss, regardless of whether it has approved a Claim
for a Loss on such Loan or any Loss on such Loan has
been charged against the Deductible or the
Securities, by notifying the Insured at any time that
it is exercising such right and by paying the related
Purchase Price on the last day of a calendar month in
accordance with the definition of the term "Purchase
Price" hereunder.
7. Additional Conditions
7.1 Proceedings of Eminent Domain - In the event that
part or all of a Property is taken by eminent domain,
or condemnation or by any other proceedings by
federal, state or local governmental unit or agency,
the Insured must require that the Borrower apply the
maximum permissible amount of any compensation
awarded in such proceedings to reduce the principal
balance of the Loan, in accordance with the law of
the jurisdiction where the Property is located.
7.2 Subrogation - To the extent that the Company is
entitled under applicable law to pursue an action on
the Eligible Note, the Company shall be subrogated,
upon payment of the related Loss, in the amount
thereof to all of the Insured's rights of recovery
against a Borrower and any other Person relating to
the Loan or to the Property. The Insured must execute
and deliver at the request of the Company such
instruments and papers, including, but not limited
to, an assignment of the Eligible Note and undertake
such other actions as may be necessary to transfer,
assign and secure such rights. The Insured shall
refrain from any action, either before or after
payment of a Loss, that prejudices such rights.
Page 11 of 17
7.3 Policy for Exclusive Benefit of Insured - The
coverage provided under this Policy shall be for the
sole and exclusive benefit of the Insured, and in no
event shall any Borrower or other Person be deemed a
party to, or an intended beneficiary of, this Policy.
Page 12 of 17
7.4 Arbitration of Disputes; Suits and Actions Brought by
the Insured
a. Unless prohibited by applicable law, or otherwise
mutually agreed by the Company and Insured, all
controversies, disputes or other assertions of
liability or rights arising out of or relating to
this Policy including the breach, interpretation or
construction thereof, shall be settled by
arbitration. Notwithstanding the foregoing, the
Company or the Insured both retain the right to seek
a declaratory judgment from a court of competent
jurisdiction on matters of interpretation of this
Policy. Such arbitration shall be conducted in
accordance with the Title Insurance Arbitration Rules
of the American Arbitration Association in effect on
the date the demand for arbitration is made, or if
such Rules are not then in effect, such other Rules
of the American Arbitration Association as the
Company may designate as its replacement.
b. The arbitrator(s) shall be neutral person(s) selected
from the American Arbitration Association's National
Panel of Arbitrators familiar with the mortgage
lending or mortgage guaranty insurance business. Any
proposed arbitrator may be disqualified during the
selection process, at the option of either party, if
they are, or during the previous two (2) years have
been, an employee, officer or director of any
mortgage guaranty insurer, or of any entity engaged
in the origination, purchase, sale or servicing of
mortgage loans or mortgage-backed securities.
c. No suit or action (including arbitration hereunder)
brought by the Insured against the Company with
respect to the Company's liability for a Claim under
this Policy shall be sustained in any court of law or
equity or by arbitration unless the Insured has
substantially complied with the terms and conditions
of this Policy. A suit or action against the Company
must be commenced within three (3) years after the
Loss can be determined unless otherwise required by
applicable law.
d. If a dispute arises concerning a Loan which involves
either the Property or the Insured, the Company has
the right to protect its interest by defending the
suit, even if the allegations contained in such suit
are groundless, false or fraudulent. The Company is
not required to defend any lawsuit involving the
Insured, the Property or the Loan.
7.5 Release of Borrower - The Insured's execution of a
release or waiver of the right to collect any portion
of the unpaid principal balance of a Loan or other
amounts due under the Loan shall release the Company
from its obligation to the extent and amount of said
release.
7.6 Amendments; No Waiver; Rights and Remedies; Use of
Term "Including"
a. No condition or requirement of this Policy shall
be deemed waived, modified or otherwise
compromised unless that waiver, modification or
compromise is stated in a writing properly
executed on behalf of the Company. Each of the
conditions and requirements of this Policy is
severable, and a waiver, modification or
compromise of one will not be construed as a
waiver, modification or compromise of any other.
b. No right or remedy of the Company provided for by
this Policy shall be exclusive of, or limit, any
other rights or remedies set forth in this Policy
or otherwise available to the Company at law or
equity.
c. As used in this Policy, the term "include" or
"including" shall mean "include or including,
without limitation."
7.7 No Agency - Neither the Insured, nor any Servicer,
nor any of their respective employees or agents,
shall be deemed for any reason to be agents of the
Company. Neither the Company, nor any of its
employees or agents (including any Person
underwriting the Loan on behalf of the Insured),
shall be deemed for any reason to be agents of the
Insured or Servicer.
