EXHIBIT 4.5.2
STANDARD TERMS TO TRUST AGREEMENT (FEBRUARY 2003 EDITION)
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STANDARD TERMS
TO
TRUST AGREEMENT
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GS Mortgage Securities Corp.
Depositor
GSR Mortgage Loan Trust 2003-1
Mortgage Pass-Through Certificates, Series 2003-1
February 2003 Edition
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TABLE OF CONTENTS
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Page
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RECITALS..........................................................................................................1
STANDARD PROVISIONS...............................................................................................1
ARTICLE I DEFINITIONS.............................................................................................1
Section 1.01 Defined Terms............................................................................1
ARTICLE II MORTGAGE LOAN FILES...................................................................................19
Section 2.01 Mortgage Loan Files.....................................................................19
Section 2.02 Acceptance by the Trustee...............................................................19
Section 2.03 Purchase of Mortgage Loans by the Servicer, the Seller, GSMC or the Depositor...........22
Section 2.04 Representations and Warranties of the Depositor.........................................26
ARTICLE III ADMINISTRATION OF THE TRUST..........................................................................28
Section 3.01 Certificate Account.....................................................................28
Section 3.02 Filings with the Commission.............................................................29
Section 3.03 REMIC I, REMIC II and REMIC III Accounts...............................................29
Section 3.04 Trustee to Cooperate; Release of Mortgage Files.........................................30
Section 3.05 Amendments to Servicing Agreement.......................................................31
Section 3.06 Administrator Advances..................................................................32
Section 3.07 Enforcement of Servicing Agreement......................................................33
ARTICLE IV REPORTING/REMITTING TO CERTIFICATEHOLDERS.............................................................33
Section 4.01 Statements to Certificateholders........................................................33
Section 4.02 Remittance Reports and other Reports from the Servicer..................................36
Section 4.03 Compliance with Withholding Requirements................................................36
Section 4.04 Reports of Certificate Balances to The Depository Trust Company.........................37
Section 4.05 Preparation of Regulatory Reports.......................................................37
Section 4.06 Management and Disposition of REO Property..............................................37
ARTICLE V THE INTERESTS AND THE SECURITIES.......................................................................38
Section 5.01 REMIC Interests.........................................................................38
Section 5.02 The Certificates........................................................................38
Section 5.03 Book-Entry Securities...................................................................38
Section 5.04 Registration of Transfer and Exchange of Certificates...................................40
Section 5.05 Restrictions on Transfer................................................................41
Section 5.06 Mutilated, Destroyed, Lost or Stolen Certificates.......................................43
Section 5.07 Persons Deemed Owners...................................................................43
Section 5.08 Appointment of Paying Agent.............................................................44
ARTICLE VI THE DEPOSITOR.........................................................................................44
Section 6.01 Liability of the Depositor..............................................................44
Section 6.02 Merger or Consolidation of the Depositor................................................44
ARTICLE VII TERMINATION OF SERVICING ARRANGEMENTS................................................................44
Section 7.01 Termination and Substitution of Servicer................................................44
Section 7.02 Notification to Certificateholders......................................................45
ARTICLE VIII CONCERNING THE TRUSTEE..............................................................................46
Section 8.01 Duties of Trustee.......................................................................46
Section 8.02 Certain Matters Affecting the Trustee...................................................47
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans...................................50
Section 8.04 Trustee May Own Certificates............................................................50
Section 8.05 Trustee's Fees and Expenses.............................................................50
Section 8.06 Eligibility Requirements for Trustee....................................................51
Section 8.07 Resignation and Removal of the Trustee..................................................51
Section 8.08 Successor Trustee.......................................................................52
Section 8.09 Merger or Consolidation of Trustee......................................................52
Section 8.10 Appointment of Co-Trustee or Separate Trustee...........................................52
Section 8.11 Appointment of Custodians...............................................................53
Section 8.12 Appointment of Office or Agent..........................................................54
Section 8.13 Representation and Warranties of the Trustee............................................54
ARTICLE IX TERMINATION OF TRUST..................................................................................55
Section 9.01 Qualified Liquidation...................................................................55
Section 9.02 Termination.............................................................................55
Section 9.03 Procedure for Termination...............................................................55
Section 9.04 Additional Termination Requirements.....................................................57
ARTICLE X REMIC TAX PROVISIONS...................................................................................58
Section 10.01 REMIC Administration..................................................................58
Section 10.02 Prohibited Activities.................................................................59
ARTICLE XI MISCELLANEOUS PROVISIONS..............................................................................61
Section 11.01 Amendment of Trust Agreement..........................................................61
Section 11.02 Recordation of Agreement; Counterparts................................................62
Section 11.03 Limitation on Rights of Certificateholders............................................62
Section 11.04 [Reserved]............................................................................63
Section 11.05 Notices...............................................................................63
Section 11.06 Severability of Provision.............................................................63
Section 11.07 Sale of Mortgage Loans................................................................64
Section 11.08 Notice to Rating Agencies.............................................................64
Exhibit A.........Form of Trust Receipt
Exhibit B.........Form of Final Certification
Exhibit C.........Form of Rule 144A Agreement - QIB Certification
Exhibit D.........Form of Transferee Agreement
Exhibit E.........Form of Benefit Plan Affidavit
Exhibit F.........Form of Residual Transferee Agreement
Exhibit G-1.......Form of Non-U.S. Person Affidavit
Exhibit G-2.......Form of U.S. Person Affidavit
Exhibit H.........Form of Trustee Certification
RECITALS
GS Mortgage Securities Corp. (the "Depositor") and a trustee
(together with its successors and assigns, the "Trustee") identified in the
Trust Agreement (as defined below) have entered into the Trust Agreement that
provides for the issuance of mortgage pass-through certificates (the
"Certificates") that in the aggregate evidence the entire interest in Mortgage
Loans or certificates or securities evidencing an interest therein and other
property owned by the Trust created by such Trust Agreement. These Standard
Terms are a part of, and are incorporated by reference into, the Trust
Agreement.
STANDARD PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations, and warranties made in the Trust Agreement and as hereinafter
set forth, the Depositor and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Except as otherwise specified herein or
in the Trust Agreement or as the context may otherwise require, whenever used
in these Standard Terms, the following words and phrases shall have the
meanings specified in this Article. Capitalized words and phrases used herein
but not defined herein shall, when applied to a Trust, have the meanings set
forth in the Servicing Agreement(s) assigned to such Trust as in effect on the
date of this Agreement. Unless otherwise specified, all calculations described
herein shall be made on the basis of a 360-day year consisting of twelve
30-day months.
"Accounting Date": With respect to each Distribution Date, the last
day of the month preceding the month in which such Distribution Date occurs.
"Administrative Cost Rate": The sum of the Servicing Fee Rates and
the Trustee Fee Rate.
"Administrator Advance": As defined in Section 3.05 hereof.
"Advance": As to any Mortgage Loan, any advance of principal and
interest, taxes, insurance or expenses made by a Servicer or an Administrator
Advance.
"Affiliate": Any person or entity controlling, controlled by, or
under common Control with the Depositor or any Servicer. "Control" means the
power to direct the management and policies of a person or entity, directly or
indirectly, whether through ownership of voting securities, by contract or
otherwise. "Controlling" and "controlled" shall have meanings correlative to
the foregoing.
"Aggregate Principal Distribution Amount": The amount specified in
the Trust Agreement.
"ARM Loan": An "adjustable rate" Mortgage Loan, the Note Rate of
which is subject to periodic adjustment in accordance with the terms of the
Note.
"Assignment Agreement": Any Assignment, Assumption and Recognition
Agreement or Agreements identified in the Trust Agreement to which the
Depositor is a party.
"Available Distribution Amount": Unless otherwise provided in the
Trust Agreement, on each Distribution Date the Available Distribution Amount
shall equal (i) the sum of the following: (A) all amounts credited to the
Collection Account as of the close of business on the related Distribution
Date, (B) an amount equal to Monthly Advances made on or before the previous
Distribution Date, to the extent such Monthly Advance was made from funds on
deposit in any related Collection Account held for future distribution, (C)
all Monthly Advances made with respect to such Distribution Date (to the
extent not included in clause (B) above) and (D) all amounts deposited into
the Certificate Account to effect a Terminating Purchase in accordance with
Section 9.02 minus (ii) the sum of (A) any Principal Prepayments (including
Liquidation Proceeds, Insurance Proceeds and Condemnation Proceeds) or Payoffs
received after the related Principal Prepayment Period, (B) Monthly Payments
collected but due on a Due Date or Dates subsequent to the related Due Period
and (C) reinvestment income on amounts deposited in any Collection Account to
the extent included in (i) above.
"Bankruptcy Loss": Any reduction in the total amount owed by a
Borrower on a Mortgage Loan occurring as a result of a final order of a court
in a bankruptcy proceeding.
"Beneficial Owner": With respect to a Book-Entry Security, the Person
who is registered as owner of that Certificate in the books of the Clearing
Agency for that Certificate or in the books of a Person maintaining an account
with such Clearing Agency.
"Benefit Plan Affidavit": An affidavit substantially in the form of
Exhibit E hereto.
"Benefit Plan Opinion": An Opinion of Counsel satisfactory to the
Trustee (and upon which the Depositor, the Tax Matters Person, and the Trustee
are authorized to rely) to the effect that the proposed transfer will not (a)
cause the assets of the Trust to be regarded as plan assets for purposes of
the Plan Asset Regulations, (b) give rise to any fiduciary duty under ERISA,
on the part of the Depositor, the Trustee or the Servicer, or (c) result in,
or be treated as, a prohibited transaction under Sections 406 or 407 of ERISA
or Section 4975 of the Code. Obtaining a Benefit Plan Opinion shall not be a
cost or expense of the Depositor, the Tax Matters Person or the Trustee.
"Book-Entry Custodian": The custodian appointed pursuant to Section
5.03(d).
"Book-Entry Securities": The Classes of Certificates, if any,
specified as such in the Trust Agreement for a Series.
"Borrower": The individual or individuals obligated to repay a
Mortgage Loan.
"Business Day": Any day that is not (i) a Saturday or Sunday, or (ii)
a legal holiday in the State of New York and the city and state in which the
Corporate Trust Office or the principal office of any Servicer is located, or
(iii) a day on which the banking or savings and loan institutions in the State
of New York and the city and state in which the Corporate Trust Office or the
principal office of any Servicer is located are authorized or obligated by law
or executive order to be closed.
"Certificate": Any security issued under a Trust Agreement and
designated as such.
"Certificate Account": The account or accounts created and maintained
for a Trust pursuant to Section 3.01 hereof.
"Certificate Balance": With respect to each Class of Certificates or
Interests, as of the close of business on any Distribution Date, the initial
balance of such Class of Certificates or Interests set forth in the Trust
Agreement reduced by (a) all principal payments previously distributed to such
Class of Certificates or Interests in accordance with the Trust Agreement, and
(b) all Realized Losses, if any, previously allocated to such Class of
Certificates or Interests pursuant to the Trust Agreement.
"Certificate of Title Insurance": A certificate of title insurance
issued pursuant to a master title insurance policy.
"Certificate Rate": With respect to the Certificates, as to each
Distribution Date, the rate specified as such in the Trust Agreement.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.04 hereof.
"Certificated Subordinated Certificates": The Classes of
Certificates, if any, specified as such in the Trust Agreement for a Series.
"Class": Collectively, all of the Certificates bearing the same
designation.
"Class B Interests": As set forth in the Trust Agreement.
"Clearing Agency": The Depository Trust Company, or any successor
organization or any other organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended,
and the regulations of the Securities and Exchange Commission thereunder.
"Clearing Agency Participant": A broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date": The date on which Certificates are issued by a Trust
as set forth in the related Trust Agreement.
"Collection Account": The collection account or accounts identified
in or established in connection with the Servicing Agreement or Agreements
identified in the Trust Agreement.
"Condemnation Proceeds": All awards or settlements in respect of a
taking of an entire Mortgaged Property or a part thereof by exercise of the
power of eminent domain or condemnation.
"Code": The Internal Revenue Code of 1986, as amended.
"Contract of Insurance Holder": Any FHA approved mortgagee identified
as such in the Trust Agreement or any Servicing Agreement.
"Contractually Delinquent": With respect to any Mortgage Loan, having
one or more uncured delinquencies in respect of payment at any time during the
term of such Mortgage Loan.
"Corporate Trust Office": The respective principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business shall be administered.
"Custody Agreement": The Custody Agreement or Agreements identified
in the Trust Agreement.
"Custodian": The Custodian or Custodians identified in the Trust
Agreement, which shall hold all or a portion of the Trustee Mortgage Loan
Files with respect to a Series.
"Cut-off Date": The date specified as such in the Trust Agreement.
"Defect Discovery Date": With respect to a Mortgage Loan, the date on
which either the Trustee or the Servicer first discovers a Qualification
Defect affecting the Mortgage Loan.
"Depositor": GS Mortgage Securities Corp., a Delaware corporation,
and its successors.
"Disqualified Organization": Either (a) the United States, (b) any
state or political subdivision thereof, (c) any foreign government, (d) any
international organization, (e) any agency or instrumentality of any of the
foregoing, (f) any tax-exempt organization (other than a cooperative described
in section 521 of the Code) that is exempt from federal income tax unless such
organization is subject to tax under the unrelated business taxable income
provisions of the Code, (g) any organization described in section
1381(a)(2)(C) of the Code, or (h) any other entity identified as a
disqualified organization by the REMIC Provisions. A corporation will not be
treated as an instrumentality of the United States or any state or political
subdivision thereof if all of its activities are subject to tax and, with the
exception of the Federal Home Loan Mortgage Corporation, a majority of its
board of directors is not selected by such governmental unit.
"Disqualified Organization Affidavit": An affidavit substantially in
the form of Exhibit F-2.
"Distribution Account": An Eligible Account maintained by the Trustee
for REMIC III. Unless otherwise provided in the Trust Agreement, the
Distribution Account shall be considered an asset of REMIC III.
"Distribution Date": Except as otherwise provided in the Trust
Agreement, the Business Day after the Remittance Date in any month, commencing
in the month following the Closing Date.
"Distribution Statement": As defined in Section 4.01.
"Due Date": The first day of a calendar month.
"Due Period": With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the calendar
month in which such Distribution Date occurs and continuing through the first
day of the month in which such Distribution Date occurs.
"Eligible Account": A trust account (i) maintained by a depository
institution, the long-term unsecured debt obligations are rated by the Rating
Agency in one of its two highest rating categories at the time of any deposit
therein, (ii) maintained with the Trustee or (iii) an account otherwise
acceptable to the Rating Agency. If the definition of Eligible Account is met,
the Certificate Account may be maintained with the Trustee or any of its
related affiliates.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default": As defined in the applicable Servicing Agreement.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Final Certification": A certification as to the completeness of each
Trustee Mortgage Loan File substantially in the form of Exhibit B hereto
provided by the Trustee (or the Custodian) on or before the first anniversary
of the Closing Date pursuant to Section 2.02 hereof.
"Fiscal Year": Unless otherwise provided in the Trust Agreement, the
fiscal year of the Trust shall run from January 1 (or from the Closing Date,
in the case of the first fiscal year) through the last day of December.
"Fraud Losses": Losses on Mortgage Loans resulting from fraud,
dishonesty or misrepresentation in the origination of such Mortgage Loans.
"GSMC": ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, and its successors and
assigns.
"Holders" or "Certificateholders": The holders of the Certificates,
as shown on the Certificate Register maintained by the Trustee.
"Independent": When used with respect to any specified Person,
another Person who (a) is in fact independent of the Depositor, the Initial
Purchaser, the Trustee, each Servicer or GSMC, any obligor upon the
Certificates or any Affiliate of the Depositor, the Initial Purchaser, the
Trustee, each Servicer or GSMC or such obligor, (b) does not have any direct
financial interest or any material indirect financial interest in the
Depositor, the Initial Purchaser, the Trustee, each Servicer or GSMC or in any
such obligor or in an Affiliate of the Depositor, the Trustee, each Servicer
or GSMC or such obligor, and (c) is not connected with the Depositor, the
Initial Purchaser, the Trustee, each Servicer or GSMC or any such obligor as
an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions. Whenever it is provided herein that any
Independent Person's opinion or certificate shall be furnished to the Trustee,
such Person shall be appointed by the Depositor, the Initial Purchaser, the
Trustee, any applicable Servicer or GSMC in the exercise of reasonable care by
such Person, as the case may be, and approved by the Trustee, and such opinion
or certificate shall state that the Person executing the same has read this
definition and that such Person is independent within the meaning thereof.
"Initial Purchaser": ▇▇▇▇▇▇▇, Sachs & Co.
"Initial Certificate Balance": With respect to any Certificate or
Class of Certificates, the Certificate Balance of such Certificate or Class of
Certificates as of the Closing Date.
"Insurance Proceeds": Proceeds of any Federal Insurance, title
policy, hazard policy or other insurance policy covering a Mortgage Loan, if
any, to the extent such proceeds are not to be applied to the restoration of
the related Mortgaged Property or released to the Mortgagor in accordance with
the procedures that the related Servicer would follow in servicing mortgage
loans held for its own account.
"Insurer": Any issuer of an insurance policy relating to the Mortgage
Loans or Certificates of a Series.
"Interest": The REMIC interests that are established by the Trust for
purposes of the REMIC Provisions. The Interests shall be Regular Interests in,
and assets of, the REMICs specified in the Trust Agreement.
"JPMorgan Chase": JPMorgan Chase Bank and its successors.
"Liquidation Loss": The excess, upon a disposition of a defaulted
Mortgage Loan, of (i) the amount owed by the Borrower thereunder, including
all Advances, over (ii) the Liquidation Proceeds thereof.
"Liquidation Proceeds": Amounts, other than Insurance Proceeds and
Condemnation Proceeds, received by the related Servicer in connection with the
liquidation of a defaulted Mortgage Loan through trustee's sale, foreclosure
sale or otherwise, including amounts received following the disposition of an
REO Property pursuant to the applicable Servicing Agreement less costs and
expenses of such foreclosure sale.
"Loan-to-Value Ratio": For purposes of the REMIC Provisions, the
ratio that results when the Unpaid Principal Balance of a Mortgage Loan is
divided by the fair market value of the Mortgaged Premises (or, in the case of
a Mortgage Loan that is secured by a leasehold interest, the fair market value
of the leasehold interest and any improvements thereon). For purposes of
determining that ratio, the fair market value of the Mortgaged Premises (or
leasehold interest, as the case may be) must be reduced by (i) the full amount
of any lien on the Mortgaged Premises (or leasehold interest, as the case may
be) that is senior to the Mortgage Loan and (ii) a pro rata portion of any
lien that is in parity with the Mortgage Loan.
"Lost Document Affidavit": An affidavit, in recordable form, in which
the Seller of a Mortgage Loan represents, warrants and covenants that: (i)
immediately prior to the transfer of such Mortgage Loan under the related Sale
Agreement, such Seller was the lawful owner of the Mortgage Loan and the
Seller has not canceled, altered, assigned or hypothecated the mortgage note
or the related Mortgage, (ii) the missing document was not located after a
thorough and diligent search by the Seller, (iii) in the event that the
missing document ever comes into the Seller's possession, custody or power,
the Seller covenants immediately and without further consideration to
surrender such document to the Trustee, and (iv) that it shall indemnify and
hold harmless the Trust, its successors, and assigns, against any loss,
liability, or damage, including reasonable attorney's fees, resulting from the
unavailability of any originals of any such documents or of a complete chain
of intervening endorsements, as the case may be.
"Modification Loss": A decrease in the total payments due from a
Borrower as a result of a modification of such Mortgage Loans following a
default or reasonably expected default thereon. If a Modification Loss results
in a decrease in the Note Rate of a Mortgage Loan, such Modification Loss
shall be treated as occurring on each Due Date to the extent of such decrease.
"Month End Interest Shortfall": For any Distribution Date, the
aggregate Prepayment Interest Shortfall Amount for the Mortgage Loans, to the
extent not paid out of the Servicer's Servicing Fee pursuant to the applicable
Servicing Agreement.
"Monthly Advance": The aggregate amount of the (i) advances made by a
Servicer on any Remittance Date in respect of delinquent Monthly Payments
pursuant to the applicable Servicing Agreement and (ii) any Administrator
Advances made in respect of any such delinquent Monthly Payment pursuant to
Section 3.05.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal thereof and interest thereon due in any month
under the terms thereof.
"Mortgage Loan": The mortgage loans sold by the Depositor to the
Trust as listed on the Mortgage Loan Schedule to the Trust Agreement. Unless
the context indicates otherwise the term "Mortgage Loan" includes any REO
Property held by the Trust.
"Mortgage Loan Schedule": The list of Mortgage Loans sold by the
Depositor to the Trust, which Schedule is attached to the Trust Agreement and
to the applicable Custody Agreement, and which shall set forth for each
Mortgage Loan the following information:
(a) the Servicer (Depositor) loan number;
(b) the Borrower's name;
(c) the original principal balance; and
(d) the Scheduled Principal Balance as of the Cut off Date;
together with such additional information as may be reasonably requested by
the Trustee.
"Mortgaged Premises": The real property securing repayment of the
debt evidenced by a Note.
"Mortgagor": Borrower.
"Net Rate": Unless otherwise provided in the Trust Agreement, with
respect to each Mortgage Loan, the Note Rate of that Mortgage Loan less the
Administrative Cost Rate applicable thereto.
"Non-U.S. Person": A foreign person within the meaning of Treasury
Regulation Section 1.860G-3(a)(1) (i.e., a person other than (i) a citizen or
resident of the United States, (ii) a corporation or partnership that is
organized under the laws of the United States or any jurisdiction thereof or
therein, (iii) an estate that is subject to United States federal income tax
regardless of the source of its income or (iv) a trust if a court within the
United States is able to exercise primary supervision over the administration
of such trust and one or more United States Persons have the authority to
control all substantial decisions of the trust) who would be subject to United
States income tax withholding pursuant to Section 1441 or 1442 of the Code on
income derived from the Residual Certificates.
"Non-U.S. Person Affidavit": An affidavit substantially in the form
of Exhibit G-1 hereto.
"Note": A manually executed written instrument evidencing the
Borrower's promise to repay a stated sum of money, plus interest, to the
holder of the Note by a specific date according to a schedule of principal and
interest payments.
"Note Rate": The rate of interest borne by each Note according to its
terms.
"Opinion of Counsel": A written opinion of counsel, who may be
counsel for the Depositor or a Servicer, acceptable to the Trustee and the
Servicer, as applicable. An Opinion of Counsel relating to tax matters must be
an opinion of Independent counsel.
"Par Price": An amount equal to (i) 100% of the Scheduled Principal
Balance of each Mortgage Loan remaining in the Trust on the day of such
purchase, plus accrued interest thereon at the Note Rate to the Due Date in
the month in which the Termination Price is distributed to Certificateholders,
plus (ii) the lesser of (A) the Scheduled Principal Balance of the Mortgage
Loan for any REO Property remaining in the Trust, plus accrued interest
thereon at the Note Rate (less the related Servicing Fee Rate) to the Due Date
in the month in which the Termination Price is distributed to
Certificateholders, and (B) the current appraised value of any such REO
Property, such appraisal to be conducted by an appraiser satisfactory to the
Trustee.
"Paying Agent": The paying agent appointed pursuant to Section 5.08
hereof.
