EXHIBIT 4
EXECUTION COPY
================================================================================
GSAA HOME EQUITY TRUST 2005-3
ASSET-BACKED CERTIFICATES
SERIES 2005-3
TRUST AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
Depositor,
HSBC BANK USA, NATIONAL ASSOCIATION,
Trustee,
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Custodian
and
▇▇▇▇▇ FARGO BANK, N.A.,
Securities Administrator
Dated as of February 1, 2005
================================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions...................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans..................................
Section 2.02 Acceptance by the Custodian of the Mortgage Loans.............
Section 2.03 Execution and Delivery of Certificates........................
Section 2.04 REMIC Matters.................................................
Section 2.05 Representations and Warranties of the Depositor...............
Section 2.06 Representations and Warranties of the Custodian...............
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Excess Reserve Fund Account; Distribution Account.............
Section 3.02 Investment of Funds in the Distribution Account...............
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution....................................
Section 4.02 Monthly Statements to Certificateholders......................
Section 4.03 Allocation of Applied Realized Loss Amounts...................
Section 4.04 Certain Matters Relating to the Determination of LIBOR........
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates..............................................
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates......................................
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.............
Section 5.04 Persons Deemed Owners.........................................
Section 5.05 Access to List of Certificateholders' Names and Addresses.....
Section 5.06 Maintenance of Office or Agency...............................
ARTICLE VI
THE DEPOSITOR
Section 6.01 Liabilities of the Depositor..................................
Section 6.02 Merger or Consolidation of the Depositor......................
Section 6.03 Limitation on Liability of the Depositor and Others...........
Section 6.04 Servicing Compliance Review...................................
Section 6.05 Option to Purchase Defaulted Mortgage Loans...................
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default.............................................
Section 7.02 Trustee to Act; Appointment of Successor......................
Section 7.03 Trustee to Act as Servicer....................................
Section 7.04 Notification to Certificateholders............................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIAN
Section 8.01 Duties of the Trustee.........................................
Section 8.02 Administration of the Servicer................................
Section 8.03 Certain Matters Affecting the Trustee and the Custodian.......
Section 8.04 Trustee and Custodian Not Liable for Certificates or
Mortgage Loans................................................
Section 8.05 Trustee May Own Certificates..................................
Section 8.06 Trustee's Fees and Expenses...................................
Section 8.07 Eligibility Requirements for the Trustee......................
Section 8.08 Resignation and Removal of the Trustee........................
Section 8.09 Successor Trustee.............................................
Section 8.10 Merger or Consolidation of the Trustee or the Custodian.......
Section 8.11 Appointment of Co-Trustee or Separate Trustee.................
Section 8.12 Custodial Responsibilities....................................
ARTICLE IX
CONCERNING THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Securities Administrator............................
Section 9.02 Certain Matters Affecting the Securities Administrator........
Section 9.03 Securities Administrator Not Liable for Certificates or
Mortgage Loans................................................
Section 9.04 Securities Administrator May Own Certificates.................
Section 9.05 Securities Administrator's Fees and Expenses..................
Section 9.06 Eligibility Requirements for Securities Administrator.........
Section 9.07 Resignation and Removal of Securities Administrator...........
Section 9.08 Successor Securities Administrator............................
Section 9.09 Merger or Consolidation of Securities Administrator...........
Section 9.10 Assignment or Delegation of Duties by the Securities
Administrator.................................................
Section 9.11 Tax Matters...................................................
Section 9.12 Periodic Filings..............................................
Section 9.13 Tax Classification of the Excess Reserve Fund Account and
the Interest Rate Corridor Agreement..........................
ARTICLE X
TERMINATION
Section 10.01 Termination upon Liquidation or Purchase of the Mortgage
Loans........................................................
Section 10.02 Final Distribution on the Certificates.......................
Section 10.03 Additional Termination Requirements..........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment....................................................
Section 11.02 Recordation of Agreement; Counterparts.......................
Section 11.03 Governing Law................................................
Section 11.04 Intention of Parties.........................................
Section 11.05 Notices......................................................
Section 11.06 Severability of Provisions...................................
Section 11.07 Limitation on Rights of Certificateholders...................
Section 11.08 Certificates Nonassessable and Fully Paid....................
Section 11.09 Waiver of Jury Trial.........................................
SCHEDULES
Schedule I Mortgage Loan Schedule
EXHIBITS
Exhibit A Form of Class A, Class M and Class B Certificates
Exhibit B Form of Class P Certificates
Exhibit C Form of Class R Certificate
Exhibit D Form of Class X Certificate
Exhibit E Form of Initial Certification of Custodian
Exhibit F Form of Document Certification and Exception Report of Trustee
Exhibit G Form of Residual Transfer Affidavit
Exhibit H Form of Transferor Certificate
Exhibit I Form of Rule 144A Letter
Exhibit J Form of Certification to be provided with Form 10-K
Exhibit K Form of Certification to be provided to Depositor
Exhibit L The Master Seller's Warranties and Servicing Agreement
Exhibit M Request for Release
THIS TRUST AGREEMENT, dated as of February 1, 2005 ("Agreement"),
among GS MORTGAGE SECURITIES CORP., a Delaware corporation, as depositor (the
"Depositor"), HSBC BANK USA, NATIONAL ASSOCIATION, a national banking
association, as trustee (the "Trustee"), DEUTSCHE BANK NATIONAL TRUST COMPANY, a
national banking association, as custodian (the "Custodian"), and ▇▇▇▇▇ FARGO
BANK, N.A., a national banking association, as securities administrator (the
"Securities Administrator").
W I T N E S S E T H:
- - - - - - - - - -
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Securities Administrator on behalf of the Trust shall elect that
two segregated asset pools within the Trust Fund be treated for federal income
tax purposes as comprising two REMICs (each, a "Trust REMIC" or, in the
alternative, the Lower-Tier REMIC and the Upper-Tier REMIC, respectively). The
Class X Interest and each Class of Offered Certificates (other than the right of
each Class of Offered Certificates to receive Basis Risk Carry Forward Amounts),
represents ownership of a regular interest in the Upper-Tier REMIC for purposes
of the REMIC Provisions. The Class R Certificates represent ownership of the
sole class of residual interest in each of the Lower-Tier REMIC and the
Upper-Tier REMIC for purposes of the REMIC Provisions. The Startup Day for each
REMIC described herein is the Closing Date. The latest possible maturity date
for each Certificate is the latest date referenced in Section 2.04. The
Lower-Tier REMIC shall hold as assets the assets described in the definition of
"Trust Fund" herein (other than the Prepayment Premiums, the Interest Rate
Corridor Agreement and the Excess Reserve Fund Account). The Upper-Tier REMIC
shall hold as assets the several classes of uncertificated Lower-Tier Regular
Interests, set out below. Each such Lower-Tier Regular Interest is hereby
designated as a regular interest in the Lower-Tier REMIC. The Class LT-A-1,
Class LT-A-2, Class LT-A-3, Class LT-M-1, Class LT-M-2, Class LT-B-1, Class
LT-B-2 and Class LT-B-3 Interests are hereby designated the LT-Accretion
Directed Classes (the "LT-Accretion Directed Classes"). The Class P Certificates
represent beneficial ownership of the Prepayment Premiums, each Class of Offered
Certificates represents a beneficial ownership of a regular interest in the
Upper-Tier REMIC and the right to receive Basis Risk Carry Forward Amounts and
the Class X Certificates represent beneficial ownership of a regular interest in
the Upper-Tier REMIC, the Interest Rate Corridor Agreement and the Excess
Reserve Fund Account, which portions of the Trust Fund shall be treated as a
grantor trust.
Lower-Tier REMIC
Lower-Tier Lower-Tier Initial Lower-Tier Corresponding Upper-Tier
Regular Interest Interest Rate Principal Amount Regular Interest
---------------- ------------- ------------------------------------------------ ------------------------
Class LT-A-1 (1) 1/2 initial Class Certificate Balance of A-1
Corresponding Upper-Tier REMIC Regular Interest
Class LT-A-2 (1) 1/2 initial Class Certificate Balance of A-2
Corresponding Upper-Tier REMIC Regular Interest
Class LT-A-3 (1) 1/2 initial Class Certificate Balance of A-3
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-1 (1) 1/2 initial Class Certificate Balance of M-1
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-2 (1) 1/2 initial Class Certificate Balance of M-2
Corresponding Upper-Tier REMIC Regular Interest
Class LT-B-1 (1) 1/2 initial Class Certificate Balance of B-1
Corresponding Upper-Tier REMIC Regular Interest
Class LT-B-2 (1) 1/2 initial Class Certificate Balance of B-2
Corresponding Upper-Tier REMIC Regular Interest
Class LT-B-3 (1) 1/2 initial Class Certificate Balance of B-3
Corresponding Upper-Tier REMIC Regular Interest
Class LT-Accrual (1) 1/2 Pool Stated Principal Balance plus 1/2
Overcollateralized Amount
Class LT-R (2) (2)
----------------
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the WAC Cap.
(2) The Class LT-R Interest is the sole Class of residual interest in the
Lower-Tier REMIC and it does not have a principal amount or an interest
rate.
The Lower-Tier REMIC shall hold as assets all of the assets included
in the Trust Fund, other than Prepayment Premiums, the Interest Rate Corridor
Agreement, the Excess Reserve Fund Account and the Lower-Tier Regular Interests.
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount will be payable as a reduction of the Lower-Tier
Principal Amount of the LT-Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralized
Amount that is attributable to a reduction in the Class Certificate Balance of
its Corresponding Class) and will be accrued and added to the Lower-Tier
Principal Amount of the Class LT-Accrual Interest. On each Distribution Date,
the increase in the Lower-Tier Principal Amount of the Class LT-Accrual Interest
may not exceed interest accruals for such Distribution Date for the Class
LT-Accrual Interest. In the event that: (i) 50% of the increase in the
Overcollateralized Amount exceeds (ii) interest accruals on the Class LT-Accrual
Interest for such Distribution Date, the excess for such Distribution Date
(accumulated with all such excesses for all prior Distribution Dates) will be
added to any increase in the Overcollateralized Amount for purposes of
determining the amount of interest accrual on the Class LT-Accrual Interest
payable as principal on the LT-Accretion Directed Classes on the next
Distribution Date pursuant to the first sentence of this paragraph. All payments
of scheduled principal and prepayments of principal generated by the Mortgage
Loans shall be allocated (i) 50% to the Class LT Accrual Interest and (ii) 50%
to the LT-Accretion Directed Classes (principal payments shall be allocated
among such LT-Accretion Directed Classes in an amount equal to 50% of the
principal amounts allocated to their respective Corresponding Classes), until
paid in full. Notwithstanding the above, principal payments allocated to the
Class X Interest that result in the reduction in the Overcollateralized Amount
shall be allocated to the Class LT-Accrual Interest (until paid in full).
Realized Losses shall be applied so that after all distributions have been made
on each Distribution Date (i) the Lower-Tier Principal Amount of each of the
LT-Accretion Directed Classes is equal to 50% of the Class Certificate Balance
of its Corresponding Class, and (ii) the Class LT-Accrual Interest is equal to
50% of the aggregate Stated Principal Balance of the Mortgage Loans plus 50% of
the Overcollateralized Amount.
Upper-Tier REMIC
The Upper-Tier REMIC shall issue the following classes of Upper-Tier
Regular Interests, and each such interest, other than the Class UT-R Interest,
is hereby designated as a regular interest in the Upper-Tier REMIC.
Upper-Tier
Interest Rate Initial Upper-Tier
and Principal Amount
Corresponding and Corresponding Corresponding
Upper-Tier Class Pass-Through Class Certificate Class of
Class Designation Rate Balance Certificates
--------------------------------------------------------------------------------
Class A-1 (1) $214,158,000 Class A-1(11)
Class A-2 (2) $63,889,000 Class A-2(11)
Class A-3 (3) $66,764,000 Class A-3(11)
Class M-1 (4) $19,177,000 Class M-1(11)
Class M-2 (5) $ 9,781,000 Class M-2(11)
Class B-1 (6) $ 4,219,000 Class B-1
Class B-2 (7) $ 1,342,000 Class B-2
Class B-3 (8) $ 1,918,000 Class B-3
Class X (9) (9) Class X(9)
Class UT-R (10) (10) Class R
(1) The Class A-1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.130% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date, the
lesser of (i) LIBOR plus 0.260% and (ii) the WAC Cap.
(2) The Class A-2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.220% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date, the
lesser of (i) LIBOR plus 0.440% and (ii) the WAC Cap.
(3) The Class A-3 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.340% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date, the
lesser of (i) LIBOR plus 0.680% and (ii) the WAC Cap.
(4) The Class M-1 Interests will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.450% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date, the
lesser of (i) LIBOR plus 0.675% and (ii) the WAC Cap.
(5) The Class M-2 Interests will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 0.700% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date, the
lesser of (i) LIBOR plus 1.050% and (ii) the WAC Cap.
(6) The Class B-1 Interests will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 1.250% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date, the
lesser of (i) LIBOR plus 1.875% and (ii) the WAC Cap.
(7) The Class B-2 Interests will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 1.300% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date, the
lesser of (i) LIBOR plus 1.950% and (ii) the WAC Cap.
(8) The Class B-3 Interests will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first possible
Optional Termination Date, the lesser of (i) LIBOR plus 2.150% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date, the
lesser of (i) LIBOR plus 3.225% and (ii) the WAC Cap.
(9) The Class X Interest has an initial principal balance of $2,301,931.90,
but it will not accrue interest on such balance but will accrue interest
on a notional principal balance. As of any Distribution Date, the Class X
Interest shall have a notional principal balance equal to the aggregate of
the principal balances of the Lower-Tier Regular Interests as of the first
day of the related Interest Accrual Period. With respect to any Interest
Accrual Period, the Class X Interest shall bear interest at a rate equal
to the excess, if any, of the WAC Cap over the product of (i) 2 and (ii)
the weighted average Lower-Tier Interest Rate of the Lower-Tier Regular
Interests, where the Lower-Tier Interest Rates on the Class LT-Accrual is
subject to a cap equal to zero and each LT-Accretion Directed Class is
subject to a cap equal to the Pass-Through Rate on its Corresponding
Class. With respect to any Distribution Date, interest that so accrues on
the notional principal balance of the Class X Interest shall be deferred
in an amount equal to any increase in the Overcollateralized Amount on
such Distribution Date. Such deferred interest shall not itself bear
interest. The Class X Certificates will represent beneficial ownership of
the Class X Interest, the Interest Rate Corridor Agreement and amounts in
the Excess Reserve Fund Account, subject to the obligation to make
payments from the Excess Reserve Fund Account in respect of Basis Risk
Carry Forward Amounts. For federal income tax purposes, the Securities
Administrator will treat the Class X Certificateholders' obligation to
make payments from the Excess Reserve Fund Account as payments made
pursuant to an interest rate cap contract written by the Class X
Certificateholders in favor of each Class of Offered Certificates. Such
rights of the Class X Certificateholders and Offered Certificateholders
shall be treated as held in a portion of the Trust Fund that is treated as
a grantor trust under subpart E, Part I of subchapter J of the Code.
(10) The Class UT-R Interest is the sole class of residual interests in the
Upper-Tier REMIC. The Class UT-R Interest does not have an interest rate.
(11) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper-Tier Regular Interest but also the right to
receive payments from the Excess Reserve Fund Account in respect of any
Basis Risk Carry Forward Amounts. For federal income tax purposes, the
Securities Administrator will treat a Certificateholder's right to receive
payments from the Excess Reserve Fund Account as payments made pursuant to
an interest rate cap contract written by the Class X Certificateholders.
The minimum denomination for each Class of the Offered Certificates
will be $50,000 initial Certificate Balance, with integral multiples of $1 in
excess thereof except that one Certificate in each Class may be issued in a
different amount. The minimum denomination for (a) the Class R Certificates will
be a 100% Percentage Interest in such Class and (b) the Class P and Class X
Certificates will be a 1% Percentage Interest in each such Class.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates......... All Classes of Certificates other than the
Physical Certificates.
Class A Certificates............ The Class A-1, Class A-2 and Class A-3
Certificates, collectively.
ERISA-Restricted
Certificates................. Physical Certificates and any Certificate
with a rating below the lowest applicable
permitted rating under the Underwriters'
Exemption.
Offered Certificates............ All Classes of Certificates other than the
Private Certificates.
Physical Certificates........... Class P, Class X and Class R Certificates.
Private Certificates............ Class P, Class X and Class R Certificates.
Rating Agencies................. Moody's and S&P.
Regular Certificates............ All Classes of Certificates other than the
Class R Certificates.
Residual Certificates........... Class R Certificates.
Subordinated Certificates....... Class M-1, Class M-2, Class B-1, Class B-2
and Class B-3 Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein but not
defined herein shall have the meanings given them in the Master Seller's
Warranties and Servicing Agreement. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Account: Any of the Distribution Account or the Excess Reserve Fund
Account. Each Account shall be an Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of Offered Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior to
such Distribution Date, as reduced by such Class's share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for such Distribution
Date allocated to such Class pursuant to Section 4.01.
Adjusted Net Mortgage Interest Rate: As to each Mortgage Loan and at
any time, the per annum rate equal to the Mortgage Interest Rate less the
Expense Fee Rate.
Advance: Any Monthly Advance or Servicing Advance.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Trust Agreement and all amendments or supplements
hereto.
Applied Realized Loss Amount: With respect to any Distribution Date,
the amount, if any, by which the aggregate Class Certificate Balance of the
Offered Certificates after distributions of principal on such Distribution Date
exceeds the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
Assignment Agreement: The Purchaser Assignment Agreement or the
Depositor Assignment Agreement, as applicable.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Securities Administrator (x) the
sum of (without duplication) (i) all scheduled installments of interest (net of
the related Expense Fees) and principal due on the Due Date on such Mortgage
Loans in the related Due Period and received prior to the related Determination
Date, together with any Monthly Advances in respect thereof; (ii) all
Condemnation Proceeds, Insurance Proceeds and Liquidation Proceeds received
during the related Principal Prepayment Period (in each case, net of
unreimbursed expenses incurred in connection with a liquidation or foreclosure
and unreimbursed Advances, if any); (iii) all partial or full prepayments on the
Mortgage Loans received during the related Principal Prepayment Period together
with all Compensating Interest payments in connection therewith; (iv) all
amounts received with respect to such Distribution Date as the Substitution
Adjustment Amount or purchase price in respect of a Deleted Mortgage Loan or a
Mortgage Loan repurchased by the Responsible Party, the Purchaser or the
Depositor as of such Distribution Date; and (v) the proceeds received with
respect to the termination of the Trust Fund pursuant to clause (a) of Section
10.01; reduced by (y) amounts in reimbursement for Monthly Advances and
Servicing Advances previously made with respect to the Mortgage Loans, and other
amounts as to which the Depositor, the Servicer, the Securities Administrator,
the Custodian or the Trustee (or co-trustee) are entitled to be paid or
reimbursed pursuant to this Agreement or the Master Seller's Warranties and
Servicing Agreement.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the Principal Remittance Amount for such
Distribution Date over (ii) the Excess Overcollateralized Amount, if any, for
such Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of
Offered Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of Offered Certificates is
based upon the WAC Cap, the excess, if any, of (i) the amount of interest such
Class of Certificates would otherwise be entitled to receive on such
Distribution Date had such Pass-Through Rate not been subject to the WAC Cap,
over (ii) the amount of interest that Class of Certificates received on such
Distribution Date taking into account the WAC Cap and (B) the Basis Risk Carry
Forward Amount for such Class of Offered Certificates for all previous
Distribution Dates not previously paid, together with interest thereon at a rate
equal to the applicable Pass-Through Rate for such Class of Offered Certificates
for such Distribution Date, without giving effect to the WAC Cap.
Basis Risk Payment: For any Distribution Date, an amount equal to
the lesser of (i) the aggregate of the Basis Risk Carry Forward Amounts for such
Distribution Date and (ii) the Class X Distributable Amount (prior to any
reduction for Basis Risk Payments).
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions, in (a) the States of New
York, California, Maryland and Iowa, (b) the State in which the Servicer's
servicing operations are located, or (c) the State in which the Trustee's
operations are located, are authorized or obligated by law or executive order to
be closed.
Certificate: Any one of the Certificates executed by the Securities
Administrator in substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of Offered
Certificates, at any date, the maximum dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
Denomination thereof minus all distributions of principal previously made with
respect thereto and in the case of any Subordinated Certificates, reduced by any
Applied Realized Loss Amounts applicable to such Class of Subordinated
Certificates; provided, however, that immediately following the Distribution
Date on which a Subsequent Recovery is distributed, the Class Certificate
Balances of any Class or Classes of Certificates that have been previously
reduced by Applied Realized Loss Amounts will be increased, in order of
seniority, by the amount of the Subsequent Recovery distributed on such
Distribution Date (up to the amount of Applied Realized Loss Amounts allocated
to such Class or Classes). The Class X, Class P and Class R Certificates have no
Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided, however,
that if any such Person (including the Depositor) owns 100% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires the
consent of the Holders of Certificates of a particular Class as a condition to
the taking of any action hereunder. The Securities Administrator is entitled to
rely conclusively on a certification of the Depositor or any affiliate of the
Depositor in determining which Certificates are registered in the name of an
affiliate of the Depositor.
Certification: As defined in Section 9.12(b).
Class: All Certificates bearing the same class designation as set
forth in this Agreement.
Class A Certificates: As specified in the Preliminary Statement.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class Certificate Balance of
the Class A Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) 79.80% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class A-1 Certificates: All Certificates bearing the class
designation of "Class A-1."
Class A-2 Certificates: All Certificates bearing the class
designation of "Class A-2."
Class A-3 Certificates: All Certificates bearing the class
designation of "Class A-3."
Class B-1 Certificates: All Certificates bearing the class
designation of "Class B-1."
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), and (D) the Class
Certificate Balance of the Class B-1 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) 97.10% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class B-2 Certificates: All Certificates bearing the class
designation of "Class B-2."
Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date), and (E) the Class Certificate Balance of the Class B-2 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) 97.80%
of the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class B-3 Certificates: All Certificates bearing the class
designation of "Class B-3."
Class B-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class B-2 Certificates (after
taking into account the distribution of the Class B-2 Principal Distribution
Amount on such Distribution Date), and (F) the Class Certificate Balance of the
Class B-3 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 98.80% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class LT-R Interest: The residual interest in the Lower-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class M-1 Certificates: All Certificates bearing the class
designation of "Class M-1."
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), and (B) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) the
product of (x) 89.80% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date) and (C) the Class Certificate Balance of the
Class M-2 Certificates immediately prior to such Distribution Date over (ii) the
lesser of (A) the product of (x) 94.90% and (y) the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date and (B) the excess, if
any, of the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over the Overcollateralization Floor.
Class P Certificates: All Certificates bearing the class designation
of "Class P."
Class R Certificates: All Certificates bearing the class designation
of "Class R."
Class UT-R Interest: The residual interest in the Upper-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class X Certificates: All Certificates bearing the class designation
of "Class X."
Class X Distributable Amount: On any Distribution Date, (i) as a
distribution in respect of interest, the amount of interest that has accrued on
the Class X Interest and not applied as an Extra Principal Distribution Amount
on such Distribution Date, plus any such accrued interest remaining
undistributed from prior Distribution Dates, plus, without duplication, (ii) as
a distribution in respect of principal, any portion of the principal balance of
the Class X Interest which is distributable as an Overcollateralization
Reduction Amount, minus (iii) any amounts paid as a Basis Risk Payment.
Class X Interest: The Upper-Tier Regular Interest represented by the
Class X Certificates as specified and described in the Preliminary Statement and
the related footnote thereto.
Closing Date: February 25, 2005.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: The "Custodial Account" as defined in the Master
Seller's Warranties and Servicing Agreement.
Compensating Interest: For any Distribution Date, the lesser of (a)
the Prepayment Interest Shortfall, if any, for the Distribution Date, with
respect to Principal Prepayments during the related Principal Prepayment Period,
and (b) the Servicing Fee payable to the Servicer for such Distribution Date.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Corporate Trust Office: With respect to the Securities
Administrator, to the principal office of the Securities Administrator at ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention GSAA 05-3, or at such
other address as the Securities Administrator may designate from time to time by
notice to the Certificateholders. With respect to the Trustee, to the principal
offices of the Trustee at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust & Loan Agency or at such other address as the Trustee may
designate from time to time by notice to the Certificateholders.