7.8 Successors and Assigns - This Policy shall inure to
the benefit of and shall be binding upon the Company
and the Insured and their respective successors and
permitted assigns.
7.9 Applicable Law and Conformity to Law - All matters
under this Policy and the provisions hereof shall be
governed by and construed in accordance with the laws
of the Commonwealth of Pennsylvania, without regard
to its conflicts or choice of law provisions.
Page 13 of 17
7.10 Notice - All claims, premium payments, tenders,
reports, other data and any other notices required to
be submitted to the Company by the Insured must be
sent to the Company at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The Company may change this
address by giving written notice to the Insured.
Unless the Insured otherwise notifies the Company in
writing, all notices to the Insured must be sent to
the address on the face of this Policy or, if the
Insured is not located at such address, to the last
known address of the Insured.
All notices under this Policy, whether or not
identified in this Policy as required to be in
writing, shall be effective only if in writing and
only upon receipt thereof. Written notices may
instead be given in the form of telecopy or, if
acceptable to the Company (for notices given to the
Company) or to the Insured (for notices given to the
Insured) in the form of computer tape or
computer-generated or any other electronic message. A
telecopy or such tape or message shall be effective
only when received. The Company and the Insured may
mutually agree that notices will be sent to any
additional Person. Except as expressly agreed to by
the Company and the Insured, no liability shall be
incurred by the Company for the failure to give a
notice to a Person other than the Insured.
7.11 Reports and Examinations - The Company may request,
and the Insured must provide, such files, reports or
information as the Company may deem necessary
pertaining to any Loan, and the Company shall be
entitled to inspect the files, books and records of
the Insured or any of its representatives pertaining
to such Loan. Without limiting the foregoing, the
Insured shall provide the Company from time to time
with the principal balances and other information
necessary for the Company to confirm the premiums for
this Policy.
7.12 Electronic Media - The Company and the Insured may,
from time to time, deliver or transfer information,
documents or other data between them by electronic
media acceptable to them. In addition, the Company
and the Insured may maintain information, documents
or other data on electronic media or other media
generally accepted for business records, including
microfiche. Such electronic or other media shall be
as equally acceptable for all purposes between the
Insured and the Company as information, documents or
other data maintained in printed or written form.
7.13 Duty of Cooperation - Whenever requested by the
Company, whether or not a notice of Default has been
submitted, the Insured shall cooperate with the
Company and furnish all reasonable aid, evidence and
information in the possession of the Insured or to
which the Insured has access with respect to any
Loan, including all documents, files, computer data
or other information requested by the Company upon
reasonable notice. To the extent the Company is
prejudiced by any failure of the Insured to
cooperate, the Company's remedy shall be to reduce
the Loss by the estimated extent of such prejudice.
Page 14 of 17
IN WITNESS WHEREOF, the Company has caused these
presents to be signed by its duly authorized
officers.
Radian Insurance Inc.
__________________________
__________________________
Page 15 of 17
Exhibit A
Eligibility Criteria
(a) All documents, materials, information, data and
statements submitted to the Company by or on
behalf of the Insured, including but not limited
to the Electronic Tape Transmission ("ETT")
listing and describing each Loan, are true and
accurate in all material respects. All such
documents, materials, information, data and
statements are hereby incorporated by reference
as if fully set forth herein. For the avoidance
of doubt, any information on the ETT or any such
other information submitted to Company by or on
behalf of the depositor relating to the payment
history of a mortgage loan, including whether
such mortgage loan was, or should have been
reported as delinquent, will be deemed to be
material. [Under review by Radian]
(b) Each Loan is secured by a Second Deed of Trust.
The real property identified as the security for
each Loan consists of a residential one to four
family dwelling, including condominiums, located
in the United States of America.
(c) A credit report with FICO score (or equivalent
approved by the Company) was obtained and
utilized in the underwriting of each Loan. The
score represented on the ETT represents the
middle of three (3) scores or lower of two (2) if
only two (2) scores were available.
(d) Each Loan was underwritten at the time it was
originated in a manner consistent with the
applicable underwriting guidelines and procedures
of the originator of the Loan (the "Underwriting
Guidelines"), subject to such variances as are
justified under the Underwriting Guidelines by
compensating factors identified and reflected in
the related credit file at such time in
connection with underwriting such Loan. The
Insured has provided the Company with a copy of
the Underwriting Guidelines.
(e) Each Loan was originated in compliance with all
applicable laws and regulations.