"Payoff": Any payment or other recovery of principal on a Mortgage
Loan equal to the Unpaid Principal Balance of such Mortgage Loan, received in
advance of the last scheduled Due Date, including any prepayment penalty or
premium thereon, which is accompanied by an amount of interest representing
scheduled interest from the Due Date interest was last paid by the Mortgagor
to the date of such prepayment.
"Percentage Interest": With respect to any Certificate to which
principal is assigned as of the Closing Date, the portion of the Class
evidenced by such Certificate, expressed as a percentage, the numerator of
which is the initial Certificate Balance of such Certificate and the
denominator of which is the aggregate Certificate Balance of all of the
Certificates of such Class as of the Closing Date. With respect to any
Certificate to which a principal balance is not assigned as of the Closing
Date, the portion of the Class evidenced by such Certificate, expressed as a
percentage, as stated on the face of such Certificate.
"Permitted Investments": Permitted Investments shall consist of the
following:
(i) direct obligations of, or obligations fully guaranteed as to
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit of
the United States;
(ii) repurchase obligations (the collateral for which is held by
a third party or the Trustee) with respect to any security described in clause
(i) above, provided that the long-term or short-term unsecured debt
obligations of the party agreeing to repurchase such obligations are at the
time rated by each Rating Agency in its highest long-term unsecured debt
rating categories;
(iii) certificates of deposit, time deposits and bankers'
acceptances of any bank or trust company (including the Trustee) incorporated
under the laws of the United States or any state, provided that the long-term
unsecured debt obligations of such bank or trust company at the date of
acquisition thereof have been rated by each Rating Agency in one of its two
highest long-term unsecured debt rating categories;
(iv) commercial paper (having original maturities of not more
than 270 days) of any corporation (including an affiliate of the Trustee)
incorporated under the laws of the United States or any state thereof which on
the date of acquisition has been rated by each Rating Agency in its highest
short-term unsecured debt rating available (i.e., "P-1" by ▇▇▇▇▇'▇ Investors
Service, Inc. "A-1+" by Standard & Poor's Ratings Services and "F-1+" by
Fitch, Inc.);
(v) money market funds administered by the Trustee or any of its
affiliates provided that such money market funds are rated by each Rating
Agency (i) in its highest short-term unsecured debt rating category available
(i.e., "P-1" by ▇▇▇▇▇'▇ Investors Service, Inc. "A-1+" by Standard & Poor's
Ratings Services and "F-1+" by Fitch, Inc.) or (ii) in one of its two highest
long-term unsecured debt rating categories ; and
(vi) any other demand, money market or time deposit or
obligation, or interest-bearing or other security or investment as would not
affect the then current rating of the Certificates by any Rating Agency (which
shall include money market funds rated in the highest long-term rating
category with portfolios consisting solely of obligations in clauses (i)
through (iv) above).
provided, however, that no investment described above shall constitute a
Permitted Investment (A) if such investment evidences either the right to
receive (i) only interest with respect to the obligations underlying such
instrument or (ii) both principal and interest payments derived from
obligations underlying such instrument if 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 or (B)
if such investment is not a "permitted investment" for purposes of the REMIC
Provisions; and provided further, that no investment described above shall
constitute a Permitted Investment unless such investment matures no later than
the Business Day immediately preceding the Distribution Date on which the
funds invested therein are required to be distributed (or, in the case of an
investment that is an obligation of the institution in which the account is
maintained, no later than such Distribution Date). The Trustee shall not sell
or permit the sale of any Permitted Investment unless it shall have determined
that such a sale would not result in a prohibited transaction in which a gain
would be realized under the REMIC Provisions.
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency
or political subdivision thereof.
"Plan": Any employee benefit plan or retirement arrangement,
including individual retirement accounts and annuities, ▇▇▇▇▇ plans and
collective investment funds in which such plans, accounts, annuities or
arrangements are invested, that are described in or subject to the Plan Asset
Regulations, ERISA or corresponding provisions of the Code.
"Plan Asset Regulations": The Department of Labor regulations set
forth in 29 C.F.R. ss. 2510.3-101, as amended from time to time.
"Plan Investor": Any Plan, any Person acting on behalf of a Plan or
any Person using the assets of a Plan.
"Prepayment Period": Unless otherwise specified in the Trust
Agreement, with respect to each Distribution Date, the calendar month
preceding the month in which such Distribution Date occurs.
"Prime Rate": With respect to any Distribution Date, the rate
published as the "Prime Rate" in the "Money Rates" section or other comparable
section of The Wall Street Journal on such date. In the event The Wall Street
Journal publishes a prime rate range, the average of that range, as determined
by the Trustee, shall be the Prime Rate. In the event The Wall Street Journal
no longer publishes a "Prime Rate" entry, the Trustee shall designate a new
methodology for determining the Prime Rate based on comparable data.
"Principal Prepayment Amount": As defined in the Trust Agreement.
"Private Residual Certificate": Any Class of Certificates designated
as such in the Trust Agreement.
"Private Certificate": Any Class of Certificates designated as such in
the Trust Agreement.
"Purchase Price": With respect to a Mortgage Loan purchased from the
Trust, an amount equal to the Scheduled Principal Balance of the Mortgage
Loan, plus accrued and unpaid interest thereon at the Note Rate to the last
day of the month in which the purchase occurs, less any amounts received in
respect of such Mortgage Loan and being held in the Collection Account.
"Purchaser": The Person that purchases a Mortgage Loan from the Trust
pursuant to Section 2.03 hereof.
"QIB Certificate": As defined in Section 5.5(a), a Rule 144A
Agreement or a certificate substantially to the same effect.
"Qualification Defect": With respect to a Mortgage Loan, (a) a
defective document in the Trustee Mortgage Loan File, (b) the absence of a
document in the Trustee Mortgage Loan File, or (c) the breach of any
representation, warranty or covenant with respect to the Mortgage Loan made by
the applicable Seller or Servicer or the Depositor but only if the affected
Mortgage Loan would cease to qualify as a "qualified mortgage" for purposes of
the REMIC Provisions. With respect to a REMIC Regular Interest or a mortgage
certificate described in Section 860G(a)(3) of the Code, the failure to
qualify as a "qualified mortgage" for purposes of the REMIC Provisions.
"Qualified Institutional Buyer": Any "qualified institutional buyer"
as defined in clause (a)(1) of Rule 144A.
"Rating Agency": Any nationally recognized statistical rating agency,
or its successor, that on the Closing Date rated one or more Classes of the
Certificates at the request of the Depositor and identified in the Trust
Agreement. If such agency or a successor is no longer in existence, the
"Rating Agency" shall be such nationally recognized statistical rating agency,
or other comparable Person, designated by the Depositor, notice of which
designation shall be given to the Trustee. References herein to any long-term
rating category of a Rating Agency shall mean such rating category without
regard to any plus or minus or numerical designation.
"Realized Loss": A Liquidation Loss, a Modification Loss or a
Bankruptcy Loss, in each case, to the extent not covered by Insurance
Proceeds.
"Record Date": Shall have the meaning ascribed to it in the Trust
Agreement.
"Regular Interest": An interest in a REMIC that is designated in the
Trust Agreement as a "regular interest" under the REMIC Provisions.
"Regular Certificate": Any Certificate other than a Residual
Certificate and that represents a Regular Interest in a REMIC or a combination
of Regular Interests in a REMIC.
"REMIC": With respect to each Trust, each real estate mortgage
investment conduit, within the meaning of the REMIC Provisions, for such
Trust.
"REMIC I": The REMIC consisting primarily of the Regular Interests in
the Mortgage Loans and the Certificate Account.
"REMIC I Interests": The interests issued by the Trust that represent
the Regular Interests in REMIC I.
"REMIC II": The REMIC consisting primarily of the Regular Interests
in REMIC I and the Sub-Distribution Account.
"REMIC II Distribution Account": With respect to a Triple REMIC
Series, an Eligible Account maintained by the Trustee for REMIC II, which
REMIC II Distribution Account shall be considered an asset of REMIC II.
"REMIC II Interests": The interests issued by the Trust that
represent the Regular Interests in REMIC II.
"REMIC III": The REMIC consisting primarily of the Regular Interests
in REMIC II and the REMIC II Distribution Account.
"REMIC III Interests": The interests issued by the Trust that
represent the Regular Interests in REMIC III.
"REMIC Provisions": Provisions of the Code relating to real estate
mortgage investment conduits, which appear at sections 860A through 860G of
the Code, related Code provisions, and regulations, announcements and rulings
thereunder, as the foregoing may be in effect from time to time.
"Remittance Date": As defined in the Trust Agreement.
"Remittance Report": The report (either a data file or hard copy)
that is prepared by the Servicer for the Trustee and contains the information
specified in any designated exhibit attached to the Servicing Agreement.
"REO Disposition": The receipt by the applicable Servicer of
Insurance Proceeds and other payments and recoveries (including Liquidation
Proceeds) which the Servicer recovers from the sale or other disposition of an
REO Property.
"REO Property": Mortgaged Premises acquired by the Trust in
foreclosure or similar actions.
"Request for Release": A request signed by an Officer of the
Servicer, requesting that the Trustee (or applicable Custodian) release the
Trustee Mortgage Loan File to such Servicer for the purpose set forth in such
release, in accordance with the terms of the Servicing Agreement and these
Standard Terms.
"Reserve Fund": Unless otherwise provided in the Trust Agreement, any
fund in the Trust Estate other than (a) the Certificate Account, Distribution
Account and Termination Account and (b) any other fund that is expressly
excluded from a REMIC.
"Residual Certificate": The Class R Certificates designated as such
in the Trust Agreement.
"Residual Interest": An interest in a REMIC that is designated as a
"residual interest" under the REMIC Provisions.
"Residual Transferee Agreement": An agreement substantially in the
form of Exhibit F hereto.
"Responsible Officer": When used with respect to the Trustee, any
senior vice president, any vice president, any assistant vice president, any
assistant treasurer, any trust officer, any assistant secretary in the
Corporate Trust Office of the Trustee, as the case may be, or any other
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers and having
direct responsibility for the administration of this Agreement, and also to
whom with respect to a particular corporate trust matter such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject. With respect to any other Person, the chairman of the
board, the president, a vice president (however designated), the treasurer or
controller.
"Rule 144A": Rule 144A promulgated by the Securities and Exchange
Commission, as the same may be amended from time to time.
"Rule 144A Agreement": An agreement substantially in the form of
Exhibit C hereto.
"Rule 144A Certificates": Any Class of Certificates designated as
such in the Trust Agreement.
"Sale Agreement": The Sales Agreement or Agreements identified in the
Trust Agreement.
"Scheduled Principal Balance": For any Mortgage Loan as of any Due
Date subsequent to the Cut-Off Date up to and including the date on which such
Mortgage Loan is finally liquidated or repurchased from the Trustee, the
scheduled principal balance thereof as of the Cut-off Date, increased by the
amount of negative amortization, if any, with respect thereto, and reduced by
(i) the principal portion of all Monthly Payments due on or before such Due
Date, whether or not paid by the Borrower or advanced by a Servicer, the
Trustee or an Insurer, net of any portion thereof that represents principal
due on a Due Date occurring on or before the date on which such proceeds were
received, (ii) the principal portion of all Prepayments, including Liquidation
Proceeds, Condemnation Proceeds and Insurance Proceeds, and Payoffs received
on or before the last day of the Prepayment Period preceding such date of
determination, and (iii) without duplication, the amount of any Realized Loss
that has occurred with respect to such Mortgage Loan.
"Securities Act": The Securities Act of 1933, as amended.
"Seller": The Seller or Sellers identified in the Trust Agreement.
"Senior Percentage": The percentage, if any, calculated as set forth
in the Trust Agreement.
"Senior Prepayment Percentage": The percentage, if any, calculated as
set forth in the Trust Agreement.
"Series": A group of Certificates issued by a separate Trust.
"Servicer": The Servicer or Servicers identified in the Servicing
Agreement or Agreements.
"Servicer Compensation": The Servicing Fee and any additional
compensation as specified in the Servicing Agreement or Agreements.
"Servicer Mortgage Loan File": With respect to each Mortgage Loan,
the related Mortgage File, as that term is defined in the related Servicing
Agreement.
"Servicing Agreement": The Servicing Agreement or Agreements
identified in the Trust Agreement.
"Servicing Fee": Unless otherwise provided in the Trust Agreement, in
any month, an amount equal to one-twelfth of the Servicing Fee Rate multiplied
by the aggregate Scheduled Principal Balance of the Mortgage Loans as of the
Due Date preceding a Distribution Date without taking into account any payment
of principal due or made on such Due Date.
"Servicing Fee Rate": The rate or rates specified as such in the
applicable Servicing Agreement.
"Shortfall": Month End Interest Shortfall and Soldiers' and Sailors'
Shortfall.
"Soldiers' and Sailors' Shortfall": Interest losses on a Mortgage
Loan resulting from application of the Soldiers' and Sailors' Civil Relief Act
of 1940.
"Special Tax Consent": The written consent of the Holder of a
Residual Certificate to any tax (or risk thereof) arising out of a proposed
transaction or activity that may be imposed upon such Holder or that may
affect adversely the value of such Holder's Residual Certificate.
"Special Tax Opinion": An Opinion of Counsel that a proposed
transaction or activity will not (a) affect adversely the status of any REMIC
as a REMIC or of the Regular Interests as the "regular interests" therein
under the REMIC Provisions, (b) affect the payment of interest or principal on
the Regular Interests, or (c) result in the encumbrance of the Mortgage Loans
by a tax lien.
"Standard Terms": These Standard Terms, as amended or supplemented,
incorporated by reference in a Trust Agreement.
"Tax Matters Person": The Trustee, which will act as tax matters
person (within the meaning of the REMIC Provisions) of a REMIC.
"Terminating Purchase": The purchase of all Mortgage Loans and each
REO Property owned by a Trust pursuant to Section 9.02 hereof.
"Termination Account": An escrow account maintained by the Trustee
into which any Trust funds not distributed on the Distribution Date on which
the earlier of (a) a Terminating Purchase or (b) the final payment or other
Liquidation of the last Mortgage Loan remaining in the Trust or the
disposition of the last REO Property remaining in the Trust is made are
deposited. The Termination Account shall be an Eligible Account.
"Termination Price": The greater of (i) the Par Price and (ii) the
sum of the aggregate fair market value of all of the assets of the Trust (as
determined by the Trustee in consultation with the Initial Purchaser (or, if
the Initial Purchaser is unwilling or unable to serve in that capacity, a
financial advisor selected by the Trustee in a commercially reasonable manner,
whose fees will be an expense of the Depositor (or other party causing the
Termination Purchase)) based upon the mean of bids from at least three
recognized broker/dealers that deal in similar assets) as of the close of
business on the third Business Day preceding the date upon which notice of any
such termination is furnished to Certificateholders pursuant to Section 9.03;
provided, however, that in determining such aggregate fair market value, the
Trustee shall be entitled to conclusively rely on such bids or the opinion of
a nationally recognized investment banker (the fees of which shall be an
expense of the Trust. The fair market value of the assets in the Trust or the
appraised value of any REO Property shall be based upon the inclusion of
accrued interest to the last day of the month in which the Termination Price
is distributed to the Certificateholders, at the applicable Note Rate (less
the related Administrative Cost Rate) on the Scheduled Principal Balance of
each Mortgage Loan (including any Mortgage Loan which became an REO Property
as to which an REO Property Disposition has not occurred).
"Transferee Agreement": An agreement substantially in the form of
Exhibit D hereto.
"Trust": The trust formed pursuant to the Trust Agreement.
"Trust Agreement" or this "Agreement": The Trust Agreement, dated as
of February 1, 2003, among the Depositor and the Trustee relating to the
issuance of Certificates, and into which these Standard Terms are incorporated
by reference.
"Trust Estate": The segregated pool of assets sold and assigned to
the Trust by the Depositor pursuant to the conveyance clause of the Trust
Agreement.
"Trust Receipt": A certification as to the completeness of each
Trustee Mortgage Loan File substantially in the form of Exhibit A hereto
provided by the Trustee (or the Custodian) pursuant to Section 2.02 hereof.
"Trustee": The bank or trust company identified as the Trustee in the
Trust Agreement, and its successors and assigns.
"Trustee Fee": Unless otherwise provided in the Trust Agreement, on
any Distribution Date, an amount equal to one-twelfth of the Trustee Fee Rate,
which is reflected in a separate fee letter agreement.
"Trustee Fee Rate": The amount set forth in the Trust Agreement.
"Trustee Mortgage Loan File": With respect to each Mortgage Loan,
unless otherwise provided in the Trust Agreement, collectively, the following
documents, together with any other Mortgage Loan documents held by the Trustee
or the related Custodian with respect to such Mortgage Loan:
(i)The original executed mortgage note endorsed, "Pay to the order of
________________ or in the name of the Trustee, JPMorgan Chase Bank, as
trustee under a Trust Agreement, dated as of February 1, 2003, without
recourse", and signed in the name of the Seller (or an affiliate of such
Seller, if applicable) by an officer of such Seller (or an affiliate of
such Seller, if applicable), or a Lost Document Affidavit with a copy of
the original mortgage note attached; provided that unless otherwise
provided in the related Sale Agreement, the words "JPMorgan Chase Bank, as
trustee under a Trust Agreement, dated as of February 1, 2003" shall be
inserted into the blank; and provided that the mortgage note shall include
all intervening original endorsements showing a complete chain of title
from the originator to such Seller (or an affiliate of such Seller, if
applicable);
(ii) The original executed Mortgage, or a certified copy thereof, in either
case with evidence of recording noted thereon;
(iii) The original assignment of each Mortgage from the related Seller (or its
affiliate, if applicable) delivered in blank in recordable form;
(iv) The original or copy of a policy of title insurance, a certificate of
title, or attorney's opinion of title (accompanied by an abstract of
title), as the case may be, with respect to each Mortgage Loan;
(v)Originals of any intervening assignments of the mortgage necessary to show
a complete chain of title from the original mortgagee to the Seller, or
certified copies thereof, in either case with evidence of recording noted
thereon; provided, that such intervening assignments may be in the form of
blanket assignments, a copy of which, with evidence of recording noted
thereon, shall be acceptable;
(vi) Originals of all modification agreements, or certified copies thereof, in
either case with evidence of recording noted thereon if recordation is
required to maintain the lien of the mortgage or is otherwise required, or,
if recordation is not so required, an original or copy of any such
modification agreement; and
(vii) To the extent applicable, (x) an original power of attorney, or a
certified copy thereof, in either case with evidence of recordation thereon
if necessary to maintain the lien on the Mortgage or if the document to
which such power of attorney relates is required to be recorded, or, if
recordation is not so required, an original or copy of such power of
attorney, and (y) an original or copy of any surety agreement or guaranty
agreement.
Notwithstanding the foregoing, with respect to any power of attorney,
mortgage, assignment, intervening assignment, assumption agreement,
modification agreement or deed of sale for which a certified copy is delivered
in accordance with the foregoing, the copy must be certified as true and
complete by the appropriate public recording office, or, if the original has
been submitted for recording but has not yet been returned from the applicable
recording office, an officer of the Seller (or a predecessor owner, a title
company, closing/settlement/escrow agent or company or closing attorney) must
certify the copy as a true copy of the original submitted for recordation.
Copies of blanket intervening assignments, however, need not be certified.
"UCC": The Uniform Commercial Code as in effect in the jurisdiction
that governs the interpretation of the substantive provisions of the Trust
Agreement, as such Uniform Commercial Code may be amended from time to time.
"Unpaid Principal Balance": With respect to any Mortgage Loan, the
outstanding principal balance payable by the related Borrower under the terms
of the Note.
"U.S. Person": A Person other than a Non-U.S. Person.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. Unless otherwise provided
in the Trust Agreement, (a) if any Class of Certificates does not have a
Certificate Balance or has an initial Certificate Balance that is less than or
equal to 1% of the aggregate Certificate Balance of all of the Certificates,
then 1% of Voting Rights shall be allocated to each Class of such Certificates
having no Certificate Balance or a Certificate Balance equal to or less than
1% of the aggregate Certificate Balance of all Certificates; provided,
however, that each class of Residual Interest Certificateholders in the Triple
REMIC Series shall be treated as a separate Class of Certificateholders, and
the balance of Voting Rights shall be allocated among the remaining Classes of
Certificates in proportion to their respective Certificate Balances following
the most recent Distribution Date, and (b) if no Class of Certificates has an
initial Certificate Balance less than 1% of the aggregate Certificate Balance,
then all of the Voting Rights shall be allocated among all the Classes of
Certificates in proportion to their respective Certificate Balances following
the most recent Distribution Date. Voting Rights allocated to each Class of
Certificates shall be allocated in proportion to the respective Percentage
Interests of the Holders thereof.
"Withholding Agent": The Trustee or its designated Paying Agent or
other person who is liable to withhold federal income tax from a distribution
on a Residual Certificate under Sections 1441 and 1442 of the Code and the
Treasury regulations thereunder.
ARTICLE II
MORTGAGE LOAN FILES
Section 2.01 Mortgage Loan Files. Pursuant to the Trust Agreement,
the Depositor has sold to the Trustee without recourse all the right, title
and interest of the Depositor in and to the Mortgage Loans, any and all
rights, privileges and benefits accruing to the Depositor under each
Assignment Agreement, each Sale Agreement, and each Servicing Agreement with
respect to the Mortgage Loans, including the rights and remedies with respect
to the enforcement of any and all representations, warranties and covenants
under such agreements and all other agreements and assets included or to be
included in the Trust for the benefit of the Certificateholders as set forth
in the conveyance clause of the Trust Agreement. Such assignment includes all
of the Depositor's rights to Monthly Payments on the Mortgage Loans due after
the Cut-off Date, and all other payments of principal (and interest) made on
or after the Cut-off Date that are reflected in the initial aggregate
Certificate Balance for a Trust.
In connection with such transfer and assignment, the Depositor shall
deliver, or cause to be delivered, to the Trustee or the Custodian on or
before the Closing Date, with respect to each Mortgage Loan, the Trustee
Mortgage Loan File that was delivered to such Custodian by the Servicer. If
any Mortgage or an assignment of a Mortgage to the Trustee or any prior
assignment is in the process of being recorded on the Closing Date, the
Depositor shall cause each such original recorded document or certified copy
thereof, to be delivered to the Trustee or the related Custodian promptly
following its recordation and return to the Depositor.
Section 2.02 Acceptance by the Trustee.
(a) By its execution of the Trust Agreement, the Trustee
acknowledges and declares that it or the Custodian holds and will hold or has
agreed to hold (in each case through the applicable Custodian) all documents
delivered to it or any such Custodian from time to time with respect to a
Mortgage Loan and all assets included in the definition of "Trust Estate" in
the Trust Agreement in trust for the exclusive use and benefit of all present
and future Certificateholders. The Trustee represents and warrants that (i) it
acquired the Mortgage Loans on behalf of the Trust from the Depositor in good
faith, for value, and without actual notice or actual knowledge of any adverse
claim, lien, charge, encumbrance or security interest (including, without
limitation, federal tax liens or liens arising under ERISA) (it being
understood that the Trustee has not undertaken searches (lien records or
otherwise) of any public records), (ii) except as permitted in the Trust
Agreement, it has not and will not, in any capacity, assert any claim or
interest in the Mortgage Loans and will hold (or its agent will hold) such
Mortgage Loans and the proceeds thereof in trust pursuant to the terms of the
Trust Agreement, and (iii) it has not encumbered or transferred its right,
title or interest in the Mortgage Loans.