Corresponding Class: The Class of interests in one Trust REMIC
created under this Agreement that corresponds to the Class of interests in the
other Trust REMIC or to a Class of Certificates in the manner set out below:
Lower-Tier Regular Upper-Tier Corresponding
Interest Regular Interest Class of Certificates
----------------------- -------------------- --------------------------
Class LT-A-1 Class A-1 Class A-1
Class LT-A-2 Class A-2 Class A-2
Class LT-A-3 Class A-3 Class A-3
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-B-1 Class B-1 Class B-1
Class LT-B-2 Class B-2 Class B-2
Class LT-B-3 Class B-3 Class B-3
N/A Class X Class X
Corridor Provider: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Markets LP, a Delaware
limited partnership, and its successors in interest.
Custodial File: With respect to each Mortgage Loan, the Mortgage
Loan Documents which are delivered to the Custodian or which at any time comes
into the possession of the Custodian.
Custodian: Deutsche Bank National Trust Company, a national banking
association, and its successors in interest, and if a successor custodian is
appointed hereunder, such successor.
Cut-off Date: February 1, 2005.
Cut-off Date Pool Principal Balance: The aggregate Stated Principal
Balances of all Mortgage Loans as of the Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date (after
giving effect to payments of principal due on that date, whether or not
received).
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted Mortgage Loan: A Mortgage Loan which is repurchased by the
Responsible Party, the Depositor or the Purchaser in accordance with the terms
of the Master Seller's Warranties and Servicing Agreement, an Assignment
Agreement or this Agreement and which is, in the case of a substitution pursuant
to the Master Seller's Warranties and Servicing Agreement, replaced or to be
replaced with a Qualified Substitute Mortgage Loan.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: GS Mortgage Securities Corp., a Delaware corporation, and
its successors in interest.
Depositor Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of February 25, 2005, among the Depositor, the
Trustee and the Servicer.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust company,
including the Trustee and the Securities Administrator, that (a) is incorporated
under the laws of the United States of America or any State thereof, (b) is
subject to supervision and examination by federal or state banking authorities
and (c) has outstanding unsecured commercial paper or other short-term unsecured
debt obligations that are rated P-1 by Moody's, F1+ by Fitch and A-1 by Standard
& Poor's, to the extent they are designated as Rating Agencies hereunder.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to each Remittance Date, the
Business Day immediately preceding the related Remittance Date.
Distribution Account: The separate Eligible Account created by the
Securities Administrator pursuant to Section 3.01(b) in the name of the
Securities Administrator, as paying agent, for the benefit of the Trustee and
the Certificateholders and designated "▇▇▇▇▇ Fargo Bank, N.A., as paying agent,
in trust for registered holders of GSAA Home Equity Trust 2005-3, Asset-Backed
Certificates, Series 2005-3." Funds in the Distribution Account shall be held in
trust for the Certificateholders for the uses and purposes set forth in this
Agreement.
Distribution Date: The 25th day of each calendar month after the
initial issuance of the Certificates, or if such day is not a Business Day, the
next succeeding Business Day, commencing in March 2005.
Document Certification and Exception Report: The report attached to
Exhibit F hereto.
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
such Distribution Date occurs and ending on the first day of the calendar month
in which such Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a federal or
state chartered depository institution or trust company the short-term unsecured
debt obligations of which (or, in the case of a depository institution or trust
company that is a subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated "A-1+" by Standard & Poor's, F1
by Fitch and "P-1" by Moody's (or a comparable rating if another Rating Agency
is specified by the Depositor by written notice to the Servicer), to the extent
they are designated as Rating Agencies hereunder, at the time any amounts are
held on deposit therein, (ii) a trust account or accounts maintained with a
federal or state chartered depository institution or trust company acting in its
fiduciary capacity or (iii) any other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Securities Administrator or
the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of Prohibited
Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other related
document.
Event of Default: As defined in the Master Seller's Warranties and
Servicing Agreement.
Excess Overcollateralized Amount: With respect to any Distribution
Date, the excess, if any, of (a) the Overcollateralized Amount on such
Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Securities Administrator pursuant to Sections 3.01(a) in
the name of the Securities Administrator as paying agent for the benefit of the
Regular Certificateholders and designated "▇▇▇▇▇ Fargo Bank, N.A., as paying
agent, in trust for registered holders of GSAA Home Equity Trust 2005-3,
Asset-Backed Certificates, Series 2005-3." Funds in the Excess Reserve Fund
Account shall be held in trust for the Regular Certificateholders for the uses
and purposes set forth in this Agreement. Amounts on deposit in the Excess
Reserve Fund Account shall not be invested.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per-annum rate equal
to the sum of the Servicing Fee Rate and the Securities Administrator Fee Rate.
Expense Fees: As to each Mortgage Loan, the fees calculated by
reference to the Expense Fee Rate.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for such Distribution
Date and (y) the related Overcollateralization Deficiency for such Distribution
Date.
▇▇▇▇▇▇ ▇▇▇: The Federal National Mortgage Association, and its
successors in interest.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for each Class of Certificates is the Distribution Date occurring in
December 2034.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
11.05(b) the address for notices to Fitch shall be Fitch Ratings, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: MBS Monitoring - GSAA Trust
2005-3, or such other address as Fitch may hereafter furnish to the Depositor,
the Securities Administrator and the Trustee.
▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, and its successors in interest.
Index: With respect to any Mortgage Loan, the index identified on
the Data File and set forth in the related Mortgage Note for the purpose of
calculating the interest thereon.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Accrual Period: With respect to each Class of Offered
Certificates and the Corresponding Class of Lower Tier Regular Interests and any
Distribution Date, (i) the period commencing on the immediately preceding
Distribution Date (or commencing on the Closing Date in the case of the first
Distribution Date) and ending on the day immediately preceding the current
Distribution Date. For purposes of computing interest accruals on each Class of
Offered Certificates, each Interest Accrual Period has the actual number of days
in such period and each year is assumed to have 360 days.
Interest Rate Corridor Agreement: The interest rate corridor
agreement, dated February 2, 2005, between ▇▇▇▇▇▇▇ Sachs Mortgage Company, L.P.
and the Corridor Provider, for the benefit of the Offered Certificates.
Interest Rate Corridor Payment: For the first 38 Distribution Dates,
the amount, if any, equal to the product of (a) the excess, if any, of one-month
LIBOR (as determined pursuant to the Interest Rate Corridor Agreement) as of the
related reset date over a cap strike rate set forth on the interest rate
corridor agreement schedule attached to the Interest Rate Corridor Agreement, up
to 10.00% per annum, (b) the interest rate cap notional amount for such date set
forth on such schedule and (c) the actual number of class in the applicable
Interest Accrual Period divided by 360.
Interest Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans, that portion of Available Funds attributable to interest
relating to the Mortgage Loans.
Investment Account: As defined in Section 3.02(a).
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Securities Administrator on the related
LIBOR Determination Date on the basis of the offered rate for one-month U.S.
dollar deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m.
(London time) on such date; provided, that if such rate does not appear on
Telerate Page 3750, the rate for such date will be determined on the basis of
the rates at which one-month U.S. dollar deposits are offered by the Reference
Banks at approximately 11:00 a.m. (London time) on such date to prime banks in
the London interbank market. In such event, the Securities Administrator shall
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations are provided, the rate
for that date will be the arithmetic mean of the quotations (rounded upwards if
necessary to the nearest whole multiple of 1/16%). If fewer than two quotations
are provided as requested, the rate for that date will be the arithmetic mean of
the rates quoted by major banks in New York City, selected by the Securities
Administrator (after consultation with the Depositor), at approximately 11:00
a.m. (New York City time) on such date for one-month U.S. dollar loan to leading
European banks. The establishment of LIBOR by the Securities Administrator and
the Securities Administrator's subsequent calculations based thereon, in the
absence of manifest error, shall be final and binding. Except as otherwise set
forth herein, absent manifest error, the Securities Administrator may
conclusively rely on quotations of LIBOR as such quotations appear on Telerate
Screen Page 3750.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: With respect to any Interest Accrual
Period (other than the initial Interest Accrual Period) for the Offered
Certificates, the second London Business Day preceding the commencement of such
Interest Accrual Period.
Lifetime Rate Cap: The provision of each Mortgage Note which
provides for an absolute maximum Mortgage Interest Rate thereunder. The Mortgage
Interest Rate during the terms of each adjustable rate Mortgage Loan shall not
at any time exceed the Mortgage Interest Rate at the time of origination of such
Mortgage Loan by more than the amount per annum set forth on the Mortgage Loan
Schedule.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
Servicer has certified (in accordance with this Agreement) that it has received
all amounts it expects to receive in connection with the liquidation of such
Mortgage Loan including the final disposition of an REO Property.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through a trustee's sale,
foreclosure sale or otherwise, or the sale of the related Mortgaged Property if
the Mortgaged Property is acquired in satisfaction of the Mortgage Loan,
including any Subsequent Recoveries.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lower-Tier Interest Rate: As described in the Preliminary Statement.
Lower-Tier Principal Amount: As described in the Preliminary
Statement.
Lower-Tier Regular Interest: Each of the Class LT-A-1, Class LT-A-2,
Class LT-A-3, Class LT-M-1, Class LT-M-2, Class LT-B-1, Class LT-B-2, Class
LT-B-3 and Class LT-Accrual Interests as described in the Preliminary Statement.
Lower-Tier REMIC: As described in the Preliminary Statement.
Majority Class X Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class X Certificates.
Master Seller's Warranties and Servicing Agreement: The Master
Seller's Warranties and Servicing Agreement, dated as of August 1, 2004, between
the Responsible Party and the Purchaser, a copy of which is attached hereto as
Exhibit L.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Advance: With respect to any Distribution Date, the portion
of each Monthly Payment that is delinquent with respect to each Mortgage Loan at
the close of business on the preceding Determination Date required to be
advanced by the Servicer pursuant to Section 5.3 of the Master Seller's
Warranties and Servicing Agreement.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.02.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. If ▇▇▇▇▇'▇ is designated as
a Rating Agency in the Preliminary Statement, for purposes of Section 11.05(b)
the address for notices to Moody's shall be ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Residential Mortgage
Pass-Through Group, or such other address as Moody's may hereafter furnish to
the Depositor, the Securities Administrator and the Trustee.
Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to the Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of
the Master Seller's Warranties and Servicing Agreement, each Mortgage Loan
originally sold and subject to the Master Seller's Warranties and Servicing
Agreement being identified on the Mortgage Loan Schedule, which Mortgage Loan
includes, without limitation, the Mortgage File, the Servicing File, the Monthly
Payments, Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, REO Disposition proceeds and all other rights, benefits,
proceeds and obligations arising from or in connection with such Mortgage Loan.
Mortgage Loan Documents: With respect to a Mortgage Loan, the
documents listed as 1-10 on Exhibit B of the Master Seller's Warranties and
Servicing Agreement.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Schedule I, such schedule setting forth the following information with
respect to each Mortgage Loan: (1) the Responsible Party Mortgage Loan
identifying number; (2) the address, city, state and zip code of the Mortgaged
Property; (3) a code indicating whether the Mortgaged Property is a single
family residence, two-family residence, three-family residence, four-family
residence or planned unit development; (4) the Gross Margin; (5) the current
Mortgage Interest Rate; (6) the Servicing Fee Rate; (7) the current Monthly
Payment; (8) the original term to maturity; (9) the scheduled maturity date
(and, if different, the stated maturity date indicated on the Mortgage Note on
its date of origination); (10) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date (whether or not received); (11) the Loan-to-Value Ratio; (12) the
Adjustment Date; (13) the Lifetime Rate Cap under the terms of the Mortgage
Note; (14) whether the Mortgage Loan is convertible or not; (15) if applicable,
a code indicating the name of the mortgage guaranty insurance company; (16) if
applicable, the certificate number of the policy of primary mortgage guaranty
insurance; (17) the original principal balance; and (18) a code indicating
whether the Mortgage Loan is a Home Loan.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the amount
remaining for distribution pursuant to subsection 4.01(a)(iii) (before giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date, the
amount by which the sum of the Prepayment Interest Shortfalls exceeds the sum of
the Compensating Interest payments made on such Distribution Date.
NIM Issuer: The entity established as the issuer of NIM Securities.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class P and Class X Certificates.
NIM Trustee: The trustee for the NIM Securities.
Non-Permitted Transferee: As defined in Section 9.11(e).
Nonrecoverable Monthly Advance: Any Monthly Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property that, in
the sole reasonable opinion of the Servicer or any successor Servicer including
the Trustee, as applicable, will not or, in the case of a proposed Monthly
Advance, would not be ultimately recoverable from related late payments,
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds on such
Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in the sole reasonable opinion of the Servicer or any successor Servicer
including the Trustee, as applicable, will not or, in the case of a proposed
Servicing Advance, would not, be ultimately recoverable from related Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 10.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President or
an Assistant Vice President and by the Treasurer or the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of the Servicer, and delivered to
the Trustee and the Securities Administrator, as required by the Master Seller's
Warranties and Servicing Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for the Servicer, reasonably acceptable to the Trustee and/or
the Securities Administrator, as applicable (and/or such other Persons as may be
set forth herein); provided, that any Opinion of Counsel relating to (a)
qualification of either the Lower-Tier REMIC or Upper-Tier REMIC or (b)
compliance with the REMIC Provisions, must (unless otherwise stated in such
Opinion of Counsel) be an opinion of counsel who (i) is in fact independent of
the Servicer of the Mortgage Loans, (ii) does not have any material direct or
indirect financial interest in the Servicer of the Mortgage Loans or in an
affiliate of either and (iii) is not connected with the Servicer of the Mortgage
Loans as an officer, employee, director or person performing similar functions.
Optional Termination Date: Any Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans, as of the last day of
the related Due Period, is equal to 10.00% or less of the Cut-off Date Pool
Principal Balance.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Securities
Administrator or delivered to the Securities Administrator for
cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Securities
Administrator pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Amount: As of any Distribution Date, the excess,
if any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over (b) the aggregate of the Class Certificate Balances
of the Offered Certificates as of such Distribution Date (after giving effect to
the payment of the Principal Remittance Amount on such Certificates on such
Distribution Date).
Overcollateralization Deficiency: With respect to any Distribution
Date, the excess, if any, of (a) the Specified Overcollateralized Amount
applicable to such Distribution Date over (b) the Overcollateralized Amount
applicable to such Distribution Date.
Overcollateralization Floor: An amount equal to 0.50% of the Cut-off
Date Pool Principal Balance.
Overcollateralization Reduction Amount: With respect to any
Distribution Date, an amount equal to the lesser of (a) the Excess
Overcollateralized Amount and (b) the Net Monthly Excess Cash Flow.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
Pass-Through Margin: With respect to each Class of Offered
Certificates, the following percentages: Class A-1 Certificates, 0.130%; Class
A-2 Certificates, 0.220%; Class A-3 Certificates, 0.340%; Class M-1
Certificates, 0.450%; Class M-2 Certificates, 0.700%; Class B-1 Certificates,
1.250%; Class B-2 Certificates, 1.300%; Class B-3 Certificates, 2.150%;
provided, however, that on the first Distribution Date after the Optional
Termination Date, the Pass-Through Margins shall increase to: Class A-1
Certificates, 0.260%; Class A-2 Certificates, 0.440%; Class A-3 Certificates,
0.680%; Class M-1 Certificates, 0.675%; Class M-2 Certificates, 1.050%; Class
B-1 Certificates, 1.875%; Class B-2 Certificates, 1.950%; Class B-3
Certificates, 3.225%.
Pass-Through Rate: For each Class of Certificates and each
Lower-Tier Regular Interest, the per annum rate set forth or calculated in the
manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Periodic Rate Cap: As to each Mortgage Loan, the maximum increase or
decrease in the Mortgage Interest Rate on any Adjustment Date pursuant to the
terms of the Mortgage Note.
Permitted Investments: Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued by the Servicer, the Trustee or any of their respective
Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars and
issued by any Depository Institution and rated F1+ by Fitch, P-1 by
Moody's and A-1+ by S&P, to the extent they are designated as Rating
Agencies hereunder;
(iii) repurchase obligations with respect to any security described
in clause (i) above entered into with a Depository Institution (acting as
principal);
(iv) securities bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the United States
of America or any state thereof and that are rated by each Rating Agency
that rates such securities in its highest long-term unsecured rating
categories at the time of such investment or contractual commitment
providing for such investment;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 30 days after the date of acquisition
thereof) that is rated by each Rating Agency that rates such securities in
its highest short-term unsecured debt rating available at the time of such
investment;
(vi) units of money market funds, including money market funds
advised by the Depositor or the Securities Administrator or an Affiliate
thereof, that have been rated "Aaa" by Moody's, "AAAm" or "AAAm-G" by
Standard & Poor's and, if rated by Fitch, at least "AA" by Fitch, to the
extent they are designated as Rating Agencies hereunder; and
(vii) if previously confirmed in writing to the Securities
Administrator, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to the
Rating Agencies as a permitted investment of funds backing "Aaa" or "AAA"
rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a U.S.
Person or a U.S. Person with respect to whom income from a Residual Certificate
is attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of such Person or any other U.S.
Person, (vi) an "electing large partnership" within the meaning of Section 775
of the Code and (vii) any other Person so designated by the Depositor based upon
an Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to such Person may cause either the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time that the Certificates
are outstanding. The terms "United States," "State" and "international
organization" shall have the meanings set forth in Section 7701 of the Code or
successor provisions. A corporation will not be treated as an instrumentality of
the United States or of any State or political subdivision thereof for these
purposes if all of its activities are subject to tax and, with the exception of
▇▇▇▇▇▇▇ Mac, a majority of its board of directors is not selected by such
government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans for such
Distribution Date that were Outstanding Mortgage Loans on the Due Date in the
related Due Period.
Prepayment Interest Shortfall: With respect to any Remittance Date,
the sum of, for each Mortgage Loan that was during the related Principal
Prepayment Period the subject of a Principal Prepayment that was applied by the
Servicer to reduce the outstanding principal balance of such Mortgage Loan on a
date preceding the Due Date in the succeeding Principal Prepayment Period, an
amount equal to the product of (a) the Mortgage Interest Rate net of the
Servicing Fee Rate for such Mortgage Loan, (b) the amount of the Principal
Prepayment for such Mortgage Loan, (c) 1/360 and (d) the number of days
commencing on the date on which such Principal Prepayment was applied and ending
on the last day of the related Principal Prepayment Period.
Prepayment Premium: Any prepayment premium, penalty or charge, if
any, required under the terms of the related Mortgage Note to be paid in
connection with a Principal Prepayment, to the extent permitted by law.
Principal Distribution Amount: For any Distribution Date, the sum of
(i) the Basic Principal Distribution Amount for such Distribution Date and (ii)
the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other recovery
of principal on a Mortgage Loan (including the liquidation of a Mortgage Loan)
which is received in advance of its scheduled Due Date, excluding any Prepayment
Premium and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Prepayment Period: The calendar month preceding the month
in which related Distribution Date occurs.
Principal Remittance Amount: With respect to any Distribution Date,
the amount equal to the sum of the following amounts (without duplication) with
respect to the related Due Period: (i) each scheduled payment of principal on a
Mortgage Loan due during such Due Period and received by the Servicer on or
prior to the related Determination Date or advanced by the Servicer prior to the
related Remittance Date, (ii) all Principal Prepayments received during the
related Principal Prepayment Period, (iii) the Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds on the Mortgage Loans allocable to
principal actually collected by the Servicer during the related Principal
Prepayment Period, (iv) the portion of the repurchase price allocable to
principal with respect to each Deleted Mortgage Loan, that was repurchased with
respect to that Distribution Date, (v) the principal portion of all Substitution
Adjustment Amounts with respect to the substitutions of Mortgage Loans that
occur during the calendar month in which such Distribution Date occurs and (vi)
the allocable portion of the proceeds received pursuant to clause (a) of Section
10.01 (to the extent such proceeds relate to principal).
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated February 18,
2005, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
Purchaser: ▇▇▇▇▇▇▇ Sachs Mortgage Company, a New York limited
partnership, and its successors in interest, as purchaser of the Mortgage Loans
under the Master Seller's Warranties and Servicing Agreement.
Purchaser Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of February 25, 2005, among the Purchaser, the
Depositor and the Servicer.
Qualified Substitute Mortgage Loan: As defined in the Master
Seller's Warranties and Servicing Agreement.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Securities Administrator. References herein to a given rating or rating category
of a Rating Agency shall mean such rating category without giving effect to any
modifiers. For purposes of Section 11.05(b), the addresses for notices to each
Rating Agency shall be the address specified therefor in the definition
corresponding to the name of such Rating Agency, or such other address as either
such Rating Agency may hereafter furnish to the Depositor and the Servicer.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid principal
balance of such Liquidated Mortgage Loan together with accrued and unpaid
interest thereon exceeds (b) the Liquidation Proceeds with respect thereto net
of the expenses incurred by the Servicer in connection with the liquidation of
such Liquidated Mortgage Loan and net of any amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the related Interest Accrual Period;
provided, however, that for any Definitive Certificate issued pursuant to
Section 5.02(e), the Record Date shall be the close of business on the last
Business Day of the month immediately preceding the month in which the related
Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers' Civil Relief Act or any similar state
statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance Advice Date: The 10th day of each calendar month or the
immediately following Business Day if the 10th is not a Business Day.
Remittance Date: With respect to any Distribution Date, the 18th day
(or if such 18th day is not a Business Day, the first Business Day immediately
preceding such 18th day) of the month in which such Distribution Date occurs.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Repurchase Price: With respect to any Mortgage Loan, and (a) any
repurchase thereof by the Responsible Party pursuant to the Master Seller's
Warranties and Servicing Agreement, the "Repurchase Price" as defined in the
Master Seller's Warranties and Servicing Agreement, or (b) any repurchase by the
Depositor pursuant to Section 2.05 or pursuant to the Depositor Assignment
Agreement or any repurchase by the Purchaser pursuant to the Purchase Assignment
Agreement, an amount equal to the sum of (i) the unpaid principal balance of
such Mortgage Loan as of the date of repurchase, (ii) interest on such unpaid
principal balance of such Mortgage Loan at the Mortgage Interest Rate from the
last date through which interest has been paid and distributed to the Trustee to
the date of repurchase, (iii) all unreimbursed Servicing Advances, (iv) all
expenses incurred by the Servicer, Securities Administrator or the Trustee, as
the case may be, in respect of a breach or defect, including, without
limitation, reasonable and customary expenses arising out of the Servicer's,
Securities Administrator's or Trustee's, as the case may be, enforcement of the
Purchaser's repurchase obligation, to the extent not included in (iii) and (v)
any costs and damages incurred by the Trust in connection with any violation by
such Mortgage Loan of any predatory lending law or abusive lending law.
Request for Release: The Request for Release submitted by the
Servicer to the Securities Administrator and the Custodian, substantially in the
form of Exhibit M.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, the
Securities Administrator, any vice president, any assistant vice president, any
assistant secretary, any assistant treasurer, any associate or any other officer
of the Trustee, the Securities Administrator customarily performing functions
similar to those performed by any of the above designated officers who at such
time shall be officers to whom, with respect to a particular matter, such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Agreement.
Responsible Party: ▇▇▇▇▇ Fargo Bank, N.A., a national banking
association, and its successors in interest.
Rule 144A Letter: As defined in Section 5.02(b).
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: ▇▇▇▇▇ Fargo Bank, N.A., a national banking
association, and its successors in interest, and if a successor securities
administrator is appointed hereunder, such successor.
Securities Administrator Fee: As to each Mortgage Loan and any
Distribution Date, an amount equal to one-twelfth of the Securities
Administrator Fee Rate multiplied by the Stated Principal Balance of such
Mortgage Loan on such Distribution Date.
Securities Administrator Fee Rate: With respect to each Mortgage
Loan; 0.0075% per annum.
Securities Administrator Float Period: With respect to the
Distribution Date and the related amounts in the Distribution Account, the
period commencing on the Business Day immediately preceding such Distribution
Date and ending on such Distribution Date.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day of the related Due Period.
Senior Specified Enhancement Percentage: As of any date of
determination, 20.20%.
Servicer: The Responsible Party, in its capacity as servicer under
the Master Seller's Warranties and Servicing Agreement, and any successor
Servicer appointed thereunder.