(f) No fraud, error, omission, misrepresentation,
dishonesty, negligence or similar occurrence with
respect to any Loan has taken place on the part
of any person, including without limitation, the
mortgagor, any appraiser, any builder or
developer, or any other party involved in the
origination or servicing of the Loan.
(g) Each Loan is current as of the Effective Date,
and no Loan has been delinquent thirty (30) days
in the twelve months preceding the Effective
Date.
(h) Each Loan shall be serviced in accordance with
Section 3.4 (Change of Servicing and Servicing
Guidelines).
(i) No Loan is a Loan which is a home equity line of
credit with a pre-established borrowing limit.
(j) No Loan has an adjustable interest rate.
(k) Each Loan amortizes over the term of the Loan and
no Loan has a balloon payment of the remaining
outstanding principal amount at the maturity of
the Loan.
Notwithstanding any investigation by the Company, the satisfaction of
the criteria forth above by each Loan and the recognition of the
Company as a third-party beneficiary to the related representations and
warranties contained in the Pooling and Servicing Agreement or other
transaction documents are material inducements to the Company to extend
mortgage insurance coverage on the Loans listed on the Schedule. The
Company has relied on and shall continue to rely upon the satisfaction
of each of the criterion set forth above and the status of the Company
as a third-party beneficiary of the representations and the warranties
set forth in the Pooling and Servicing Agreement or the other
transaction documents. The Insured agrees that the Company shall not be
liable for and this Policy shall not apply, extend to or cover any Loan
(s) whose terms do not satisfy each of the criteria set forth above.
Page 16 of 17
EXHIBIT Q
FORM OF POWER OF ATTORNEY
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
WILSHIRE CREDIT CORPORATION
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: _________________________________
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Deutsche Bank National Trust Company, a
national banking association organized and existing under the laws of the United
States, having its principal place of business at ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, as Trustee (the "Trustee") pursuant to that
Pooling and Servicing Agreement dated as of March 1, 2005 (the "Agreement")
among GS Mortgage Securities Corp., as depositor, Wilshire Credit Corporation,
as servicer (the "Servicer"), NC Capital Corporation, as responsible party, the
Trustee and Wachovia Bank, National Association, as co-trustee, hereby
constitutes and appoints the Servicer, by and through the Servicer's officers,
the Trustee's true and lawful Attorney-in-Fact, in the Trustee's name, place and
stead and for the Trustee's benefit, in connection with all mortgage loans
serviced by the Servicer pursuant to the Agreement solely for the purpose of
performing such acts and executing such documents in the name of the Trustee
necessary and appropriate to effectuate the following enumerated transactions in
respect of any of the mortgages or deeds of trust (the "Mortgages" and the
"Deeds of Trust" respectively) and promissory notes secured thereby (the
"Mortgage Notes") for which the undersigned is acting as Trustee for various
certificateholders (whether the undersigned is named therein as mortgagee or
beneficiary or has become mortgagee by virtue of endorsement of the Mortgage
Note secured by any such Mortgage or Deed of Trust) and for which Wilshire
Credit Corporation is acting as the Servicer.
This Appointment shall apply only to the following enumerated transactions and
nothing herein or in the Agreement shall be construed to the contrary:
1. The modification or re-recording of a Mortgage or
Deed of Trust, where said modification or re-recording is solely for the purpose
of correcting the Mortgage or Deed of Trust to conform same to the original
intent of the parties thereto or to correct title errors discovered after such
title insurance was issued; provided that (i) said modification or re-recording,
in either instance, does not adversely affect the lien of the Mortgage or Deed
of Trust as insured and (ii) otherwise conforms to the provisions of the
Agreement.
2. The subordination of the lien of a Mortgage or Deed
of Trust to a mortgage or deed of trust replacing a prior mortgage or deed of
trust in accordance with Section 3.01(e) of the Agreement or to an easement in
favor of a public utility company of a government agency or unit
Q-1
with powers of eminent domain; this section shall include, without limitation,
the execution of partial satisfactions/releases, partial reconveyances or the
execution or requests to trustees to accomplish same.
3. The conveyance of the properties to the mortgage
insurer, or the closing of the title to the property to be acquired as real
estate owned, or conveyance of title to real estate owned.
4. The completion of loan assumption agreements.
5. The full satisfaction/release of a Mortgage or Deed
of Trust or full conveyance upon payment and discharge of all sums secured
thereby, including, without limitation, cancellation of the related Mortgage
Note.
6. The assignment of any Mortgage or Deed of Trust and
the related Mortgage Note, in connection with the repurchase of the mortgage
loan secured and evidenced thereby.