(b) The Trustee will cause the Custodian to review, for the
benefit of the Certificateholders and the parties hereto, each Trustee
Mortgage Loan File and deliver to the Trustee (with a copy to the Depositor)
on the Closing Date a Trust Receipt with respect to each Mortgage Loan to the
effect that, except as specifically noted on a schedule of exceptions thereto
(the "Exceptions List"):
(i) all documents required to be delivered to it pursuant
to clause (a) through (f) of the definition of Trustee Mortgage Loan File
are in the Trustee's or Custodian's possession;
(ii) all documents required to be delivered to it pursuant
to clause 1(g) of the definition of Trustee Mortgage Loan File are in the
Trustee's or Custodian's possession, provided that
(A) the Custodian shall have no obligation to verify the
receipt of any such documents the existence of which was not made
known to the Custodian by the Trustee Mortgage Loan File, and
(B)the Custodian shall have no obligation to determine
whether recordation of any such modification is necessary;
(iii) all powers of attorney required to be delivered to
it pursuant to clause (h) of the definition of Trustee Mortgage Loan File
are in the Custodian's possession, provided that
(A) the Custodian shall have no obligations to verify the
receipt of any such documents the existence of which was not made
known to the Custodian by the Trustee Mortgage Loan File, and
(B) the Custodian shall have no obligation to determine
whether recordation of any such power of attorney is necessary
(except that the Custodian shall conclude that if the document to
which such power of attorney relates is a mortgage, interim
assignment, assignment or a document that was recorded, then the
Custodian shall conclude that such power of attorney should have
been recorded);
(iv) all documents have been examined by the Custodian and
appear regular on their face and to relate to the Mortgage Loans; and
(v) that each mortgage note has been endorsed and each
assignment of mortgage has been assigned as described in the definition
of Trustee Mortgage Loan File, provided that the Custodian shall have no
obligation to confirm that the assignments are in recordable form.
In making the verification required by this Section 2.02(b), the
Custodian may rely conclusively on the Mortgage Loan Schedule attached hereto,
and the Custodian shall have no obligation to independently verify the
correctness of such Mortgage Loan Schedule.
(c) It is understood that before delivering the Trust Receipt,
the Custodian, on behalf of the Trustee, shall examine the Mortgage Loan
Documents to confirm the following (and shall report any exceptions to these
confirmations in the Exceptions Report attached to the Trust Receipt):
(i) each mortgage note, mortgage, assumption,
modification, guaranty, power of attorney and deed of sale bears a
signature or signatures that appear to be original and that purport to be
that of the Person or Persons named as the maker and mortgagor/trustor
or, if photocopies are permitted, that such copies bear a reproduction of
such signature or signatures;
(ii) except for the endorsement required pursuant to
clause (a) of the definition of Trustee Mortgage Loan File, neither the
mortgage nor any assignment, on the face or the reverse side(s) thereof,
contains evidence of any unsatisfied claims, liens, security interests,
encumbrances or restrictions on transfer;
(iii) the principal amount of the indebtedness secured by
the mortgage is identical to the original principal amount of the
mortgage note;
(iv) the interest rate shown on the Mortgage Loan Schedule
is identical to the interest rate shown on the mortgage note;
(v) the assignment of the mortgage from the related Seller
(or its affiliate, if applicable) to the Trustee is in the form required
pursuant to clause (c) of the definition of Trustee Mortgage Loan File,
and bears the signature of the related Seller (or its affiliate, if
applicable) that appears to be an original and any other necessary party
or, if photocopies are permitted, such copies bear a reproduction of such
signature or signatures;
(vi) if intervening assignments are included in the
Trustee Mortgage Loan File, each such intervening assignment bears the
signature of the mortgagee and/or the assignor (and any other necessary
party) that appears to be an original or, if photocopies are permitted,
that such copies bear a reproduction of such signature or signatures; and
(vii) the title insurance policy or certificate of title
is for an amount not less than the original principal amount of the
related note.
(d) Prior to the first anniversary date of the Closing Date, the
Custodian shall deliver to the Depositor, the Trustee and each Servicer a
Final Certification evidencing the completeness of the Trustee Mortgage Loan
File for each Mortgage Loan, with any applicable exceptions noted on such
Certification.
(e) No later than the fifth Business Day of each month,
commencing the first month following the month in which the Closing Date
occurs, the Custodian shall deliver to each Servicer (or such other party
responsible for recordation of any Mortgages and/or assignments as specified
in the related Servicing Agreement), and the Depositor in hard copy format
(and, if requested, in electronic format), the Exceptions List, updated to
remove exceptions cured since the Closing Date. In addition, such monthly
reports shall list any document with respect to which the related Seller
delivered a copy certifying that the original had been sent for recording,
until such time as the related Seller or Servicer delivers to the Trustee (or
Custodian) the original of such document or a copy thereof certified by the
appropriate public recording office.
(f) In lieu of taking possession of the Trustee Mortgage Loan
Files and reviewing such files itself, the Trustee shall, in accordance with
Section 8.11 hereof, appoint one or more Custodians to hold the Trustee
Mortgage Loan Files on its behalf and to review them as provided in this
Section 2.02. The Depositor shall, upon notice of the appointment of a
Custodian, deliver or cause to be delivered all documents to the Custodian
that would otherwise be deliverable to the Trustee. In such event, the Trustee
shall obtain from each such Custodian, within the specified times, the Trust
Receipt and the Final Certifications with respect to those Mortgage Loans held
and reviewed by such Custodian and may deliver (or cause the Custodian to
deliver) such Certifications and electronically deliver Reports to the
Depositor in satisfaction of the Trustee's obligation to prepare such
Certifications and Reports (it being understood that absent actual knowledge
to the contrary, the Trustee may conclusively rely on the certifications
provided by such Custodian). The Trustee shall notify the Custodian of any
notices delivered to the Trustee with respect to those Trustee Mortgage Loan
Files.
Section 2.03 Purchase of Mortgage Loans by the Servicer, the Seller,
GSMC or the Depositor.
(a) Servicer Breach. In addition to taking any action required
pursuant to Section 7.01 hereof, upon discovery by a Responsible Officer of
the Trustee or notice to the Trustee of any breach by any Servicer of any
representation, warranty or covenant under the related Servicing Agreement,
which breach materially and adversely affects the value of any Mortgage Loan
or the interest of the Trust therein (it being understood that any such breach
shall be deemed to have materially and adversely affected the value of the
related Mortgage Loan or the interest of the Trust therein if the Trust incurs
or may incur a loss as a result of such breach), the Trustee shall promptly
request that such Servicer of such Mortgage Loan cure such breach, and if such
Servicer does not cure such breach in all material respects by the end of the
cure period set forth in the related Servicing Agreement, shall enforce such
Servicer's obligation under such Servicing Agreement to purchase such Mortgage
Loan from the Trustee. Notwithstanding the foregoing, however, if such breach
results in or is a Qualification Defect, such cure, purchase or substitution
must take place within 75 days of the Defect Discovery Date.
(b) Sellers' Breach. Upon discovery by a Responsible Officer of
the Trustee or notice to the Trustee of any defective or missing document (as
described in the related Sale Agreement) in a Trustee Mortgage Loan File, or of
any breach by any Seller of any representation, warranty or covenant under the
related Sale Agreement, which defect or breach materially and adversely affects
the value of any Mortgage Loan or the interest of the Trust therein (it being
understood that any such defect or breach shall be deemed to have materially
and adversely affected the value of the related Mortgage Loan or the interest
of the Trust therein if the Trust incurs a loss as a result of such defect or
breach), the Trustee shall promptly request that such Seller cure such breach
and, if such Seller does not cure such defect or breach in all material
respects by the end of the cure period specified in such Sale Agreement and any
extension of the cure period granted as permitted by such Sale Agreement, shall
enforce such Seller's obligation under such Sale Agreement to purchase such
Mortgage Loan from the Trustee.
In the event any Servicer has breached a representation or
warranty under the related Servicing Agreement that is substantially
identical to a representation or warranty breached by a Seller, the
Trustee shall first proceed against such Servicer. If such Servicer does
not within 60 days (or such other period provided in the related
Servicing Agreement) after notification of the breach, either take steps
to cure such breach (which may be evidenced by a certificate asking for
an extension of time in which to effectuate a cure) or complete the
purchase of the Mortgage Loan, then (i) the Trustee, shall enforce the
obligations of the Seller under the related Sale Agreement to cure such
breach or to purchase the Mortgage Loan from the Trust, and (ii) such
Seller shall succeed to the rights of the Trustee to enforce the
obligations of the Servicer to cure such breach or repurchase such
Mortgage Loan under the Servicing Agreement with respect to such Mortgage
Loan.
Notwithstanding the foregoing, however, if any breach of a
representation or warranty by the Servicer or of a Seller is a
Qualification Defect, a cure or purchase must take place within 75 days
of the Defect Discovery Date.
(c) GSMC Breach. Upon its discovery or notice to it of any
breach by GSMC of any representation, warranty or covenant under any
Assignment Agreement which materially and adversely affects the value of any
Mortgage Loan or the interest of the Trust therein (it being understood that
any such defect or breach shall be deemed to have materially and adversely
affected the value of the related Mortgage Loan or the interest of the Trust
therein if the Trust incurs a loss as a result of such defect or breach), the
Trustee, shall promptly request that GSMC cure such breach and, if GSMC does
not cure such breach in all material respects within 90 days from the date on
which it is notified of the breach, shall enforce GSMC's obligation under such
Assignment Agreement to purchase such Mortgage Loan from the Trustee.
(d) Depositor Breach. Within 90 days of the earlier of its
discovery or receipt of notice by the Depositor of the breach of any of its
representations or warranties set forth in Section 2.04 hereof with respect to
any Mortgage Loan, which breach materially and adversely affects the value of
the related Mortgage Loan or the interest of the Trust therein (it being
understood that any such defect or breach shall be deemed to have materially
and adversely affected the value of the related Mortgage Loan or the interest
of the Trust therein if the Trust incurs a loss as a result of such defect or
breach), the Depositor shall (i) cure such breach in all material respects, or
(ii) purchase the Mortgage Loan from the Trustee.
In the event the Depositor has breached a representation or
warranty under Section 2.04 hereof that is substantially identical to a
representation or warranty breached by a Servicer or Seller, the Trustee
shall first proceed against the applicable Servicer or Seller, as
appropriate. If such Servicer or Seller, as appropriate, does not within
the cure period set forth in the related Sale Agreement or Servicing
Agreement, as applicable, either take steps to cure such breach (which
may be evidenced by a certificate asking for an extension of time in
which to effectuate a cure) or complete the purchase of or substitution
for the Mortgage Loan, then (i) the Trustee shall enforce the obligations
of the Depositor to cure such breach or to purchase the Mortgage Loan
from the Trust, and (ii) the Depositor shall succeed to the rights of the
Trustee to enforce the obligations of such Servicer or Seller to cure
such breach or repurchase such Mortgage Loan under the related Servicing
Agreement or Sale Agreement with respect to such Mortgage Loan.
Notwithstanding the foregoing, however, if any breach of a
representation or warranty by the Depositor is a Qualification Defect, a
cure or purchase must take place within 75 days of the Defect Discovery
Date.
(e) Purchase Price. The purchase of any Mortgage Loan from the
Trust pursuant to this Section 2.03 shall be effected for its Purchase Price.
If the Purchaser is the related Servicer, the Purchase Price shall be
deposited in the Collection Account. If the Purchaser is other than such
Servicer, an amount equal to the Purchase Price shall be deposited into the
Certificate Account. Within five Business Days of its receipt of such funds or
certification by the appropriate Servicer that such funds have been deposited
in the related Collection Account, the Trustee shall release or cause the
applicable Custodian to release to the Purchaser or its designee the related
Trustee Mortgage Loan File and, at the request of the Purchaser, the Trustee
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, in form as presented by the Purchaser and satisfactory
to the Trustee, as shall be necessary to vest in the Purchaser title to any
Mortgage Loan released pursuant hereto and the Trustee shall have no further
responsibility with regard to such Trustee Mortgage Loan File.
(f) Determination of Purchase Price. The Trustee will be
responsible for determining the Purchase Price for any Mortgage Loan that is
sold by the Trust or with respect to which provision is made for the escrow of
funds pursuant to this Section 2.03 and shall at the time of any purchase or
escrow certify such amounts to the Depositor; provided that the Trustee may
consult with the Servicer to determine the Purchase Price unless the Servicer
is the Purchaser of such Mortgage Loan. If, for whatever reason, the Trustee
shall determine that there is a miscalculation of the amount to be paid to the
Trust, the Trustee shall from monies in the Certificate Account return any
overpayment that the Trust received as a result of such miscalculation to the
applicable Purchaser upon the discovery of such overpayment, and the Trustee
shall collect from the applicable Purchaser for deposit to the Securities
Account any underpayment that resulted from such miscalculation upon the
discovery of such underpayment. Recovery may be made either directly or by
set-off of all or any part of such underpayment against amounts owed by the
Trust to such Purchaser.
(g) Qualification Defect. If (A) any person required to cure or
purchase under subsections 2.03(a), 2.03(b), 2.03(c) or 2.03(d) of these
Standard Terms or under a separate agreement for a Mortgage Loan affected by a
Qualification Defect fails to perform within the earlier of (1) 75 days of the
Defect Discovery Date or (2) the time limit set forth in those subsections or
that separate agreement or (B) no person is obligated to cure or purchase a
Mortgage Loan affected by a Qualification Defect, the Trustee shall dispose of
such Mortgage Loan in such manner and for such price as the Trustee determines
are appropriate, provided that the removal of such Mortgage Loan occurs no
later than the 90th day from the Defect Discovery Date. If the Servicer is not
the person required to cure or repurchase the Mortgage Loan, the Trustee may
consult with such Servicer to determine an appropriate manner of disposition
for and price for such Mortgage Loan. It is the express intent of the parties
that a Mortgage Loan affected by a Qualification Defect be removed from the
Trust by the 90th day from the Defect Discovery Date so that the related
REMIC(s) will continue to qualify as a REMIC. Accordingly, the Trustee is not
required to sell an affected Mortgage Loan for its fair market value nor shall
the Trustee be required to make up any shortfall resulting from the sale of
such Mortgage Loan. The person failing to perform under subsections 2.03(a),
2.03(b), 2.03(c) or 2.03(d) of these Standard Terms shall be liable to the
Trust for (i) any difference between (A) the Unpaid Principal Balance of the
Mortgage Loan plus accrued and unpaid interest thereon at the Note Rate to the
date of disposition and (B) the net amount received by the Trustee from the
disposition (after the payment of related expenses), (ii) interest on such
difference at the Note Rate (less the Administrative Cost Rate) from the date
of disposition to the date of payment and (iii) any legal and other expenses
incurred by or on behalf of the Trust in seeking such payments. The Trustee
shall pursue the legal remedies of the Trust on the Trust's behalf and the
Trust shall reimburse the Trustee for any legal or other expenses of the
Trustee related to such pursuit not recovered from such person.
(h) Unless otherwise provided in the applicable Sale Agreement,
and notwithstanding Section 2.03(b) hereof, if a Seller concludes at the end
of any applicable cure period (and any extension thereof) that a document
required to be included in the Trustee Mortgage Loan File cannot be found or
replaced, the Seller may, in lieu of immediately repurchasing the related
Mortgage Loan, provide (a) a Lost Document Affidavit and (b) Opinion of
Counsel that the missing document does not constitute a Qualification Defect.
In that event, the Trustee shall not require such Seller immediately to
repurchase the Mortgage Loan, but, if at any time there is any loss,
liability, or damage, including reasonable attorney's fees, resulting from the
unavailability of any originals of any such documents or of a complete chain
of intervening endorsements, as the case may be (collectively, "Losses"), the
Trustee shall enforce the Seller's obligation to indemnify the Trust for such
Losses.
(i) Notices. Any Person required under this Section 2.03 to give
notice or to make a request of another Person to give notice shall give such
notice or make such request promptly.
(j) No Other Enforcement Obligation. Except as specifically set
forth herein, the Trustee shall have no responsibility to enforce any
provision of a Sale Agreement, Servicing Agreement or Assignment Agreement
assigned to it hereunder, to oversee compliance thereof, or to take notice of
any breach or default thereof. No successor servicer shall have any obligation
to repurchase a Mortgage Loan except to the extent specifically set forth in
the Servicing Agreement signed by such substitute servicer.
Section 2.04 Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Trustee that as of the Closing
Date or as of such other date specifically provided herein:
(a) The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with full power and authority (corporate and other) to enter into and
perform its obligations under the Trust Agreement;
(b) The Trust Agreement has been duly executed and delivered by
the Depositor, and, assuming due authorization, execution and delivery by the
Trustee, constitutes a legal, valid and binding agreement of the Depositor,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law;
(c) The execution, delivery and performance by the Depositor of
the Trust Agreement and the consummation of the transactions contemplated
thereby do not require the consent or approval of, the giving of notice to,
the registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except such as has
been obtained, given, effected or taken prior to the date thereof;
(d) The execution and delivery of this Trust Agreement have been
duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery by the Depositor of the Trust
Agreement, nor the consummation by the Depositor of the transactions therein
contemplated, nor consummation of the transactions therein contemplated, nor
compliance by the Depositor with the provisions thereof, will conflict with or
result in a breach of, or constitute a default under, any of the provisions of
the articles of incorporation or by-laws of the Depositor or any law,
governmental rule or regulation or any judgment, decree or order binding on
the Depositor or any of its properties, or any of the provisions of any
indenture, mortgage, deed of trust, contract or other instrument to which the
Depositor is a party or by which it is bound;
(e) There are no actions, suits or proceedings pending or, to
the knowledge of the Depositor, threatened against the Depositor, before or by
any court, administrative agency, arbitrator or governmental body (A) with
respect to any of the transactions contemplated by the Trust Agreement or (B)
with respect to any other matter which in the judgment of the Depositor will
be determined adversely to the Depositor and will if determined adversely to
the Depositor materially adversely affect its ability to perform its
obligations under the Trust Agreement;
(f) Except for the sale to the Trustee, the Depositor has not
assigned or pledged any mortgage note or the related mortgage or any interest
or participation therein;
(g) The Depositor has acquired its ownership in the Mortgage
Loans in good faith and without notice of any adverse claim; and
(h) The Depositor has not canceled, satisfied or subordinated in
whole or in part, or rescinded the Mortgage, and the Depositor has not
released any Mortgaged Premise from the lien of the related mortgage, in whole
or in part, nor has the Depositor executed an instrument that would effect any
such release, cancellation, subordination or rescission.
It is understood and agreed that the representations and
warranties set forth in this Section 2.04 shall survive delivery of the
respective Trustee Mortgage Loan Files to the Trustee (or the Custodian) and
shall inure to the benefit of the Trustee notwithstanding any restrictive or
qualified endorsement or assignment. Upon the discovery by the Depositor or
the Trustee of a breach of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties to the Trust Agreement, and in no event later than two Business Days
from the date of such discovery. It is understood and agreed that the
obligations of the Depositor set forth in Section 2.03(d) to cure or
repurchase a Mortgage Loan constitute the sole remedies available to the
Certificateholders or to the Trustee on their behalf respecting a breach of
the representations and warranties contained in this Section 2.04. It is
further understood and agreed that the Depositor shall be deemed not to have
made the representations and warranties in this Section 2.04 with respect to,
and to the extent of, representations and warranties made, as to the matters
covered in this Section 2.04, by the Servicer in any Servicing Agreement or
the Seller in any Sale Agreement assigned to the Trustee.
It is understood and agreed that the Depositor has made no
representations or warranties to the Trust other than those contained in this
Section 2.04. GSMC has made no representations or warranties to the Trust
other than those in any Assignment Agreement, or in any Sale Agreement under
which GSMC is acting as Seller, and no other Affiliate of the Depositor has
made any representations or warrantee of any kind to the Trustee. Neither the
Depositor, GSMC, nor any of the directors, officers, employees or agents of
either such entity shall be under any liability to the Trust or the
Certificateholders and all such Persons shall be indemnified and held harmless
by the Trust for any claims, losses, penalties, forfeitures, legal fees and
related costs, judgments, and any other costs, fees and expenses that such
Persons may sustain as a result of or arising out of or based upon any breach
of a representation, warranty or covenant made by any Servicer or Seller or
any failure by any Servicer or Seller to perform its obligations in strict
compliance with the terms of the related Servicing or Sale Agreement or the
failure of the Trustee to perform its duties hereunder; provided, however,
that this provision shall not protect the Depositor against any breach of
warranties or representations made in Section 2.04 herein, or the Depositor
against any breach of representations or warranties made in any Assignment
Agreement or Sale Agreement.
ARTICLE III
ADMINISTRATION OF THE TRUST
Section 3.01 Certificate Account.
(a) Deposits. The Trustee shall establish and maintain one or
more accounts in its own name and held in trust for the benefit of the
Certificateholders. Each Certificate Account shall be an Eligible Account.
There shall be at least one account for each REMIC, and the account belonging
to the REMIC that directly owns the Mortgage Loans shall be the REMIC I
Distribution Account. On each Remittance Date (or, with respect to item (iii)
below, on each Distribution Date), the Trustee shall deposit into the REMIC I
Distribution Account the following amounts, to the extent not previously
deposited therein:
(i) all amounts received in respect of the related
Remittance Date from each Servicer pursuant to the applicable Servicing
Agreement (including Advances, if any);
(ii) all amounts withdrawn by the Trustee from the
Collection Account pursuant to Section 3.05;
(iii) all Administrator Advances made pursuant to Section
3.05;
(iv) the amount required to effect a Terminating Purchase
pursuant to Section 9.02 and received from the Depositor (or other party
causing the Terminating Purchase); and
(v) the amount required to be deposited from any Reserve
Fund, as provided in the Trust Agreement.
(b) Withdrawal. On each Distribution Date, the Trustee shall
withdraw all monies in the Certificate Account in accordance with the amounts
set forth in the statement prepared pursuant to Section 4.01 and shall
distribute such amounts (together with amounts withdrawn from any Collection
Account and Administrator Advances made pursuant to Section 3.05 hereof) in
the following order of priority for the purposes indicated:
(i) to pay or reimburse the Trustee or Custodian, as applicable,
for fees and expenses earned by or reimbursable to either the Trustee or
the Custodian pursuant to Section 3.05(c), 8.05 or 8.11, as applicable;
(ii) to refund any overpayment of the Purchase Price of a
Mortgage Loan; and
(iii) to pay the holders of the Regular Interests and Residual
Interest of the applicable REMICs, the amount of the Available
Distribution Amount less any amounts withdrawn pursuant to subsection (i)
and (ii) above, as provided in the Trust Agreement.
(c) Accounting. The Trustee shall keep and maintain separate
accounting (to the extent provided to it by each Servicer), on a Mortgage Loan
by Mortgage Loan basis, for the purpose of justifying any payment to and from
the Certificate Account. No later than 21 days after each Distribution Date,
the Trustee shall forward to the Depositor a statement setting forth the
balance of the Certificate Account and each Interest thereof as of the close
of business on the last day of the month of the Distribution Date and showing,
for the one calendar month covered by the statement, any deposits and or
withdrawals from the Certificate Account.