Servicer Remittance Report: As defined in Section 4.02(d).
Servicing Advances: As defined in the Master Seller's Warranties and
Servicing Agreement.
Servicing Fee: As defined in the Master Seller's Warranties and
Servicing Agreement.
Servicing Fee Rate: As defined in the Master Seller's Warranties and
Servicing Agreement; provided, however, in calculating the Expense Fee Rate, the
Servicing Fee Rate shall be adjusted to equal a per annum rate the equivalent of
a fraction (expressed as a percentage), the numerator of which is the product of
0.375% and the outstanding principal balance of the applicable Mortgage Loan for
the applicable month, and the denominator of which is the Stated Principal
Balance of such Mortgage Loan for such month.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer consisting of originals of all documents in the
Mortgage File which are not delivered to the Custodian in the Custodial File and
copies of the Mortgage Loan Documents the originals of which are delivered to
the Custodian pursuant to Section 2.3 of the Master Seller's Warranties and
Servicing Agreement.
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which any portion of a Monthly Payment is, as of the last day of the prior Due
Period, two months or more past due (without giving effect to any grace period),
each Mortgage Loan in foreclosure, all REO Property and each Mortgage Loan for
which the Mortgagor has filed for bankruptcy.
Specified Overcollateralized Amount: Prior to the Stepdown Date, an
amount equal to 0.60% of the Cut-off Date Pool Principal Balance. On and after
the Stepdown Date, an amount equal to 1.20% of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date, subject, until the
Class Certificate Balance of each Class of Offered Certificates has been reduced
to zero, to a minimum amount equal to 0.50% of the Cut-off Date Pool Principal
Balance; provided, however, that if, on any Distribution Date, a Trigger Event
has occurred, the Specified Overcollateralized Amount shall not be reduced to
the applicable percentage of the then current aggregate Stated Principal Balance
of the Mortgage Loans until the Distribution Date on which a Trigger Event is no
longer occurring; and provided, further, that the Specified Overcollateralized
Amount shall be zero when the Class Certificate Balances of each Class of
Offered Certificates have been reduced to zero.
Standard & Poor's or S&P: Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. If Standard & Poor's is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
11.05(b) the address for notices to Standard & Poor's shall be Standard &
Poor's, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Residential
Mortgage Surveillance Group - GSAA Home Equity Trust 2005-3, or such other
address as Standard & Poor's may hereafter furnish to the Depositor, the
Securities Administrator and the Trustee.
Startup Day: The Closing Date.
Stated Principal Balance: As to each Mortgage Loan and as of any
date of determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date (whether or not received), minus (ii) all amounts previously remitted to
the Securities Administrator with respect to the related Mortgage Loan
representing payments or recoveries of principal including advances in respect
of scheduled payments of principal. For purposes of any Distribution Date, the
Stated Principal Balance of any Mortgage Loan will give effect to any scheduled
payments of principal received or advanced prior to the related Remittance Date
and any unscheduled principal payments and other unscheduled principal
collections received during the related Principal Prepayment Period, and the
Stated Principal Balance of any Mortgage Loan that has prepaid in full or has
become a Liquidated Mortgage Loan during the related Principal Prepayment Period
shall be zero.
Stepdown Date: The earlier to occur of (a) the date on which the
aggregate Class Certificate Balances of the Class A Certificates have been
reduced to zero, and (b) the later to occur of (i) the Distribution Date in
March 2008, and (ii) the first Distribution Date on which the Senior Enhancement
Percentage is greater than or equal to the Senior Specified Enhancement
Percentage.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subsequent Recoveries: Amounts received with respect to any Mortgage
Loan or Mortgaged Property that has previously been liquidated or otherwise
disposed of.
Substitution Adjustment Amount: An amount, if any, by which the
aggregate Stated Principal Balance of all Deleted Mortgage Loans (calculated
after application of scheduled principal payments due in the month of
substitution), exceeds the aggregate principal balance of all Qualified
Substitute Mortgage Loans as of the date of substitution.
Telerate Page 3750: The display page currently so designated on the
Bridge Telerate Service (or such other page as may replace that page on that
service for displaying comparable rates or prices).
Termination Price: As defined in Section 10.01.
Total Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess if any, of (i) the interest collected (prior to the related
Determination Date) or advanced by the Servicer for the related Servicer
Remittance Date (net of Expense Fees) over (ii) the sum of the interest payable
to the Offered Certificates on such Distribution Date pursuant to Section
4.01(a)(i).
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a Trigger
Event exists if (i) on such Distribution Date the quotient (expressed as a
percentage) of (x) the rolling three month average of the aggregate unpaid
principal balances of 60+ Day Delinquent Mortgage Loans and (y) the aggregate
unpaid principal balance of the Mortgage Loans as of the last day of the related
Due Period equals or exceeds 30.00% of the Senior Enhancement Percentage as of
the last day of the prior Due Period or (ii) the quotient (expressed as a
percentage) of (x) the aggregate amount of Realized Losses incurred since the
Cut-off Date through the last day of the related Principal Prepayment Period
divided by (y) the Cut-off Date Pool Principal Balance exceeds the applicable
percentages set forth below with respect to such Distribution Date:
Distribution Date Occurring In Loss Percentage
--------------------------------------------------------------------------------
March 2008 - February 2009 1.000% for the first month, plus an
additional 1/12th of 0.250 % for each
month thereafter (e.g., approximately
1.021% in April 2008)
March 2009 - February 2010 1.250% for the first month, plus an
additional 1/12th of 0.500% for each
month thereafter (e.g., approximately
1.292% in April 2009)
March 2010 - February 2011 1.750% for the first month plus an
additional 1/12th of 0.250% for each
month thereafter (e.g., approximately
1.771% in April 2010)
March 2011 and thereafter 2.000%
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal received on or with
respect thereto after the related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or before the related Cut-off Date; (ii) the
Interest Rate Corridor Agreement and all Amounts received thereunder; (iii) the
Excess Reserve Fund Account, the Distribution Account, and all amounts deposited
therein pursuant to the applicable provisions of this Agreement; (iv) property
that secured a Mortgage Loan and has been acquired by foreclosure, deed-in-lieu
of foreclosure or otherwise; (v) the rights of the Depositor under the Purchase
Assignment Agreement, including without limitation, the rights of the Depositor
under the Master Seller's Warranties and Servicing Agreement related to the
Mortgage Loans, to the extent such rights are assigned to the Depositor pursuant
to the Purchaser Assignment Agreement (and further assigned to the Trust by the
Depositor hereunder and under the Depositor Assignment Agreement); and (vi) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing.
Trust REMIC: As specified in the Preliminary Statement.
Trustee: HSBC Bank USA, National Association, a national banking
association, and its successors in interest, and, if a successor trustee is
appointed hereunder, such successor.
Underwriters' Exemption: Any exemption listed in footnote 1 of, and
amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002),
or any successor exemption.
Unpaid Interest Amounts: As of any Distribution Date and any Class
of Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from prior Distribution Dates remaining unpaid immediately
prior to the current Distribution Date and (b) interest on such unpaid amount in
clause (a) at the applicable Pass-Through Rate (to the extent permitted by
applicable law).
U.S. Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of any
state thereof, including, for this purpose, the District of Columbia; (iii) a
partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any State
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control all substantial decisions of the
trust. Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
Upper-Tier Regular Interest: As described in the Preliminary
Statement.
Upper-Tier REMIC: As described in the Preliminary Statement.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any, and (c) the remaining Voting Rights shall be allocated
among Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
WAC Cap: With respect to the Mortgage Loans as of any Distribution
Date, a per annum rate equal to (a) the weighted average of the Adjusted Net
Mortgage Interest Rates then in effect on the beginning of the related Due
Period on the Mortgage Loans, multiplied by (b) 30 divided by the actual number
of days in the related Interest Accrual Period.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered or caused to be delivered to the Custodian on
behalf of the Trustee for the benefit of the Certificateholders the following
documents or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(ii) The original Assignment of Mortgage in blank, unless the
Mortgage Loan is a MERS Loan;
(iii) the original Mortgage, with evidence of recording thereon or a
certified true and correct copy of the Mortgage sent for recordation. If
in connection with any Mortgage Loan, the Responsible Party cannot deliver
or cause to be delivered the original Mortgage with evidence of recording
thereon on or prior to the Closing Date because of a delay caused by the
public recording office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost or because such public
recording office retains the original recorded Mortgage, the Responsible
Party shall deliver or cause to be delivered to the Custodian, a photocopy
of such Mortgage, together with (i) in the case of a delay caused by the
public recording office, an officer's certification of the Responsible
Party certifying that such Mortgage has been dispatched to the appropriate
public recording office for recordation and that the original recorded
Mortgage or a copy of such Mortgage certified by the title company, escrow
agent, or closing attorney to be a true and complete copy of the original
recorded Mortgage will be promptly delivered to the Custodian upon receipt
thereof by the Responsible Party; or (ii) in the case of a Mortgage where
a public recording office retains the original recorded Mortgage or in the
case where a Mortgage is lost after recordation in a public recording
office, a copy of such Mortgage certified by such public recording office
or by the title insurance company that issued the title policy to be a
true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, or certified
true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for the insertion of
the name of the assignee and recording information). The Assignment of
Mortgage must be duly recorded only if recordation is either necessary
under applicable law or commonly required by private institutional
mortgage investors in the area where the Mortgaged Property is located as
notified to the Custodian. If the Assignment of Mortgage is to be
recorded, the Mortgage shall be assigned to the Trustee. If the Assignment
of Mortgage is not to be recorded, the Assignment of Mortgage shall be
delivered in blank. If the Mortgage Loan was acquired by the Responsible
Party in a merger, the Assignment of Mortgage must be made by
"[Responsible Party], successor by merger to [name of predecessor]." If
the Mortgage Loan was acquired or originated by the Responsible Party
while doing business under another name, the Assignment of Mortgage must
be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for
recordation of all intervening assignments of the Mortgage with evidence
of recording thereon, or if any such intervening assignment has not been
returned from the applicable recording office or has been lost or if such
public recording office retains the original recorded assignments of
mortgage, the Responsible Party shall deliver or cause to be delivered to
the Custodian, a photocopy of such intervening assignment, together with
(A) in the case of a delay caused by the public recording office, an
officer's certification of the Responsible Party certifying that such
intervening assignment of mortgage has been dispatched to the appropriate
public recording office for recordation and that such original recorded
intervening assignment of mortgage or a copy of such intervening
assignment of mortgage certified by the escrow agent, or closing attorney
or by the title insurance company that issued the title policy to be a
true and complete copy of the original recorded intervening assignment of
mortgage will be promptly delivered to the Custodian upon receipt thereof
by the Responsible Party; or (B) in the case of an intervening assignment
where a public recording office retains the original recorded intervening
assignment or in the case where an intervening assignment is lost after
recordation in a public recording office, a copy of such intervening
assignment certified by such public recording office to be a true and
complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or
certificate of insurance, if applicable;
(viii) the original lender's title policy insurance or other
evidence of title such as a copy of the preliminary title commitment, or a
copy thereof; and
(ix) any security agreement, chattel mortgage or equivalent executed
in connection with the Mortgage.
The Depositor shall deliver to the Custodian the applicable recorded
document promptly upon receipt from the respective recording office but in no
event later than 240 days from the Closing Date.
From time to time, pursuant to the Master Seller's Warranties and
Servicing Agreement, the Responsible Party may forward to the Custodian
additional original documents, additional documents evidencing an assumption,
modification, consolidation or extension of a Mortgage Loan approved by the
Responsible Party, in accordance with the terms of the Master Seller's
Warranties and Servicing Agreement. All such mortgage documents held by the
Custodian as to each Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall deliver to the
Custodian Assignments of Mortgages (except in the case of MERS Loans), in blank,
for each Mortgage Loan. On the Closing Date, the Trustee shall provide a written
request to the Responsible Party to submit the Assignments of Mortgage for
recordation in the name of the Trustee on behalf of the Trust, at the
Responsible Party's expense, pursuant to Section 12.9 of the Master Seller's
Warranties and Servicing Agreement. The Custodian shall deliver the Assignment
of Mortgages to be submitted for recordation to the Responsible Party.
In the event that such original or copy of any document submitted
for recordation to the appropriate public recording office is not so delivered
to the Custodian within the time period and in the manner specified in the
Master Seller's Warranties and Servicing Agreement, the Trustee shall take or
cause to be taken such remedial actions under the Master Seller's Warranties and
Servicing Agreement against the Responsible Party as may be permitted to be
taken thereunder, including without limitation, if applicable, the repurchase by
the Responsible Party of such Mortgage Loan. The foregoing repurchase remedy
shall not apply in the event that the Responsible Party cannot deliver such
original or copy of any document submitted for recordation to the appropriate
public recording office within the specified period due to a delay caused by the
recording office in the applicable jurisdiction; provided, that the Responsible
Party shall instead deliver a recording receipt of such recording office or, if
such recording receipt is not available, an officer's certificate of an officer
of the Responsible Party, confirming that such document has been accepted for
recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses the
original Mortgage or assignment after it has been recorded, the obligations of
the Responsible Party shall be deemed to have been satisfied upon delivery by
the Responsible Party to the Custodian prior to the Closing Date of a copy of
such Mortgage or assignment, as the case may be, certified (such certification
to be an original thereof) by the public recording office to be a true and
complete copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "GSAA Home Equity Trust
2005-3" and HSBC Bank USA, National Association is hereby appointed as Trustee
in accordance with the provisions of this Agreement.
(d) It is the policy and intention of the Trust that none of the
Mortgage Loans included in the Trust are classified as a "covered," "high cost,"
"high cost home loan," "threshold," "predatory loan," (excluding New Jersey
"Covered Home Loans" as that term is defined in clause (1) of the definition of
that term in the New Jersey Home Ownership Security Act of 2002), or any other
designation that indicates that such Mortgage Loan has terms that result in
costs to the Mortgagor in excess of a specified limit under the Home Ownership
and Equity Protection Act of 1994, as amended, or any similar federal, state or
local statutes or regulations related to "high cost" mortgage loans or
"predatory lending" (as such terms are defined in the applicable statute or
regulation).
Section 2.02 Acceptance by the Custodian of the Mortgage Loans. The
Custodian acknowledges receipt of the documents identified in the Initial
Certification in the form annexed hereto as Exhibit E, and declares that it
holds and will hold such documents and the other documents delivered to it
pursuant to Section 2.01, and that it holds or will hold such other assets as
are included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders. The Custodian acknowledges that it
will maintain possession of the related Mortgage Notes in the State of
California, unless otherwise permitted by the Rating Agencies.
Prior to and as a condition to the Closing, the Custodian shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor an Initial Certification prior to the Closing Date, or as the
Depositor agrees to, on the Closing Date, certifying receipt of a Mortgage Note
and Assignment of Mortgage for each Mortgage Loan. The Custodian shall not be
responsible to verify the validity, sufficiency or genuineness of any document
in any Custodial File.
On the Closing Date, the Custodian shall ascertain that all
documents required to be delivered to it are in its possession and shall deliver
to the Depositor an Initial Certification, in the form annexed hereto as Exhibit
E, and shall deliver to the Depositor a Document Certification and Exception
Report, in the form annexed hereto as Exhibit F, within 90 days after the
Closing Date (or, with respect to any Substitute Mortgage Loan, within 30 days
after the receipt of the Mortgage File by the Custodian) to the effect that, as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage Loan specifically identified in such
certification as an exception and not covered by such certification): (i) all
documents required to be delivered to it are in its possession; (ii) such
documents have been reviewed by it and appear regular on their face and relate
to such Mortgage Loan; (iii) based on its examination and only as to the
foregoing documents, the information set forth in items (2), (4), (8), (9)
(solely to the extent of the stated maturity date set forth on the Mortgage
Note) and (17) of the Mortgage Loan Schedule respecting such Mortgage Loan is
correct; and (iv) each Mortgage Note has been endorsed as provided in Section
2.01 of this Agreement. The Custodian shall not be responsible to verify the
validity, sufficiency or genuineness of any document in any Custodial File.
The Custodian shall retain possession and custody of each Custodial
File in accordance with and subject to the terms and conditions set forth
herein. The Servicer shall promptly deliver to the Custodian, upon the execution
or receipt thereof, the originals of such other documents or instruments
constituting the Custodial File as come into the possession of the Servicer from
time to time.
The Custodian shall notify the Trustee of any Mortgage Loans that do
not conform to the requirements of Sections 2.01 and 2.02 hereof. The Trustee
shall enforce the obligation of the Responsible Party to cure or repurchase
Mortgage Loans that do not conform to the requirements of Sections 2.01 and 2.02
hereof as determined in the Custodian's review as required herein by notifying
the Responsible Party to correct or cure such default. The Trustee shall also
enforce the obligation of the Responsible Party under the Master Seller's
Warranties and Servicing Agreement, the Purchaser under the Purchaser Assignment
Agreement and the Depositor under the Depositor Assignment Agreement to cure or
repurchase Mortgage Loans for which there is a defect or a breach of a
representation or warranty thereunder of which a Responsible Officer of the
Trustee has actual knowledge, by notifying the applicable party to correct or
cure such default. If the Responsible Party or the Purchaser, as the case may
be, fails or is unable to correct or cure the defect or breach within the period
set forth in the applicable agreement, the Trustee shall notify the Depositor of
such failure to correct or cure. Unless otherwise directed by the Depositor
within five (5) Business Days after notifying the Depositor of such failure by
the applicable party to correct or cure, the Trustee shall notify such party to
repurchase the Mortgage Loan. If, within ten (10) Business Days of receipt of
such notice by such party, such party fails to repurchase such Mortgage Loan,
the Trustee shall notify the Depositor of such failure. The Trustee shall pursue
all legal remedies available to the Trustee against the Responsible Party, the
Purchaser and the Depositor, as applicable, under this Trust Agreement, the
Master Seller's Warranties and Servicing Agreement, the Purchaser Assignment
Agreement or the Depositor Assignment Agreement, as applicable, if the Trustee
has received written notice from the Depositor directing the Trustee to pursue
such remedies.
Section 2.03 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, the Securities Administrator has
executed and delivered to or upon the order of the Depositor, the Certificates
in authorized denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and future
Holders of the Certificates.
Section 2.04 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
The "Startup Day" for purposes of the REMIC Provisions shall be the Closing
Date. The "latest possible maturity date" is December 25, 2034, which is the
Distribution Date following the latest Mortgage Loan maturity date. Amounts paid
to the Class X Certificates (prior to any reduction for any Basis Risk Payment)
shall be deemed paid from the Upper Tier REMIC in respect of the Class X
Interest to the holders of the Class X Certificates prior to distribution of
Basis Risk Payments to the Offered Certificates.
Section 2.05 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Trustee that as of
the date of this Agreement or as of such date specifically provided herein:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to convey
the Mortgage Loans and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite corporate action having been
taken, and, assuming the due authorization, execution and delivery hereof by the
other parties hereto, constitutes or will constitute the legal, valid and
binding agreement of the Depositor, enforceable against the Depositor in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(d) No consent, approval, authorization or order of or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been made on or prior to the
Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of trust, contract
or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound; (ii)
results or will result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Depositor of any court or governmental
authority having jurisdiction over the Depositor or its subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or encumbrance which
would have a material adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder;
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of the Mortgage Note and the Mortgage
as and in the manner contemplated by this Agreement is sufficient either (i)
fully to transfer to the Trustee, for the benefit of the Certificateholders, all
right, title, and interest of the Depositor thereto as note holder and mortgagee
or (ii) to grant to the Trustee, for the benefit of the Certificateholders, the
security interest referred to in Section 11.04 hereof; and
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.05 shall survive delivery of the
respective Custodial Files to the Custodian, and shall inure to the benefit of
the Trustee and the Certificateholders.
Within 30 days of the earlier of either discovery by or notice to
the Depositor of a default or a breach set forth in clause (h) above that
materially and adversely affects the value of any Mortgage Loan or the interest
of the Trustee or the Certificateholders therein, the Depositor shall use its
best efforts to promptly cure such breach in all material respects and if such
defect or breach cannot be remedied, the Depositor shall repurchase such
Mortgage Loan at the Repurchase Price. The Depositor shall repurchase each such
Deleted Mortgage Loan within 30 days of the earlier of discovery or receipt of
notice with respect to each such Deleted Mortgage Loan. Any such repurchase
shall be conducted in the same manner as set forth in Section 3.3 of the Master
Seller's Warranties and Servicing Agreement. The obligations of the Depositor to
cure such breach or to purchase any Mortgage Loan constitute the sole remedies
respecting a material breach of any such representation or warranty to the
Holders of the Certificates and the Trustee. In the event the Depositor is
required to repurchase a Mortgage Loan pursuant to this Section 2.05, the
Trustee shall assign to the Depositor all rights it has with respect to such
Mortgage Loan under the Purchaser Assignment Agreement and, solely to the extent
related to such Mortgage Loan, under the Master Seller's Warranties and
Servicing Agreement.
Section 2.06 Representations and Warranties of the Custodian. The
Custodian hereby represents and warrants to the Depositor and the Trustee, as of
the Closing Date:
(a) The Custodian is duly organized and is validly existing and in
good standing under the laws of its jurisdiction of incorporation and is duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by the Custodian or is otherwise not required under
applicable law to effect such qualification and, in any event, is in compliance
with the doing business laws of any such state, to the extent necessary to
perform any of its obligations under this Agreement in accordance with the terms
thereof.
(b) The Custodian has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary action
on the part of the Custodian the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of the Custodian, enforceable against the Custodian in
accordance with its terms, except that (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) The execution and delivery of this Agreement by the Custodian,
the consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms thereof are in
the ordinary course of business of the Custodian and will not result in a
material breach of any term or provision of the articles of incorporation or by
laws of the Custodian.
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Excess Reserve Fund Account; Distribution Account. (a)
The Securities Administrator shall establish and maintain the Excess Reserve
Fund Account, on behalf of the Class X Certificateholders, to receive any Basis
Risk Payment and any Interest Rate Corridor Payment and to secure their limited
recourse obligation to pay to the Offered Certificateholders any Basis Risk
Carry Forward Amounts. On each Distribution Date, the Securities Administrator
shall deposit the amount of any Basis Risk Payment and any Interest Rate
Corridor Payment for such date into the Excess Reserve Fund Account.
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class or Classes of Offered Certificates, the Securities
Administrator shall (1) withdraw from the Distribution Account and deposit in
the Excess Reserve Fund Account, as set forth in Section 4.01(a)(iii)(F), the
lesser of (x) the Class X Distributable Amount (without regard to the reduction
in clause (iii) of the definition thereof with respect to Basis Risk Payments)
(to the extent remaining after the distributions specified in Sections
4.01(a)(iii)(A)-(E)) and (y) the aggregate Basis Risk Carry Forward Amounts of
the Offered Certificates for such Distribution Date and (2) withdraw from the
Excess Reserve Fund Account amounts necessary (including Interest Rate Corridor
Payments) to pay to such Class or Classes of Certificates the related Basis Risk
Carry Forward Amount. Such payments shall be allocated to those Classes based
upon the amount of Basis Risk Carry Forward Amount owed to each such Class and
shall be paid in the priority set forth in Section 4.01(a)(iii)(G)-(H).
The Securities Administrator shall account for the Excess Reserve
Fund Account as an asset of grantor trust under subpart E, Part I of subchapter
J of the Code and not as an asset of either Trust REMIC created pursuant to this
Agreement. The beneficial owners of the Excess Reserve Fund Account are the
Class X Certificateholders. For all federal income tax purposes, amounts
transferred by the Upper-Tier REMIC to the Excess Reserve Fund Account shall be
treated as distributions by the Securities Administrator to the Class X
Certificateholders in respect of the Class X Interest and then contributed by
the Class X Certificateholders to the Excess Reserve Fund Account.
Any Basis Risk Carry Forward Amounts distributed by the Securities
Administrator to the Offered Certificateholders shall be accounted for by the
Securities Administrator, for federal income tax purposes, as amounts paid first
to the Holders of the Class X Certificates (in respect of the Class X Interest)
and then to the respective Class or Classes of Offered Certificates. In
addition, the Securities Administrator shall account for the Offered
Certificateholders' rights to receive payments of Basis Risk Carry Forward
Amounts as rights in a limited recourse interest rate cap contract written by
the Class X Certificateholders in favor of the Holders of each such Class.