7. The full assignment of a Mortgage or Deed of Trust
upon payment and discharge of all sums secured thereby in conjunction with the
refinancing thereof, including, without limitation, the assignment of the
related Mortgage Note.
8. With respect to a Mortgage or Deed of Trust, the
foreclosure, the taking of a deed in lieu of foreclosure, or the completion of
judicial or non-judicial foreclosure or termination, cancellation or rescission
of any such foreclosure, including, without limitation, any and all of the
following acts:
a. the substitution of trustee(s) serving under
a Deed of Trust, in accordance with state
law and the Deed of Trust;
b. the preparation and issuance of statements
of breach or non-performance;
c. the preparation and filing of notices of
default and/or notices of sale;
d. the cancellation/rescission of notices of
default and/or notices of sale;
e. the taking of deed in lieu of foreclosure;
and
f. the preparation and execution of such other
documents and performance of such other
actions as may be necessary under the terms
of the Mortgage, Deed of Trust or state law
to expeditiously complete said transactions
in paragraphs 8.a. through 8.e. above.
9. With respect to the sale of property acquired through
a foreclosure or deed-in lieu of foreclosure, including, without limitation, the
execution of the following documentation:
a. listing agreements;
Q-2
b. purchase and sale agreements;
▇. ▇▇▇▇▇/warranty/quit claim deeds or any other
deed causing the transfer of title of the
property to a party contracted to purchase
same;
d. escrow instructions; and
e. any and all documents necessary to effect
the transfer of property.
10. The modification or amendment of escrow agreements
established for repairs to the mortgaged property or reserves for replacement of
personal property.
The undersigned gives said Attorney-in-Fact full power and authority to execute
such instruments and to do and perform all and every act and thing necessary and
proper to carry into effect the power or powers granted by or under this Limited
Power of Attorney as fully as the undersigned might or could do, and hereby does
ratify and confirm to all that said Attorney-in-Fact shall be effective as of
_________.
This appointment is to be construed and interpreted as a limited power of
attorney. The enumeration of specific items, rights, acts or powers herein is
not intended to, nor does it give rise to, and it is not to be construed as a
general power of attorney.
Nothing contained herein shall (i) limit in any manner any indemnification
provided by the Servicer to the Trustee under the Agreement, or (ii) be
construed to grant the Servicer the power to initiate or defend any suit,
litigation or proceeding in the name of Deutsche Bank National Trust Company
except as specifically provided for herein.
This limited power of attorney is not intended to extend the powers granted to
the Servicer under the Agreement or to allow the Servicer to take any action
with respect to Mortgages, Deeds of Trust or Mortgage Notes not authorized by
the Agreement.
Subject to the limitations in Section 6.05 of the Agreement, the Servicer hereby
agrees to indemnify and hold the Trustee and its directors, officers, employees
and agents harmless from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever incurred by reason or result of
or in connection with the exercise by the Servicer of the powers granted to it
hereunder. The foregoing indemnity shall survive the termination of this Limited
Power of Attorney and the Agreement or the earlier resignation or removal of the
Trustee under the Agreement.
This Limited Power of Attorney is entered into and shall be governed by the laws
of the State of New York, without regard to conflicts of law principles of such
state.
Third parties without actual notice may rely upon the exercise of the power
granted under this Limited Power of Attorney; and may be satisfied that this
Limited Power of Attorney shall continue in full force and effect and has not
been revoked unless an instrument of revocation has been made in writing by the
undersigned.
Q-3
IN WITNESS WHEREOF, Deutsche Bank National Trust Company, as [Indenture] Trustee
has caused its corporate seal to be hereto affixed and these presents to be
signed and acknowledged in its name and behalf by a duly elected and authorized
signatory this ___________ day of ____________.
Deutsche Bank National Trust Company, as Trustee
By:__________________________________
Name:
Title:
Acknowledged and Agreed
Wilshire Credit Corporation
By:____________________________
Name:
Title:
Q-4
STATE OF CALIFORNIA
COUNTY OF ____________
On ________________, _____, before me, the undersigned, a
Notary Public in and for said state, personally appeared
________________________________ of Deutsche Bank National Trust Company, as
Trustee for GSAMP Trust 2005-S1, Mortgage Pass-Through Certificates, Series
2005-S1, personally known to me to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed that same in
his/her authorized capacity, and that by his/her signature on the instrument the
entity upon behalf of which the person acted and executed the instrument.
WITNESS my hand and official seal.
(SEAL)
------------------------------------
Notary Public, State of California
Q-5