(d) Investment. The Trustee may invest the funds on Deposit in,
or otherwise to the credit of, the Certificate Account in Permitted
Investments, for the benefit of the Trust and upon the direction of the
Depositor, on each Remittance Date. Such Permitted Investments shall mature or
be redeemable two business days prior to the Distribution Date and any net
investment income therefrom shall be included in the Available Distribution
Amount. In the event of a loss in the Certificate Account because of a
Permitted Investment, the Depositor shall be required to deposit the amount of
such loss into the Certificate Account within one Business Day of realization
of such loss.
Section 3.02 Filings with the Commission
The Depositor shall prepare or cause to be prepared the initial
post closing filing of material agreements on Form 8-K. Thereafter, within 15
days after each Distribution Date, the Trustee shall, in accordance with
industry standards, file with the Commission via the Electronic Data Gathering
and Retrieval System (▇▇▇▇▇), a Form 8-K with a copy of the statement to the
Securityholders for such Distribution Date as an exhibit thereto. Prior to
January 30, 2004, the Trustee shall, in accordance with industry standards,
file a Form 15 Suspension Notification with respect to the Trust, if
applicable. Prior to March 31, 2004, the Trustee shall file (x) a Form 10-K,
in substance conforming to industry standards, with respect to the Trust as
well as (y) a certification of the Trustee in substantially the form set forth
in Exhibit H hereto. The Depositor hereby grants to the Trustee a limited
power of attorney to execute and file each such document on behalf of the
Depositor. Such power of attorney shall continue until either the earlier of
(i) receipt by the Trustee from the Depositor of written termination of such
power of attorney and (ii) the termination of the Trust. The Depositor agrees
to promptly furnish to the Trustee, from time to time upon request, such
further information, reports, and financial statements within its control
related to the Trust Agreement and the Mortgage Loans as the Depositor
reasonably deems appropriate to prepare and file all necessary reports with
the Commission.
Section 3.03 REMIC I, REMIC II and REMIC III Accounts.
(a) The Trustee shall establish one or more Distribution
Accounts in its own name, into which the Trustee shall deposit all payments on
account of the Regular Interests in REMIC II that are considered assets of
REMIC III and from which the Trustee shall withdraw funds to pay the
Certificates evidencing an interest in REMIC III.
(b) The Trustee shall establish one or more Sub-Distribution
Accounts in its own name, into which the Trustee shall deposit all payments on
account of the Regular Interests in REMIC I that are considered assets of
REMIC II and from which the Trustee shall withdraw funds to pay the
Certificates evidencing an interest in REMIC II.
(c) The Trustee shall establish one or more accounts in its own
name, into which the Trustee shall deposit all payments on account of the
Residual Interests in REMIC II and any Regular Interests in REMIC II that are
not considered assets of the REMIC III and from which the Trustee shall
withdraw funds to pay the Certificates that do not evidence an interest in
REMIC III. In lieu of establishing such account pursuant to this Section
3.02(c), the Trustee may pay on each Distribution Date to the Holders of the
Certificates that do not evidence interests in REMIC III the amounts that are
due with respect to such Certificates. In addition, upon payment in full of
the Regular Interests and all administrative costs of the Trust and the REMICs
in the Triple REMIC Series, (i) any amount remaining in the Certificate
Account shall be distributed directly to the Holders of the Certificate
representing beneficial ownership of the Residual Interest in the REMIC I,
(ii) any amounts remaining in the Sub-Distribution Account will be distributed
directly to the Holders of the Certificate representing beneficial ownership
of the Residual Interest in REMIC II and (iii) any amounts remaining in the
Distribution Account will be distributed directly to the Holders of the
Certificate representing beneficial ownership of the Residual Interest in
REMIC III.
Section 3.04 Trustee to Cooperate; Release of Mortgage Files. The
Trustee shall, if requested by any Servicer, execute a power of appointment
pursuant to which the Trustee shall authorize, make, constitute and appoint
designated officers of such Servicer with full power to execute in the name of
the Trustee (without recourse, representation or warranty) any deed of
reconveyance, any substitution of trustee documents or any other document to
release, satisfy, cancel or discharge any Mortgage or Mortgage Loan upon its
payment in full or other liquidation; provided, however, that such power of
appointment shall be limited to the powers limited above; and provided,
further, that such Servicer shall promptly forward to the Trustee for its
files copies of all documents executed pursuant to such power of appointment.
Pursuant to the Custodial Agreement, the Servicer may submit a
Request for Release to have delivered to it the related Trustee Mortgage Loan
File and a release of the Mortgaged Premises from the lien of the Mortgage. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to a Collection Account or the Certificate
Account.
Upon receipt of any other Request for Release for purposes of
servicing a Mortgage Loan, including but not limited to, collection under any
Insurance Policy, title insurance policy, primary mortgage insurance policy,
flood insurance policy or hazard insurance policy or to effect a partial
release of any Mortgaged Premises from the lien of the Mortgage, the Trustee,
within five Business Days of receipt of such Request for Release, shall
release, or shall cause the Custodian to release, the related Trustee Mortgage
Loan File to the Servicer. Upon receipt of an Officer's Certificate of the
Servicer stating that such Mortgage Loan was liquidated and that all amounts
received or to be received in connection with such liquidation which are
required to be deposited into the Collection Account or the Certificate
Account have been so deposited, or that such Mortgage Loan has become an REO
Property, the Request for Release shall be released by the Trustee (or the
Custodian) to such Servicer.
Any Servicer may execute a written certification to have delivered to
it, pursuant to the Custodial Agreement, court pleadings, requests for
trustee's sale or other documents necessary to the foreclosure or trustee's
sale in respect of a Mortgaged Premises or to any legal action brought to
obtain judgment against any Borrower on the Note or Mortgage or to obtain a
deficiency judgment, or to enforce any other remedies or rights provided by
the Note or Mortgage or otherwise available at law or in equity.
Section 3.05 Amendments to Servicing Agreement. Each Servicing
Agreement may be amended or supplemented from time to time by the related
Servicer and the Trustee without the consent of any of the Certificateholders
to (a) cure any ambiguity, (b) correct or supplement any provisions therein
which may be inconsistent with any other provisions therein, (c) modify,
eliminate or add to any of its provisions to such extent as shall be necessary
or appropriate to maintain the qualification of the Trust (or certain assets
thereof) as one or more REMICs, at all times that any Certificates are
outstanding or (d) make any other provisions with respect to matters or
questions arising under such Servicing Agreement or matters arising with
respect to the servicing of the Mortgage Loans which are not covered by such
Servicing Agreement which shall not be inconsistent with the provisions of
such Servicing Agreement, provided that such action shall not adversely affect
in any material respect the interests of any Certificateholder. Any such
amendment or supplement shall be deemed not to adversely affect in any
material respect any Certificateholder if there is delivered to the Trustee
written notification from each Rating Agency that rated the applicable
Certificates to the effect that such amendment or supplement will not cause
that Rating Agency to reduce or qualify the then current rating assigned to
such Certificates, as well as an Opinion of Counsel that such amendment or
supplement will not result in the loss by the Trust or the assets thereof of
REMIC status.
Each Servicing Agreement may also be amended from time to time by the
related Servicer and the Trustee with the consent of the Holders of
Certificates entitled to at least 66% of the Voting Rights for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of such Servicing Agreement or of modifying in any manner the
rights of the Holders of Certificates; provided, however, that no such
amendment shall (A) reduce in any manner the amount of, or delay the timing
of, payments received on Mortgage Loans which are required to be distributed
on any Certificate without the consent of the Holder of such Certificate, (B)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates, or (C) reduce the aforesaid percentage of Certificates
the Holders of which are required to consent to any such amendment, unless
each Holder of a Certificate affected by such amendment consents. For purposes
of the giving or withholding of consents pursuant to this Section 3.04,
Certificates registered in the name of the Depositor or an Affiliate thereof
shall be entitled to Voting Rights with respect to matters affecting such
Certificates.
Upon delivery of a written request to the Trustee together with a
certification from the Servicer that any such amendment or supplement is
permitted hereby, the Trustee shall join in any such amendment or supplement.
Promptly after the execution of any such amendment the Trustee shall
notify each Certificateholder of such amendment and, upon written request,
shall furnish a copy of such amendment to each Certificateholder.
It shall not be necessary for the consent of Certificateholders under
this Section 3.04 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. Prior to
consenting to any amendment pursuant to this Section 3.04, the Trustee shall
be entitled to receive an Opinion of Counsel (at the expense of the applicable
Servicer) that such amendment is authorized and permitted pursuant to the
terms of this Trust Agreement and the applicable Servicing Agreement.
Section 3.06 Administrator Advances.
(a) Under the terms of each Servicing Agreement, on the Business
Day prior to each Remittance Date, the related Servicer is obligated to make a
Monthly Advance with respect to any delinquencies as of the related
Distribution Date, unless such Servicer furnishes to the Trustee, an Officer's
Certificate evidencing the determination by such Servicer, in its reasonable
judgment, that such Monthly Advance would be non-recoverable from Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds (including the proceeds of
the applicable Federal Insurance) or otherwise with respect to such Mortgage
Loan (a "Non-Recoverability Certificate"). If (i) a Servicer reports a
delinquency on a Remittance Report, and (ii) such Servicer, by 11 a.m. (New
York Time) on the related Distribution Date, neither makes a Monthly Advance
nor provides the Trustee with a Non-Recoverability Certificate with respect to
such delinquency, then the Trustee shall deposit, from its own funds, the
amount of such Monthly Advance (an "Administrator Advance") into the
Certificate Account for distribution to Certificateholders as provided in the
Trust Agreement. Notwithstanding the foregoing, if the Trustee, in its
reasonable judgment, determines that such Monthly Advance would be
non-recoverable from Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds (including the proceeds of the applicable Federal Insurance) or
otherwise with respect to such Mortgage Loan, then the Trustee shall not be
obligated to make such Administrator Advance.
(b) Each Servicer is obligated under the applicable Servicing
Agreement to remit to the Trustee the required remittance on each Remittance
Date. If (i) a Servicer fails to remit such remittance on any Remittance Date,
(ii) such failure is not cured by 11 a.m. (New York Time) on the related
Distribution Date, and (iii) pursuant to the terms of such Servicing
Agreement, the related Collection Account has been established as a segregated
account in the name of the Trustee for the benefit of the Trustee, then the
Trustee shall withdraw the amount of such required remittance from such
Collection Account, to the extent that such amount is on deposit in such
Collection Account, and shall deposit such amount in the Certificate Account.
(c) All Administrator Advances, together with interest thereon
at a rate equal to the prevailing Prime Rate plus 2.0%, shall be reimbursable
to the Trustee on a first priority basis from deposits to the Collection
Account of late collections, Insurance Proceeds, Liquidation Proceeds and
Condemnation Proceeds from a Mortgage Loan as to which an Administrator
Advance has been made. The Trustee's right to reimbursement as provided in
this paragraph (c) shall not negate its obligation to continue to make
Administrator Advances as provided in paragraph (a) of this Section 3.05. To
the extent Administrator Advances are not recoverable as set forth in the
first sentence of this paragraph (c), the Trustee shall be entitled to recover
such Administrator Advances together with interest thereon, as provided in
Section 3.01(b).
(d) To the extent that the Servicer is required to pay penalty
interest pursuant to the Servicing Agreement, and the Trustee makes any
Administrator Advance, the Trustee in it is individual capacity shall be
entitled to retain such penalty interest.
Section 3.07 Enforcement of Servicing Agreement. Subject to Article
VIII hereof, the Trustee agrees to comply with the terms of the Servicing
Agreement and to enforce the terms and provisions thereof against the related
Servicer for the benefit of the Certificateholders.
ARTICLE IV
REPORTING/REMITTING TO CERTIFICATEHOLDERS
Section 4.01 Statements to Certificateholders. On or before the
Distribution Date, the Trustee shall prepare a statement as to such
distribution (the "Distribution Statement"), based substantially on
information provided by the Servicers in the related Remittance Reports, and
make such statement available at its website located at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇ to the Depositor and each Certificateholder,
setting forth:
(a) the class factor for each Class of Certificates;
(b) the aggregate Schedule Principal Balance of each Pool of
Mortgage Loans;
(c) the Available Distribution Amount, the Aggregate Principal
Distribution Amount and the Principal Prepayment Amount for such Distribution
Date;
(d) [Reserved].
(e) the amount of such distribution to the Holders of
Certificates of such Class to be applied to reduce the Certificate Balance
thereof, separately identifying the amounts, if any, of any Payoffs, Principal
Prepayments made by the Mortgagor, Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds;
(f) the amount of such distribution to the Holders of
Certificates of such Class allocable to interest, and the Certificate Rate
applicable to each Class (separately identifying (i) the amount of such
interest accrued during the calendar month preceding the month of such
Distribution Date, and (ii) the amount of interest from previous calendar
months;
(g) the amount of the Servicing Fee to be paid to each Servicer
and the Trustee Fee to be paid to the Trustee on such Distribution Date;
(h) if applicable, the aggregate amount of outstanding Monthly
Advances included in such distribution, the aggregate amount of Monthly
Advances reimbursed during the calendar month preceding the Distribution Date
and the aggregate amount of unreimbursed Monthly Advances at the close of
business on such Distribution Date;
(i) if applicable, the aggregate amount of outstanding
Administrator Advances included in such distribution, and the aggregate amount
of Administrator Advances reimbursed during the calendar month preceding the
Distribution Date;
(j) [Reserved].
(k) the number and aggregate Scheduled Principal Balance of the
Mortgage Loans outstanding as of the last Business Day of the calendar month
preceding such Distribution Date;
(l) the number and aggregate Scheduled Principal Balance of
Mortgage Loans as reported to the Trustee by the Servicer, (i) that are
current, 30 days contractually delinquent, 60 days contractually delinquent,
90 days contractually delinquent or 120 days or more contractually
delinquent), (ii) as to which foreclosure proceedings have been commenced, and
(iii) as to which the Mortgagor is subject to a bankruptcy proceeding;
(m) with respect to any mortgaged property acquired on behalf of
Certificateholders through foreclosure or deed in lieu of foreclosure during
the preceding calendar month, the Scheduled Principal Balance of the related
Mortgage Loan as of the last Business Day of the calendar month preceding the
Distribution Date;
(n) the aggregate Certificate Balance of each Class of
Certificates (and, in the case of any Certificate with no Certificate Balance,
the notional amount of such Class) after giving effect to the distribution to
be made on such Distribution Date, and separately identifying any reduction
thereof on account of Realized Losses;
(o) the aggregate amount of (i) Payoffs and Principal
Prepayments made by Mortgagors, (ii) Liquidation Proceeds, Condemnation
Proceeds and Insurance Proceeds, and (iii) Realized Losses incurred during the
related Prepayment Period;
(p) the aggregate amount of any Mortgage Loan that has been
repurchased from the Trust;
(q) the aggregate Shortfall, if any, allocated to each Class of
Certificates at the close of business on such Distribution Date;
(r) the Certificate Rate for each Class of Certificates
applicable to such Distribution Date;
(s) the Class A1 Senior Percentage, the Class A2-A Senior
Percentage, Class A2-A Senior Prepayment Percentage, Class A2-B Senior
Percentage, Class A2-B Senior Prepayment Percentage, Class A2-C Senior
Percentage, Class A2-C Senior Prepayment Percentage, Class A3 Senior
Percentage, Class A3 Senior Prepayment Percentage, Subordinate Percentage and
Subordinate Prepayment Percentage, if any, for such Distribution Date;
(t) in the case of a Trust with respect to which one or more
REMIC elections have been or will be made, any reports required to be provided
to Holders by the REMIC Provisions; and
(u) and such other customary information as the Trustee deems
necessary or desirable, or which a Certificateholder reasonably requests, to
enable Certificateholders to prepare their tax returns.
In the case of information furnished pursuant to clauses (a)
through (c) above, the amounts shall be expressed, with respect to any
Certificate, as a dollar amount per $1,000 denomination; provided, however,
that if any Class of Certificates does not have a Certificate Balance, then
the amounts shall be expressed as a dollar amount per 10% Percentage Interest.
In addition to the Distribution Date report specified above, the
Trustee shall prepare and deliver to each Holder of a Residual Certificate, if
any, on each Distribution Date a statement setting forth the amounts actually
distributed with respect to the Residual Certificates of such Class on such
Distribution Date, and the aggregate Certificate Balance, if any, of the
Residual Certificates of such Class after giving effect to any distribution
made on such Distribution Date, separately identifying the amount of Realized
Losses allocated to such Residual Certificates of such Class on such
Distribution Date.
Within a reasonable period of time after the end of each
calendar year, the Trustee shall prepare and furnish a statement, containing
the information set forth in clauses (a) through (d) above, to each Person who
at any time during the calendar year was a Holder that requests such
statement, aggregated for such calendar year or 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 are in force.
Within a reasonable period of time after the end of each
calendar year, the Trustee shall prepare and shall furnish to each Person who
at any time during the calendar year was a Holder of a Residual Certificate a
statement containing the information provided pursuant to the second preceding
paragraph aggregated for such calendar year 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 are in force.
Section 4.02 Remittance Reports and other Reports from the
Servicer. To the extent received from the Servicer, the Trustee shall make the
information in each Remittance Report available to the Depositor or a
Certificateholder upon written request of the Depositor or such
Certificateholder therefor. In addition, upon written request from the
Depositor or a Certificateholder (such party, the "Requesting Party"), the
Trustee shall use commercially reasonable efforts to obtain from the Servicer
and subsequently provide to the Depositor or requesting Certificateholder any
other reports or information that may be obtained by the Trustee from any
Servicer pursuant to the related Servicing Agreement; provided, however, that
if the Trustee incurs costs pursuant to the Servicing Agreement with respect
to any particular request, the Trustee shall be entitled to reimbursement from
the Requesting Party for such costs, together with any other reasonable costs
incurred by it for obtaining or delivering the reports or information
specified by such request. Unless otherwise instructed by the Depositor, if
permitted pursuant to each Servicing Agreement, the Trustee shall request, on
an annual basis beginning one year after the Closing Date, copies of the
Servicer's internal quality control reports for distribution to such holders
(it being understood that the Trustee shall have no responsibility for, or be
deemed to have, constructive notice of any information contained therein or
determinable therefrom). The Trustee shall be under no duty to recalculate,
verify or recompute the information provided to it under any Servicing
Agreement by the applicable Servicer.
Section 4.03 Compliance with Withholding Requirements.
Notwithstanding any other provisions of the Trust Agreement, the Trustee shall
comply with all federal withholding requirements respecting payments of
interest or principal to the extent of accrued original issue discount on
Certificates to each Holder of such Certificates who (a) is not a "United
States person," within the meaning of Code section 7701(a)(30), (b) fails to
furnish its TIN to the Trustee, (c) furnishes the Trustee an incorrect TIN,
(d) fails to report properly interest and dividends, (e) under certain
circumstances, fails to provide the Trustee or the Certificateholder's
securities broker with a certified statement, signed under penalties of
perjury, that the TIN provided by such Certificateholder to the Trustee or
such broker is correct and that the Certificateholder is not subject to backup
withholding or (f) otherwise fails to satisfy any applicable certification
requirements relating to the withholding tax. The consent of such a
Certificateholder shall not be required for such withholding. In the event the
Trustee does withhold the amount of any otherwise required distribution from
interest payments on the Mortgage Loans (including principal payments to the
extent of accrued original issue discount) or Monthly Advances thereof to any
Certificateholder pursuant to federal withholding requirements, the Trustee
shall indicate with any payments to such Certificateholders the amount
withheld. In addition, if any United States federal income tax is due at the
time a Non-U.S. Person transfers a Residual Certificate, the Trustee or other
Withholding Agent may (1) withhold an amount equal to the taxes due upon
disposition of such Residual Certificate from future distributions made with
respect to such Residual Certificate to the transferee thereof (after giving
effect to the withholding of taxes imposed on such transferee), and (2) pay
the withheld amount to the Internal Revenue Service unless satisfactory
written evidence of payment by the transferor of the taxes due has been
provided to the Trustee or such Withholding Agent. Moreover, the Trustee or
other Withholding Agent may (1) hold distributions on a Residual Certificate,
without interest, pending determination of amounts to be withheld, (2)
withhold other amounts, if any, required to be withheld pursuant to United
States federal income tax law from distributions that otherwise would be made
to such transferee on each Residual Certificate that it holds, and (3) pay to
the Internal Revenue Service all such amounts withheld.
Section 4.04 Reports of Certificate Balances to The Depository Trust
Company. If and for so long as any Certificate is held by The Depository Trust
Company, on the second Business Day before each Distribution Date, the Trustee
shall give verbal notice to The Depository Trust Company (and shall promptly
thereafter confirm in writing) the following: (a) the amount to be reported
pursuant to clause (c) and (d) of each statement provided to Holders of
Certificates pursuant to Section 4.01 in respect of the next succeeding
distribution, (b) the Record Date for such distribution, (c) the Distribution
Date for such distribution and (d) the aggregate Certificate Balance of each
Class of Certificates to be reported pursuant to clause (i) of the first
paragraph of Section 4.01 in such month.
Section 4.05 Preparation of Regulatory Reports. Notwithstanding any
other provision of this Agreement, the Trustee has not assumed, and shall not
by its performance hereunder be deemed to have assumed, any of the duties or
obligations of the Depositor or any other Person with respect to (i) the
registration of the Certificates pursuant to the Securities Act, (ii) the
issuance or sale of the Certificates, or (iii) compliance with the provisions
of the Securities Act, the Exchange Act, or any offering circular, applicable
federal or state securities or other laws including, without limitation, any
requirement to update the registration statement or prospectus relating to the
Certificates in order to render the same not materially misleading to
investors.
Section 4.06 Management and Disposition of REO Property. The Trustee
shall enforce the obligation of the Servicer under any Servicing Agreement to
dispose of any REO Property acquired by such Servicer on behalf of the Trust
before the end of the third calendar year following the calendar year in which
the related REO Property was acquired; provided that the Trustee shall waive
such requirement if the Servicer and the Trustee (1) receive an Opinion of
Counsel (obtained at the expense of the party requesting such Opinion of
Counsel) indicating that, under then-current law, the REMIC may hold such REO
Property for a period longer than three years without threatening the REMIC
status of any related REMIC or causing the imposition of a tax upon any such
REMIC or (2) the Servicer applies for and is granted an extension of such
three year period pursuant to Code sections 860G(a)(8) and 856(e)(3) (the
applicable period provided pursuant to such Opinion of Counsel or such Code
section being referred to herein as an "Extended Holding Period"). In that
event, the Trustee shall direct the Servicer to sell any REO Property
remaining after such date in an auction before the end of the Extended Holding
Period.
ARTICLE V
THE INTERESTS AND THE SECURITIES
Section 5.01 REMIC Interests. The Trust Agreement will set forth the
terms of the Regular Interests and Residual Interest of REMIC I, REMIC II and
REMIC III. Unless otherwise specified in the Trust Agreement, (a) the Regular
Interests in REMIC I, REMIC II and REMIC III will be "regular interests" for
purposes of the REMIC Provisions; (b) the Trustee will be the owner of the
Regular Interests in such REMICs, which may not be transferred to any person
other than a successor trustee appointed pursuant to Section 8.07 hereof
unless the party desiring the transfer obtains a Special Tax Opinion; and (c)
such Regular Interests will be represented by the respective Interests.