Notwithstanding any provision contained in this Agreement, the
Securities Administrator shall not be required to make any distributions from
the Excess Reserve Fund Account except as expressly set forth in this Section
3.01(a) and Section 4.01(a)(iii)(G)-(I).
(b) The Securities Administrator shall establish and maintain the
Distribution Account in the name of the Securities Administrator, as paying
agent, on behalf of the Trustee and Certificateholders. The Securities
Administrator shall, promptly upon receipt on the Business Day received, deposit
in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Securities
Administrator pursuant to the Master Seller's Warranties and Servicing
Agreement; and
(ii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the Servicer shall remit any amount not required
to be remitted pursuant to the Master Seller's Warranties and Servicing
Agreement, it may at any time direct the Securities Administrator in writing to
withdraw such amount from the Distribution Account, any provision herein to the
contrary notwithstanding. Such direction may be accomplished by delivering
notice to the Securities Administrator which describes the amounts deposited in
error in the Distribution Account. All funds deposited in the Distribution
Account shall be held by the Securities Administrator in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Sections 4.01 or 6.03.
Section 3.02 Investment of Funds in the Distribution Account. (a)
The Securities Administrator may (but shall not be obligated to) invest funds in
the Distribution Account during the Securities Administrator Float Period (for
purposes of this Section 3.02, such Account is referred to as an "Investment
Account"), in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, or maturing on such
Distribution Date, in the case of an investment that is an obligation of the
Securities Administrator, no later than the Business Day immediately preceding
the date on which such funds are required to be withdrawn from such account
pursuant to this Agreement. On or after the Remittance Date and prior to the
Securities Administrator Float Period, the Depositor may direct the Securities
Administrator, in writing, to invest funds in the Distribution Account in such
Permitted Investments. All such Permitted Investments shall be held to maturity,
unless payable on demand. Any investment of funds in an Investment Account shall
be made in the name of the Securities Administrator. The Securities
Administrator shall be entitled to sole possession over each such investment,
and any certificate or other instrument evidencing any such investment shall be
delivered directly to the Securities Administrator or its agent, together with
any document of transfer necessary to transfer title to such investment to the
Securities Administrator. In the event amounts on deposit in an Investment
Account are at any time invested in a Permitted Investment payable on demand,
the Securities Administrator may:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Securities Administrator
during the Securities Administrator Float Period shall be subject to the
Securities Administrator's withdrawal in the manner set forth in Section 9.05.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Securities Administrator shall take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings. Notwithstanding the foregoing, the
Depositor shall be liable to the Trust for any loss on any investment of funds
in the Distribution Account other than during the Securities Administrator Float
Period and the Securities Administrator shall be liable to the Trust for any
such loss only during the Securities Administrator Float Period, and the
Depositor or the Securities Administrator, as the case may be, shall deposit
funds in the amount of such loss in the Distribution Account promptly after such
loss is incurred.
(d) The Securities Administrator or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the Securities
Administrator's economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to effect
transactions in certain Permitted Investments and (iii) effecting transactions
in certain Permitted Investments. Such compensation is not payable or
reimbursable under Section 8.06 of this Agreement.
(e) In order to comply with its duties under the USA Patriot Act of
2001, the Trustee and the Custodian shall obtain and verify certain information
and documentation from the other parties to this Agreement including, but not
limited to, each such party's name, address and other identifying information.
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution. (a) On each Distribution
Date, the Securities Administrator shall make the disbursements and transfers
from amounts then on deposit in the Distribution Account in the following order
of priority and to the extent of the Available Funds remaining:
(i) to the holders of each Class of Offered Certificates in the
following order of priority:
(A) from the Interest Remittance Amount, pro rata (based on
the accrued and unpaid interest distributable under this clause
(i)(A) to the Class A-1, Class A-2 and Class A-3 Certificates), to
the Class A-1, Class A-2 and Class A-3 Certificates, the related
Accrued Certificate Interest Distribution Amounts and Unpaid
Interest Amounts for the Class A-1, Class A-2 and Class A-3
Certificates;
(B) from any remaining Interest Remittance Amount, to the
Class M-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(C) from any remaining Interest Remittance Amount, to the
Class M-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(D) from any remaining Interest Remittance Amount, to the
Class B-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(E) from any remaining Interest Remittance Amount, to the
Class B-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date; and
(F) from any remaining Interest Remittance Amount, to the
Class B-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(ii)(A) on each Distribution Date (a) before the Stepdown Date or
(b) with respect to which a Trigger Event is in effect, to the holders of
the Class or Classes of Offered Certificates then entitled to
distributions of principal as set forth below, from Available Funds
remaining after making distributions pursuant to clause (i) above, an
amount equal to the Principal Distribution Amount in the following order
of priority:
(a) subject to clause (iv) of this Section 4.02(a),
sequentially to the Class A-1, Class A-2 and Class A-3
Certificates, in that order until the respective Class
Certificate Balances thereof have been reduced to zero;
(b) sequentially to the Class M-1, Class M-2, Class B-1,
Class B-2 and Class B-3 Certificates, in that order, until the
respective Class Certificate Balances thereof are reduced to
zero;
(B) on each Distribution Date (a) on and after the Stepdown
Date and (b) as long as a Trigger Event is not in effect, to the
holders of the Class or Classes of Offered Certificates then
entitled to distribution of principal, an amount equal to, the
Principal Distribution Amount in the following amounts and order of
priority:
(a) subject to clause (iv) of this Section 4.02(a), to
the Class A Certificates, the lesser of (x) the Principal
Distribution Amount and (y) the Class A Principal Distribution
Amount allocated sequentially to the Class A-1, Class A-2 and
Class A-3 Certificates, in that order, until the Class
Certificate Balances thereof has been reduced to zero;
(b) to the Class M-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above and (y) the Class M-1 Principal Distribution
Amount, until the Class Certificate Balance thereof has been
reduced to zero;
(c) to the Class M-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above and to the Class M-1 Certificates in clause
(ii)(B)(b) above and (y) the Class M-2 Principal Distribution
Amount, until the Class Certificate Balance thereof has been
reduced to zero;
(d) to the Class B-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above, to the Class M-1 Certificates in clause
(ii)(B)(b) above and to the Class M-2 Certificates in clause
(ii)(B)(c) above, and (y) the Class B-1 Principal Distribution
Amount, until the Class Certificate Balance thereof has been
reduced to zero;
(e) to the Class B-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above, to the Class M-1 Certificates in clause
(ii)(B)(b) above, to the Class M-2 Certificates in clause
(ii)(B)(c) above and to the Class B-1 Certificates in clause
(ii)(B)(d) above and (y) the Class B-2 Principal Distribution
Amount, until the Class Certificate Balance thereof has been
reduced to zero; and
(f) to the Class B-3 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above, to the Class M-1 Certificates in clause
(ii)(B)(b) above, to the Class M-2 Certificates in clause
(ii)(B)(c) above, to the Class B-1 Certificates in clause
(ii)(B)(d) above and to the Class B-2 Certificates in clause
(ii)(B)(e) above and (y) the Class B-3 Principal Distribution
Amount to the Class B-3 Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
(iii) any amount remaining after the distributions in clauses (i)
and (ii) above shall be distributed in the following order of priority:
(A) to the holders of the Class M-1 Certificates, any Unpaid
Interest Amount for such Class;
(B) to the holders of the Class M-2 Certificates, any Unpaid
Interest Amount for such Class;
(C) to the holders of the Class B-1 Certificates, any Unpaid
Interest Amount for such Class;
(D) to the holders of the Class B-2 Certificates, any Unpaid
Interest Amount for such Class;
(E) to the holders of the Class B-3 Certificates, any Unpaid
Interest Amount for such Class;
(F) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment for such Distribution Date;
(G) from funds on deposit in the Excess Reserve Fund Account
(not including Interest Rate Corridor Payments), an amount equal to
any Basis Risk Carry Forward Amount with respect to any Offered
Certificate for such Distribution Date first, concurrently to the
Class A Certificates pro rata based on their respective Basis Risk
Carry Forward Amounts, (provided that, if for any Distribution Date,
after the allocation of the Basis Risk Carry Forward Amounts to the
Class A Certificates, the Basis Risk Carry Forward Amount for any of
the Class A Certificates is reduced to zero, any amount of Basis
Risk Carry Forward Amounts that would have been allocated to that
Class A Certificate for that Distribution Date will instead be
allocated, pro rata, based on their respective remaining Basis Risk
Carry Forward Amounts, to the other Class A Certificates to the
extent the other Class A Certificates have any remaining unpaid
Basis Risk Carry Forward Amounts) and second, sequentially to the
Class M-1, Class M-2, Class B-1, Class B-2 and Class B-3
Certificates, in each case up to their respective unpaid remaining
Basis Risk Carry Forward Amounts;
(H) from any Interest Rate Corridor Payments on deposit in the
Excess Reserve Fund Account with respect to such Distribution Date,
(x) first, to the Class A Certificates concurrently and pro rata,
based on their respective Basis Risk Carry Forward Amounts, (y)
second, sequentially to the Class M-1, Class M-2, Class B-1, Class
B-2 and Class B-3 Certificates, in each case, up to their unpaid
remaining Basis Risk Carry Forward Amounts, and then (z) any
remaining amounts to the Class X Certificates;
(I) to the holders of the Class X Certificates, the remainder
of the Class X Distributable Amount not distributed pursuant to
Sections 4.01(a)(iii)(A)-(H); and
(J) to the holders of the Class R Certificates, any remaining
amount;
(iv) Notwithstanding the foregoing, in the event that the Class
Certificate Balances of the Subordinated Certificates and the Class
Certificate Balances of the Class X Certificates have been reduced to
zero, any Principal Distribution Amount allocated to the Class A
Certificates pursuant to clause (ii) of this Section 4.02(a) is required
to be allocated pro rata to the Class A Certificates based on their
respective Class Certificate Balances.
(v) In the event the Class Certificate Balance of any Class of
Offered Certificates has been reduced to zero, that Class of Certificates
shall no longer be entitled to receive any related unpaid Basis Risk Carry
Forward Amounts except to the extent the Class Certificate Balance is
increased as a result of any Subsequent Recovery.
(b) On each Distribution Date, all amounts representing Prepayment
Premiums from the Mortgage Loans received during the related Principal
Prepayment Period shall be distributed by the Securities Administrator to the
holders of the Class P Certificates.
(c) On any Distribution Date, any Relief Act Interest Shortfalls and
Net Prepayment Interest Shortfalls for such Distribution Date shall be allocated
by the Securities Administrator pro rata, as a reduction of the Accrued
Certificate Interest Distribution Amount for the Class A, Class M and Class B
Certificates, based on the amount of interest to which such Classes would
otherwise be entitled on such Distribution Date.
Section 4.02 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Securities Administrator shall make available
to each Certificateholder, the Servicer, the Depositor, the Trustee and each
Rating Agency a statement based upon the information provided by the Servicer
setting forth with respect to the related distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any Unpaid Interest
Amounts, included in such distribution and any remaining Unpaid Interest
Amounts, after giving effect to such distribution, any Basis Risk Carry
Forward Amount for such Distribution Date and the amount of all Basis Risk
Carry Forward Amount covered by withdrawals from the Excess Reserve Fund
Account on such Distribution Date;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest, including any Basis Risk Carry Forward Amount not covered by
amounts in the Excess Reserve Fund Account;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) the Pool Stated Principal Balance for the following Distribution
Date;
(vi) the amount of the Expense Fees (in the aggregate and separately
stated) paid to or retained by the Servicer or the Securities
Administrator with respect to such Distribution Date;
(vii) the Pass-Through Rate for each such Class of Offered
Certificates with respect to such Distribution Date;
(viii) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances reported by the
Servicer as outstanding as of the close of business on the last Business
Day of the immediately preceding month prior to such Distribution Date;
(ix) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the Monthly Payment is delinquent 31 to 60
days, 61 to 90 days and 91 or more days, (2) that have become REO
Property, (3) that are in foreclosure and (4) that are in bankruptcy, in
each case as of the close of business on the last Business Day of the
immediately preceding month;
(x) for each of the preceding 12 calendar months, or all calendar
months since the related Cut off Date, whichever is less, the aggregate
dollar amount of the Monthly Payments (A) due on all Outstanding Mortgage
Loans on each of the Due Dates in each such month and (B) delinquent 60
days or more on each of the Due Dates in each such month;
(xi) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the last
Business Day of the immediately preceding month prior to such Distribution
Date and the date of acquisition thereof;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the last
Business Day of the immediately preceding month prior to such Distribution
Date;
(xiii) whether a Trigger Event has occurred and is continuing
(including the calculation of thereof and the aggregate outstanding
balance of all 60+ Day Delinquent Mortgage Loans);
(xiv) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on such Distribution Date);
(xv) the aggregate amount of Applied Realized Loss Amounts incurred
during the preceding calendar month and aggregate Applied Realized Loss
Amounts through such Distribution Date;
(xvi) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the Certificateholders
with respect to Unpaid Interest Amounts;
(xvii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xviii) Prepayment Premiums collected by the Servicer; and
(xix) the amount distributed on the Class X, Class P and Class R
Certificates.
(b) The Securities Administrator's responsibility for providing the
above statement to the Certificateholders, each Rating Agency, the Servicer, the
Trustee and the Depositor is limited to the availability, timeliness and
accuracy of the information derived from the Servicer. The Securities
Administrator shall provide the above statement via the Securities
Administrator's internet website. The Securities Administrator's website will
initially be located at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇ and assistance in using the website can
be obtained by calling the Securities Administrator's investor relations desk at
(▇▇▇) ▇▇▇-▇▇▇▇. The Securities Administrator will also make a paper copy of the
above statement available upon request.
(c) Upon request, within a reasonable period of time after the end
of each calendar year, the Securities Administrator shall cause to be furnished
to each Person who at any time during the calendar year was a Certificateholder,
a statement containing the information set forth in clauses (a)(i) and (a)(ii)
of this Section 4.02 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of the
Securities Administrator shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code as from time to time in
effect.
The Securities Administrator shall be entitled to rely on
information provided by the Servicer for purposes of preparing the foregoing
report, but shall not be responsible for the accuracy of such information.
(d) Pursuant to Section 5.2 of the Master Seller's Warranties and
Servicing Agreement, the Servicer has agreed to provide monthly information
reports to the Securities Administrator. The Servicer shall deliver to the
Securities Administrator, on a monthly basis, no later than each Remittance
Advice Date a monthly remittance advice statement containing the information
required by the Securities Administrator to calculate and provide the reports
required by Section 4.02(a) as to the accompanying remittance and the period
ending on the close of business on the last Business Day of the immediately
preceding month (or the last day of the Due Period, as applicable) (the
"Servicer Remittance Report"). On an on-going basis, the Securities
Administrator may reasonably request the Servicer to provide additional
information to be included in subsequent Servicer Remittance Reports.
On the Closing Date, the Depositor shall request the Servicer to
furnish an individual loan accounting report, as of the last day of the Due
Period of each month, to document Mortgage Loan payment activity on an
individual Mortgage Loan basis. With respect to each month, the Depositor shall
request the Servicer to furnish the corresponding individual loan accounting
report (in electronic format) to be received by the Securities Administrator no
later than the Remittance Advice Date, which report shall contain the following:
(i) with respect to each Monthly Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any
Prepayment Premiums, along with a detailed report of interest on principal
prepayment amounts remitted in accordance with the Master Seller's
Warranties and Servicing Agreement);
(ii) with respect to each Monthly Payment, the amount of such
remittance allocable to interest;
(iii) the individual and aggregate Stated Principal Balance of the
Mortgage Loans;
(iv) the aggregate of any expenses reimbursed to the Servicer during
the prior distribution period pursuant to the Master Seller's Warranties
and Servicing Agreement;
(v) the number and aggregate outstanding principal balances of
Mortgage Loans (a) delinquent (1) 31 to 60 days, (2) 61 to 90 days, or (3)
91 days or more; (b) as to which foreclosure has commenced; and (c) as to
which REO Property has been acquired; and
(vi) any other information reasonably required by the Securities
Administrator to enable it to prepare the monthly statements referred to
in Section 4.02(a).
Section 4.03 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts will be allocated by the Securities Administrator
to the most junior Class of Subordinated Certificates then outstanding in
reduction of the Class Certificate Balance thereof. In the event, Applied
Realized Loss Amounts are allocated to any Class of Certificates, their Class
Certificate Balance shall be reduced by the amount so allocated and no funds
shall be distributed with respect to the written down amounts or with respect to
interest or Basis Risk Carry Forward Amounts on the written down amounts on that
Distribution Date or any future Distribution Dates, even if funds are otherwise
available therefor.
Notwithstanding the foregoing, the Class Certificate Balance of each
Class of Subordinated Certificates that has been previously reduced by Applied
Realized Loss Amounts will be increased, in that order or seniority, by the
amount of the Subsequent Recoveries (but not in excess of the Applied Realized
Loss Amount allocated to the applicable Class of Subordinated Certificates).
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Securities Administrator in accordance with the
definition of "LIBOR." Until all of the LIBOR Certificates are paid in full, the
Securities Administrator will at all times retain at least four Reference Banks
for the purpose of determining LIBOR with respect to each LIBOR Determination
Date. The Securities Administrator initially shall designate the Reference Banks
(after consultation with the Depositor). Each "Reference Bank" shall be a
leading bank engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, shall not control, be controlled by, or be under common
control with, the Securities Administrator and shall have an established place
of business in London. If any such Reference Bank should be unwilling or unable
to act as such or if the Securities Administrator should terminate its
appointment as Reference Bank, the Securities Administrator shall promptly
appoint or cause to be appointed another Reference Bank (after consultation with
the Depositor). The Securities Administrator shall have no liability or
responsibility to any Person for (i) the selection of any Reference Bank for
purposes of determining LIBOR or (ii) any inability to retain at least four
Reference Banks which is caused by circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Securities Administrator on
each LIBOR Determination Date so long as the LIBOR Certificates are outstanding
on the basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement. The Securities Administrator shall
not have any liability or responsibility to any Person for its inability,
following a good-faith reasonable effort, to obtain quotations from the
Reference Banks or to determine the arithmetic mean referred to in the
definition of LIBOR, all as provided for in this Section 4.04 and the definition
of LIBOR. The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Securities Administrator shall (in the absence of manifest
error) be final, conclusive and binding upon each Holder of a Certificate and
the Trustee.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral multiples
in excess thereof (except that one Certificate in each Class may be issued in a
different amount and aggregate denominations per Class set forth in the
Preliminary Statement.
The Depositor hereby directs the Securities Administrator to
register the Class P and Class X Certificates in the name of the Depositor or
its designee. On a date as to which the Depositor notifies the Securities
Administrator, the Depositor hereby directs the Securities Administrator to
transfer the Class P and Class X Certificates in the name of the NIM Trustee or
such other name or names as the Depositor shall request, and to deliver the
Class P and Class X Certificates to the NIM Trustee or to such other person or
persons as the Depositor shall request.
Subject to Section 10.02 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator shall make
distributions to each Certificateholder of record on the preceding Record Date
either (x) by wire transfer in immediately available funds to the account of
such holder at a bank or other entity having appropriate facilities therefor as
directed by that Certificateholder by written wire instructions provided to the
Securities Administrator or (y), in the event that no wire instructions are
provided to the Securities Administrator, by check mailed by first class mail to
such Certificateholder at the address of such holder appearing in the
Certificate Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Securities Administrator by an authorized officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
such signatures were affixed, authorized to sign on behalf of the Securities
Administrator shall bind the Securities Administrator, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of any such Certificates or did not hold such
offices at the date of such Certificate. No Certificate shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless authenticated
by the Securities Administrator by manual signature, and such authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly executed and delivered hereunder. All
Certificates shall be dated the date of their authentication. On the Closing
Date, the Securities Administrator shall authenticate the Certificates to be
issued at the direction of the Depositor, or any affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Securities Administrator shall maintain, or
cause to be maintained in accordance with the provisions of Section 5.06, a
Certificate Register for the Trust Fund in which, subject to the provisions of
subsections (b) and (c) below and to such reasonable regulations as it may
prescribe, the Securities Administrator shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate, the Securities
Administrator shall execute and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class and
aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator shall execute, authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator duly executed by the holder thereof
or his attorney duly authorized in writing. In the event, the Depositor or an
Affiliate transfers the Class X Certificates, or a portion thereof, to another
Affiliate, it shall notify the Securities Administrator in writing of the
affiliated status of the transferee. The Trustee and the Securities
Administrator shall have no liability regarding the lack of notice with respect
thereto.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Securities
Administrator in accordance with the Securities Administrator's customary
procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. Except
with respect to (i) the initial transfer of the Class X, Class P or Class R
Certificates on the Closing Date, (ii) the transfer of the Class X or Class P
Certificates to the NIM Issuer or the NIM Trustee, or (iii) a transfer of the
Class X, Class P or Class R Certificates to the Depositor or any Affiliate of
the Depositor, in the event that a transfer of a Private Certificate which is a
Physical Certificate is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer shall
certify to the Securities Administrator in writing the facts surrounding the
transfer in substantially the form set forth in Exhibit H (the "Transferor
Certificate") and either (i) there shall be delivered to the Securities
Administrator a letter in substantially the form of Exhibit I (the "Rule 144A
Letter") or (ii) in the case of the Class X or Class P Certificates, there shall
be delivered to the Securities Administrator at the expense of the transferor an
Opinion of Counsel that such transfer may be made without registration under the
Securities Act. In the event that a transfer of a Private Certificate which is a
Book-Entry Certificate is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer will
be deemed to have made as of the transfer date each of the certifications set
forth in the Transferor Certificate in respect of such Certificate and the
transferee will be deemed to have made as of the transfer date each of the
certifications set forth in the Rule 144A Letter in respect of such Certificate,
in each case as if such Certificate were evidenced by a Physical Certificate.
The Depositor shall provide to any Holder of a Private Certificate and any
prospective transferee designated by any such Holder, information regarding the
related Certificates and the Mortgage Loans and such other information as shall
be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by Rule
144A. The Trustee and the Securities Administrator shall cooperate with the
Depositor in providing the Rule 144A information referenced in the preceding
sentence, including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund as
the Depositor shall reasonably request to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor and the Servicer against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state laws.
Except with respect to (i) the initial transfer of the Class X,
Class P or Class R Certificates on the Closing Date, (ii) the transfer of the
Class P or Class X Certificates to the NIM Issuer or the NIM Trustee or (iii) a
transfer of the Class X, Class P or Class R Certificates to the Depositor or any
Affiliate of the Depositor, no transfer of an ERISA-Restricted Certificate shall
be made unless the Securities Administrator shall have received either (i) a
representation from the transferee of such Certificate acceptable to and in form
and substance satisfactory to the Securities Administrator (in the event such
Certificate is a Private Certificate or a Residual Certificate, such requirement
is satisfied only by the Securities Administrator's receipt of a representation
letter from the transferee substantially in the form of Exhibit I), to the
effect that such transferee is not an employee benefit plan or arrangement
subject to Section 406 of ERISA, a plan subject to Section 4975 of the Code or a
plan subject to any Federal, state or local law ("Similar Law") materially
similar to the foregoing provisions of ERISA or the Code, nor a person acting on
behalf of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer, (ii) in the case of an ERISA-Restricted
Certificate other than a Residual Certificate or a Class P Certificate that has
been the subject of an ERISA-Qualifying Underwriting and the purchaser is an
insurance company, a representation that the purchaser is an insurance company
that is purchasing such Certificates with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificates are covered under Sections I and III of PTCE 95-60
or (iii) in the case of any such ERISA-Restricted Certificate other than a
Residual Certificate or a Class P Certificate presented for registration in the
name of an employee benefit plan subject to Title I of ERISA, a plan or
arrangement subject to Section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a plan subject to Similar Law, or a trustee of any
such plan or any other person acting on behalf of any such plan or arrangement
or using such plan's or arrangement's assets, an Opinion of Counsel satisfactory
to the Securities Administrator, which Opinion of Counsel shall not be an
expense of the Trustee, the Depositor, the Securities Administrator or the Trust
Fund, addressed to the Securities Administrator and the Depositor, to the effect
that the purchase or holding of such ERISA-Restricted Certificate will not
constitute or result in a non-exempt prohibited transaction within the meaning
of ERISA, Section 4975 of the Code or any Similar Law and will not subject the
Trustee, the Depositor or the Securities Administrator to any obligation in
addition to those expressly undertaken in this Agreement or to any liability.