Section 5.02 The Certificates. The Certificates shall be designated
in the Trust Agreement. The Certificates in the aggregate will represent the
entire beneficial ownership interest in the Trust Estate. On the Closing Date,
the aggregate Certificate Balance of the Certificates will equal the aggregate
Scheduled Principal Balance of the Mortgage Loans as of the Cut-off Date. The
Certificates will be substantially in the forms annexed to the Trust
Agreement. Unless otherwise provided in the Trust Agreement, the Certificates
of each Class will be issuable in registered form, in denominations of
authorized Percentage Interests as described in the definition thereof. Each
Certificate will share ratably in all rights of the related Class.
Upon original issue, the Certificates shall be executed and delivered
by the Trustee and the Trustee shall cause the Certificates to be
authenticated by the Certificate Registrar to or upon the order of the
Depositor upon receipt by the Trustee of the documents specified in Section
2.01. The Certificates shall be executed and attested by manual or facsimile
signature on behalf of the Trustee by an authorized Officer under its seal
imprinted thereon. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Agreement or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided in the Trust Agreement
executed by the Certificate Registrar by manual signature, and such
certificate of authentication shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their execution.
Section 5.03 Book-Entry Securities.
(a) The Book-Entry Securities will be represented initially by
one or more certificates registered in the name designated by the Clearing
Agency. The Depositor and the Trustee may for all intents and purposes
(including the making of payments on the Book-Entry Securities) deal with the
Clearing Agency as the authorized representative of the Beneficial Owners of
the Book-Entry Securities for as long as those Certificates are registered in
the name of the Clearing Agency. The rights of Beneficial Owners of the
Book-Entry Securities shall be limited by law to those established by law and
agreements between such Beneficial Owners and the Clearing Agency and Clearing
Agency Participants. The Beneficial Owners of the Book-Entry Securities shall
not be entitled to certificates for the Book-Entry Securities as to which they
are the Beneficial Owners, except as provided in subsection (c) below.
Requests and directions from, and votes of, the Clearing Agency, as Holder,
shall not be deemed to be inconsistent if they are made with respect to
different Beneficial Owners. Without the consent of the Depositor and the
Trustee, a Book-Entry Security may not be transferred by the Clearing Agency
except to another Clearing Agency that agrees to hold the Book-Entry Security
for the account of the respective Clearing Agency Participants and Beneficial
Owners.
(b) Neither the Depositor nor the Trustee will have any
liability for any aspect of the records relating to or payment made on account
of Beneficial Owners of the Book-Entry Securities held by the Clearing Agency,
for monitoring or restricting any transfer of beneficial ownership in a
Book-Entry Security or for maintaining, supervising or reviewing any records
relating to such Beneficial Owners.
(c) A Book-Entry Security will be registered in fully
registered, certificated form to Beneficial Owners of Book-Entry Securities or
their nominees, rather than to the Clearing Agency or its nominee, if (a) the
Depositor advises the Trustee in writing that the Clearing Agency is no longer
willing or able to discharge properly its responsibilities as depository with
respect to the Book-Entry Securities, and the Depositor is unable to locate a
qualified successor within 30 days, (b) the Depositor, at its option, elects
to terminate the book-entry system operating through the Clearing Agency or
(c) after the occurrence of an Event of Default, Beneficial Owners
representing at least a majority of the aggregate outstanding Certificate
Balance of the Book-Entry Securities advise the Clearing Agency in writing
that the continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of the Beneficial Owners. Upon the occurrence of
any such event, the Trustee shall notify the Clearing Agency, which in turn
will notify all Beneficial Owners of Book-Entry Securities through Clearing
Agency Participants, of the availability of certificated Certificates. Upon
surrender by the Clearing Agency or the Book-Entry Custodian of the
certificates representing the Book-Entry Securities and receipt of
instructions for re-registration, the Trustee will reissue the Book-Entry
Securities as certificated Certificates to the Beneficial Owners identified in
writing by the Clearing Agency. Neither the Depositor nor the Trustee shall be
liable for any delay in the delivery of such instructions and may rely
conclusively on, and shall be protected in relying on, such instructions. Such
certificated Certificates shall not constitute Book-Entry Securities. All
reasonable costs associated with the preparation and delivery of certificated
Certificates shall be borne by the Trust.
(d) The Trustee is hereby initially appointed as Book-Entry
Custodian with respect to the Book-Entry Securities, and hereby agrees to act
as such in accordance herewith and in accordance with the agreement that it
has with the Clearing Agency authorizing it to act as such (it being
understood that should any conflict arise between the provisions hereof and
the provisions of the agreement between the Trustee and the Clearing Agency,
the agreement with the Clearing Agency will control). The Book-Entry Custodian
may, and, if it is no longer qualified to act as such, the Book-Entry
Custodian shall, appoint, by a written instrument delivered to the Depositor
and, if the Trustee is not the Book-Entry Custodian, the Trustee, any other
transfer agent (including the Clearing Agency or any successor Clearing
Agency) to act as Book-Entry Custodian under such conditions as the
predecessor Book-Entry Custodian and the Clearing Agency or any successor
Clearing Agency may prescribe; provided that the predecessor Book-Entry
Custodian shall not be relieved of any of its duties or responsibilities by
reason of such appointment of other than the Clearing Agency. If the Trustee
resigns or is removed in accordance with the terms hereof, the successor
trustee, or, if it so elects, the Clearing Agency shall immediately succeed to
its predecessor's duties as Book-Entry Custodian. The Depositor shall have the
right to inspect, and to obtain copies of, any Certificates held as Book-Entry
Securities by the Book-Entry Custodian.
Section 5.04 Registration of Transfer and Exchange of Certificates.
The Trustee shall cause to be kept at its Corporate Trust Office a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. The Trustee will
initially serve as Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided.
Subject to Section 5.05, upon surrender for registration of transfer
of any Certificate at the Corporate Trust Office of the Trustee or at any
other office or agency of the Trustee maintained for such purpose, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class of a like aggregate Percentage Interest.
At the option of the Certificateholders, each Certificate may be
exchanged for other Certificates of the same Class with the same and
authorized denominations and a like aggregate Percentage Interest, upon
surrender of such Certificate to be exchanged at any such office or agency,
provided however, that in the event one or more of the holders of an interest
in the Class R Certificate determine to exchange its or their interests in the
Class R Certificate for one or more separately certificated interests, the
Class R Certificate shall be surrendered to the Trustee and the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, three
separate certificates, designated Class R1, Class R2 and Class R3, each of
which shall separately reflect the residual interest in REMIC I, REMIC II and
REMIC III respectively. Whenever any Certificates are so surrendered for
exchange, the Trustee shall execute and cause the Certificate Registrar to
authenticate and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or
surrendered for transfer or exchange shall (if so required by the Trustee) be
duly endorsed by, or be accompanied by a written instrument of transfer in the
form satisfactory to the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
transfer or exchange of Certificates, but the Trustee may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
The Trustee will cause the Certificate Registrar (unless the Trustee
is acting as Certificate Registrar) to provide notice to the Trustee of each
transfer of a Certificate, and the Certificate Registrar will provide the
Trustee with an updated copy of the Certificate Register on January 1 and July
1 of each year.
Section 5.05 Restrictions on Transfer.
(a) Securities Law Compliance. No transfer of any Private
Certificate shall be made unless that transfer is made pursuant to an
effective registration statement under the Securities Act and effective
registration or qualification under applicable state securities laws, or is
made in a transaction that does not require such registration or
qualification. Any Holder of a Private Certificate shall, and, by acceptance
of such Private Certificate, does agree to, indemnify the Depositor and the
Trustee against any liability that may result if any transfer of such
Certificates by such Holder is not exempt from registration under the
Securities Act and all applicable state securities laws or is not made in
accordance with such federal and state laws. Neither the Depositor nor the
Trustee is obligated to register or qualify any Private Certificate under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of such Certificates
without such registration or qualification. The Trustee shall not register any
transfer of a Private Certificate (other than a Residual Certificate) unless
and until the prospective transferee provides the Trustee with an agreement
certifying to facts which, if true, would mean that the proposed transferee is
a Qualified Institutional Buyer (a "QIB Certificate"), or, if the Private
Certificate to be transferred is not a Rule 144A Security, a Transferee
Agreement, and in any case unless and until the transfer otherwise complies
with the provisions of this Section 5.05. If so provided in the Trust
Agreement, the prospective transferee will be deemed to have provided a QIB
Certificate upon acceptance of the Certificate. If a proposed transfer does
not involve a Rule 144A Security, the Trustee shall require that the
transferor and transferee certify as to the factual basis for the registration
exemption(s) relied upon, and if the transfer is made within two years of the
acquisition thereof by a non-Affiliate of the Depositor from the Depositor or
an Affiliate of the Depositor, or the Trustee also may require an Opinion of
Counsel that such transfer may be made without registration or qualification
under the Securities Act and applicable state securities laws, which Opinion
of Counsel shall not be obtained at the expense of the Depositor or the
Trustee. Notwithstanding the foregoing, no QIB Certificate, Transferee
Agreement or Opinion of Counsel shall be required in connection with the
initial transfer of the Private Certificates and no Opinion of Counsel shall
be required in connection with the transfer of the Private Certificates by a
broker or dealer, if such broker or dealer was the initial transferee.
The Depositor (or, upon direction of the Depositor, which
directions shall specify the information to be provided, and at the expense of
the Depositor or the Trustee) shall provide to any Holder of a Rule 144A
Security and any prospective transferee designated by 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 Rule 144A Security without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A.
(b) ERISA Restrictions. Certificated Subordinated Certificates.
No Regular Certificate that is subordinated in right to payment to the
Certificates of any other Class due to the allocation of Realized Losses (a
"Certificated Subordinated Security") shall be transferred unless the
prospective transferee provides the Trustee with a properly completed Benefit
Plan Affidavit.
(c) Residual Certificates. No Residual Certificate (including
any beneficial interest therein) may be transferred to a Disqualified
Organization. In addition, no Residual Certificate (including any beneficial
interest therein) may be transferred unless (i) the proposed transferee
provides the Trustee with (A) a Residual Transferee Agreement, (B) if the
proposed transferee is a U.S. Person, a U.S. Person and Affidavit Pursuant to
Sections 860D(a)(6)(A) and 860E(e)(4) of the Code, and (C) if the proposed
transferee is a Non-U.S. Person, a Non-U.S. Person Affidavit and Affidavit
Pursuant to Sections 860D(a)(6)(A) and 860E(e)(4) of the Code, and (ii) the
interest transferred involves the entire interest in a Residual Certificate or
an undivided interest therein (unless the transferor or the transferee
provides the Trustee with an Opinion of Counsel (which shall not be an expense
of the Trustee) that the transfer will not jeopardize the REMIC status of any
related REMIC). Furthermore, if a proposed transfer involves a Rule 144A
Security, the Trustee shall require the transferee to certify as to facts
that, if true, would mean that the proposed transferee is a Qualified
Institutional Buyer; and, if a proposed transfer involves a Private
Certificate that is not a Rule 144A Security, (1) the Trustee shall require
that the transferee certify as to the factual basis for the registration
exemption(s) relied upon, and (2) if the transfer is made within two years
from the acquisition of the Certificate by a non-Affiliate of the Depositor
from the Depositor or an Affiliate of the Depositor, the Trustee also may
require an Opinion of Counsel that such transfer may be made without
registration or qualification under the Securities Act and applicable state
securities laws, which Opinion of Counsel shall not be obtained at the expense
of the Trustee. In any event, the Trustee shall not effect any transfer of a
Residual Certificate except upon notification of such transfer to the Trustee.
Notwithstanding the foregoing, no Opinion of Counsel shall be required in
connection with the initial transfer of the Residual Certificates or their
transfer by a broker or dealer, if such broker or dealer was the initial
transferee. Notwithstanding the fulfillment of the prerequisites described
above, the Trustee may refuse to recognize any transfer to the extent
necessary to avoid a risk of disqualification of any related REMIC as a REMIC
or the imposition of a tax upon any such REMIC.
Upon notice to the Trustee that any legal or beneficial interest
in any portion of the Residual Certificates has been transferred, directly or
indirectly, to a Disqualified Organization or agent thereof (including a
broker, nominee, or middleman) in contravention of the foregoing restrictions,
(i) such transferee shall be deemed to hold the Residual Certificate in
constructive trust for the last transferor who was not a Disqualified
Organization or agent thereof, and such transferor shall be restored as the
owner of such Residual Certificate as completely as if such transfer had never
occurred, provided that the Trustee may, but is not required to, recover any
distributions made to such transferee with respect to the Residual Certificate
and return such recovery to the transferor, and (ii) the Trustee agrees to
furnish to the Internal Revenue Service and to any transferor of the Residual
Certificate or such agent (within 60 days of the request therefor by the
transferor or agent) such information necessary for the computation of the tax
imposed under Section 860E(e) of the Code and as otherwise may be required by
the Code, including but not limited to the present value of the total
anticipated excess inclusions with respect to the Residual Certificate (or
portion thereof) for periods after such transfer. At the election of the
Trustee, the cost to the Trustee of computing and furnishing such information
may be charged to the transferor or such agent referred to above; however, the
Trustee shall in no event be excused from furnishing such information.
If a tax or a reporting cost is borne by any REMIC as a result
of the transfer of a Residual Certificate or any beneficial interest therein
in violation of the restrictions set forth in this Section, the transferor
shall pay such tax or cost and, if such tax or cost is not so paid, the
Trustee shall pay such tax or cost with amounts that otherwise would have been
paid to the transferee of the Residual Certificate (or beneficial interest
therein). In that event, neither the transferee nor the transferor shall have
any right to seek repayment of such amounts from the Depositor, the Trustee,
any REMIC, or the other Holders of any of the Certificates, and none of such
parties shall have any liability for payment of any such tax or reporting
cost.
Section 5.06 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee or the
Certificate Registrar, or the Trustee and the Certificate Registrar receive
evidence to their satisfaction of the destruction, loss or theft of any
Certificate, and (b) there is delivered to the Trustee and the Certificate
Registrar such security or indemnity as may be required by them to save each
of them harmless, then, in the absence of actual knowledge by the Trustee or
the Certificate Registrar that such Certificate has been acquired by a bona
fide purchaser, the Trustee shall execute and cause the Certificate Registrar
to authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
of like tenor and Percentage Interest. Upon the issuance of any new
Certificate pursuant to this Section, 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 Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the Trust, as if originally issued,
whether or not the destroyed, lost or stolen Certificate shall be found at any
time.
Section 5.07 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Trustee, the Certificate
Registrar and any agent of any of them may treat the person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions and for all other purposes whatsoever, and neither the
Trustee, the Certificate Registrar nor any agent of any of them shall be
affected by notice to the contrary.
Section 5.08 Appointment of Paying Agent. The Trustee may appoint a
Paying Agent for the purpose of making distributions to Certificateholders.
The Trustee shall cause such Paying Agent (if other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee that such Paying Agent will hold all sums held by
it for the payment to Certificateholders in an Eligible Account in trust for
the benefit of the Certificateholders entitled thereto until such sums shall
be paid to the Certificateholders. All funds remitted by the Trustee to any
such Paying Agent for the purpose of making distributions shall be paid to
Certificateholders on each Distribution Date and any amounts not so paid shall
be returned on such Distribution Date to the Trustee.
ARTICLE VI
THE DEPOSITOR
Section 6.01 Liability of the Depositor. The Depositor shall be
liable in accordance herewith only to the extent of the obligations
specifically imposed by the Trust Agreement and undertaken by the Depositor
under the Trust Agreement.
Section 6.02 Merger or Consolidation of the Depositor. Subject to the
following paragraph, the Depositor will keep in full effect its corporate
existence, rights and franchises under the laws of the jurisdiction of its
organization, and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Trust Agreement, the
Certificates or any of the Mortgage Loans and to perform its duties under the
Trust Agreement.
The Depositor may be merged or consolidated with or into any Person,
or transfer all or substantially all of their respective assets to any Person,
in which case any Person resulting from any merger or consolidation to which
the Depositor shall be a party, or any Person succeeding to the business of
the Depositor, shall be the successor of the Depositor without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
ARTICLE VII
TERMINATION OF SERVICING ARRANGEMENTS
Section 7.01 Termination and Substitution of Servicer. Upon the
occurrence of any Event of Default for which the Servicer may be terminated
pursuant to any Servicing Agreement, the Trustee may, and upon direction of
the Certificateholders evidencing not less than 51% of the Voting Rights,
shall, terminate such Servicing Agreement. The Holders of Certificates
evidencing at least 66% of the Voting Rights of Certificates affected by Event
of Default) may waive such Event of Default; provided, however, that (a) an
Event of Default with respect to any Servicer's obligation to make Advances
may be waived only by all of the holders of the Certificates affected by such
Event of Default and (b) no such waiver is permitted that would materially
adversely affect any non-consenting Certificateholder. Subject to the
conditions set forth below in this Section 7.01, the Trustee shall
concurrently with such termination either enter into a substitute Servicing
Agreement or appoint another servicer to enter into a substitute Servicing
Agreement.
Notwithstanding the foregoing, the Trustee may not terminate the
Servicer without cause unless a successor servicer is appointed concurrently
with such termination, and such successor servicer pays the Servicer the full
amount of any liquidated damages required under the Servicing Agreement. In no
event shall the liquidated damages be an expense of the Trustee.
If the Trustee terminates any Servicing Agreement, the Trustee shall
enter into a substitute Servicing Agreement with another mortgage loan service
company acceptable to the Rating Agency under which such mortgage loan service
company shall assume, satisfy, perform and carry out all liabilities, duties,
responsibilities and obligations that are to be, or otherwise were to have
been, satisfied, performed and carried out by the Servicer under such
terminated Servicing Agreement. Such successor Servicer shall be a mortgage
loan servicing institution, with a net worth of at least $25,000,000. In the
event that the Trustee cannot appoint a substitute Servicer, it shall petition
a court of competent jurisdiction for the appointment of a substitute Servicer
meeting the foregoing requirements.
In the event any Servicer resigns or is terminated as provided above,
then the Trustee shall serve as successor Servicer and shall succeed to,
satisfy, perform and carry out all obligations which otherwise were to have
been satisfied, performed and carried out by such Servicer under the
terminated Servicing Agreement. However, in no event shall the Trustee be
deemed to have assumed the obligations of a Servicer to purchase any Mortgage
Loan from the Trust pursuant to any Servicing Agreement. As compensation to
the Trustee for any servicing obligations fulfilled or assumed by the Trustee,
the Trustee shall be entitled to any servicing compensation to which such
Servicer would have been entitled if the Servicing Agreement with such
Servicer had not been terminated.
No Certificateholder, solely by virtue of such holder's status as a
Certificateholder, will have any right under the Trust Agreement to institute
any proceeding with respect to the Trust Agreement or any Sale Agreement,
Servicing Agreement, Custody Agreement or Assignment Agreement, unless such
holder previously has given to the Trustee written notice of default and
unless the Certificateholders evidencing at least 25% of Voting Rights have
made written request upon the Trustee to institute such proceeding in its own
name and have offered to the Trustee reasonable indemnity, and the Trustee for
60 days has neglected or refused to institute any such proceeding.
Section 7.02 Notification to Certificateholders.
(a) Upon any termination pursuant to Section 7.01 above or
appointment of a successor to any Servicer, the Trustee shall give prompt
written notice thereof to the Certificateholders at their respective addresses
appearing in the Certificate Register, and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default
involving the Servicer, the Trustee shall transmit by mail to all Holders of
Certificates and each Rating Agency notice of each such Event of Default or
occurrence known to a Responsible Officer of the Trustee unless such default
shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee. The Trustee, prior to the occurrence
of an Event of Default and after the curing of any such Events of Default,
undertakes to perform such duties and only such duties as are specifically set
forth in the Trust Agreement. During an Event of Default relating to the
Trustee of which a Responsible Officer of the Trustee has notice, the Trustee
shall exercise such of the rights and powers vested in it by the Trust
Agreement, and use the same degree of care and skill in their exercise as a
prudent man 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, reports, documents, orders or other instruments created by any
Person other than itself and furnished to it which are specifically required
to be furnished pursuant to any provision of the Trust Agreement, Custody
Agreement, Servicing Agreement, Sale Agreement or Assignment Agreement shall
examine them to determine whether they conform to the requirements of such
agreement; provided, however, that the Trustee shall not be under any duty to
recalculate, verify or recompute the information provided to it hereunder by
the Servicer or the Depositor. If any such instrument is found not to conform
to the requirements of such agreement in a material manner, the Trustee shall
take action as it deems appropriate to have the instrument corrected, and if
the instrument is not corrected to its satisfaction, then it will provide
notice thereof to the other and to the Certificateholders.
No provision of the Trust Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(a) Prior to the occurrence of any Event of Default and after
the curing of all of such Events of Default, the respective duties and
obligations of the Trustee shall be determined solely by the express
provisions of the Trust Agreement (including the obligation of the Trustee to
enforce each Servicing Agreement against the related Servicer, each Custody
Agreement against the related Custodian, each Sale Agreement against the
related Seller, each Assignment Agreement against GSMC and otherwise to act as
owner under such agreements for the benefit of the Certificateholders), the
Trustee shall not be liable except for the performance of the respective
duties and obligations as are specifically set forth in the Trust Agreement,
no implied covenants or obligations shall be read into the Trust Agreement
against the Trustee and, in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee that conform to the requirements of the
Trust Agreement;
(b) The Trustee shall not be personally liable for an error of
judgment made in good faith by an Officer of the Trustee unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
(c) The Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at least
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 the Trust Agreement;
(d) Any determination of negligence, bad faith, willful
misconduct or breach of conduct of the Trustee shall be made only upon a
finding that there is clear and convincing evidence (and not upon the mere
preponderance of evidence) thereof in a proceeding before a court of competent
jurisdiction in which the Trustee has had an opportunity to defend; and
(e) In no event shall the Trustee be held liable for the actions
or omissions of any Servicer or Custodian (excepting the Trustee's own actions
as Servicer or Custodian). Prior to the occurrence of any Event of Default and
after the curing of all such Events of Default, other than those obligations
assumed by the Trustee as successor Servicer under Article VII, no provision
of the Trust Agreement shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it unless such risk or liability relates to duties set forth herein.
Section 8.02 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01 hereof:
(i)The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, 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. Further, the Trustee may accept a copy of the
vote of the Board of Directors of any party certified by its clerk or
assistant clerk or secretary or assistant secretary as conclusive
evidence of the authority of any person to act in accordance with such
vote, and such vote may be considered as in full force and effect until
receipt by the Trustee of written notice to the contrary;
(ii) The Trustee may, in the absence of bad faith on its
part, rely upon a certificate of an Officer of the appropriate Person
whenever in the administration of the Trust Agreement the Trustee shall
deem it desirable that a matter be proved or established (unless other
evidence be herein specifically prescribed) prior to taking, suffering or
omitting any action hereunder;
(iii) The Trustee may consult with counsel and the written
advice of such counsel or 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 written advice or Opinion of Counsel;
(iv) The Trustee shall not be under any obligation to
exercise any of the trusts or powers vested in it by the Trust Agreement
or to institute, conduct or defend any litigation thereunder or in
relation thereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of the Trust Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(v) The Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by the Trust Agreement;
(vi) 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 entitled to at
least 25% of the Voting Rights; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee not assured to the
Trustee by the security afforded to it by the terms of the Trust
Agreement, the Trustee may require indemnity against such expense or
liability as a condition to taking any such action;
(vii) The Trustee may execute any of the trusts or powers
under the Trust Agreement or perform any duties hereunder either directly
or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it under the Trust Agreement;
(viii) Whenever the Trustee is authorized herein to require
acts or documents in addition to those required to be provided it in any
matter, it shall be under no obligation to make any determination whether
or not such additional acts or documents should be required unless
obligated to do so under Section 8.01;
(ix) The permissive right or authority of the Trustee to
take any action enumerated in this Agreement shall not be construed as a
duty or obligation; and
(x) The Trustee shall not be deemed to have notice of any
matter, including without limitation any Event of Default, unless one of
its Responsible Officers has actual knowledge thereof or unless written
notice thereof is received by the Trustee at its Corporate Trust Office
and such notice references the applicable Certificates generally, the
applicable Servicer or Seller, the Trust or this Agreement.