For purposes of the preceding sentence, with respect to an ERISA-Restricted
Certificate that is not a Private Certificate or a Residual Certificate, in the
event the representation letter referred to in the preceding sentence is not
furnished, such representation shall be deemed to have been made to the
Securities Administrator by the transferee's (including an initial acquirer's)
acceptance of the ERISA-Restricted Certificates. In the event that such
representation is violated, or any attempt to transfer to a plan or arrangement
subject to Section 406 of ERISA, a plan subject to Section 4975 of the Code or a
plan subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement, without such
Opinion of Counsel, such attempted transfer or acquisition shall be void and of
no effect.
Neither the Class R nor the Class P Certificates may be sold to any
employee benefit plan subject to Title I of ERISA, any plan subject to Section
4975 of the Code, or any plan subject to any Similar Law or any person investing
on behalf of or with plan assets of such plan.
Neither the Securities Administrator nor the Trustee shall have any
duty to monitor transfers of beneficial interests in any Book-Entry Certificate,
and neither the Securities Administrator nor the Trustee shall be under
liability to any Person for any registration of transfer of any ERISA-Restricted
Certificate that is in fact not permitted by this Section 5.02(b) or for making
any payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the transfer was registered by the Securities Administrator in
accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Securities Administrator shall not register the Transfer of any Residual
Certificate unless, in addition to the certificates required to be
delivered to the Securities Administrator under subparagraph (b) above,
the Securities Administrator shall have been furnished with an affidavit
(a "Transfer Affidavit") of the initial owner or the proposed transferee
in the form attached hereto as Exhibit G;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. Neither the Securities
Administrator nor the Trustee shall have any liability to any Person for
any registration of Transfer of a Residual Certificate that is in fact not
permitted by Section 5.02(b) and this Section 5.02(c) or for making any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement.
The Securities Administrator shall be entitled but not obligated to
recover from any Holder of a Residual Certificate that was in fact not a
Permitted Transferee at the time it became a Holder or, at such subsequent
time as it became other than a Permitted Transferee, all payments made on
such Residual Certificate at and after either such time. Any such payments
so recovered by the Securities Administrator shall be paid and delivered
by the Securities Administrator to the last preceding Permitted Transferee
of such Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Securities Administrator, all
information necessary to compute any tax imposed under Section 860E(e) of
the Code as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Securities Administrator of an Opinion of
Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund, the
Trustee, or the Securities Administrator, to the effect that the elimination of
such restrictions will not cause either Trust REMIC to fail to qualify as a
REMIC at any time that the Certificates are outstanding or result in the
imposition of any tax on the Trust Fund, a Certificateholder or another Person.
Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based on
an Opinion of Counsel furnished to the Securities Administrator, is reasonably
necessary (a) to ensure that the record ownership of, or any beneficial interest
in, a Residual Certificate is not transferred, directly or indirectly, to a
Person that is not a Permitted Transferee and (b) to provide for a means to
compel the Transfer of a Residual Certificate which is held by a Person that is
not a Permitted Transferee to a Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Securities Administrator except to another Depository; (ii) the Depository shall
maintain book-entry records with respect to the Certificate Owners and with
respect to ownership and transfers of such Book-Entry Certificates; (iii)
ownership and transfers of registration of the Book-Entry Certificates on the
books of the Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Securities
Administrator shall deal with the Depository, Depository Participants and
indirect participating firms as representatives of the Certificate Owners of the
Book-Entry Certificates for purposes of exercising the rights of holders under
this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (vi) the Securities Administrator
may rely and shall be fully protected in relying upon information furnished by
the Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and persons
shown on the books of such indirect participating firms as direct or indirect
Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (ii) the Securities
Administrator or the Depositor is unable to locate a qualified successor, or (y)
the Depositor notifies the Depository of its intent to terminate the book-entry
system through the Depository, the Depository Participants holding beneficial
interests in the Book-Entry Certificates agree to initiate such termination, the
Securities Administrator shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Securities
Administrator of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Securities Administrator shall issue the Definitive Certificates. Neither the
Depositor nor the Securities Administrator shall be liable for any delay in
delivery of such instruction and each may conclusively rely on, and shall be
protected in relying on, such instructions. The Depositor shall provide the
Securities Administrator with an adequate inventory of Certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon the
issuance of Definitive Certificates all references herein to obligations imposed
upon or to be performed by the Depository shall be deemed to be imposed upon and
performed by the Securities Administrator, to the extent applicable with respect
to such Definitive Certificates and the Securities Administrator shall recognize
the Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Securities Administrator shall not by virtue of its
assumption of such obligations become liable to any party for any act or failure
to act of the Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Securities
Administrator, duly executed by the Certificateholder or his attorney duly
authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by the Securities Administrator in accordance with its customary practice. No
service charge shall be made for any registration of transfer or exchange of
Private Certificates, but the Securities Administrator may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Private Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Securities Administrator, or
the Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to the
Depositor, the Trustee and the Securities Administrator such security or
indemnity as may be required by them to hold each of them harmless, then, in the
absence of notice to the Securities Administrator that such Certificate has been
acquired by a bona fide purchaser, the Securities Administrator shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.03, the Securities Administrator may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Securities Administrator) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners. The Trustee, the Depositor, the
Securities Administrator and any agent of the Depositor, the Securities
Administrator or the Trustee may treat the Person in whose name any Certificate
is registered as the owner of such Certificate for the purpose of receiving
distributions as provided in this Agreement and for all other purposes
whatsoever, and none of the Trustee, the Securities Administrator, the Depositor
or any agent of the Depositor, the Securities Administrator or the Trustee shall
be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Securities Administrator, (b) state that such
Certificateholders desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates, and (c)
provide a copy of the communication which such Certificateholders propose to
transmit, or if the Depositor or Servicer shall request such information in
writing from the Securities Administrator, then the Securities Administrator
shall, within ten Business Days after the receipt of such request, provide the
Depositor, the Servicer or such Certificateholders at such recipients' expense
the most recent list of the Certificateholders of such Trust Fund held by the
Securities Administrator, if any. The Depositor and every Certificateholder, by
receiving and holding a Certificate, agree that the Securities Administrator
shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. The Securities
Administrator will maintain or cause to be maintained at its expense an office
or offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange. The Securities Administrator initially
designates the offices of its agent for such purposes, located at ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Services - GSAA Home Equity Trust 2005-3. The Securities Administrator will give
prompt written notice to the Certificateholders of any change in such location
of any such office or agency.
ARTICLE VI
THE DEPOSITOR
Section 6.01 Liabilities of the Depositor. The Depositor shall be
liable in accordance herewith only to the extent of the obligations specifically
and respectively imposed upon and undertaken by it herein.
Section 6.02 Merger or Consolidation of the Depositor. The Depositor
will keep in full effect its existence, rights and franchises as a corporation
or federally chartered savings bank, as the case may be, under the laws of the
United States or under the laws of one of the states thereof and will each
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
Any Person into which the Depositor may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the Depositor
shall be a party, or any person succeeding to the business of the Depositor,
shall be the successor of the Depositor, as the case may be, hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
Section 6.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers, employees or agents
shall be under any liability to the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor or any such Person against any breach of
representations or warranties made by it herein or protect the Depositor or any
such Person from any liability which would otherwise be imposed by reasons of
willful misfeasance, bad faith or gross negligence in the performance of duties
or by reason of reckless disregard of obligations and duties hereunder. The
Depositor and any director, officer, employee or agent of the Depositor may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor
and any director, officer, employee or agent of the Depositor shall be
indemnified by the Trust Fund and held harmless against any loss, liability or
expense incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense related to any specific Mortgage Loan or Mortgage Loans (except as
any such loss, liability or expense shall be otherwise reimbursable pursuant to
this Agreement) and any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. The Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its respective
duties hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that the Depositor may in its discretion undertake
any such action (or direct the Trustee to undertake such actions for the benefit
of the Certificateholders) that it may deem necessary or desirable in respect of
this Agreement and the rights and duties of the parties hereto and interests of
the Trustee and the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund, and the Depositor shall be
entitled to be reimbursed therefor out of the Distribution Account.
Section 6.04 Servicing Compliance Review. Promptly upon receipt from
the Servicer of its annual statement described in Section 6.4 of the Master
Seller's Warranties and Servicing Agreement and the accountant's report
described in Section 6.5 of the Master Seller's Warranties and Servicing
Agreement, the Trustee shall furnish a copy thereof to the Depositor. Promptly
after the Depositor's receipt thereof, the Depositor shall review the same and,
if applicable, consult with the Servicer as to the nature of any defaults by the
Servicer in the fulfillment of any of the Servicer's obligations under the
Master Seller's Warranties and Servicing Agreement.
Section 6.05 Option to Purchase Defaulted Mortgage Loans. The
Depositor shall have the option, but is not obligated, to purchase from the
Trust any Mortgage Loan that is 90 days or more delinquent. The purchase price
therefor shall be 100% of the unpaid principal balance of such Mortgage Loan,
plus all related accrued and unpaid interest, and the amount of any unreimbursed
Servicing Advances made by the Servicer related to the Mortgage Loan.
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default. If an Event of Default described in
Section 10.1 of the Master Seller's Warranties and Servicing Agreement shall
occur, then, and in each and every such case, so long as such Event of Default
shall not have been remedied, the Trustee may, or at the direction of
Certificateholders entitled to a majority of the Voting Rights, the Trustee
shall, by notice in writing to the Servicer (with a copy to each Rating Agency),
terminate all of the rights and obligations of the Servicer under this Agreement
and in and to the Mortgage Loans and the proceeds thereof, other than its rights
as a Certificateholder hereunder; provided, however, that the Trustee shall not
be required to give written notice to the Servicer of the occurrence of an Event
of Default described in clauses (i) and (ii) of Section 10.1 of the Master
Seller's Warranties and Servicing Agreement unless and until a Responsible
Officer of the Trustee has actual knowledge of the occurrence of such an Event
of Default. On and after the receipt by the Servicer of such written notice, all
authority and power of the Servicer hereunder, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee. The
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise.
Except as described in this Section 7.01 and notwithstanding Section
11.2 of the Master Seller's Warranties and Servicing Agreement, the Trustee
shall not terminate the Servicer.
Section 7.02 Trustee to Act; Appointment of Successor. Within 120
days after the time the Trustee gives, and the Servicer receives a notice of
termination pursuant to Section 7.01, the Trustee shall, subject to and to the
extent provided in Section 7.03, and subject to the rights of the Depositor to
appoint a successor Servicer pursuant to this Section 7.02, be the successor to
the Servicer in its capacity as servicer under the Master Seller's Warranties
and Servicing Agreement and the transactions set forth or provided for herein
and in the Master Seller's Warranties and Servicing Agreement and shall be
subject to all the responsibilities, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions of the Master Seller's
Warranties and Servicing Agreement and applicable law including the obligation
to make Monthly Advances or Servicing Advances pursuant to the Master Seller's
Warranties and Servicing Agreement. As compensation therefor, the Trustee shall
be entitled to all funds relating to the Mortgage Loans that the Servicer would
have been entitled to charge to the Collection Account if the Servicer had
continued to act under the Master Seller's Warranties and Servicing Agreement
including, if the Servicer was receiving the Servicing Fee, the Servicing Fee
and the income on investments or gain related to the Collection Account (in
addition to income on investments or gain related to the Distribution Account
for the benefit of the Trustee). Notwithstanding the foregoing, if the Trustee
has become the successor to the Servicer in accordance with this Section 7.02,
the Trustee may, if it shall be unwilling to so act, or shall, if it is
prohibited by applicable law from making Monthly Advances and Servicing Advances
pursuant to the Master Seller's Warranties and Servicing Agreement or if it is
otherwise unable to so act, appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution the
appointment of which does not adversely affect the then current rating of the
Certificates by each Rating Agency, as the successor to the Servicer under the
Master Seller's Warranties and Servicing Agreement in the assumption of all or
any part of the responsibilities, duties or liabilities of the Servicer under
the Master Seller's Warranties and Servicing Agreement. Any successor to the
Servicer shall be an institution which is a ▇▇▇▇▇▇ ▇▇▇- and ▇▇▇▇▇▇▇ Mac-approved
seller/servicer in good standing, which has a net worth of at least $30,000,000,
which is willing to service the Mortgage Loans and which executes and delivers
to the Depositor and the Trustee an agreement accepting such delegation and
assignment, containing an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer (other
than liabilities of the Servicer under Section 8.1 of the Master Seller's
Warranties and Servicing Agreement incurred prior to termination of the Servicer
under Section 7.01), with like effect as if originally named as a party to this
Agreement; provided, that each Rating Agency acknowledges that its rating of the
Certificates in effect immediately prior to such assignment and delegation will
not be qualified or reduced, as a result of such assignment and delegation.
Pending appointment of a successor to the Servicer hereunder, the Trustee,
unless the Trustee is prohibited by law from so acting, shall, subject to
Section 7.03, act in such capacity as hereinabove provided. In connection with
such appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it, the
Depositor, and such successor shall agree; provided, however, that no such
compensation shall be in excess of the Servicing Fee Rate and amounts paid to
the Servicer from investments. The Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession. Neither the Trustee nor any other successor to the Servicer
shall be deemed to be in default hereunder by reason of any failure to make, or
any delay in making, any distribution hereunder or any portion thereof or any
failure to perform, or any delay in performing, any duties or responsibilities
hereunder, in either case caused by the failure of the Servicer to deliver or
provide, or any delay in delivering or providing, any cash, information,
documents or records to it.
Any successor to the Servicer shall give notice to the Mortgagors of
such change of Servicer, in accordance with applicable federal and state law,
and shall, during the term of its service as Servicer, maintain in force the
policy or policies that the Servicer is required to maintain pursuant to the
Master Seller's Warranties and Servicing Agreement.
The Trustee shall require any successor to the Servicer to agree
that it shall not invest any funds in the Collection Account, to the extent
permitted by the Master Seller's Warranties and Servicing Agreement, unless such
investments are Permitted Investments.
Notwithstanding anything to the contrary contained in this
Agreement, the Depositor shall have the right to appoint a successor to the
Servicer upon termination of the servicing pursuant to Section 7.01. Any such
successor Servicer shall be required to satisfy the requirements of a successor
Servicer under this Section 7.02.
Section 7.03 Trustee to Act as Servicer. In the event that the
Servicer shall for any reason no longer be the Servicer pursuant to Section 7.01
(including by reason of an Event of Default), the Trustee or its successor
shall, subject to the rights of the Depositor to appoint a successor Servicer
pursuant to Section 7.02, thereupon assume all of the rights and obligations of
the Servicer hereunder arising thereafter (except that the Trustee shall not be
(i) liable for investment losses of the predecessor Servicer pursuant to the
Master Seller's Warranties and Servicing Agreement or any acts or omissions of
the predecessor Servicer thereunder, (ii) obligated to effectuate repurchases or
substitutions of Mortgage Loans under the Master Seller's Warranties and
Servicing Agreement, including but not limited to repurchases or substitutions
pursuant to Section 3.3 of the Master Seller's Warranties and Servicing
Agreement, (iii) responsible for expenses of the predecessor Servicer pursuant
to Article II the Master Seller's Warranties and Servicing Agreement or (iv)
deemed to have made any representations and warranties of the Servicer under the
Master Seller's Warranties and Servicing Agreement).
Section 7.04 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to the Servicer, the Securities
Administrator shall give prompt written notice thereof to Certificateholders and
to each Rating Agency.
(b) Promptly after the occurrence of any Event of Default, the
Securities Administrator shall transmit by mail to all Certificateholders and
each Rating Agency notice of each such Event of Default hereunder known to the
Securities Administrator, unless such Event of Default shall have been cured or
waived.
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIAN
Section 8.01 Duties of the Trustee and the Custodian. The Trustee,
before the occurrence of an Event of Default and after the curing of all Events
of Default that may have occurred, shall undertake to perform such duties and
only such duties as are specifically set forth in this Agreement. In case an
Event of Default has occurred and remains uncured, the Trustee shall exercise
such of the rights and powers vested in it by this Agreement, and use the same
degree of care and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of such person's own affairs.
The Trustee and the Custodian, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee or the Custodian, as applicable, that are
specifically required to be furnished pursuant to any provision of this
Agreement shall examine them to determine whether on their face they are in the
form required by this Agreement or with respect to the documents in the
Custodial File, whether they satisfy the review criteria set forth in Section
2.02. Neither the Trustee nor the Custodian shall be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee or the Custodian from liability for its own negligent action, its own
negligent failure to act or its own bad faith or willful misfeasance; provided,
however, that:
(a) unless an Event of Default of which the Trustee has actual
knowledge has occurred and is continuing, the duties and obligations of the
Trustee shall be determined solely by the express provisions of this Agreement,
the Trustee shall not be liable except for the performance of the duties and
obligations specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee, and the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this Agreement
which it believed in good faith to be genuine and to have been duly executed by
the proper authorities respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights of Certificates relating to the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Agreement.
Section 8.02 Administration of the Servicer. The Trustee shall (i)
enforce the obligations of the Servicer to service the Mortgage Loans as set
forth in Section 7.01 and (ii) as successor Servicer under Section 7.02, make or
cause to be made Servicing Advances or Monthly Advances in accordance with the
Servicing Agreement in the event the Servicer fails to do so. Notwithstanding
the foregoing, the Trustee, as successor Servicer or otherwise shall not be
required to make any Nonrecoverable Servicing Advance or Nonrecoverable Monthly
Advance. The Trustee shall furnish to the Servicer any powers of attorney in
standard form used by the Trustee or other such documentation (as may be
provided from time to time and in form acceptable to the Trustee), necessary and
appropriate to enable the Servicer to service and administer the related
Mortgage Loans and REO Property.
Section 8.03 Certain Matters Affecting the Trustee and the
Custodian. Except as otherwise provided in Section 8.01:
(a) the Trustee and the Custodian may request and rely upon and
shall be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, Opinion of Counsel, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties and the
Trustee and the Custodian shall have no responsibility to ascertain or confirm
the genuineness of any signature of any such party or parties;
(b) the Trustee and the Custodian may consult with counsel,
financial advisers or accountants and the advice of any such counsel, financial
advisers or accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(c) the Trustee and the Custodian shall not be liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(d) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing so to do by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not assured to the Trustee by the security afforded to it by the terms
of this Agreement, the Trustee may require indemnity satisfactory to the Trustee
against such cost, expense or liability as a condition to taking any such
action. The reasonable expense of every such examination shall be paid by the
Servicer or, if paid by the Trustee, shall be repaid by the Servicer upon demand
from the Servicer's own funds;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) neither the Trustee nor the Custodian shall be required to risk
or expend its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers hereunder unless it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
assured to it;
(g) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the investment
security);
(h) unless a Responsible Officer of the Trustee has actual knowledge
of the occurrence of an Event of Default described in Section 10.1 of the Master
Seller's Warranties and Servicing Agreement, the Trustee shall not be deemed to
have knowledge of an Event of Default, until a Responsible Officer of the
Trustee shall have received written notice thereof except for failure by the
Servicer to remit funds on the Remittance Date to the Trustee or to make Monthly
Advances; and
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby.
(j) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act;
(k) the Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the powers granted
hereunder; and
(l) notwithstanding anything to the contrary in the Master Seller's
Warranties and Servicing Agreement, the Trustee shall not consent to the
Servicer's request of assigning the Master Seller's Warranties and Servicing
Agreement or the servicing rights thereunder to any other party.
Section 8.04 Trustee and Custodian Not Liable for Certificates or
Mortgage Loans. The recitals contained herein and in the Certificates shall be
taken as the statements of the Depositor and neither the Trustee nor the
Custodian assumes any responsibility for their correctness. The Trustee and the
Custodian make no representations as to the validity or sufficiency of this
Agreement or of the Certificates or of any Mortgage Loan or related document
other than, with respect to the Trustee, the Trustee's execution and
countersignature of the Certificates. The Trustee shall not be accountable for
the use or application by the Depositor, the Servicer or the Securities
Administrator of any funds paid to the Depositor, the Servicer or the Securities
Administrator in respect of the Mortgage Loans or deposited in or withdrawn from
the Collection Account or the Distribution Account by the Depositor, the
Servicer, or the Securities Administrator.
The Trustee shall have no responsibility (i) for filing or recording
any financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become and remains the
successor Servicer) (ii) to see to any insurance (unless the Trustee shall have
become the successor Servicer), or (iii) to confirm or verify the contents of
any reports or certificates of the Securities Administrator or the 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.
Section 8.05 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
Section 8.06 Trustee's Fees and Expenses. As compensation for its
activities under this Agreement, the Trustee shall be paid an on-going monthly
or annual fee, as applicable, by the Securities Administrator from its own funds
pursuant to a separate agreement. The Trustee shall have no lien on the Trust
Fund for the payment of such fees. The Trustee shall be entitled to be
reimbursed, from funds on deposit in the Distribution Account, amounts
sufficient to indemnify and hold harmless the Trustee and any director, officer,
employee, or agent of the Trustee against any loss, liability, or expense
(including reasonable attorneys' fees) incurred in connection with any claim or
legal action relating to
(a) this Agreement,
(b) the Certificates, or
(c) the performance of any of the Trustee's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any breach of the
Servicer's obligations in connection with the Master Seller's Warranties and
Servicing Agreement for which the Servicer has performed its obligation to
indemnify the Trustee pursuant to the Master Seller's Warranties and Servicing
Agreement, (ii) resulting from any breach of the Responsible Party's obligations
in connection with the Master Seller's Warranties and Servicing Agreement for
which the Responsible Party has performed its obligation to indemnify the
Trustee pursuant to the Master Seller's Warranties and Servicing Agreement, or
(iii) incurred because of willful misfeasance, bad faith, or negligence in the
performance of any of the Trustee's duties under this Agreement. This indemnity
shall survive the termination of this Agreement or the resignation or removal of
the Trustee under this Agreement. Without limiting the foregoing, except as
otherwise agreed upon in writing by the Depositor and the Trustee, and except
for any expense, disbursement, or advance arising from the Trustee's negligence,
bad faith, or willful misfeasance, the Trust Fund shall pay or reimburse the
Trustee, for all reasonable expenses, disbursements, and advances incurred or
made by the Trustee in accordance with this Agreement with respect to:
(A) the reasonable compensation, expenses, and disbursements
of its counsel not associated with the closing of the issuance of
the Certificates, and
(B) the reasonable compensation, expenses, and disbursements
of any accountant, engineer, or appraiser that is not regularly
employed by the Trustee, to the extent that the Trustee must engage
them to perform services under this Agreement.
Except as otherwise provided in this Agreement, the Trustee shall
not be entitled to payment or reimbursement for any routine ongoing expenses
incurred by the Trustee in the ordinary course of its duties as Trustee under
this Agreement or for any other expenses.
Section 8.07 Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times be a corporation, banking association or other
association organized and doing business under the laws of a state or the United
States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by federal or state authority and with a credit
rating which would not cause any of the Rating Agencies to reduce their
respective then current ratings of the Certificates (or having provided such
security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.07 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with this
Section 8.07, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.08. The entity serving as Trustee may have normal
banking and trust relationships with the Depositor and its affiliates or with
the Servicer and its affiliates; provided, however, that such entity cannot be
an affiliate of the Depositor or the Servicer other than the Trustee in its role
as successor to the Servicer.
Section 8.08 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice of resignation to the Depositor, the Servicer, the Securities
Administrator and each Rating Agency not less than 60 days before the date
specified in such notice, when, subject to Section 8.09, such resignation is to
take effect, and acceptance by a successor trustee in accordance with Section
8.09 meeting the qualifications set forth in Section 8.07. If no successor
trustee meeting such qualifications shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.07 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor may remove the Trustee and appoint a
successor trustee by written instrument, in triplicate, one copy of which shall
be delivered to the Trustee, one copy to the Servicer and one copy to the
successor trustee.
The Holders of Certificates entitled to a majority of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to the Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. The
successor trustee shall notify each Rating Agency of any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.08 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.09.
Section 8.09 Successor Trustee. Any successor trustee appointed as
provided in Section 8.08 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor and the predecessor trustee shall execute
and deliver such instruments and do such other things as may reasonably be
required for more fully and certainly vesting and confirming in the successor
trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.09 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.07 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.09, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates and the Custodian. If the
Depositor fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Depositor.
Section 8.10 Merger or Consolidation of the Trustee or the
Custodian. Any corporation into which the Trustee or the Custodian, as
applicable, may be merged or converted or with which it may be consolidated or
any corporation resulting from any merger, conversion or consolidation to which
the Trustee or the Custodian, as applicable, shall be a party, or any
corporation succeeding to the business of the Trustee or the Custodian, as
applicable, shall be the successor of the Trustee or the Custodian, as
applicable, hereunder; provided, that, in the case of the Trustee, such
corporation shall be eligible under Section 8.07 without the execution or filing
of any paper or further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section 8.11 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.11, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider appropriate. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request to do so, or in the case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.07 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.09.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.11, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this Agreement
to advance funds on behalf of the Servicer, shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or as
successor to the Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the applicable Trust
Fund or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of 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.
The Trustee shall execute and deliver to the Servicer, upon its
request, any court pleadings, requests for trustee's sale or other documents
necessary or desirable to (i) the foreclosure or trustee's sale with respect to
a Mortgaged Property; (ii) any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note or Mortgage; (iii) obtain a deficiency
judgment against the Mortgagor; or (iv) enforce any other rights or remedies
provided by the Mortgage Note or Mortgage or otherwise available at law or
equity.
Section 8.12 Custodial Responsibilities. The Custodian shall provide
access to the Mortgage Loan documents in possession of the Custodian regarding
the related Mortgage Loans and REO Property and the servicing thereof to the
Trustee, the Certificateholders, the FDIC, and the supervisory agents and
examiners of the FDIC, such access being afforded only upon two (2) Business
Days prior written request and during normal business hours at the office of the
Custodian; provided, however, that, unless otherwise required by law or any
regulatory or administrative agency (including the FDIC), the Custodian shall
not be required to provide access to such records and documentation if the
provision thereof would violate the legal right to privacy of any Mortgagor. The
Custodian shall allow representatives of the above entities to photocopy any of
the records and documentation and shall provide equipment for that purpose at
the expense of the Trust that covers the Custodian actual costs.
Upon receipt of a Request for Release by the Servicer, the Custodian
shall release within five Business Days the related Mortgage File to the
Servicer and the Trustee shall execute and deliver to the Servicer, without
recourse, a request for reconveyance, deed of reconveyance or release or
satisfaction of mortgage or such instrument releasing the lien of the Mortgage
(furnished by such Servicer), together with the Mortgage Note.
The Custodian may resign at any time or may be terminated by the
Trustee with cause, in each case, upon 60 days written notice to the Servicer,
the Depositor and the Securities Administrator, in which event the Depositor
will be obligated to appoint a successor. If no successor has been appointed and
has accepted appointment within 60 days after the resignation or termination of
the Custodian, the Custodian may petition any court of competent jurisdiction
for appointment of a successor.
The Securities Administrator, pursuant to a separate agreement,
shall compensate from its own funds the Custodian for its activities under this
Agreement. The Custodian shall have no lien on the Trust Fund for the payment of
such fees. The Custodian shall be entitled to be reimbursed, from funds on
deposit in the Distribution Account, amounts sufficient to indemnify and hold
harmless the Custodian and any director, officer, employee, or agent of the
Custodian against any loss, liability, or expense (including reasonable
attorneys' fees) incurred in connection with any claim or legal action relating
to
(a) this Agreement,
(b) the Certificates, or
(c) the performance of any of the Custodian's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any breach of the
Servicer's obligations in connection with the Master Seller's Warranties and
Servicing Agreement for which the Servicer has performed its obligation to
indemnify the Custodian pursuant to the Master Seller's Warranties and Servicing
Agreement, (ii) resulting from any breach of the Responsible Party's obligations
in connection with the Master Seller's Warranties and Servicing Agreement for
which the Responsible Party has performed its obligation to indemnify the
Custodian pursuant to the Master Seller's Warranties and Servicing Agreement, or
(iii) incurred because of willful misfeasance, bad faith, or negligence in the
performance of any of the Custodian's duties under this Agreement.
ARTICLE IX
CONCERNING THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Securities Administrator. The Securities
Administrator shall undertake to perform such duties and only such duties as are
specifically set forth in this Agreement.
The Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Securities Administrator that are specifically
required to be furnished pursuant to any provision of this Agreement shall
examine them to determine whether they are in the form required by this
Agreement; provided, however, that the Securities Administrator shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Securities Administrator shall notify the
Certificateholders of such non-conforming instrument in the event the Securities
Administrator, after so requesting, does not receive a satisfactorily corrected
instrument.
No provision of this Agreement shall be construed to relieve the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) the duties and obligations of the Securities Administrator shall
be determined solely by the express provisions of this Agreement, the
Securities Administrator shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Securities Administrator and the Securities
Administrator may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Securities Administrator and conforming to
the requirements of this Agreement which it believed in good faith to be
genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the Securities Administrator shall not be liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Securities Administrator, unless it shall be conclusively
determined by a court of competent jurisdiction, such determination no
longer subject to appeal, that the Securities Administrator was negligent
in ascertaining the pertinent facts;
(iii) the Securities Administrator shall not be liable with respect
to any action or inaction taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Holders of Certificates
evidencing not less than 25% of the Voting Rights of Certificates relating
to the time, method and place of conducting any proceeding for any remedy
available to the Securities Administrator, or exercising or omitting to
exercise any trust or power conferred upon the Securities Administrator
under this Agreement; and
(iv) the Securities Administrator shall not be accountable, shall
have no liability and makes no representation as to any acts or omissions
hereunder of the Trustee.
Section 9.02 Certain Matters Affecting the Securities Administrator.
Except as otherwise provided in Section 9.01:
(i) the Securities Administrator may request and conclusively rely
upon and shall be fully protected in acting or refraining from acting upon
any resolution, Officer's Certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties and the Securities Administrator shall have no
responsibility to ascertain or confirm the genuineness of any signature of
any such party or parties;
(ii) the Securities Administrator may consult with counsel,
financial advisers or accountants and the advice of any such counsel,
financial advisers or accountants and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) the Securities Administrator shall not be liable for any
action or inaction taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(iv) the Securities Administrator shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing not
less than 25% of the Voting Rights allocated to each Class of
Certificates; provided, however, that if the payment within a reasonable
time to the Securities Administrator of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Securities Administrator, not reasonably assured to the
Securities Administrator by the security afforded to it by the terms of
this Agreement, the Securities Administrator may require reasonable
indemnity against such expense or liability as a condition to so
proceeding.
(v) the Securities Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian and the Securities
Administrator shall not be responsible for any misconduct or negligence on
the part of any such agent, attorney or custodian appointed by the
Securities Administrator with due care;
(vi) the Securities Administrator shall not be required to risk or
expend its own funds or otherwise incur any financial liability (other
than with respect to the investment of funds in the Distribution Account
not made at the direction of the Depositor during the Securities
Administrator Float Period) in the performance of any of its duties or in
the exercise of any of its rights or powers hereunder if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it;
(vii) the Securities Administrator shall be under no obligation to
exercise any of the trusts, rights or powers vested in it by this
Agreement or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Securities Administrator
reasonable security or indemnity satisfactory to the Securities
Administrator against the costs, expenses and liabilities which may be
incurred therein or thereby; and
(viii) the Securities Administrator shall have no obligation to
appear in, prosecute or defend any legal action that is not incidental to
its duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Securities Administrator
may in its discretion undertake any such action that it may deem necessary
or desirable in respect of this Agreement and the rights and duties of the
parties hereto and the interests of the Trustee, the Securities
Administrator and the Certificateholders hereunder. In such event, the
legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and
the Securities Administrator shall be entitled to be reimbursed therefor
out of the Collection Account.
The Securities Administrator shall have no duty (A) to see to any
recording, filing, or depositing of this Agreement or any agreement referred to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing thereof, (B) to
see to the provision of any insurance or (C) to see to the payment or discharge
of any tax, assessment, or other governmental charge or any lien or encumbrance
of any kind owing with respect to, assessed or levied against, any part of the
Trust Fund other than from funds available in the Distribution Account.
Section 9.03 Securities Administrator Not Liable for Certificates or
Mortgage Loans. The recitals contained herein and in the Certificates shall be
taken as the statements of the Depositor or the Transferor, as the case may be,
and the Securities Administrator assumes no responsibility for their
correctness. The Securities Administrator makes no representations as to the
validity or sufficiency of this Agreement or of the Certificates or of any
Mortgage Loan or related document other than with respect to the Securities
Administrator's execution and authentication of the Certificates. The Securities
Administrator shall not be accountable for the use or application by the
Depositor of any funds paid to the Depositor in respect of the Mortgage Loans or
deposited in or withdrawn from the Collection Account by the Depositor. The
Securities Administrator shall execute the Certificates not in its individual
capacity but solely on behalf of the Trustee of the Trust Fund created by this
Agreement, in exercise of the powers and authority conferred or vested in the
Securities Administrator by this Agreement.
Section 9.04 Securities Administrator May Own Certificates. The
Securities Administrator in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact business with the parties
hereto and their Affiliates with the same rights as it would have if it were not
the Securities Administrator.
Section 9.05 Securities Administrator's Fees and Expenses. The
Securities Administrator shall be entitled to the investment income earned on
amounts in the Distribution Account during the Securities Administrator Float
Period. The Securities Administrator will also be entitled to withdraw from the
Distribution Account on each Distribution Date the Securities Administrator Fee
for such Distribution Date. The Securities Administrator and any director,
officer, employee, agent or "control person" within the meaning of the
Securities Act of 1933, as amended, and the Securities Exchange of 1934, as
amended ("Control Person"), of the Securities Administrator shall be indemnified
by the Trust and held harmless against any loss, liability or expense (including
reasonable attorney's fees) (i) incurred in connection with any claim or legal
action relating to (a) this Agreement, (b) the Mortgage Loans or (c) the
Certificates, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Securities Administrator's duties hereunder, (ii) incurred in connection with
the performance of any of the Securities Administrator's duties hereunder, other
than any loss, liability or expense incurred by reason of willful misfeasance,
bad faith or negligence in the performance of any of the Securities
Administrator's duties hereunder or (iii) incurred by reason of any action of
the Securities Administrator taken at the direction of the Certificateholders,
provided that any such loss, liability or expense constitutes an "unanticipated
expense incurred by the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii). Such indemnity shall survive the termination of this
Agreement or the resignation or removal of the Securities Administrator
hereunder. Without limiting the foregoing, and except for any such expense,
disbursement or advance as may arise from the Securities Administrator's
negligence, bad faith or willful misconduct, or which would not be an
"unanticipated expense" within the meaning of the second preceding sentence, the
Securities Administrator shall be reimbursed by the Trust for all reasonable
expenses, disbursements and advances incurred or made by the Securities
Administrator in accordance with any of the provisions of this Agreement with
respect to: (A) the reasonable compensation and the expenses and disbursements
of its counsel not associated with the closing of the issuance of the
Certificates, (B) the reasonable compensation, expenses and disbursements of any
accountant, engineer, appraiser or other agent that is not regularly employed by
the Securities Administrator, to the extent that the Securities Administrator
must engage such Persons to perform acts or services hereunder and (C) printing
and engraving expenses in connection with preparing any Definitive Certificates.
The Trust shall fulfill its obligations under this paragraph from amounts on
deposit from time to time in the Distribution Account.
The Securities Administrator may retain or withdraw from the
Distribution Account, (i) the Securities Administrator Fee, (ii) amounts
necessary to reimburse it or the Servicer for any previously unreimbursed
Advances and any Advances the Servicer deems to be non-recoverable from the
related Mortgage Loan proceeds, (iii) an aggregate annual amount to indemnify
the Servicer and itself for amounts due in accordance with this Agreement, and
(iv) any other amounts which it or the Servicer is entitled to receive hereunder
for reimbursement, indemnification or otherwise, including the amount to which
the Securities Administrator is entitled pursuant to Section 3.02 hereof. The
Securities Administrator shall be required to pay all expenses incurred by it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as provided in this Agreement.
Section 9.06 Eligibility Requirements for Securities Administrator.
The Securities Administrator hereunder shall at all times be a corporation or
association organized and doing business under the laws the United States of
America or any state thereof, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating of at least investment grade. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 9.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 9.06, the Securities
Administrator shall resign immediately in the manner and with the effect
specified in Section 9.07 hereof. The entity serving as Securities Administrator
may have normal banking and trust relationships with the Depositor and its
affiliates or the Trustee and its affiliates.
Any successor Securities Administrator (i) may not be an originator,
the Servicer, the Depositor or an affiliate of the Depositor unless the
Securities Administrator functions are operated through an institutional trust
department of the Securities Administrator, (ii) must be authorized to exercise
corporate trust powers under the laws of its jurisdiction of organization, and
(iii) must be rated at least "A/F1" by Fitch, if Fitch is a Rating Agency, or
the equivalent rating by S&P or ▇▇▇▇▇'▇. If no successor Securities
Administrator shall have been appointed and shall have accepted appointment
within 60 days after the Securities Administrator ceases to be the Securities
Administrator pursuant to Section 9.07, then the Trustee may (but shall not be
obligated to) become the successor Securities Administrator. The Depositor shall
appoint a successor to the Securities Administrator in accordance with Section
9.07. The Trustee shall notify the Rating Agencies of any change of Securities
Administrator.
Section 9.07 Resignation and Removal of Securities Administrator.
The Securities Administrator may at any time resign by giving written notice of
resignation to the Depositor and the Trustee and each Rating Agency not less
than 60 days before the date specified in such notice when, subject to Section
9.08, such resignation is to take effect, and acceptance by a successor
Securities Administrator in accordance with Section 9.08 meeting the
qualifications set forth in Section 9.06. If no successor Securities
Administrator meeting such qualifications shall have been so appointed by the
Depositor and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Securities Administrator may petition any
court of competent jurisdiction for the appointment of a successor Securities
Administrator.
If at any time the Securities Administrator shall cease to be
eligible in accordance with the provisions of Section 9.06 hereof and shall fail
to resign after written request thereto by the Depositor, or if at any time the
Securities Administrator shall become incapable of acting, or shall be adjudged
as bankrupt or insolvent, or a receiver of the Securities Administrator or of
its property shall be appointed, or any public officer shall take charge or
control of the Securities Administrator or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or a tax is imposed with
respect to the Trust Fund by any state in which the Securities Administrator or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different Securities Administrator, then the Depositor may
remove the Securities Administrator and appoint a successor Securities
Administrator by written instrument, in triplicate, one copy of which instrument
shall be delivered to the Securities Administrator so removed, one copy of which
shall be delivered to the Servicer and one copy to the successor Securities
Administrator.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Securities Administrator and appoint a
successor Securities Administrator by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered by the successor
Securities Administrator to the Trustee, one complete set to the Securities
Administrator so removed and one complete set to the successor so appointed.
Notice of any removal of the Securities Administrator shall be given to each
Rating Agency by the successor Securities Administrator.
Any resignation or removal of the Securities Administrator and
appointment of a successor Securities Administrator pursuant to any of the
provisions of this Section 9.07 shall become effective upon acceptance by the
successor Securities Administrator of appointment as provided in Section 9.08
hereof.
Section 9.08 Successor Securities Administrator. Any successor
Securities Administrator (which may be the Trustee) appointed as provided in
Section 9.07 hereof shall execute, acknowledge and deliver to the Depositor and
to its predecessor Securities Administrator and the Trustee an instrument
accepting such appointment hereunder and thereupon the resignation or removal of
the predecessor Securities Administrator shall become effective and such
successor Securities Administrator, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and obligations of
its predecessor hereunder, with the like effect as if originally named as
Securities Administrator herein. The Depositor, the Trustee, the Servicer and
the predecessor Securities Administrator shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Securities
Administrator all such rights, powers, duties, and obligations.
No successor Securities Administrator shall accept appointment as
provided in this Section 9.08 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 9.06 hereof and its appointment shall not adversely affect the then
current rating of the Certificates, as confirmed in writing by each Rating
Agency.
Upon acceptance by a successor Securities Administrator of
appointment as provided in this Section 9.08, the Depositor shall mail notice of
the succession of such Securities Administrator hereunder to all Holders of
Certificates. If the Depositor fails to mail such notice within 10 days after
acceptance by the successor Securities Administrator of appointment, the
successor Securities Administrator shall cause such notice to be mailed at the
expense of the Depositor.
Section 9.09 Merger or Consolidation of Securities Administrator.
Any corporation or other entity into which the Securities Administrator may be
merged or converted or with which it may be consolidated or any corporation or
other entity resulting from any merger, conversion or consolidation to which the
Securities Administrator shall be a party, or any corporation or other entity
succeeding to the business of the Securities Administrator, shall be the
successor of the Securities Administrator hereunder, provided that such
corporation or other entity shall be eligible under the provisions of Section
9.06 hereof, without the execution or filing of any paper or further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 9.10 Assignment or Delegation of Duties by the Securities
Administrator. Except as expressly provided herein, the Securities Administrator
shall not assign or transfer any of its rights, benefits or privileges hereunder
to any other Person, or delegate to or subcontract with, or authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by the Securities Administrator; provided, however, that the
Securities Administrator shall have the right with the prior written consent of
the Depositor (which shall not be unreasonably withheld or delayed), and upon
delivery to the Trustee and the Depositor of a letter from each Rating Agency to
the effect that such action shall not result in a downgrade of the ratings
assigned to any of the Certificates, to delegate or assign to or subcontract
with or authorize or appoint any qualified Person to perform and carry out any
duties, covenants or obligations to be performed and carried out by the
Securities Administrator hereunder. Notice of such permitted assignment shall be
given promptly by the Securities Administrator to the Depositor and the Trustee.
If, pursuant to any provision hereof, the duties of the Securities Administrator
are transferred to a successor securities administrator, the entire compensation
payable to the Securities Administrator pursuant hereto shall thereafter be
payable to such successor securities administrator but in no event shall the fee
payable to the successor securities administrator exceed that payable to the
predecessor securities administrator.
Section 9.11 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in, and in
accordance with, the REMIC Provisions. In furtherance of such intention, the
Securities Administrator covenants and agrees that it shall act as agent (and
the Securities Administrator is hereby appointed to act as agent) on behalf of
each REMIC described in the Preliminary Statement and that in such capacity it
shall:
(a) prepare and file, in a timely manner, a U.S. Real Estate
Mortgage Investment Conduit (REMIC) Income Tax Return (Form 1066 or any
successor form adopted by the Internal Revenue Service) and prepare and file
with the Internal Revenue Service and applicable state or local tax authorities
income tax or information returns for each taxable year with respect to each
Trust REMIC containing such information and at the times and in the manner as
may be required by the Code or state or local tax laws, regulations, or rules,
and furnish to Certificateholders the schedules, statements or information at
such times and in such manner as may be required thereby;
(b) within thirty days of the Closing Date, apply for an employer
identification number from the Internal Revenue Service via Form SS-4 or any
other acceptable method for all tax entities and shall also furnish to the
Internal Revenue Service, on Form 8811 or as otherwise may be required by the
Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) make an election that each of the Lower-Tier REMIC and the
Upper-Tier REMIC be treated as a REMIC on the federal tax return for its first
taxable year (and, if necessary, under applicable state law);
(d) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any original
issue discount using the prepayment assumption (as described in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee (a "Non-Permitted Transferee"), or an agent (including a broker,
nominee or other middleman) of a Non-Permitted Transferee, or a pass-through
entity in which a Non-Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so as
to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of either Trust
REMIC created hereunder;
(h) pay, from the sources specified in the last paragraph of this
Section 9.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on either Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Securities Administrator or any other appropriate Person
from contesting any such tax in appropriate proceedings and shall not prevent
the Securities Administrator from withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings);
(i) cause federal, state or local income tax or information returns
to be signed by the Securities Administrator or, if required by applicable tax
law, the Trustee or such other person as may be required to sign such returns by
the Code or state or local laws, regulations or rules;
(j) maintain records relating to each of the Trust REMICs, including
the income, expenses, assets, and liabilities thereof on a calendar year basis
and on the accrual method of accounting and the fair market value and adjusted
basis of the assets determined at such intervals as may be required by the Code,
as may be necessary to prepare the foregoing returns, schedules, statements or
information; and
(k) as and when necessary and appropriate, represent each Trust
REMIC in any administrative or judicial proceedings relating to an examination
or audit by any governmental taxing authority, request an administrative
adjustment as to any taxable year of each Trust REMIC, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of either Trust REMIC, and otherwise act on
behalf of each Trust REMIC in relation to any tax matter or controversy
involving it.
The Securities Administrator shall treat the rights of the Class P
Certificateholders to receive Prepayment Premiums, the rights of the Class X
Certificateholders to receive Interest Rate Corridor Payments in the Excess
Reserve Fund Account (subject to the obligation to pay Basis Risk Carry Forward
Amounts) and the rights of the Offered Certificateholders to receive Basis Risk
Carry Forward Amounts as the beneficial ownership interests in a grantor trust
and not as an obligations of any REMIC created hereunder, for federal income tax
purposes. The Securities Administrator shall file or cause to be filed with the
Internal Revenue Service Form 1041 or such other form as may be applicable and
shall furnish or cause to be furnished, to the Class P, Class X
Certificateholders and the Offered Certificateholders, the respective amounts
described above that are received, in the time or times and in the manner
required by the Code.
To enable the Securities Administrator to perform its duties under
this Agreement, the Depositor shall provide or cause to be provided to the
Securities Administrator within ten days after the Closing Date all information
or data that the Securities Administrator requests in writing and determines to
be relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption, and projected
cash flows of the Certificates and the Mortgage Loans. Moreover, the Depositor
shall provide information to the Securities Administrator concerning the value,
if any, to each Class of Certificates of the right to receive Basis Risk Carry
Forward Amounts from the Excess Reserve Fund Account. Thereafter, the Depositor
shall provide to the Securities Administrator promptly upon written request
therefor any additional information or data that the Securities Administrator
may, from time to time, reasonably request to enable the Securities
Administrator to perform its duties under this Agreement; provided, however,
that the Depositor shall not be required to provide any information regarding
the Mortgage Loans after the Closing Date or any information that the Servicer
is required to provide to the Securities Administrator pursuant to the Master
Seller's Warranties and Servicing Agreement or the Depositor Assignment
Agreement. The Depositor hereby indemnifies the Securities Administrator for any
losses, liabilities, damages, claims, or expenses of the Securities
Administrator arising from any errors or miscalculations of the Securities
Administrator that result from any failure of the Depositor to provide pursuant
to this paragraph accurate information or data to the Securities Administrator
on a timely basis.
If any tax is imposed on "prohibited transactions" of either Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Lower-Tier REMIC as defined in Section 860G(c) of
the Code, on any contribution to any Trust REMIC after the Startup Day pursuant
to Section 860G(d) of the Code, or any other tax is imposed, including any
minimum tax imposed on either Trust REMIC pursuant to Sections 23153 and 24874
of the California Revenue and Taxation Code, if not paid as otherwise provided
for herein, the tax shall be paid by (i) the Trustee or the Securities
Administrator, as applicable if such tax arises out of or results from
negligence of the Trustee or the Securities Administrator, as applicable in the
performance of any of its obligations under this Agreement, (ii) the Servicer,
pursuant to the Depositor Assignment Agreement, if such tax arises out of or
results from a breach by the Servicer of any of its obligations under the Master
Seller's Warranties and Servicing Agreement, (iii) the Responsible Party,
pursuant to the Depositor Assignment Agreement, if such tax arises out of or
results from the Responsible Party's obligation to repurchase a Mortgage Loan
pursuant to the Master Seller's Warranties and Servicing Agreement or (iv) in
all other cases, or if the Trustee, the Securities Administrator, the Servicer
or the Responsible Party fails to honor its obligations under the preceding
clause (i), (ii), or (iii), any such tax will be paid with amounts otherwise to
be distributed to the Certificateholders, as provided in Section 4.01(a).