(xi) The Trustee shall not be required to expend or risk
its own funds or otherwise incur financial liability for the performance
of any of its duties hereunder or the exercise of any of its rights or
powers (except with respect to its obligation to make Administrator
Advances pursuant hereto) if there is reasonable ground for believing
that the repayment of such funds or adequate indemnity against such risk
or liability is not assured to it, and none of the provisions contained
in this Agreement shall in any event require the Trustee to perform, or
be responsible for the manner of performance of, any of the obligations
of any Servicer under this Agreement except with respect to the Trustee's
obligation to make Administrator Advances pursuant hereto and during such
time, if any, as the Trustee shall be the successor to, and be vested
with the rights, duties, powers and privileges of, any Servicer in
accordance with the terms of this Agreement.
(xii) Subject to the other provisions of this Agreement and
without limiting the generality of this Section 8.02, the Trustee shall
not have any duty (A) to see to any recording, filing or depositing of
this Agreement or any agreement referred to herein or any financing
statement or continuation statement evidencing a security interest, or to
see the maintenance of any such recording of filing or depositing or to
any rerecording, refiling or redepositing any thereof, (B) to see to any
insurance, (C) to see to the payment or discharge of any tax, assessment
or other governmental charge or any lien or encumbrance of any kind owing
with respect to, assessed or levied against, any part of the Trust Estate
other than from funds available in the Certificate Account, or (D) to
confirm or verify the contents of any reports or certificates of any
Servicer delivered to the Trustee pursuant to this Agreement believed by
the Trustee to be genuine and to have been signed or presented by the
proper party or parties;
(xiii) The Trustee shall not be required to give any bond
or surety in respect of the execution of the trust Estate created hereby
or the powers granted hereunder; and
(xiv) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Trustee be liable for special,
indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Trustee has been
advised of the likelihood of such loss or damage and regardless of the
form of action.
(b) All rights of action under the Trust Agreement or under any
of the Certificates, enforceable by the Trustee may be enforced by it without
the possession of any of the Certificates, or the production thereof at the
trial or other proceeding relating thereto, and any such suit, action or
proceeding instituted by the Trustee shall be brought in its name for the
benefit of all the Holders of such Certificates, subject to the provisions of
the Trust Agreement. Any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, be for the ratable benefit of the
Holders in respect of which such judgment has been recovered.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained in the Trust Agreement and in the Certificates (other
than the signature of the Trustee, the acknowledgments by the Trustee in
Section 2.02 hereof and the representations and warranties made in Section
8.13 hereof) shall be taken as the statements of the Depositor, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations or warranties as to the validity or sufficiency of the Trust
Agreement or of the Certificates (other than the signature of the Trustee on
the Certificates) or of any Mortgage Loan or related document. The Trustee
shall not be accountable for the use or application by the Depositor of any of
the Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor in respect of the Mortgage
Loans or deposited in or withdrawn from the Certificate Account or Collection
Account other than any funds held by or on behalf of the Trustee in accordance
with Sections 3.01 and 3.02 or as owner of the Regular Interests of REMIC,
REMIC II and REMIC III as the case may be.
Section 8.04 Trustee May Own Certificates. The Trustee in its
individual capacity or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not Trustee.
Section 8.05 Trustee's Fees and Expenses. Pursuant to the Trust
Agreement, the Trustee shall be entitled to (i) the Trustee Fee (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in the execution
of the trusts created under the Trust Agreement and in the exercise and
performance of any of the powers and duties thereunder of the Trustee and (ii)
reimbursement for all reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any of the provisions of the Trust
Agreement (including but not limited to the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from
its negligence, bad faith, willful misconduct or breach of contract. The
Trustee and any director, officer, employee or agent of the Trustee shall be
indemnified and held harmless by the Trust Estate against any loss, liability
or expense thereof, including reasonable attorney's fees, incurred, arising
out of or in connection with the Trust Agreement, any custody agreement or the
Certificates, including, but not limited to, any such loss, liability, or
expense incurred in connection with any legal action against the Trust or the
Trustee or any director, officer, employee or agent thereof, or the
performance of any of the Trustee's duties under the Trust Agreement other
than any loss, liability or expense incurred by reason of willful misfeasance,
bad faith, negligence, willful misconduct or breach of contract in the
performance of duties under the Trust Agreement or by reason of reckless
disregard of obligations and duties under the Trust Agreement. The provisions
of this Section 8.05 shall survive the resignation or removal of the Trustee.
Section 8.06 Eligibility Requirements for Trustee. The Trustee shall
at all times be a corporation or national banking association that is not an
Affiliate of the Depositor organized and doing business under the laws of any
state or the United States of America, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authority. If such corporation publishes reports of its conditions at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of conditions so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07.
Section 8.07 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts created pursuant to the
Trust Agreement by giving written notice thereof to the Depositor and to all
Certificateholders. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor trustee by written instrument, in
triplicate, which instrument shall be delivered to the resigning Trustee and
to the successor trustee. A copy of such instrument shall be delivered to the
Depositor, the Certificateholders and each Servicer by the Depositor. If no
successor trustee shall have been so appointed and have accepted appointment
within 60 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee.
The Depositor may at any time remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, which instrument shall
be delivered to the Trustee so removed and to the successor trustee. If the
Depositor executes such an instrument, then the Depositor shall deliver a copy
of such instrument to the Certificateholders, the Trustee and each Servicer.
The Holders of Certificates entitled to at least 51% 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 instruments
shall be delivered to each of the Depositor, the Trustee so removed and the
successor trustee so appointed. A copy of such instrument shall be delivered
to the Certificateholders and each Servicer and Seller by the Depositor.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08 hereof.
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 the predecessor trustee an instrument accepting such
appointment under the Trust Agreement 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 thereunder,
with the like effect as if originally named as trustee therein. The
predecessor trustee shall deliver to the successor trustee, all Trustee
Mortgage Loan Files and related documents and statements held by it under the
Trust Agreement and the Depositor and the predecessor trustee shall execute
and deliver such instruments and do such other things as may reasonably be
required for more fully and certainly vesting and confirming in the successor
trustee, all such rights, powers, duties and obligations.
No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.06 hereof.
Upon acceptance of appointment by a successor trustee as provided in
this Section, the Depositor shall mail notice of the succession of such
trustee under the Trust Agreement to all Holders of Certificates at their
addresses as shown in the Certificate Register. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the Trustee shall cause such notice to be mailed at the expense of
the Depositor.
Notwithstanding anything to the contrary contained herein, the
appointment of any successor Trustee pursuant to any provisions of this
Agreement will be subject to the prior written consent of the Trustee, which
consent will not be unreasonably withheld.
Section 8.09 Merger or Consolidation of Trustee. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the corporate trust business of the Trustee shall be the
successor of the Trustee under the Trust Agreement, provided such corporation
shall be eligible under the provisions of Section 8.06, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee. For the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust or property securing the same may at the time be located,
the Depositor and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section 8.10, such
powers, duties, obligations, rights and trusts as the Depositor and the
Trustee may consider necessary or desirable. If the Depositor shall not have
joined in such appointment within 15 days after the receipt by it of a request
so to do, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee(s) hereunder shall be required to meet the
terms of eligibility as a successor trustee under Section 8.06 hereof and no
notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 8.08 hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be exercised and
performed by such separate trustee or co-trustee at the direction of the
Trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to the Trust
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 the Trust Agreement, specifically including every
provision of the Trust 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. No trustee (including the Trustee) shall be
responsible for the actions of any co-trustee.
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 the
Trust Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 8.11 Appointment of Custodians. The Trustee may appoint one
or more Custodians to hold all or a portion of the Trustee Mortgage Loan Files
as agent for the Trustee, by entering into a custody agreement. The
appointment of any Custodian may at any time be terminated and a substitute
custodian appointed therefor by the Trustee. Subject to Article VIII, the
Trustee agrees to comply with the terms of each custody agreement and to
enforce the terms and provisions thereof against the Custodian for the benefit
of the Certificateholders. Each Custodian shall be a depository institution or
trust company subject to supervision by federal or state authority, shall have
combined capital and surplus of at least $10,000,000 and shall be qualified to
do business in the jurisdiction in which it holds any Trustee Mortgage Loan
File. Any such Custodian may not be an affiliate of the Depositor or any
Seller or Servicer. The Trustee shall not be responsible or liable for the
acts or omissions of any Custodian appointed by it hereunder (except for a
Custodian which is an affiliate of the Trustee). Except as otherwise provided
in the Custody Agreement, any fees, expenses and other amounts (except for
amounts due as a result of indemnification provisions) due to a Custodian
shall be the responsibility of the related Servicer. Any indemnification due a
Custodian under a Custody Agreement shall be an obligation of the Trust and
payable out of the Trust Estate, and reimbursed in accordance with the Trust
Agreement.
Section 8.12 Appointment of Office or Agent. The Trustee shall
appoint an office or agent in The City of New York where notices and demands
to or upon the Trustee in respect of the Certificates and the Trust Agreement
may be served.
Section 8.13 Representations and Warranties of the Trustee. The
Trustee hereby represents and warrants to the Depositor that as of the Closing
Date or as of such other date specifically provided herein:
(a) It is a banking corporation and has been duly organized, and
is validly existing in good standing under the laws of its State of
organization with full power and authority (corporate and other) to enter into
and perform its obligations under the Trust Agreement;
(b) The Trust Agreement has been duly executed and delivered by
it, and, assuming due authorization, execution and delivery by the Depositor,
constitutes a legal, valid and binding agreement of such entity, enforceable
against it in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and to general principles of equity regardless of whether
enforcement is sought in a proceeding in equity or at law;
(c) The execution, delivery and performance by it of the Trust
Agreement and the consummation of the transactions contemplated thereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained,
given, effected or taken prior to the date thereof;
(d) The execution and delivery of this Trust Agreement by it
have been duly authorized by all necessary corporate action on its part;
neither the execution and delivery by it of the Trust Agreement, nor
consummation of the transactions therein contemplated, nor compliance by it
with the provisions thereof, will conflict with or result in a breach of, or
constitute a default under, any of the provisions of its articles of
organization or by-laws or any law, governmental rule or regulation or any
judgment, decree or order binding on it to its knowledge or any of its
properties, or any of the provisions of any indenture, mortgage, deed of
trust, contract or other instrument to which it is a party or by which it is
bound;
(e) There are no actions, suits or proceedings pending or, to
its knowledge, threatened or asserted against it, before or by any court,
administrative agency, arbitrator or governmental body (A) with respect to any
of the transactions contemplated by the Trust Agreement or (B) with respect to
any other matter which in its judgment will be determined adversely to it and
will if determined adversely to it materially adversely affect its ability to
perform its obligations under the Trust Agreement; and
(f) It meets all of the eligibility requirements set forth in
Section 8.06 thereof.
ARTICLE IX
TERMINATION OF TRUST
Section 9.01 Qualified Liquidation. The Provisions of this Article IX
are subject to the requirement that any termination shall be a "qualified
liquidation" of each associated REMIC unless 100% of the affected holders of
interests in each such REMIC have consented to waive such requirements. For
this purpose "affected holders" shall mean each holder of a regular or
residual interest which would likely receive a smaller amount in final
distributions if the termination were not a "qualified liquidation" and REMIC
owed taxes as a result hereof.
Section 9.02 Termination. The Servicer designated in Section 4.03 of
the Trust Agreement may, at its option, make or cause a Person to make a
Terminating Purchase for the Termination Price at the time and on the terms
and conditions specified in the Trust Agreement. Upon such Terminating
Purchase or the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan remaining in the Trust or the
disposition of the last REO Property remaining in the Trust, the respective
obligations and responsibilities under the Trust Agreement of the Depositor,
the Trustee shall terminate upon payment to the Certificateholders of all
amounts held by or on behalf of the Trustee and required hereunder to be so
paid and upon deposit of unclaimed funds otherwise distributable to
Certificateholders in the Termination Account. Notwithstanding the foregoing,
in no event shall the Trust created hereby continue beyond the expiration of
21 years from the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the late ambassador of the United States to the Court of St. James's,
living on the date hereof.
The Trust also may be terminated and the Certificates retired if the
Trustee determines, based upon an Opinion of Counsel, that the REMIC status of
any related REMIC has been lost or that a substantial risk exists that such
REMIC status will be lost for the then-current taxable year.
Section 9.03 Procedure for Termination. The Depositor shall advise
the Trustee in writing of its election to cause a Terminating Purchase, no
later than the Distribution Date in the month preceding the Distribution Date
on which the Terminating Purchase will occur.
Notice of the Distribution Date on which any such termination shall
occur (or the Distribution Date on which final payment or other Liquidation of
the last Mortgage Loan remaining in the Trust or the disposition of the last
REO Property remaining in the Trust will be distributed to Certificateholders,
as reflected in the Remittance Report for such month (the "Final Distribution
Date") shall be given promptly by the Trustee by letter to Certificateholders
mailed (a) in the event such notice is given in connection with a Terminating
Purchase, not earlier than the 15th day and not later than the last day of the
month preceding the month of such final distribution or (b) otherwise during
the month of such final distribution on or before the Remittance Date in such
month, in each case specifying (i) the Final Distribution Date and that final
payment of the Certificates will be made upon presentation and surrender of
Certificates at the office of the Trustee therein designated on that date,
(ii) the amount of any such final payment and (iii) that the Record Date
otherwise applicable to such Final Distribution Date is not applicable,
payments being made only upon presentation and surrender of the Certificates
at the office of the Trustee. The Trustee shall give such notice to the
Certificate Registrar at the time such notice is given to Certificateholders.
In the event such notice is given in connection with a Terminating Purchase,
the purchaser shall deliver to the Trustee for deposit in the Certificate
Account on the Business Day immediately preceding the Final Distribution Date
an amount in next day funds equal to the Termination Price, as the case may be.
Upon presentation and surrender of the Certificates on a Distribution
Date by Certificateholders, the Trustee shall distribute to Certificateholders
(A) the amount otherwise distributable on such Distribution Date, if not in
connection with Terminating Purchase, or (B) if in connection with a
Terminating Purchase, an amount determined as follows: with respect to each
Certificate with an outstanding Certificate Balance, the outstanding
Certificate Balance thereof, plus interest thereon through the Accounting Date
preceding the Distribution Date fixed for termination and any previously
unpaid interest, net of unrealized losses, Realized Interest Shortfall and
Shortfall with respect thereto; and in addition, with respect to each Residual
Certificate, the Percentage Interest evidenced thereby multiplied by the
difference between the Termination Price and the aggregate amount to be
distributed as provided in the first clause of this sentence and the next
succeeding sentence.
Upon the deposit of the Termination Price in the Certificate Account,
the Trustee, and any Custodian acting as its agent, shall promptly release to
the purchaser the Trustee Mortgage Loan Files for the remaining Mortgage
Loans, and the Trustee shall execute all assignments, endorsements and other
instruments without recourse necessary to effectuate such transfer. The Trust
shall terminate immediately following the deposit of funds in the Termination
Account as provided below.
In the event that all of the Certificateholders shall not surrender
their Certificates within six months after the Final Distribution Date
specified in the above-mentioned written notice, the Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates and receive the final distribution with respect thereto, net of
the cost of such second notice. If within one year after the second notice all
the Certificates shall not have been surrendered for cancellation, the Trustee
may take appropriate steps, or may appoint an agent to take appropriate steps,
to contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the amounts otherwise
payable on such Certificates. Any funds payable to Certificateholders that are
not distributed on the Final Distribution Date shall be deposited in a
Termination Account, which shall be an Eligible Account, to be held for the
benefit of Certificateholders not presenting and surrendering their
Certificates in the aforesaid manner, and shall be disposed of in accordance
with this Section. The Trustee shall establish the Termination Accounts, which
shall be Eligible Accounts, on or about the Closing Date.
Section 9.04 Additional Termination Requirements.
(a) In the event of a Terminating Purchase as provided in
Section 9.02, the Trust shall be terminated in accordance with the following
additional requirements, unless the Trustee receives (i) a Special Tax Opinion
and (ii) a Special Tax Consent from each of the Holders of the Residual
Certificates (unless the Special Tax Opinion specially provides that no
REMIC-level tax will result from the Terminating Purchase):
(A) Within 90 days prior to the Final Distribution Date,
the Depositor and the Trustee on behalf of the related REMIC shall adopt
a plan of complete liquidation meeting the requirements of a qualified
liquidation under the REMIC Provisions (which plan may be adopted by the
Trustee's attachment of a statement specifying the first day of the
90-day liquidation period to the REMIC's final federal income tax
return) and the REMIC will sell all of its assets (other than cash);
(B) Upon making final payment on the Regular Certificates
or the deposit of any unclaimed funds otherwise distributable to the
holders of the Regular Certificates in the Termination Account on the
Final Distribution Date, the Trustee shall distribute or credit, or
cause to be distributed or credited, pro rata, to the Holders of the
Residual Certificates all cash on hand relating to the REMIC after such
final payment (other than cash retained to meet claims), and the REMIC
shall terminate at that time; and
(C) In no event may the final payment on the Certificates
be made after the 90th day from the date on which the plan of complete
liquidation is adopted. A payment into the Termination Account with
respect to any Certificate pursuant to Section 9.03 shall be deemed a
final payment on, or final distribution with respect to, such
Certificate for the purposes of this clause.
(b) By its acceptance of a Residual Certificate, the Holder
thereof hereby (i) authorizes such action as may be necessary to adopt a plan
of complete liquidation of any related REMIC and (ii) agrees to take such
action as may be necessary to adopt a plan of complete liquidation of any
related REMIC upon the written request of the Trustee, which authorization
shall be binding upon all successor Holders of Residual Certificates.
ARTICLE X
REMIC TAX PROVISIONS
Section 10.01 REMIC Administration.
(a)(i) Unless otherwise specified in the Trust Agreement, the
Trustee shall elect (on behalf of each REMIC to be created) to have the Trust
(or designated assets thereof) treated as one or more REMICs on Form 1066 or
other appropriate federal tax or information return for the taxable year
ending on the last day of the calendar year in which the Certificates are
issued as well as on any corresponding state tax or information return
necessary to have the Trust (or such assets) treated as a REMIC under state
law.
(ii) In order to enable the Trustee to perform its duties
as set forth herein, the Depositor shall provide or cause to be provided
to the Trustee, within ten (10) days after the Closing Date, all
information or data that the Trustee reasonably determines to be relevant
for tax purposes to the valuations and offering prices of the
Certificates (security instruments), including, without limitation, the
price, yield, prepayment assumption and projected cash flows of the
Certificates and the Mortgage Loans. Thereafter, the Depositor shall
provide to the Trustee, promptly upon request therefor, any additional
information or data that the Trustee may from time to time reasonably
request in order to enable the Trustee to perform its duties as set forth
herein.
(b) The Trustee shall pay any and all tax related expenses (not
including taxes) of each REMIC and Grantor Trust, including but not limited to
any professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to such REMIC and Grantor Trust that involve
the Internal Revenue Service or state tax authorities, but only to the extent
that (i) such expenses are ordinary or routine expenses, including expenses of
a routine audit but not expenses of litigation (except as described in (ii));
or (ii) such expenses or liabilities (including taxes and penalties) are
attributable to the negligence or willful misconduct of the Trustee in
fulfilling its duties hereunder (including its duties as tax return preparer).
The Trustee shall be entitled to reimbursement of the expenses to the extent
provided in clause (i) above from the Certificate Account, but only to the
extent such expenses are "unanticipated expenses" for purposes of Treasury
Regulation Section 1.860G-1(b)(3)(ii).
(c) The Trustee shall prepare any necessary forms for election as
well as all of the Trust's and each REMIC's federal and New York tax and
information returns. The Trustee shall sign and file such returns on behalf of
each REMIC. The expenses of preparing and filing such returns shall be borne
by the Trustee.
(d) The Trustee shall perform all reporting and other tax
compliance duties that are the responsibility of the Trust and each REMIC
under the REMIC Provisions or New York tax law. Among its other duties, if
required by the REMIC Provisions, the Trustee, acting as agent of each REMIC,
shall provide (i) to the Treasury or other governmental authority such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Disqualified Organization and (ii)
to the Trustee such information as is necessary for the Trustee to discharge
its obligations under the REMIC Provisions to report tax information to the
Certificateholders.
(e) The Depositor, the Trustee and the Holders of the Residual
Certificates shall take any action or cause any REMIC to take any action
necessary to create or maintain the status of such REMIC as a REMIC under the
REMIC Provisions and shall assist each other as necessary to create or
maintain such status.
(f) The Depositor, the Trustee and the Holders of the Residual
Certificates shall not take any action, or fail to take any action, or cause
any REMIC to take any action or fail to take any action that, if taken or not
taken, as the case may be, could endanger the status of any such REMIC as a
REMIC unless the Trustee has received an Opinion of Counsel (at the expense of
the party seeking to take or to fail to take such action) to the effect that
the contemplated action or failure to act will not endanger such status.
(g) Any taxes that are imposed upon the Trust or any REMIC by
federal or state (including local) governmental authorities (other than taxes
paid by a party pursuant to Section 10.02 hereof or as provided in the
following sentence) shall be allocated in the same manner as Realized Losses
are allocated. Any state (or local) taxes imposed upon the Trust or any REMIC
that would not have been imposed on the Trust or such REMIC in the absence of
any legal or business connection between the Trustee and the state (or
locality) imposing such taxes shall be paid by the Trustee, and,
notwithstanding anything to the contrary in these Standard Terms, such taxes
shall be deemed to be part of the Trustee's cost of doing business and shall
not be reimbursable to the Trustee.
(h) The Trustee or an Affiliate shall acquire a Residual
Certificate in each REMIC and the Trustee will act as the Tax Matters Person
of each REMIC and perform various tax administration functions of each REMIC
as its agent, as set forth in this Section. If the Trustee or an Affiliate is
unable for any reason to fulfill its duties as Tax Matters Person for a REMIC,
the holder of the largest Percentage Interest of the Residual Certificates in
such REMIC shall become the successor Tax Matters Person of such REMIC.