For as long as each Trust REMIC shall exist, the Securities
Administrator shall act as specifically required herein, and the Securities
Administrator shall comply with any directions of the Depositor or the Servicer
stating that such directions are being given to assure such continuing
treatment. In particular, the Securities Administrator shall not (a) sell or
authorize the sale of all or any portion of the Mortgage Loans or of any
investment of deposits in an Account unless such sale is as a result of a
purchase or repurchase of the Mortgage Loans pursuant to this Agreement or (b)
accept any contribution to either Trust REMIC after the Startup Day without
receipt of an Opinion of Counsel that such action described in clause (a) or (b)
will not result in the imposition of a tax on either Trust REMIC or cause either
Trust REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
Section 9.12 Periodic Filings. (a) The Securities Administrator
shall reasonably cooperate with the Depositor in connection with the Trust's
satisfying the reporting requirements under the Exchange Act. The Securities
Administrator shall prepare on behalf of the Trust any Forms 8-K and 10-K
customary for similar securities as required by the Exchange Act and the Rules
and Regulations of the Securities and Exchange Commission thereunder, and the
Securities Administrator shall sign and file (via the Securities and Exchange
Commission's Electronic Data Gathering and Retrieval System) such 8-K Forms on
behalf of the Depositor, if an officer of the Depositor signs the 10-K
Certification pursuant to paragraph (b) of this Section 9.12, or otherwise on
behalf of the Trust. In the event the Securities Administrator is signing on
behalf of the Depositor pursuant to the preceding sentence, the Depositor hereby
grants to the Securities Administrator a limited power of attorney to execute
and file each such document on behalf of the Depositor. Such power of attorney
shall continue until the earlier of either (i) receipt by the Securities
Administrator from the Depositor of written termination of such power of
attorney and (ii) the termination of the Trust. Notwithstanding the foregoing,
the Securities Administrator shall prepare such Form 10-K to be signed by the
Depositor and the Depositor shall sign such form, unless the Securities and
Exchange Commission has indicated that it will accept a certification signed by
the Depositor where the related Form 10-K is signed by the Securities
Administrator.
(b) Each Form 8-K shall be filed by the Securities Administrator
within 15 days after each Distribution Date, including a copy of the statement
to the Certificateholders for such Distribution Date as an exhibit thereto.
Prior to March 30th of each year (or such earlier date as may be required by the
Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission), the Securities Administrator shall file a Form 10-K in substance as
required by applicable law or applicable Securities and Exchange Commission
staff's interpretations, with respect to the Trust Fund. Such Form 10-K shall
include as exhibits the Servicer's annual statement of compliance described
under Section 6.4 of the Master Seller's Warranties and Servicing Agreement
(upon which the Securities Administrator may rely in delivering its
certification hereunder) and the accountant's report described under Section 6.5
of the Master Seller's Warranties and Servicing Agreement, in each case to the
extent they have been timely delivered to the Securities Administrator. If they
are not so timely delivered, the Securities Administrator shall file an amended
Form 10-K including such documents as exhibits reasonably promptly after they
are delivered to the Securities Administrator. The Securities Administrator
shall have no liability with respect to any failure to properly prepare or file
such periodic reports resulting from or relating to the Securities
Administrator's inability or failure to obtain any information not resulting
from its own negligence, willful misconduct or bad faith. The Form 10-K shall
also include a certification in the form attached hereto as Exhibit J, with such
changes as may be necessary or appropriate as a result of changes promulgated by
the Securities and Exchange Commission (the "Certification"), which shall,
except as described below, be signed by the senior officer of the Depositor in
charge of securitization.
(c) In the event the Certification is to be signed by an officer of
the Depositor, the Securities Administrator shall sign a certification (in the
form attached hereto as Exhibit K with such changes as may be necessary or
appropriate as a result of changes promulgated by the Securities and Exchange
Commission) for the benefit of the Depositor and its officers, directors and
Affiliates in respect of items 1 through 3 of the Certification; provided,
however, that the Securities Administrator shall not undertake an analysis of
the accountant's report attached as an exhibit to the Form 10-K. Such
certification shall be delivered to the Depositor by March 20th of each year (or
if not a Business Day, the immediately preceding Business Day). The
Certification attached hereto as Exhibit J shall be delivered to the Securities
Administrator for filing by March 25th of each year (or if not a Business Day,
the immediately preceding Business Day). In addition, the Securities
Administrator shall indemnify and hold harmless the Depositor, the Trustee and
their respective officers, directors and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of the Securities Administrator's obligations under this Section
9.12(c) or the Securities Administrator's negligence, bad faith or willful
misconduct in connection therewith. If the indemnification provided for herein
is unavailable or insufficient to hold harmless the Depositor and the Trustee,
then the Securities Administrator agrees in connection with a breach of the
Securities Administrator's obligations under this Section 9.12(c) or the
Securities Administrator's negligence, bad faith or willful misconduct in
connection therewith that it shall contribute to the amount paid or payable by
the Depositor as a result of the losses, claims, damages or liabilities of the
Depositor in such proportion as is appropriate to reflect the relative fault of
the Depositor on the one hand and the Securities Administrator on the other.
(d) Upon any filing with the Securities and Exchange Commission, the
Securities Administrator shall promptly deliver to the Depositor a copy of any
such executed report, statement or information.
(e) Prior to January 30 of the first year in which the Securities
Administrator is able to do so under applicable law, the Securities
Administrator shall file a Form 15 Suspension Notification with respect to the
Trust.
Section 9.13 Tax Classification of the Excess Reserve Fund Account
and the Interest Rate Corridor Agreement. For federal income tax purposes, the
Securities Administrator shall treat the Excess Reserve Fund Account and the
Interest Rate Corridor Agreement as beneficially owned by the holder of the
Class X Certificates and shall treat such portion of the Trust Fund as a grantor
trust under subpart E, Part I of subchapter J of the Code. The Securities
Administrator shall treat the rights that each Class of Offered Certificates has
to receive payments of Basis Risk Carry Forward Amounts from the Excess Reserve
Fund Account as rights to receive payments under an interest rate cap contract
written by the Class X Certificateholders in favor of each Class. Accordingly,
each Class of Offered Certificates will comprise two components--a regular
interest in the Upper-Tier REMIC and an interest in an interest rate cap
contract, and the Class X Certificates will be comprised of three components--a
regular interest in the Upper-Tier REMIC, an interest in the Interest Rate
Corridor Agreement and the Excess Reserve Fund Account. The Securities
Administrator shall allocate the issue price for a Class of Certificates among
these components for purposes of determining the issue price of the Upper-Tier
Regular Interest component based on information received from the Depositor.
Unless otherwise advised by the Depositor in writing, for federal income tax
purposes, the Securities Administrator is hereby directed to assign a value of
zero to the right of each Holder of a Offered Certificate to receive the related
Basis Risk Carry Forward Amount for purposes of allocating the purchase price of
an initial Offered Certificateholder between such right and the related Upper
Tier Regular Interest.
ARTICLE X
TERMINATION
Section 10.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 10.03, the obligations and responsibilities
of the Depositor, the Securities Administrator and the Trustee created hereby
with respect to the Trust Fund shall terminate upon the earlier of (a) the
purchase, on or after the Optional Termination Date, by the Servicer of all
Mortgage Loans (and REO Properties) at the price (the "Termination Price") equal
to the greater of (1) the sum of (i) 100% of the unpaid principal balance of
each Mortgage Loan (other than in respect of REO Property) plus accrued and
unpaid interest thereon at the applicable Mortgage Interest Rate, and (ii) the
lesser of (x) the appraised value of any REO Property as determined by the
higher of two appraisals completed by two independent appraisers selected by the
Servicer, at its expense, plus accrued and unpaid interest on the related
mortgage loans at the applicable mortgage rate and (y) the unpaid principal
balance of each Mortgage Loan related to any REO Property, in each case plus
accrued and unpaid interest thereon at the applicable Mortgage Interest Rate and
(2) the aggregate fair market value of each Mortgage Loan and any REO Property,
as determined by the highest bid received by the Trustee from closed bids
solicited by the Depositor or its designee from at least three recognized
broker/dealers (one of which may be an affiliate of the Depositor) that deal in
similar assets) as of the close of business on the third Business Day preceding
the date upon which a Notice of Final Distribution is furnished to
Certificateholders pursuant to Section 10.02, plus accrued and unpaid interest
on the Mortgage Loans at the applicable Mortgage Interest Rate; and (b) the
later of (i) the maturity or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to this Agreement. In
no event shall the trusts created hereby continue beyond the expiration of 21
years from the death of the survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
the late Ambassador of the United States to the Court of St. James's, living on
the date hereof.
Section 10.02 Final Distribution on the Certificates. If, on any
Remittance Date, the Servicer notifies the Securities Administrator that there
are no Outstanding Mortgage Loans and no other funds or assets in the Trust Fund
other than the funds in the Collection Account, the Securities Administrator
shall promptly send a Notice of Final Distribution to the applicable
Certificateholders. If the Servicer elects to terminate the Trust Fund pursuant
to clause (a) of Section 10.01, by no later than the 10th day of the month of
the final distribution, the Servicer, pursuant to the Depositor Assignment
Agreement, shall notify the Trustee of the final Distribution Date and of the
applicable repurchase price of the Mortgage Loans and REO Properties.
A Notice of Final Distribution, specifying the Distribution Date on
which Certificateholders may surrender their Certificates for payment of the
final distribution and cancellation, shall be given promptly by the Securities
Administrator by letter to Certificateholders mailed not later than the 15th day
of the month of such final distribution. Any such Notice of Final Distribution
shall specify (a) the Distribution Date upon which final distribution on the
Certificates will be made upon presentation and surrender of Certificates at the
office therein designated, (b) the amount of such final distribution, (c) the
location of the office or agency at which such presentation and surrender must
be made, and (d) that the Record Date otherwise applicable to such Distribution
Date is not applicable, distributions being made only upon presentation and
surrender of the Certificates at the office therein specified. The Securities
Administrator will give such Notice of Final Distribution to each Rating Agency
at the time such Notice of Final Distribution is given to Certificateholders.
In the event the Servicer purchases the Mortgage Loans (and REO
Properties) pursuant to Section 10.01(a), pursuant to the Depositor Assignment
Agreement, the Servicer is required thereunder to remit to the Securities
Administrator the applicable Termination Price on the Remittance Date
immediately preceding the applicable final Distribution Date. Upon such final
deposit with respect to the Trust Fund and the receipt by the Securities
Administrator and the Custodian of a Request for Release therefor, the
Securities Administrator shall direct the Custodian to promptly release to the
Servicer or its designee the Custodial Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class (after reimbursement of all amounts due the Depositor and the Trustee
hereunder), in each case on the final Distribution Date and in the order set
forth in Section 4.01, in proportion to their respective Percentage Interests,
with respect to Certificateholders of the same Class, an amount up to an amount
equal to (i) as to each Class of Regular Certificates (except the Class X
Certificate), the Certificate Balance thereof plus for each such Class and the
Class X Certificate accrued interest thereon in the case of an interest-bearing
Certificate and all other amounts to which such Classes are entitled pursuant to
Section 4.01, (ii) as to the Residual Certificates, the amount, if any, which
remains on deposit in the Distribution Account (other than the amounts retained
to meet claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Securities Administrator
shall give a second written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. If within six months after the second notice all the
applicable Certificates shall not have been surrendered for cancellation, the
Securities Administrator may take appropriate steps, or may appoint an agent to
take appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain a part of the Trust Fund. If within one year
after the second notice all Certificates shall not have been surrendered for
cancellation, the Class R Certificateholders shall be entitled to all unclaimed
funds and other assets of the Trust Fund which remain subject hereto.
Section 10.03 Additional Termination Requirements. In the event the
Servicer elects to purchase the Mortgage Loans as provided in Section 10.01, the
Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee and the Securities Administrator have been
supplied with an Opinion of Counsel, at the expense of the Servicer, to the
effect that the failure to comply with the requirements of this Section 10.03
will not (i) result in the imposition of taxes on "prohibited transactions" on
either Trust REMIC as defined in Section 860F of the Code, or (ii) cause either
Trust REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(a) The Securities Administrator on behalf of the Trustee shall sell
all of the assets of the Trust Fund to the Servicer and, by the next
Distribution Date after such sale, shall distribute to the Certificateholders
the proceeds of such sale in complete liquidation of each of the Trust REMICs;
and
(b) The Securities Administrator shall attach a statement to the
final federal income tax return for each of the Trust REMICs stating that
pursuant to Treasury Regulations Section 1.860F-1, the first day of the 90-day
liquidation period for each such REMIC was the date on which the Securities
Administrator on behalf of the Trustee sold the assets of the Trust Fund to the
Servicer.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Securities Administrator, the Custodian and the
Trustee (and the Trustee may request an amendment or consent to any amendment of
the Master Seller's Warranties and Servicing Agreement as directed by the
Depositor) without the consent of any of the Certificateholders (i) to cure any
ambiguity or mistake, (ii) to correct any defective provision herein or in the
Master Seller's Warranties and Servicing Agreement, as applicable, or to
supplement any provision herein which may be inconsistent with any other
provision herein, (iii) to add to the duties of the Depositor or the Trustee (or
with respect to the Master Seller's Warranties and Servicing Agreement, of the
Servicer) the Securities Administrator or the Custodian, (iv) to add any other
provisions with respect to matters or questions arising hereunder or under the
Master Seller's Warranties and Servicing Agreement, or (v) to modify, alter,
amend, add to or rescind any of the terms or provisions contained in this
Agreement or in the Master Seller's Warranties and Servicing Agreement; provided
that any action pursuant to clause (iv) or (v) above shall not, as evidenced by
an Opinion of Counsel (which Opinion of Counsel shall be an expense of the
requesting party, but in any case shall not be an expense of the Trustee, the
Securities Administrator, the Custodian or the Trust Fund), adversely affect in
any material respect the interests of any Certificateholder; provided, further,
that the amendment shall not be deemed to adversely affect in any material
respect the interests of the Certificateholders if the Person requesting the
amendment obtains a letter from each Rating Agency stating that the amendment
would not result in the downgrading or withdrawal of the respective ratings then
assigned to the Certificates; it being understood and agreed that any such
letter in and of itself will not represent a determination as to the materiality
of any such amendment and will represent a determination only as to the credit
issues affecting any such rating. The Trustee, the Depositor, the Custodian and
the Securities Administrator also may at any time and from time to time amend
this Agreement (and if necessary, the Depositor shall direct the Trustee to
request that the Servicer amend the Master Seller's Warranties and Servicing
Agreement), without the consent of the Certificateholders, to modify, eliminate
or add to any of its provisions to such extent as shall be necessary or helpful
to (i) maintain the qualification of each Trust REMIC under the REMIC
Provisions, (ii) avoid or minimize the risk of the imposition of any tax on
either Trust REMIC pursuant to the Code that would be a claim at any time prior
to the final redemption of the Certificates or (iii) comply with any other
requirements of the Code; provided, that the Trustee has been provided an
Opinion of Counsel, which opinion shall be an expense of the party requesting
such opinion but in any case shall not be an expense of the Trustee or the Trust
Fund, to the effect that such action is necessary or helpful to, as applicable,
(i) maintain such qualification, (ii) avoid or minimize the risk of the
imposition of such a tax or (iii) comply with any such requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Custodian, the Securities Administrator and the Trustee (and the
Trustee shall consent to any amendment to the Master Seller's Warranties and
Servicing Agreement as directed by the Depositor) with the consent of the
Holders of Certificates evidencing Percentage Interests aggregating not less
than 662/3% of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or the Master Seller's Warranties and Servicing
Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, payments required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
clause (i), without the consent of the Holders of Certificates of such Class
evidencing, as to such Class, Percentage Interests aggregating not less than
662/3%, or (iii) reduce the aforesaid percentages of Certificates the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement or the Master
Seller's Warranties and Servicing Agreement unless (i) it shall have first
received an Opinion of Counsel, which opinion shall not be an expense of the
Trustee or the Trust Fund, to the effect that such amendment will not cause the
imposition of any tax on either Trust REMIC or the Certificateholders or cause
either Trust REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding and (ii) the party seeking such amendment shall
have provided written notice to the Rating Agencies (with a copy of such notice
to the Trustee) of such amendment, stating the provisions of the Agreement to be
amended.
Notwithstanding the foregoing provisions of this Section 11.01, with
respect to any amendment that significantly modifies the permitted activities of
the Trustee or the Servicer under the Master Seller's Warranties and Servicing
Agreement, any Certificate beneficially owned by the Depositor or any of its
Affiliates or by the Responsible Party or any of its Affiliates shall be deemed
not to be outstanding (and shall not be considered when determining the
percentage of Certificateholders consenting or when calculating the total number
of Certificates entitled to consent) for purposes of determining if the
requisite consents of Certificateholders under this Section 11.01 have been
obtained.
Promptly after the execution of any amendment to this Agreement or
the Master Seller's Warranties and Servicing Agreement requiring the consent of
Certificateholders, the Trustee shall furnish written notification of the
substance or a copy of such amendment to each Certificateholder and each Rating
Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 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.
Nothing in this Agreement shall require the Trustee, the Custodian
or the Securities Administrator to enter into an amendment which modifies its
obligations or liabilities without its consent and in all cases without
receiving an Opinion of Counsel (which Opinion shall not be an expense of the
Trustee, the Securities Administrator, the Custodian or the Trust Fund),
satisfactory to the Trustee or the Securities Administrator, as applicable, that
(i) such amendment is permitted and is not prohibited by this Agreement or the
Master Seller's Warranties and Servicing Agreement and that all requirements for
amending this Agreement or the Master Seller's Warranties and Servicing
Agreement have been complied with; and (ii) either (A) the amendment does not
adversely affect in any material respect the interests of any Certificateholder
or (B) the conclusion set forth in the immediately preceding clause (A) is not
required to be reached pursuant to this Section 11.01.
Notwithstanding the Trustee's consent to, or the request for, any
amendment of any Servicing Agreement pursuant to the terms of this Section
11.01, the Master Seller's Warranties and such Servicing Agreement cannot be
amended without the consent of the Servicer. The Trustee shall not be
responsible for any failure by the Servicer to consent to any amendment to the
Master Seller's Warranties and Servicing Agreement.
Section 11.02 Recordation of Agreement; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation shall be
effected by the Trustee at the expense of the Trust, but only if an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders is delivered to the Trustee.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 11.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. It is, further, not the intention of the
parties that such conveyances be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, such assets are held to be the
property of the Depositor, as the case may be, or if for any other reason this
Agreement is held or deemed to create a security interest in either such assets,
then (i) this Agreement shall be deemed to be a security agreement within the
meaning of the Uniform Commercial Code of the State of New York and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The Depositor, for the benefit of the Certificateholders, shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Trust Fund, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement. The Depositor shall arrange for
filing any Uniform Commercial Code continuation statements in connection with
any security interest granted or assigned to the Trustee for the benefit of the
Certificateholders.
Section 11.05 Notices. (a) The Securities Administrator shall use
its best efforts to promptly provide notice to each Rating Agency with respect
to each of the following of which it has actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Event of Default that has not been cured;
(iii) The resignation or termination of the Servicer, Securities
Administrator or the Trustee and the appointment of any successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant to
this Agreement, any Assignment Agreement or the Master Seller's Warranties
and Servicing Agreement; and
(v) The final payment to Certificateholders.
(b) In addition, the Securities Administrator shall promptly make
available on its internet website to each Rating Agency copies of the following:
(i) Each report to Certificateholders described in Section 4.02.
(ii) The Servicer's annual statement of compliance and the
accountant's report described in Sections 6.4 and 6.5, respectively, of
the Master Seller's Warranties and Servicing Agreement; and
(iii) Any notice of a purchase of a Mortgage Loan pursuant to this
Agreement and the Master Seller's Warranties and Servicing Agreement.
All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to (a) in the case of
the Depositor or GS Mortgage Securities Corp. or ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Principal Finance Group/▇▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ and Asset Management Group/Senior Asset Manager, or such other
address as may be hereafter furnished to the Securities Administrator by the
Depositor in writing; (b) in the case of the Servicer to ▇▇▇▇▇ Fargo Bank, N.A.,
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust, GSAA Home Equity Trust 2005-3, or at such other address as the
Servicer may hereafter furnish to the Depositor; (c) in the case of the
Securities Administrator to ▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention GSAA 05-3 or such other address as the
Securities Administrator may designate by notice to the Certificateholders or
such other address as the Securities Administrator may herein after furnish to
the Depositor; (d) in the case of the Trustee, HSBC Bank USA, National
Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Trust & Loan Agency, or such other address as may be hereafter furnished to the
Depositor and the Securities Administrator by the Trustee in writing; (e) in the
case of the Custodian to the Corporate Trust Office, Deutsche Bank National
Trust Company, ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Mortgage Custody-GS054C, or such other address as the Custodian may
hereafter furnish to the Depositor and the Securities Administrator; and (f) in
the case of each of the Rating Agencies, the address specified therefor in the
definition corresponding to the name of such Rating Agency. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
Section 11.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.07 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 11.07, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.08 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 11.09 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW)
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
* * * * * * *
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
SCHEDULE I
Mortgage Loan Schedule
(Available upon request to the Depositor)
EXHIBIT A
FORM OF CLASS A-1, CLASS ▇-▇, ▇▇▇▇▇ ▇-▇, CLASS M-1, CLASS M-2, CLASS B-1,
CLASS B-2 AND B-3 CERTIFICATES
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER
ASSETS.
Certificate No. :
Cut-off Date : February 1, 2005
First Distribution Date : March 25, 2005
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates of this
Class : Class Principal Amount
Class A-1 $214,158,000
Class A-2 $63,889,000
Class A-3 $66,764,000
Class M-1 $19,177,000
Class M-2 $9,781,000
Class B-1 $4,219,000
Class B-2 $1,342,000
Class B-3 $1,918,000
CUSIP : Class CUSIP No.
Class A-1 36242D WR 0
Class A-2 36242D WS 8
Class A-3 36242D WT 6
Class M-1 36242D WU 3
Class M-2 36242D WV 1
Class B-1 36242D WW 9
Class B-2 36242D WX 7
Class B-3 36242D WY 5
ISIN : Class ISIN No.
Class A-1 US36242DWR06
Class A-2 US36242DWS88
Class A-3 US36242DWT61
Class M-1 US36242DWU35
Class M-2 US36242DWV18
Class B-1 US36242DWW90
Class B-2 US36242DWX73
Class B-3 US36242DWY56
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-3
Asset-Backed Certificates, Series 2005-3
[Class A-1][Class A-2][Class A-3][Class M-1][Class M-2][Class B-1][Class B-2]
[Class B-3]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Securities Administrator or the Trustee referred to below or any
of their respective affiliates. Neither this Certificate nor the Mortgage Loans
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Trust Agreement dated as of the Cut-off Date
specified above (the "Agreement") among GS Mortgage Securities Corp., as
depositor (the "Depositor"), HSBC Bank USA, National Association, as trustee
(the "Trustee"), Deutsche Bank National Trust Company, as custodian, and ▇▇▇▇▇
Fargo Bank, N.A., as securities administrator (the "Securities Administrator").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:_________________________________
Authenticated:
By:______________________________
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-3
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2005-3 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes, or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Trustee and the other parties to the Agreement with the
consent of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Trustee, the Depositor and the Securities Administrator and any
agent of the Trustee, the Depositor or the Securities Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Trustee, the Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 10.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined and in the manner as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 10.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _____________, or, if mailed by check, to ______________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT B
FORM OF CLASS P CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH
A PLAN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE
REPRESENTATION LETTER AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : February 1, 2005
First Distribution Date : March 25, 2005
Percentage Interest of
this Certificate
("Denomination") : [_____]%
CUSIP : 3642D XA 6
ISIN : US36242DXA61
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-3
Asset-Backed Certificates, Series 2005-3
Class P
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor to Securities
Administrator or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Trust Agreement dated as
of the Cut-off Date specified above (the "Agreement") among GS Mortgage
Securities Corp., as depositor (the "Depositor"), HSBC Bank USA, National
Association, as trustee (the "Trustee"), Deutsche Bank National Trust Company,
as custodian, and ▇▇▇▇▇ Fargo, N.A., as securities administrator (the
"Securities Administrator"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Securities Administrator for such purposes or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Trust Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor. No transfer of a
Certificate of this Class shall be made unless the Securities Administrator
shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Securities Administrator, to the effect that such transferee is not an employee
benefit plan subject to Section 406 of ERISA, Section 4975 of the Code or any
materially similar provisions of applicable federal, state or local law
("Similar Law"), or a person acting on behalf of or investing plan assets of any
such plan, which representation letter shall not be an expense of the Securities
Administrator.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:_________________________________
Authenticated:
By:______________________________
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-3
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2005-3 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Trustee and the other parties to the Agreement with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes or the office or agency maintained by
the Securities Administrator in Minneapolis, Minnesota, accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator duly
executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Trustee, the Depositor and the Securities Administrator and any
agent of the Trustee, the Depositor or the Securities Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Trustee, the Depositor, the Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Principal Balance, the Person specified in Section 10.01 of the Agreement will
have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined and in the manner as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 10.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _____________, or, if mailed by check, to ______________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT C
FORM OF CLASS R CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN TWO "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR
PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT
SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. R-1
Cut-off Date February 1, 2005
First Distribution Date March 25, 2005
Percentage Interest of
this Certificate
("Denomination") 100%
CUSIP 36242D XB 4
ISIN US36242DXB45
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-3
Asset-Backed Certificates, Series 2005-3
Class R
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate is distributable
monthly as set forth herein. This Class R Certificate has no Certificate Balance
and is not entitled to distributions in respect of principal or interest. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Securities Administrator or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that [_____________________] is the registered owner
of the Percentage Interest specified above of any monthly distributions due to
the Class R Certificates pursuant to a Trust Agreement dated as of the Cut-Off
Date specified above (the "Agreement") among GS Mortgage Securities Corp., as
depositor (the "Depositor"), HSBC Bank USA, National Association, as trustee
(the "Trustee") Deutsche Bank National Trust Company, as custodian, and ▇▇▇▇▇
Fargo Bank, N.A., as securities administrator (the "Securities Administrator").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class R
Certificate at the offices designated by the Trustee for such purposes or the
office or agency maintained by the Securities Administrator in New York, New
York.