Section 10.02 Prohibited Activities. Except as otherwise provided in
the Trust Agreement, neither the Depositor, the Holders of the Residual
Certificates, nor the Trustee shall engage in, nor shall the Trustee permit,
any of the following transactions or activities unless it has received (a) a
Special Tax Opinion and (b) a Special Tax Consent from each of the Holders of
the Residual Certificates (unless the Special Tax Opinion specially provides
that no REMIC-level tax will result from the transaction or activity in
question):
(i) the sale or other disposition of, or substitution for,
any of the Mortgage Loans except pursuant to (A) a foreclosure or default
with respect to such Mortgage Loans, (B) the bankruptcy or insolvency of
any REMIC, (C) the termination of any REMIC pursuant to Section 9.02, or
(D) a purchase in accordance with Section 2.03;
(ii) the acquisition of any Mortgage Loans for the Trust
after the Closing Date except during the three-month period beginning on
the Closing Date pursuant to a fixed price contract in effect on the
Closing Date that has been reviewed and approved by tax counsel
acceptable to the Trustee;
(iii) the sale or other disposition of any investment in
the Certificate Account or the Distribution Account at a gain;
(iv) the sale or other disposition of any asset held in a
Reserve Fund for a period of less than three months (a "Short-Term
Reserve Fund Investment") if such sale or disposition would cause 30% or
more of a REMIC's income from such Reserve Fund for the taxable year to
consist of a gain from the sale or disposition of Short-Term Reserve Fund
Investments;
(v) the withdrawal of any amounts from any Reserve Fund
except (A) for the distribution pro rata to the Holders of the Residual
Certificates or (B) to provide for the payment of Trust expenses or
amounts payable on the Certificates in the event of defaults or late
payments on the Mortgage Loans or lower than expected returns on funds
held in the Certificate Account or the Distribution Account, as provided
under Section 860G(a)(7) of the Code;
(vi) the acceptance of any contribution to the Trust except
the following cash contributions: (A) a contribution received during the
three month period beginning on the Closing Date, (B) a contribution to a
Reserve Fund owned by a REMIC that is made pro rata by the Holders of the
Residual Certificates, (C) a contribution to facilitate a Terminating
Purchase that is made within the 90-day period beginning on the date on
which a plan of complete liquidation is adopted pursuant to Section
9.04(a)(A), or (D) any other contribution approved by the Trustee after
consultation with tax counsel; or
(vii) except in the case of a Mortgage Loan that is a
default, or as to which, in the reasonable judgment of any Servicer,
default is reasonably foreseeable, the Trustee shall not permit any
modification of any material term of a Mortgage Loan (including, but not
limited to, the interest rate, the principal balance, the amortization
schedule, the remaining term to maturity, or any other term affecting the
amount or timing of payments on the Mortgage Loan) unless the Trustee has
received an Opinion of Counsel (at the expense of the party seeking to
modify the Mortgage Loan) to the effect that such modification would not
be treated as giving rise to a new debt instrument for REMIC purposes; or
(viii) any other transaction or activity that is not
contemplated by the Trust Agreement.
Any party causing the Trust to engage in any of the activities prohibited in
this Section shall be liable for the payment of any tax imposed on the Trust
pursuant to Code section 860F(a)(1) or 860G(d) as a result of the Trust
engaging in such activities.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment of Trust Agreement. The Trust Agreement may
be amended or supplemented from time to time by the Depositor and the Trustee
without the consent of any of the Certificateholders to (a) cure any
ambiguity, (b) correct or supplement any provisions herein which may be
inconsistent with any other provisions herein, (c) modify, eliminate or add to
any of its provisions to such extent as shall be necessary or appropriate to
maintain the qualification of the Trust (or any assets thereof) either as a
REMIC, as applicable under the Code at all times that any Certificates are
outstanding or (d) make any other provisions with respect to matters or
questions arising under the Trust Agreement or matters arising with respect to
the Trust which are not covered by the Trust Agreement which shall not be
inconsistent with the provisions of the Trust Agreement, provided that such
action shall not adversely affect in any material respect the interests of any
Certificateholder. Any such amendment or supplement shall be deemed not to
adversely affect in any material respect any Certificateholder if there is
delivered to the Trustee written notification from each Rating Agency that
rated the applicable Certificates to the effect that such amendment or
supplement will not cause that Rating Agency to reduce the then current rating
assigned to such Certificates, as well as an Opinion of Counsel that such
amendment or supplement will not result in the loss by the Trust or the assets
thereof of REMIC status.
The Trust Agreement may also be amended from time to time by the
Depositor and the Trustee with the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of the Trust Agreement or of modifying in any manner the rights of the Holders
of Certificates; provided, however, that no such amendment shall (A) reduce in
any manner the amount of, or delay the timing of, payments received on
Mortgage Loans which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, (B) adversely affect in any
material respect the interests of the Holders of any Class of Certificates, or
(C) reduce the aforesaid percentage of Certificates the Holders of which are
required to consent to any such amendment, unless each Holder of a Certificate
affected by such amendment consents. For purposes of the giving or withholding
of consents pursuant to this Section 11.01, Certificates registered in the
name of the Depositor or an Affiliate shall be entitled to Voting Rights with
respect to matters affecting such Certificates.
Prior to consenting to any amendment, the Trustee shall be entitled
to receive an Opinion of Counsel from the Depositor stating that the proposed
amendment is authorized and permitted pursuant to this Trust Agreement.
Promptly after the execution of any such amendment, the Trustee shall
notify Certificateholders of such amendment and, upon written request, furnish
a copy of such amendment to any Certificateholder.
It shall not be necessary for the consent of Certificateholders under
this Section 11.01 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.
Section 11.02 Recordation of Agreement; Counterparts. To the extent
required by applicable law, the Trust 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 Trustee
at the expense of the Trust, but only if such recordation is requested by the
Depositor and accompanied by an Opinion of Counsel (which shall not be an
expense of the Depositor or the Trustee) to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of the Trust
Agreement as herein provided and for any other purpose the Trust 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 11.03 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate the
Trust Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the
operation and management of the Trust, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to the Trust Agreement pursuant to any provision
hereof.
No Certificateholder shall have any right by virtue of any provision
of the Trust Agreement to institute any suit, action or proceeding in equity
or at law upon or under or with respect to the Trust Agreement or any Sale
Agreement, Servicing Agreement, Custody Agreement or Assignment Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of Certificates entitled to at least 25% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee under the Trust
Agreement 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 15 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 is understood and intended,
and 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 of any provision of the
Trust Agreement to affect, disturb or prejudice the rights of the Holders of
any other of such Certificates, or to obtain or seek to obtain priority over
or preference to any other such Holder, or to enforce any right under the
Trust Agreement, except in the manner therein provided and for the equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 11.04 [Reserved].
Section 11.05 Notices. All demands and notices under the Trust
Agreement shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by first class mail, postage prepaid, or by
express delivery service, to (a) in the case of the Depositor, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: President (telecopy number (212)
902-3000 and email addresses: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇.▇▇▇, ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇.▇▇▇ and
▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇) or such other address, telecopy number or email address
as may hereafter be furnished to each party to the Trust Agreement in writing
by the Depositor or (b) in the case of the Trustee, ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Institutional Trust
Services/Structured Finance Services, GSR Mortgage Loan Trust 2003-1 Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇ or such other address or telecopy number as may hereafter be
furnished to each party to the Trust Agreement in writing by the Trustee. Any
notice required or permitted to be mailed to a Certificateholder shall be
given by first-class mail, postage prepaid, or by express delivery service, at
the address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in the Trust Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder
receives such notice. A copy of any notice required to be telecopied hereunder
also shall be mailed to the appropriate party in the manner set forth above. A
copy of any notice given hereunder to any other party shall be delivered to
the Trustee.
Section 11.06 Severability of Provision. If any one or more of the
covenants, agreements, provisions or terms of the Trust 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 the Trust Agreement and shall in no way
affect the validity or enforceability of the other provisions of the Trust
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.07 Sale of Mortgage Loans. It is the express intent of the
Depositor and the Trustee that the conveyance of the Mortgage Loans by the
Depositor to the Trustee pursuant to the Trust Agreement be construed as a
sale of the Mortgage Loans by the Depositor to the Trustee. It is, further,
not the intention of the Depositor and the Trustee that such conveyance be
deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to
secure a debt or other obligation of the Depositor. However, in the event
that, notwithstanding the intent of the parties, the Mortgage Loans are held
to continue to be property of the Depositor then (a) the Trust Agreement also
shall be deemed to be a security agreement within the meaning of Article 9 of
the UCC; (b) the conveyance by the Depositor provided for in the Trust
Agreement shall be deemed to be a grant by the Depositor to the Trustee of a
security interest in all of the Depositor's right, title and interest in and
to the Mortgage Loans and all amounts payable to the holders of the Mortgage
Loans in accordance with the terms thereof and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities
or other property, including without limitation all amounts, other than
investment earnings, from time to time held or invested in any Collection
Account or the Certificate Account, whether in the form of cash, instruments,
securities or other property; (c) the possession by the Trustee or its agent
of Notes and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" for purposes of perfecting the security interest pursuant to
Section 9-313 of the UCC; and (d) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts
or confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Trustee for the purpose of perfecting such security
interest under applicable law. The Depositor and the Trustee shall, to the
extent consistent with the Trust Agreement, take such actions as may be
necessary to ensure that, if the Trust Agreement were deemed to create a
security interest in the Mortgage Loans, 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 Trust Agreement.
Section 11.08 Notice to Rating Agencies.The Trustee shall use its
best efforts promptly to provide notice to the Rating Agency with respect to
each of the following of which an Officer of the Trustee has actual knowledge:
(i)any material change or amendment to the Trust Agreement or
any agreement assigned to the Trust;
(ii) the occurrence of any Event of Default under a Servicing
Agreement;
(iii) the resignation, termination or merger of the Depositor,
the Trustee or any Servicer or Custodian;
(iv) the purchase of Mortgage Loans pursuant to Section 2.03;
(v) the final payment to Certificateholders;
(vi) any change in the location of any Collection Account,
Reserve Fund or Certificate Account; and
(vii) any event that would result in the inability of any
Servicer to make Advances regarding delinquent Mortgage Loans.
(b) The Trustee shall promptly make available, through its
website at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇, if practicable, to each Rating
Agency copies of the following:
(i) each report to Certificateholders described in Section 4.01;
and
(ii) upon written request of any such Person, a hard copy of
each Annual Compliance Statement and other reports provided by the
Servicer under each Servicing Agreement.
(c) Any notice pursuant to this Section 11.08 shall be in
writing and shall be deemed to have been duly given if personally delivered or
mailed by first class mail, postage prepaid or by express delivery service to
each Rating Agency at the address specified in the Trust Agreement.
Exhibit A
FORM OF TRUST RECEIPT
[Date]
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Trust Agreement, dated as of February 1, 2003, among GS
Mortgage Securities Corp., as Depositor and JPMorgan Chase
Bank, as Trustee of GSR Mortgage Loan Trust 2003-1
Ladies and Gentlemen:
In accordance with Section 2.02 of the Standard Terms to the
above-referenced Trust Agreement and subject to the further examination, the
Trustee hereby certifies that, except as noted on the Schedule of Exceptions
attached hereto, it, or a Custodian on its behalf, has received a Trustee
Mortgage Loan File that (a) (i) all documents required to be delivered to it
pursuant to clause (a) through (f) of the definition of Trustee Mortgage Loan
File are in its possession; (ii) all documents required to be delivered to it
pursuant to clause (g) of the definition of Trustee Mortgage Loan File are in
its possession, provided that the Custodian has no obligation to verify the
receipt of any such documents the existence of which was not made known to the
Custodian by the Trustee Mortgage Loan File, and provided further, that the
Custodian has no obligation to determine whether recordation of any such
modification is necessary; (iii) all documents required to be delivered to it
pursuant to clause (h) of the definition of Trustee Mortgage Loan File are in
its possession; and (iv) all powers of attorney required to be delivered to it
pursuant to Section 1(i) of the Custody Agreement are in its possession;
provided that the Trustee (or Custodian) has no obligation to verify the
receipt of any such documents, the existence of which was not made known to
the Trustee (or Custodian) by the Trustee Mortgage Loan File, and provided
further, that the Trustee (or Custodian) has no obligation to determine
whether recordation of any such power of attorney is necessary except the
Trustee (or Custodian) shall conclude that a power of attorney must be
recorded if the document to which it relates is recorded; (b) except for the
endorsement required pursuant to clause (a) of the definition of Trustee
Mortgage Loan File, the mortgage note, on the face or the reverse side(s)
thereof, does not contain evidence of any unsatisfied claims, liens, security
interests, encumbrances or restrictions on transfer; (c) such documents have
been reviewed by it and appear regular on their face and related to such
Mortgage Loans, except as set forth in the attached exception report;
provided, however, that the Custodian makes no representation and has no
responsibilities as to the authenticity of such documents, their compliance
with applicable law, or the collectability of any of the Mortgage Loans
relating thereto; and (d) each mortgage note has been endorsed in blank and
each assignment has been assigned as required under clause (a) of the
definition of Trustee Mortgage Loan File.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Trust Agreement.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be executed by a duly authorized Officer this __ day of __________, 20__.
[TRUSTEE, as Trustee/CUSTODIAN]
By: ________________________________
Its: ________________________________
Exhibit B
FORM OF FINAL CERTIFICATION
[Date]
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Trust Agreement, dated as of February 1, 2003, among GS Mortgage
Securities Corp., as Depositor and JPMorgan Chase Bank, as Trustee of
GSR Mortgage Loan Trust 2003-1
Ladies and Gentlemen:
In accordance with Section 2.02 of the Standard Terms to the
above-referenced Trust Agreement, the undersigned, as Trustee, hereby
certifies that, except as noted on the Schedule of Exceptions attached hereto,
for each Mortgage Loan listed on the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the attachment hereto) it, or a
Custodian on its behalf, has received a complete Trustee Mortgage Loan File
(a) (i) all documents required to be delivered to it pursuant to clause (a)
through (f) of the definition of Trustee Mortgage Loan File are in its
possession, (ii) all documents required to be delivered to it pursuant to
clause (g) of the definition of Trustee Mortgage Loan File are in its
possession, provided that the Custodian has no obligation to verify the
receipt of any such documents the existence of which was not made known to the
Custodian by the Trustee Mortgage Loan File, and provided further, that the
Custodian has no obligation to determine whether recordation of any such
modification is necessary; (iii) all documents required to be delivered to it
pursuant to clause (h) of the definition of Trustee Mortgage Loan File are in
its possession; and (iv) all powers of attorney required to be delivered to it
pursuant to Section 1(i) of the Custody Agreement are in its possession;
provided that the Trustee (or Custodian) has no obligation to verify the
receipt of any such documents, the existence of which was not made known to
the Trustee (or Custodian) by the Trustee Mortgage Loan File, and provided
further, that the Trustee (or Custodian) has no obligation to determine
whether recordation of any such power of attorney is necessary except the
Trustee (or Custodian) shall conclude that a power of attorney must be
recorded if the document to which it relates is recorded; (b) except for the
endorsement required pursuant to clause (a) of the definition of Trustee
Mortgage Loan File, the mortgage note, on the face or the reverse side(s)
thereof, does not contain evidence of any unsatisfied claims, liens, security
interests, encumbrances or restrictions on transfer; (c) such documents have
been reviewed by it and appear regular on their face and related to such
Mortgage Loans, except as set forth in the attached exception report;
provided, however, Custodian makes no representation and has no
responsibilities as to the authenticity of such documents, their compliance
with applicable law, or the collectability of any of the Mortgage Loans
relating thereto; and (d) each mortgage note has been endorsed in blank and
each assignment has been assigned as required under clause (a) of the
definition of Trustee Mortgage Loan File.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the above-captioned Trust Agreement.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be executed by a duly authorized Officer this __ day of __________, 20__.
[TRUSTEE, as Trustee/CUSTODIAN]
By: ____________________________
Its: ___________________________
Exhibit C
FORM OF RULE 144A AGREEMENT -- QIB CERTIFICATION
______________, 20__
JPMorgan Chase Bank,
as Trustee
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: GS Mortgage Securities Corp., Depositor
GSR Mortgage Loan Trust 2001,
Pass-Through Certificates Series 2003-1
having an original principal amount of $
-----------------------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of the Certificates
referred to above (the "Certificates"), we confirm that:
(A) We have received a copy of the Offering Supplement dated
_________ __, 20__ (the "Offering Circular"), relating to the Certificates and
such other information and documents as we deem necessary in order to make our
investment decision. We acknowledge that we have read and agree to the
restrictions on duplication and circulation of the Offering Circular and the
matters stated in the section entitled "Notice to Investors."
(B) We are a "qualified institutional buyer" (as that term is
defined in Rule 144A under the Securities Act). We area aware that the sale of
the Certificates to us is being made in reliance on Rule 144A under the
Securities Act. We are acquiring the Certificates for our own account or for
the account of a qualified institutional buyer.
(C) We understand that the offer and sale of the Certificates
has not been registered under the Securities Act and that the Certificates may
not be offered, sold, or otherwise transferred in the absence of such
registration or an applicable exemption therefrom. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated,
that we will not offer, sell, pledge or otherwise transfer any Certificate, or
any interest therein, except (1) (A) in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as defined therein), or
(B) pursuant to an effective registration statement under the Securities Act,
and (2) in accordance with all applicable securities laws of the states of the
United States or any other applicable jurisdiction.
(D) We understand that, on any proposed resale of any
Certificates, we will be required to furnish to the Depositor and to the
Trustee such certificates, legal opinions and other information as the
Depositor, or the Trustee may reasonably require to confirm that the proposed
sale complies with the foregoing restrictions. We further understand that the
Certificates purchased by us will bear a legend to the foregoing effect.
(E) We acknowledge that neither the Depositor, ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co. (the "Initial Purchaser"), the Trustee, nor any person acting on behalf of
the Depositor, the Initial Purchaser, or the Trustee has made any
representations concerning the Trust or the offer and sale of the
Certificates, except as set forth in the Offering Circular.
(F) We acknowledge that the Depositor, the Initial Purchaser,
the Trustee and others will rely on the truth and accuracy of the foregoing
acknowledgments, representations and agreements, and agree that if any of the
foregoing acknowledgments, representations and agreements are no longer
accurate we shall promptly notify the Depositor, the Initial Purchaser, and
the Trustee.
The Transferee hereby agrees to indemnify and hold harmless the
Depositor, the Trustee and the Initial Purchaser from and against any and all
loss, damage or liability (including attorney's fees) due to or arising out of
a breach of any representation or warranty, confirmation or statement
contained in this letter.
The Depositor, the Trustee and the Initial Purchaser are
entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the matters covered
hereby.
Capitalized terms used but not otherwise defined herein shall
have the meanings assigned to such terms in the Trust Agreement, dated as of
February 1, 2003, which incorporates by reference the Standard Terms thereto
(February 2003 Edition) between GS Mortgage Securities Corp. and the Trustee.
Sincerely,
[Name of Transferee]
By: ______________________________
Name: _______________________
Title: _______________________
Exhibit D
FORM OF TRANSFEREE AGREEMENT
_______________, 20___
JPMorgan Chase Bank,
as Trustee
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: GS Mortgage Securities Corp., Depositor
GSR Mortgage Loan Trust 2003-1,
Pass-Through Certificates Series 2003-1
having an original principal amount of $_____________
------------------------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of the Certificates
referred to above (the "Certificates"), we confirm that:
(A) We have received a copy of the Offering Supplement, dated
__________ ___, 20 (the "Offering Circular"), relating to the Certificates and
such other information and documents as we deem necessary in order to make our
investment decision. We acknowledge that we have read and agree to the matters
stated in the section entitled "Notice to Investors," and the restrictions on
duplication and circulation of the Offering Circular.
(B) We understand that any subsequent transfer of the
Certificates is subject to certain restrictions and conditions set forth in
the Trust Agreement dated as of February 1, 2003, which incorporates by
reference the Standard Terms thereto (February 2003 Edition) among GS Mortgage
Securities Corp. and the Trustee (the "Trust Agreement") and we agree to be
bound by, and not to resell, pledge or otherwise transfer the Certificates
except in compliance with such restrictions and conditions and the Securities
Act of 1933, as amended (the "Securities Act") and our failure to comply with
the foregoing agreement shall render any purported transfer to be null and
void.
(C) We understand that the offer and sale of the Certificates
has not been registered under the Securities Act and that the Certificates may
not be offered, sold, or otherwise transferred in the absence of such
registration or an applicable exemption thereof. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated,
that we will not offer, sell, pledge or otherwise transfer any Certificate or
any interest therein, except (A) in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as defined therein), (B)
to an institutional "accredited investor" (as defined below) that, prior to
such transfer, furnishes to the Trustee a signed letter contained certain
representations and agreements relating to the restrictions on transfer of the
Certificates (the form of which letter can be obtained from the Trustee), or
(C) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any person purchasing any of the
Certificates from us a notice advising such person that resale of the
Certificates are restricted as stated herein.
(D) We understand that, on any proposed resale of any
Certificates, we will be required to furnish to the Depositor and to the
Trustee of such certificates, legal opinions and other information as the
Depositor or the Trustee may reasonably require to confirm that the proposed
sale complies with the foregoing restrictions. We further understand that the
Certificates purchased by us will bear a legend to the foregoing effect.
(E) We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the
Certificates, and we and any accounts for which we are acting are each able to
bear the economic risks of our or their investment.
(F) We are acquiring the Certificates purchased by us for our
own account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
(G) We are acquiring at least the required minimum principal
amount of the Certificates for each account for which we are purchasing such
Certificates and will not offer, sell, pledge or otherwise transfer any such
Certificates or any interest therein at any time except in the Required
Minimum denomination.
(H) We have been furnished all information regarding the
Certificates that we have requested from the Depositor and the Trustee.
(I) We acknowledge that neither the Trust, the Depositor,
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. (the "Initial Purchaser") nor the Trustee nor any person
acting on behalf of the Trust, the Depositor, the Initial Purchaser or the
Trustee has made any representations concerning the Trust or the offer and
sale of the Certificates, except as set forth in the Offering Circular.
(J) We have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks of
purchasing the Certificates.
(K) If we are acquiring any of the Certificates as fiduciary or
agent for one or more accounts, we represent that we have sole investment
discretion with respect to each such amount and that we have full power to
make the forgoing acknowledgments, representations and agreements with respect
to each such account as set forth.
(L) We acknowledge that the Depositor, the Initial Purchaser,
the Trustee, and others will rely on the truth and accuracy of the foregoing
acknowledgments, representations and agreements, and agree that if any of the
foregoing acknowledgments, representations and agreements are no longer
accurate we shall promptly notify the Depositor, the Initial Purchaser and the
Trustee.
The Transferee hereby agrees to indemnify and hold harmless the
Trust, the Depositor, the Trustee, and the Initial Purchaser from and against
any and all loss, damage or liability (including attorney's fees) due to or
arising out of a breach of any representation or warranty, confirmation or
statement contained in this letter.
The Depositor, the Trustee, and the Initial Purchaser are
entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the matters covered
hereby.
Capitalized terms used but not otherwise defined herein shall
have the meanings assigned to such terms in the Trust Agreement.
Sincerely,
[Name of Transferee]
By: ________________________________
Name: _________________________
Title:_________________________
Exhibit E
FORM OF BENEFIT PLAN AFFIDAVIT
Re: GS Mortgage Securities Corp.,
as Depositor
GSR Mortgage Loan Trust
2003-1 (the "Trust")
STATE OF ________________ )
) ss:
COUNTY OF ________________ )
Under penalties of perjury, I, the undersigned, declare that, to the
best of my knowledge and belief, the following representations are true,
correct, and complete.
1. I am a duly authorized signatory of _______________, a
____________ (the "Transferee"), whose taxpayer identification number is
_______________, and on behalf of which I have the authority to make this
affidavit.
2. The Transferee is acquiring the _________ and __________
Certificates (the "Certificates"), each representing an interest in the Trust,
for certain assets of which one or more real estate mortgage investment
conduit ("REMIC") elections are to be made under Section 860D of the Internal
Revenue Code of 1986, as amended (the "Code").
3. The Transferee understands that the Certificates will bear the
following legend:
NOTWITHSTANDING THE ABOVE, THIS SECURITY MAY NOT BE
PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE TRANSFERRED TO
ANY PERSON THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR ANY PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS SECURITY (A "PLAN INVESTOR") UNLESS THE
TRANSFEREE PROVIDES AN OPINION OF COUNSEL (A "BENEFIT PLAN
OPINION") TO THE EFFECT THAT THE PURCHASE OF THIS SECURITY
WILL NOT (A) CAUSE THE ASSETS OF THE TRUST TO BE REGARDED AS
"PLAN ASSETS" FOR PURPOSES OF APPLICABLE REGULATIONS, (B)
GIVE RISE TO A FIDUCIARY DUTY UNDER ERISA ON THE PART OF ANY
SELLERS, THE DEPOSITOR, ANY SERVICER OR THE TRUSTEE OR (C)
BE TREATED AS, OR RESULT IN, A PROHIBITED TRANSACTION UNDE
SECTIONS 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE.
4. The Transferee either:
(a) is not a plan ("Plan") described in or subject to the
Department of Labor regulations set forth in 29 C.F.R. ss. 2510.3-101 (the
"Plan Asset Regulations"), a person acting on behalf of a Plan, or a person
using the assets of a Plan1 ; or
(b) has provided a "Benefit Plan Opinion," obtained at the
Transferee's expense, satisfactory to the Depositor the Servicer, and the
Trustee. A Benefit Plan Opinion is an opinion of counsel to the effect that
the proposed transfer will not (i) cause the assets of the Trust to be
regarded as Plan Assets, (ii) give rise to a fiduciary duty under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), on the part of
the Depositor, the Servicer, or the Trustee, or (iii) be treated as, or result
in, a prohibited transaction under Section 406 or 407 of ERISA or Section 4975
of the Code.
Capitalized terms used but not otherwise defined herein shall
have the meanings assigned to such terms in the Trust Agreement, dated as of
February 1, 2003, which incorporates by reference the Standard Terms thereto
(February 2003 Edition), among GS Mortgage Securities Corp. and the Trustee.
__________________
(1) Investors, including insurance companies, should consult with their
legal advisors to determine whether the funds the investors intend to
use to purchase the Securities would constitute assets of a Plan under
the Plan Asset Regulations.
IN WITNESS WHEREOF, the Transferee has caused this instrument to
be duly executed on its behalf, by its duly authorized officer on this ____day
of ________, 20 .
[Name of Transferee]
By: _________________________________
Name:
Title:
Personally appeared before me ________________, known or proved to me
to be the same person who executed the foregoing instrument and to be a
_________________________ of the Transferee, and acknowledged to me that he
executed the same as his or her free act and deed and as the free act and deed
of the Transferee.
Subscribed and sworn to before me this
______ day of ________________, 20 .
________________________________
Notary Public
My commission expires: __________________
Exhibit F
FORM OF RESIDUAL TRANSFEREE AGREEMENT
_________________
(DATE)
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
JPMorgan Chase Bank,
as Trustee
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Trust Agreement, dated as of February 1, 2003, among GS Mortgage
Securities Corp., as Depositor and JPMorgan Chase Bank, as Trustee of
GSR Mortgage Loan Trust 2003-1
Ladies and Gentlemen:
In connection with the purchase on the date hereof of the
captioned securities (the "Residual Certificates"), to be issued pursuant to
the Trust Agreement, dated as of February 1, 2003, among GS Mortgage
Securities Corp., as trustee (the "Trustee") which incorporates by reference
the Standard Terms to Trust Agreement, February 2003 Edition (the "Standard
Terms to Trust Agreement") (collectively, the "Trust Agreement"), the
undersigned hereby certifies and covenants to the transferor, the Depositor,
the Trustee and the Trust as follows:
1. We certify that on the date hereof we have simultaneously
herewith delivered to you an affidavit certifying, among other things, that
(A) we are not a Disqualified Organization and (B) we are not purchasing such
Residual Certificate on behalf of a Disqualified Organization. We understand
that any breach by us of this certification may cause us to be liable for a
tax imposed upon transfers to Disqualified Organizations.
2. We acknowledge that we will be the beneficial owner of the
Residual Certificate and that the Residual Certificate will be registered in
our name and not in the name of a nominee.
3. We certify that no purpose of our purchase of the Residual
Certificate is to avoid or impede the assessment or collection of tax.
4. We represent that:
(a) We understand that the Residual Certificate represents for
federal income tax purposes a "residual interest" in a real estate
mortgage investment conduit.
(b) We understand that as the holders of the Residual
Certificate we will be required to take into account, in determining our
taxable income, our pro rata percentage interest of the taxable income of
REMIC I, REMIC II and REMIC III in accordance with all applicable
provisions of the Internal Revenue Code of 1986, as amended (the "Code").
5. We understand that if, notwithstanding the transfer
restrictions, the Residual Certificate is in fact transferred to a
Disqualified Organization, a tax may be imposed on the transferor of such
Residual Certificate. We agree that any breach by us of these representations
shall render such transfer of such Residual Certificate by us absolutely null
and void and shall cause no rights in the Residual Certificate to vest in the
transferee.
6. The sale to us and our purchase of the Residual Certificate
constitutes a sale for tax and all other purposes and each party thereto has
received due and adequate consideration. In our view, the transaction
represents fair value, representing the results of arms length negotiations
and taking into account our analysis of the tax and other consequences of
investment in the Residual Certificate.
7. Unless this provision is explicitly waived by the transferor to
us of the Residual Certificate, we expect that the purchase of the Residual
Certificate, together with the receipt of the price, if any, therefor will be
economically neutral or profitable to us overall, after all related expenses
(including taxes) have been paid and based on conservative assumptions with
respect to discount rates, prepayments and other factors necessary to evaluate
profitability.
8. We are a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, or an estate
or trust that is subject to U.S. federal income taxation regardless of the
source of its income. We are duly organized and validly existing under the
laws of the jurisdiction of our organization. We are neither bankrupt nor
insolvent nor do we have reason to believe that we will become bankrupt or
insolvent. We have conducted and are conducting our business so as to comply
in all material respects with all applicable statutes and regulations. The
person executing and delivering this letter on our behalf is duly authorized
to do so, the execution and delivery by us of this letter and the consummation
of the transaction on the terms set forth herein are within our corporate
power, and upon such execution and delivery, this letter will constitute our
legal, valid and binding obligation, enforceable against us in accordance with
its terms, subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium and other laws affecting
the right of creditors generally and to general principles of equity and the
discretion of the court (regardless of whether enforcement of such remedies is
considered in a proceeding in equity or at law).
9. Neither the execution and delivery by us of this letter, nor
the compliance by us with the provisions hereof, nor the consummation by us of
the transactions as set forth herein, will (A) conflict with or result in a
breach of, or constitute a default or result in the acceleration of any
obligation under, our certificate of incorporation or by-laws or, after giving
effect to the consents or the taking of the actions contemplated by clause (B)
of this subparagraph, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on us or our properties, or any
of the provisions of any indenture or mortgage or any other contract or
instrument to which we are a party or by which we or any of our properties is
bound, or (B) require the consent of or notice to or any filing with, any
person, entity or governmental body, which has not been obtained or made by
us.
10. We anticipate being a profit-making entity on an ongoing basis.
11. We have filed all required federal and state income tax
returns and have paid all federal and state income taxes due; we intend to
file and pay all such returns and taxes in the future. We acknowledge that as
the holder of the Residual Certificate, to the extent the Residual Certificate
would be treated as a non economic residual interest within the meaning of
U.S. Treasury Regulation Section 1.860E-1(c)(2), we may incur tax liabilities
in excess of cash flows generated by the Residual Certificate and that we
intend to pay taxes associated with holding the Residual Certificate as they
become due.
12. We agree that in the event that at some future time we wish to
transfer any interest in the Residual Certificates, we will transfer such
interest in the Residual Certificates only to a transferee that:
(a) is not a Disqualified Organization and is not purchasing
such interest in the Residual Certificates on behalf of a Disqualified
Organization, and
(b) has delivered to the Trustee a transferee agreement in the
form of Exhibit D to the Standard Terms to Trust Agreement and an
affidavit in the form of Exhibit G-1 or Exhibit G-2, as applicable, to the
Standard Terms to Trust Agreement and, if requested by the Trustee, an
opinion of counsel, in form acceptable to the Trustee, that the proposed
transfer will not cause the Residual Certificates to be held by a
Disqualified Organization.
13. We are knowledgeable and experienced in financial, business
and tax matters generally and in particular, the investment risks and tax
consequences of REMIC residuals that provide little or no cash flow, and are
capable of evaluating the merits and risks of an investment in the Residual
Certificate; we are able to bear the economic risks of an investment in the
Residual Certificate.
14. In addition, we acknowledge that the Trustee will not register
the transfer of the Residual Certificate to a transferee that is a non-U.S.
Person required to deliver a transferee's letter in the form attached as
Exhibit G-1 to the Standard Terms to Trust Agreement unless we have furnished
to the Servicer on behalf of the Trustee, (i) calculations prepared at our
expense by a person acceptable to the Servicer demonstrating that the expected
future distributions on the Residual Certificate will equal at least 30% of
the anticipated excess inclusion, as provided in U.S. Treasury Regulation
Section 1.860G-3(a) (or any successor provisions, to the extent applicable to
the Residual Certificate) and (ii) a statement certifying that we reasonably
expect that the transferee will receive an amount of distributions from the
Pooling REMIC or Issuing REMIC, as applicable, at least equal to 30% of each
anticipated excess inclusion and that such amounts will be distributed at or
after the time at which the excess inclusion accrues and not later than the
year following the year in which such excess inclusion accrues. The
calculations prepared pursuant to clause (i) shall demonstrate that the
expected distributions will equal at least 30% of the anticipated excess
inclusion and that such amounts will be distributed at or after the time such
excess inclusion accrues and not later than the year following the year in
which such excess inclusion accrues.
15. "U.S. Person" shall mean a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States or any political subdivision thereof, or
an estate or trust that is subject to U.S. federal income tax regardless of
the source of its income.
16. We hereby designate the Trustee as our fiduciary to perform
the duties of the tax matters person for REMIC I, REMIC II and REMIC III.
(signature page follows)
IN WITNESS WHEREOF, the undersigned has caused this
Agreement be validly executed by its duly authorized representative as of the
day and year first above written.
_________________________________
[Name of Transferee]
By: ___________________________
Its: ___________________________
Taxpayer ID #____________________
Personally appeared before me ________________, known or proved to me to be
the same person who executed the foregoing instrument and to be a
_________________________ of the Transferee, and acknowledged to me that he
executed the same as his or her free act and deed and as the free act and deed
of the Transferee.
Subscribed and sworn to before me this ______ day of ________, 20 .
_________________________
Notary Public
My commission expires: ______________________
Exhibit G-1
FORM OF NON-U.S. PERSON AFFIDAVIT
AND AFFIDAVIT PURSUANT TO SECTIONS
860D(a)(6)(A) and 860E(e)(4)
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
Re: GS Mortgage Securities Corp., Depositor
GSR Mortgage Loan Trust
2003-1 (the "Trust")
STATE OF ____________________ )
) ss.:
CITY OF ______________________ )
Under penalties of perjury, I, the undersigned, declare that to
the best of my knowledge and belief, the following representations are true,
correct and complete:
1. I am a duly authorized officer of ___________________ (the
"Transferee"), and on behalf of which I have the authority to make this
affidavit.
2. The Transferee is acquiring all or a portion of the securities
(the "Residual Certificates"), which represent a residual interest in one or
more real estate mortgage investment conduits (each, a "REMIC") for which
elections are to be made under Section 860D of the Internal Revenue Code of
1986, as amended (the "Code").
3. The Transferee is a foreign person within the meaning of
Treasury Regulation Section 1.860G-3(a)(1) (i.e., a person other than (i) a
citizen or resident of the United States, (ii) a corporation or partnership
that is organized under the laws of the United States or any jurisdiction
thereof or therein, (iii) an estate that is subject to United States federal
income tax regardless of the source of its income or (iv) a trust if a court
within the United States is able to exercise primary supervision over the
administration of such trust and one or more United States Persons have the
authority to control all substantial decisions of the trust) who would be
subject to United States income tax withholding pursuant to Section 1441 or
1442 of the Code on income derived from the Residual Certificates (a "Non-U.S.
Person").
4. The Transferee agrees that it will not hold the Residual
Certificates in connection with a trade or business in the United States, and
the Transferee understands that it will be subject to United States federal
income tax under sections 871 and 881 of the Code in accordance with section
860G of the Code and any Treasury regulations issued thereunder on "excess
inclusions" that accrue with respect to the Residual Certificates during the
period the Transferee holds the Residual Certificates.
5. The Transferee understands that the federal income tax on
excess inclusions with respect to the Residual Certificates may be withheld in
accordance with section 860G(b) of the Code from distributions that otherwise
would be made to the Transferee on the Residual Certificates and, to the
extent that such tax has not been imposed previously, that such tax may be
imposed at the time of disposition of any such Residual Certificate pursuant
to section 860G(b) of the Code.
6. The Transferee agrees (i) to file a timely United States
federal income tax return for the year in which disposition of a Residual
Certificate it holds occurs (or earlier if required by law) and will pay any
United States federal income tax due at that time and (ii) if any tax is due
at that time, to provide satisfactory written evidence of payment of such tax
to the Trustee or its designated paying agent or other person who is liable to
withhold federal income tax from a distribution on the Residual Certificates
under sections 1441 and 1442 of the Code and the regulations thereunder (the
"Withholding Agent").
7. The Transferee understands that until it provides written
evidence of the payment of tax due upon the disposition of a Residual
Certificate to the Withholding Agent pursuant to paragraph 6 above, the
Withholding Agent may (i) withhold an amount equal to such tax from future
distributions made with respect to the Residual Certificate to subsequent
transferees (after giving effect to the withholding of taxes imposed on such
subsequent transferees), and (ii) pay the withheld amount to the Internal
Revenue Service.
8. The Transferee understands that (i) the Withholding Agent may
withhold other amounts required to be withheld pursuant to United States
federal income tax law, if any, from distributions that otherwise would be
made to such transferee on each Residual Certificate it holds and (ii) the
Withholding Agent may pay to the Internal Revenue Service amounts withheld on
behalf of any and all former holders of each Residual Certificate held by the
Transferee.
9. The Transferee understands that if it transfers a Residual
Certificate (or any interest therein) to a United States Person (including a
foreign person who is subject to net United States federal income taxation
with respect to such Residual Certificate), the Withholding Agent may
disregard the transfer for federal income tax purposes if the transfer would
have the effect of allowing the Transferee to avoid tax on accrued excess
inclusions and may continue to withhold tax from future distributions as
though the Residual Certificate were still held by the Transferee.
10. The Transferee understands that a transfer of a Residual
Certificate (or any interest therein) to a Non-U.S. Person (i.e., a foreign
person who is not subject to net United States federal income tax with respect
to such Residual Certificate) will not be recognized unless the Withholding
Agent has received from the transferee an affidavit in substantially the same
form as this affidavit containing these same agreements and representations.
11. The Transferee understands that distributions on a Residual
Certificate may be delayed, without interest, pending determination of amounts
to be withheld.
12. The Transferee is not a "Disqualified Organization" (as
defined below), and the Transferee is not acquiring a Residual Certificate for
the account of, or as agent or nominee of, or with a view to the transfer of
direct or indirect record or beneficial ownership to, a Disqualified
Organization. For the purposes hereof, a Disqualified Organization is any of
the following: (i) the United States, any State or political subdivision
thereof, any foreign government, any international organization, or any agency
or instrumentality of any of the foregoing; (ii) any organization (other than
a ▇▇▇▇▇▇'▇ cooperative as defined in Section 521 of the Code) that is exempt
from federal income taxation (including taxation under the unrelated business
taxable income provisions of the Code); (iii) any rural telephone or
electrical service cooperative described in Section 1381(a)(2)(C) of the Code;
or (iv) any other entity so designated by Treasury rulings or regulations
promulgated or otherwise in effect as of the date hereof. In addition, a
corporation will not be treated as an instrumentality of the United States or
of any state or political subdivision thereof if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
governmental unit.
13. The Transferee agrees to consent to any amendment of the Trust
Agreement that shall be deemed necessary by the Depositor (upon the advice of
counsel to the Depositor) to constitute a reasonable arrangement to ensure
that no interest in a Residual Certificate will be owned directly or
indirectly by a Disqualified Organization.
14. The Transferee acknowledges that Section 860E(e) of the Code
would impose a substantial tax on the transferor or, in certain circumstances,
on an agent for the Transferee, with respect to any transfer of any interest
in any Residual Certificate to a Disqualified Organization.
Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to them in the Trust Agreement, dated as of February 1,
2003, which incorporates by reference the Standard Terms thereto, among GS
Mortgage Securities Corp. and the Trustee.
IN WITNESS WHEREOF, the Transferee has caused this
instrument to be duly executed on its behalf, by its duly authorized officer
as of the _______ day of _____________, 20__.
________________________________________
[Name of Transferee]
By: ____________________________________
Its: ___________________________________
Personally appeared before me ___________________________, known
or proved to me to be the same person who executed the foregoing instrument
and to be a ______________________ of the Transferee, and acknowledged to me
that he or she executed the same as his or her free act and deed and as the
free act and deed of the Transferee.
Subscribed and sworn before me this ______ day of __________, 20__.
_____________________________________
Notary Public
My commission expires the _____ day of ________________, 20__.
Exhibit G-2
FORM OF U.S. PERSON AFFIDAVIT
AND AFFIDAVIT PURSUANT TO SECTIONS
860D(a)(6)(A) and 860E(e)(4)
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
Re: GS Mortgage Securities Corp., Depositor
GSR Mortgage Loan Trust
2003-1 (the "Trust")
STATE OF __________________ )
) ss.:
CITY OF ___________________ )
Under penalties of perjury, I, the undersigned declare that, to
the best of my knowledge and belief, the following representations are true,
correct and complete:
1. I am a duly authorized officer of ______________________ (the
"Transferee"), on behalf of which I have the authority to make this affidavit.
2. The Transferee is acquiring all or a portion of the securities
(the "Residual Certificates"), which represent a residual interest in one or
more real estate mortgage investment conduits (each, a "REMIC") for which
elections are to be made under Section 860D of the Internal Revenue Code of
1986, as amended (the "Code").
3. The Transferee either is (i) a citizen or resident of the
United States, (ii) a domestic partnership or corporation, (iii) an estate
that is subject to United States federal income tax regardless of the source
of its income, (iv) a trust if a court within the United States is able to
exercise primary supervision over the administration of such trust and one or
more United States Persons have the authority to control all substantial
decisions of the trust, or (v) a foreign person who would be subject to United
States income taxation on a net basis on income derived from the Residual
Certificates (a "U.S. Person").
4. The Transferee is a not a "Disqualified Organization" (as
defined below), and the Transferee is not acquiring a Residual Certificate for
the account of, or as agent or nominee of, or with a view to the transfer of
direct or indirect record or beneficial ownership to, a Disqualified
Organization. For the purposes hereof, a Disqualified Organization is any of
the following: (i) the United States, any state or political subdivision
thereof, any foreign government, any international organization, or any agency
or instrumentality of any of the foregoing; (ii) any organization (other than
a ▇▇▇▇▇▇'▇ cooperative as defined in Section 521 of the Code) that is exempt
from federal income taxation (including taxation under the unrelated business
taxable income provisions of the Code); (iii) any rural telephone or
electrical service cooperative described in ss. 1381(a)(2)(C) of the Code; or
(iv) any other entity so designated by Treasury rulings or regulations
promulgated or otherwise in effect as of the date hereof. In addition, a
corporation will not be treated as an instrumentality of the United States or
of any state or political subdivision thereof if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
governmental unit.
5. The Transferee agrees to consent to any amendment of the Trust
Agreement that shall be deemed necessary by the Depositor (upon the advice of
counsel to the Depositor) to constitute a reasonable arrangement to ensure
that no interest in a Residual Certificate will be owned directly or
indirectly by a Disqualified Organization.
6. The Transferee acknowledges that Section 860E(e) of the Code
would impose a substantial tax on the transferor or, in certain circumstances,
on an agent for the Transferee, with respect to any transfer of any interest
in any Residual Certificate to a Disqualified Organization.
Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to them in the Trust Agreement, dated as of February 1,
2003, which incorporates by reference the Standard Terms thereto, among GS
Mortgage Securities Corp. and the Trustee.
IN WITNESS WHEREOF, the Transferee has caused this instrument to
be duly executed on its behalf, by its duly authorized officer this ____ day
of ______, 20__.
__________________________________________
[Name of Transferee]
By: ______________________________________
Its: ______________________________________
Personally appeared before me ___________________, known or proved
to me to be the same person who executed the foregoing instrument and to be a
_______________ of the Transferee, and acknowledged to me that he or she
executed the same as his or her free act and deed and as the free act and deed
of the Transferee.
Subscribed and sworn before me this ____ day of ________, 20__.
________________________________
Notary Public
My commission expires the ____ day of ____________________, 20__.
Exhibit H
FORM OF CERTIFICATION TO BE PROVIDED TO THE
[SERVICER OR DEPOSITOR] BY THE TRUSTEE
[Servicer or Depositor Address]
Re: [Reference to Transaction]
Reference is made to the Pooling and Servicing Agreement, dated as of
[________ 1, 2003 (the "Pooling Agreement"), by and among JPMorgan Chase Bank
(the "Trustee"), [ ], as seller, [ ], as servicer (the "Servicer") and [ ].,
as depositor (the "Depositor"). The Trustee hereby certifies to the [Depositor
or Servicer], and its officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
(i) The Trustee has reviewed the annual report on Form 10-K for
the fiscal year [ ], and all reports on Form 8-K containing
distribution reports filed in respect of periods included in
the year covered by that annual report, relating to the
above-referenced trust;
(ii) Subject to paragraph (iv), the distribution information in
the distribution reports contained in all Monthly Form 8-K's
included in the year covered by the annual report on Form
10-K for the calendar year [___], taken as a whole, does not
contain any untrue statement of a material fact or omit to
state a material fact required by the Pooling Agreement to
be included therein and necessary to make the statements
made, in light of the circumstances under which such
statements were made, not misleading as of the last day of
the period covered by that annual report;
(iii) The distribution information required to be provided by the
Trustee under the Pooling Agreement is included in these
reports.
(iv) In compiling the distribution information and making the
foregoing certifications, the Trustee has relied upon
information furnished to it by the Servicer under the
Agreement. The Trustee shall have no responsibility or
liability for any inaccuracy in such reports resulting from
information so provided by the Servicer.
Date:
JPMorgan Chase Bank, as Trustee
By: _________________________
Name: _________________________
Title: _________________________