No transfer of a Class R Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan or arrangement subject to Section 406 of ERISA, a plan or
arrangement subject to Section 4975 of the Code or a plan subject to Similar
Law, or a person acting on behalf of any such plan or arrangement nor using the
assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Securities Administrator or
the Trust Fund. In the event that such representation is violated, or any
attempt is made to transfer to a plan or arrangement subject to Section 406 of
ERISA or a plan subject to Section 4975 of the Code or a plan subject to Similar
Law, or a person acting on behalf of any such plan or arrangement or using the
assets of any such plan or arrangement, such attempted transfer or acquisition
shall be void and of no effect.
Each Holder of this Class R Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class R Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R Certificate shall be a
Permitted Transferee and shall promptly notify the Securities Administrator of
any change or impending change in its status as a Permitted Transferee, (ii) no
Ownership Interest in this Class R Certificate may be registered on the Closing
Date or thereafter transferred, and the Securities Administrator shall not
register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of this Class R
Certificate, (C) not to cause income with respect to the Class R Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person and (D) not to Transfer the Ownership Interest in this Class R
Certificate or to cause the Transfer of the Ownership Interest in this Class R
Certificate to any other Person if it has actual knowledge that such Person is
not a Permitted Transferee and (iv) any attempted or purported Transfer of the
Ownership Interest in this Class R Certificate in violation of the provisions
herein shall be absolutely null and void and shall vest no rights in the
purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:_________________________________
Authenticated:
By:______________________________
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-3
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2005-3 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Trustee and the other parties to the Agreement with the
consent the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes or the office or agency maintained by
the Securities Administrator in Minneapolis, Minnesota, accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator duly
executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Trustee, the Depositor and the Securities Administrator and any
agent of the Trustee, the Depositor or the Securities Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Trustee, the Depositor, the Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 10.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined and in the manner as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 10.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _____________, or, if mailed by check, to ______________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT D
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS IN A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER ASSETS.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR LETTER
IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE
SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO
THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES ADMINISTRATOR RECEIVES
AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH
TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN
INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS
GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE
COVERED UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
OR AN OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE
EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE DEPOSITOR OR THE SECURITIES ADMINISTRATOR TO ANY OBLIGATION IN ADDITION TO
THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I
OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION
LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. X-1
Cut-off Date February 1, 2005
First Distribution Date March 25, 2005
Percentage Interest of this
Certificate ("Denomination") [_____]%
CUSIP 36242D WZ2
ISIN US36242DWZ22
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-3
Asset-Backed Certificates, Series 2005-3
Class X
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor to Securities
Administrator or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Trust Agreement dated as
of the Cut-off Date specified above (the "Agreement") among GS Mortgage
Securities Corp., as depositor (the "Depositor"), HSBC Bank USA, National
Association, as trustee (the "Trustee"), Deutsche Bank National Trust Company,
as custodian, and ▇▇▇▇▇ Fargo Bank, N.A., as Securities Administrator (the
"Securities Administrator"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Securities Administrator for such purposes or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Trust Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor. No transfer of a
Certificate of this Class shall be made unless the Securities Administrator
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Securities Administrator, to the effect that such transferee is not an employee
benefit plan subject to Section 406 of ERISA or Section 4975 of the Code or any
materially similar provisions of applicable federal, state or local law
("Similar Law") or a person acting on behalf of or investing plan assets of any
such plan, which representation letter shall not be an expense of the Securities
Administrator, or (ii) if the transferee is an insurance company, a
representation letter that it is purchasing such Certificates with the assets of
its general account and that the purchase and holding of such Certificates are
covered under Sections I and III of PTCE 95-60, or (iii) in the case of a
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or a plan or arrangement subject to Section 4975 of the Code
(or comparable provisions of any subsequent enactments) or a plan subject to
Similar Law, or a trustee of any such plan or any other person acting on behalf
of any such plan or arrangement or using such plan's or arrangement's assets, an
Opinion of Counsel satisfactory to the Securities Administrator, which Opinion
of Counsel shall not be an expense of the Securities Administrator, the
Depositor, the Trustee or the Trust Fund, addressed to the Securities
Administrator, the Trustee and the Depositor to the effect that the purchase or
holding of such Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the Code or
any Similar Law and will not subject the Trustee to any obligation in addition
to those expressly undertaken in this Agreement or to any liability.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By:_________________________________
Authenticated:
By:______________________________
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2005-3
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2005-3 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Trustee and the other parties to the Agreement with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes or the office or agency maintained by
the Securities Administrator in Minneapolis, Minnesota, accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator duly
executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Trustee, the Depositor and the Securities Administrator and any
agent of the Trustee, the Depositor or the Securities Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Trustee, the Depositor, the Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Principal Balance, the Person specified in Section 10.01 of the Agreement will
have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined and in the manner as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 10.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _____________, or, if mailed by check, to ______________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
[Servicer]
[Originator]
_____________________
_____________________
Re: Trust Agreement, dated as of February 1, 2005, among GS Mortgage
Securities Corp., HSBC Bank USA, National Association, as trustee,
Deutsche Bank National Trust Company, as custodian, and ▇▇▇▇▇ Fargo
Bank, N.A., as securities administrator
-------------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Trust
Agreement (the "Trust Agreement"), the undersigned, as Custodian, for each
Mortgage Loan listed in the Mortgage Loan Schedule for which the undersigned is
specified as the Custodian (other than any Mortgage Loan listed in the attached
schedule), it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Trust Agreement. The Custodian makes no representations as to: (i) the validity,
legality, sufficiency, enforceability, recordability or genuineness of any of
the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan or the
perfection or priority of any Mortgage. Notwithstanding anything herein to the
contrary, the Custodian has made no determination and makes no representations
as to whether (i) any endorsement is sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee thereof, in and to
that Mortgage Note or (ii) any assignment is in recordable form or sufficient to
effect the assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By:____________________________________
Name:
Title:
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF CUSTODIAN
[date]
[Depositor]
[Servicer]
[Originator]
_____________________
_____________________
Re: Trust Agreement, dated as of February 1, 2005, among GS Mortgage
Securities Corp., HSBC Bank USA, National Association, as trustee,
Deutsche Bank National Trust Company, as custodian, and ▇▇▇▇▇ Fargo
Bank, N.A., as securities administrator
-------------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Trust
Agreement (the "Trust Agreement"), the undersigned, as Custodian, hereby
certifies that as to each Mortgage Loan listed in the Mortgage Loan Schedule for
which the undersigned is specified as the Custodian (other than any Mortgage
Loan paid in full or listed on the attached Document Exception Report) it has
received:
(a) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(b) the original of any guaranty executed in connection with the
Mortgage Note (if any);
(c) the related original Mortgage and evidence of its recording or,
in certain limited circumstances, (i) a copy of the Mortgage together with
an officer's certification of the Responsible Party (or certified by the
title company, escrow agent, or closing attorney) certifying that the
Mortgage has been dispatched for recordation and the original recorded
Mortgage or a copy of such Mortgage certified by the appropriate public
recording office or (ii) a copy of the Mortgage certified by the
appropriate public recording office will be promptly delivered upon
receipt by the Responsible Party or by the title insurance company to be a
true and complete copy of the recorded original;
(d) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, or certified
true copies of any document sent for recordation;
(e) the mortgage assignment(s), showing a complete chain of
assignment from the originator of the related Mortgage Loan to the last
endorsee or, in certain limited circumstances, (i) a copy of the
intervening mortgage assignment together with and officer's certification
of the Responsible Party (or certified by the title company, escrow agent,
or closing attorney) certifying that such intervening mortgage assignment
has been dispatched for recordation and the original intervening mortgage
assignment or a copy of such intervening mortgage assignment will be
promptly delivered upon receipt by the Responsible Party or (ii) a copy of
the intervening mortgage assignment certified by the appropriate public
recording office to be a true and complete copy of the recorded original;
(f) a mortgage assignment in recordable form, which, if acceptable
for recording in the relevant jurisdiction, may be included in a blanket
assignment or assignments, of each Mortgage from the last endorsee in
blank;
(g) the originals or certified true copies of any document sent for
recordation of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon;
(h) the original policy of primary mortgage guaranty insurance or
certificate of insurance, if applicable;
(i) an original title insurance policy or evidence of title; and
(j) the original of any security agreement, chattel mortgage or
equivalent executed in connection with the Mortgage.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items 2, 4, 8, 9 (solely to
the extent of the stated maturity date set forth on the Mortgage Note) and 18 of
the Mortgage Loan Schedule accurately reflects information set forth in the
Custodial File.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Trust Agreement. The Custodian makes no
representations as to: (i) the validity, legality, sufficiency, enforceability,
recordability or genuineness of any of the documents contained in each Mortgage
File of any of the Mortgage Loans identified on the Mortgage Loan Schedule, or
(ii) the collectability, insurability, effectiveness or suitability of any such
Mortgage Loan or the perfection or priority of any Mortgage. Notwithstanding
anything herein to the contrary, the Custodian has made no determination and
makes no representations as to whether (i) any endorsement is sufficient to
transfer all right, title and interest of the party so endorsing, as noteholder
or assignee thereof, in and to that Mortgage Note or (ii) any assignment is in
recordable form or sufficient to effect the assignment of and transfer to the
assignee thereof, under the Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT G
RESIDUAL TRANSFER AFFIDAVIT
GSAA Home Equity Trust 2005-3,
Asset-Backed Certificates, Series 2005-3
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in a Class R Certificate (the
"Certificate") issued pursuant to the Trust Agreement (the "Agreement"), among
GS Mortgage Securities Corp. as depositor (the "Depositor"), HSBC Bank USA,
National Association, as trustee (the "Trustee") Deutsche Bank National Trust
Company, as custodian, and ▇▇▇▇▇ Fargo Bank, N.A., as securities administrator
(the "Securities Administrator"). Capitalized terms used, but not defined
herein, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee for the benefit of the Depositor, the Securities Administrator
and the Trustee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Securities Administrator a certificate
substantially in the form set forth as Exhibit H to the Agreement (a "Transferor
Certificate") to the effect that such Transferee has no actual knowledge that
the Person to which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee has historically paid its debts as they have come
due, intends to pay its debts as they come due in the future, and understands
that the taxes payable with respect to the Certificate may exceed the cash flow
with respect thereto in some or all periods and intends to pay such taxes as
they become due. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check one of the following:
|_| The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on such
Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
|_| The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from the
Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer, the Transferee
had gross assets for financial reporting purposes (excluding any obligation of a
person related to the Transferee within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in excess
of $10 million;
(iii) the Transferee will transfer the Certificate only to another
"eligible corporation," as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements Sections
1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5) of the U.S.
Treasury Regulations; and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions (including, but
not limited to, borrowing and investment rates, prepayment and loss assumptions,
expense and reinvestment assumptions, tax rates and other factors specific to
the Transferee) that it has determined in good faith.
|_| None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any federal, state or local law that is substantially similar to
Title I of ERISA or Section 4975 of the Code, and the Transferee is not acting
on behalf of or investing plan assets of such a plan.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this ___ day of ______________, 20__.
_________________________________________
Print Name of Transferee
By:______________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
____________________________________
[Assistant] Secretary
Personally appeared before me the above-named __________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ___________ of the Transferee, and acknowledged that he executed the same
as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this __ day of ______________, 20__.
________________________________
NOTARY PUBLIC
My Commission expires the __ day
of _________, 20__
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: GSAA Home Equity Trust 2005-3, Asset-Backed Certificates Series
2005-3, Class ___
---------------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (C) we have no
reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
_________________________________________
Print Name of Transferor
By:____________________________________
Authorized Officer
EXHIBIT I
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: GSAA Home Equity Trust 2005-3, Asset-Backed Certificates, Series
2005-3, Class _[__]__
----------------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either we are purchasing a Class A-1 Certificate,
Class A-2 Certificate, Class A-3 Certificate, Class M-1 Certificate, Class M-2
Certificate, a Class B-1 Certificate, Class B-2 Certificate or a Class B-3
Certificate, or we are not an employee benefit plan that is subject to Title I
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
a plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), or a plan subject to any federal, state
or local law materially similar to the foregoing provisions of ERISA or the
Code, nor are we acting on behalf of any such plan or arrangement nor using the
assets of any such plan or arrangement to effect such acquisition or, with
respect to a Class X Certificate, the purchaser is an insurance company that is
purchasing this certificate with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificates are covered under Sections I and III of PTCE 95-60,
(e) we have not, nor has anyone acting on our behalf offered, transferred,
pledged, sold or otherwise disposed of the Certificates, any interest in the
Certificates or any other similar security to, or solicited any offer to buy or
accept a transfer, pledge or other disposition of the Certificates, any interest
in the Certificates or any other similar security from, or otherwise approached
or negotiated with respect to the Certificates, any interest in the Certificates
or any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the Certificates
under the Securities Act or that would render the disposition of the
Certificates a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will act, nor has authorized or will
authorize any person to act, in such manner with respect to the Certificates and
(f) we are a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act and have completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. We are aware
that the sale to us is being made in reliance on Rule 144A. We are acquiring the
Certificates for our own account or for resale pursuant to Rule 144A and
further, understand that such Certificates may be resold, pledged or transferred
only (i) to a person reasonably believed to be a qualified institutional buyer
that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or transfer
is being made in reliance on Rule 144A, or (ii) pursuant to another exemption
from registration under the Securities Act.
ANNEX 1 TO EXHIBIT I
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $_________[1] in securities (except for
the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
--------
[1] Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
____ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or charitable organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of Columbia,
the business of which is substantially confined to banking and is supervised by
the State or territorial banking commission or similar official or is a foreign
bank or equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements, a copy of
which is attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined by a State
or Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
____ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is subject to
supervision by the insurance commissioner or a similar official or agency of a
State, territory or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the benefit of
its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
________________________________________
Print Name of Transferee
By:_____________________________________
Name:
Title:
Date:___________________________________
ANNEX 2 TO EXHIBIT I
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
____ The Buyer owned $___________ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies that
owned in the aggregate $___________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
________________________________________
Print Name of Transferee
By:_____________________________________
Name:
Title:
IF AN ADVISER:
________________________________________
Print Name of Buyer
Date:___________________________________
EXHIBIT J
FORM CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
GSAA Home Equity Trust 2005-3 (the "Trust")
Asset-Backed Certificates
Series 2005-3
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K (the "Annual Report"), and
all reports on Form 8-K containing distribution reports (collectively with
this Annual Report, the "Reports") filed in respect of periods included in
the year covered by this Annual Report of the Trust;
2. Based on my knowledge, the information in the Reports taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this Annual Report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to the Securities Administrator by the Servicer under the
Master Seller's Warranties and Servicing Agreement for inclusion in the
Reports is included in the Reports;
4. Based on my knowledge and upon the annual compliance statement included in
this Annual Report and required to be delivered to the Securities
Administrator in accordance with the terms of the Master Seller's
Warranties and Servicing Agreement, and except as disclosed in the
Reports, the Servicer has fulfilled its obligations under the Master
Seller's Warranties and Servicing Agreement; and
5. The Reports disclose all significant deficiencies relating to the
Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a
review in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar procedure, as set forth in the Master Seller's
Warranties and Servicing Agreement, that is included in the Reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: the Securities
Administrator and the Servicer.
Date: _________________________
_______________________________
[Signature]
[Title]
EXHIBIT K
FORM OF SECURITIES ADMINISTRATOR CERTIFICATION TO BE PROVIDED
TO DEPOSITOR
Re: GSAA Home Equity Trust 2005-3 (the "Trust") Asset-Backed
Certificates Series 2005-3, issued pursuant to the Trust Agreement,
dated as of February 1, 2005 (the "Trust Agreement"), among GS
Mortgage Securities Corp., as depositor (the "Depositor") and
Deutsche Bank National Trust Company, as custodian, ▇▇▇▇▇ Fargo,
N.A., as Securities Administrator and HSBC Bank USA, National
Association, as Trustee
-------------------------------------------------------------------
I, [identify the certifying individual], a [title] of ▇▇▇▇▇ Fargo
Bank, N.A., certify to the Depositor and its officers, directors and affiliates,
and with the knowledge and intent that they will rely upon this certification,
that:
1. I have reviewed the annual report on Form 10-K (the "Annual
Report") for the fiscal year [___], and all reports on Form
8-K containing distribution reports filed in respect of
periods included in the year covered by the Annual Report
(collectively with the Annual Report, the "Reports"), of the
Trust;
2. Based on my knowledge, the information in the Reports, taken
as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under
which such statements were made, not misleading as of the last
day of the period covered by the Annual Report; and
3. Based on my knowledge, the distribution or servicing
information required to be provided to the Securities
Administrator by ▇▇▇▇▇ Fargo Bank, N.A., as Servicer, under
the Master Seller's Warranties and Servicing Agreement for
inclusion in the Reports is included in the Reports.
Date: _________________________
_______________________________
[Signature]
[Title]
▇▇▇▇▇ FARGO BANK, N.A.
By:__________________________________
Name:
Title:
EXHIBIT L
MASTER SELLER'S WARRANTIES AND SERVICING AGREEMENT, DATED AS OF
AUGUST 1, 2004, BETWEEN ▇▇▇▇▇ FARGO BANK, N.A.
AND ▇▇▇▇▇▇▇ SACHS MORTGAGE COMPANY
EXECUTION COPY
--------------
-------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY
Purchaser
and
▇▇▇▇▇ FARGO BANK, N.A.
Company
-------------------------------------------
MASTER SELLER'S WARRANTIES AND SERVICING AGREEMENT
Dated as of August 1, 2004
-------------------------------------------
Fixed Rate and Adjustable Rate Residential Mortgage Loans
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
POSSESSION OF MORTGAGE FILES;
BOOKS AND RECORDS;
DELIVERY OF DOCUMENTS
Section 2.1 Conveyance of Mortgage Loans; Possession of Mortgage
Files; Maintenance of Servicing Files............................
Section 2.2 Books and Records; Transfers of Mortgage Loans...................
Section 2.3 Delivery of Documents............................................
Section 2.4 Mortgage Schedule................................................
Section 2.5 Examination of Mortgage Files....................................
Section 2.6 Representations, Warranties and Agreements of the Company........
Section 2.7 Representation, Warranties and Agreement of Purchaser............
Section 2.8 Closing..........................................................
Section 2.9 Closing Documents................................................
ARTICLE III
REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH
Section 3.1 Company Representations and Warranties...........................
Section 3.2 Representations and Warranties Regarding Individual Mortgage
Loans............................................................
Section 3.3 Repurchase.......................................................
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.1 Company to Act as Servicer......................................
Section 4.2 Liquidation of Mortgage Loans...................................
Section 4.3 Collection of Mortgage Loan Payments............................
Section 4.4 Establishment of and Deposits to Custodial Account..............
Section 4.5 Permitted Withdrawals From Custodial Account....................
Section 4.6 Establishment of and Deposits to Escrow Account.................
Section 4.7 Permitted Withdrawals From Escrow Account.......................
Section 4.8 Payment of Taxes, Insurance and Other Charges...................
Section 4.9 Protection of Accounts..........................................
Section 4.10 Maintenance of Hazard Insurance ................................
Section 4.11 Maintenance of Primary Mortgage Insurance Policy; Claims .......
Section 4.12 Maintenance of Mortgage Impairment Insurance ...................
Section 4.13 Maintenance of Fidelity Bond and Errors and Omissions Insurance.
Section 4.14 Inspections ....................................................
Section 4.15 Restoration of Mortgaged Property ..............................
Section 4.16 Claims .........................................................
Section 4.17 Title, Management and Disposition of REO Property ..............
Section 4.18 Real Estate Owned Reports ......................................
Section 4.19 Liquidation Reports ............................................
Section 4.20 Reports of Foreclosures and Abandonments of Mortgaged Property .
Section 4.21 Fair Credit Reporting Act ......................................
ARTICLE V
PAYMENTS TO PURCHASER
Section 5.1 Remittances.....................................................
Section 5.2 Statements to Purchaser.........................................
Section 5.3 Monthly Advances by Company.....................................
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.1 Transfers of Mortgaged Property.................................
Section 6.2 Satisfaction of Mortgages and Release of Mortgage Files.........
Section 6.3 Servicing Compensation..........................................
Section 6.4 Annual Statement as to Compliance...............................
Section 6.5 Annual Independent Public Accountants' Servicing
Report..........................................................
Section 6.6 Right to Examine Company Records................................
Section 6.7 Compliance with REMIC Provisions................................
ARTICLE VII
COMPANY TO COOPERATE
Section 7.1 Provision of Information........................................
Section 7.2 Financial Statements; Servicing Facility........................
ARTICLE VIII
THE COMPANY
Section 8.1 Indemnification; Third Party Claims.............................
Section 8.2 Merger or Consolidation of the Company..........................
Section 8.3 Limitation on Liability of Company and Others...................
Section 8.4 Limitation on Resignation and Assignment by Company.............
ARTICLE IX
PASS-THROUGH TRANSFER
Section 9.1 Removal of Mortgage Loans from Inclusion Under this
Agreement Upon a Pass-Through Transfer..........................
ARTICLE X
DEFAULT
Section 10.1 Events of Default ...........................................
Section 10.2 Waiver of Defaults ..........................................
ARTICLE XI
TERMINATION
Section 11.1 Termination ................................................
Section 11.2 Termination Without Cause ..................................
Section 11.3 Termination With Cause .....................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1 Successor to Company ...................................
Section 12.2 Amendment ..............................................
Section 12.3 Governing Law ..........................................
Section 12.4 Duration of Agreement ..................................
Section 12.5 Notices ................................................
Section 12.6 Relationship of Parties ................................
Section 12.7 Execution; Successors and Assigns ......................
Section 12.8 Recordation of Assignments of Mortgage .................
Section 12.9 Assignment by Purchaser ................................
Section 12.10 Solicitation of Mortgagor ..............................
EXHIBITS
Exhibit A Form of Assignment and Conveyance Agreement
Exhibit A-1 Data File Elements
Exhibit B Contents of Each Mortgage Loan File
Exhibit C Form of Custodial Agreement
Exhibit D Form of Opinion of Counsel
Exhibit E Items to Be Included in Monthly Remittance Advice
Exhibit F Form of Assignment and Assumption Agreement
Exhibit G Form of Seller's Officer's Certificate
Exhibit H Form of Annual Certification
This is a Master Seller's Warranties and Servicing Agreement for fixed
rate and adjustable rate residential first mortgage loans, dated and effective
as of August 1, 2004, and is executed between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, as
purchaser (the "Purchaser"), and ▇▇▇▇▇ Fargo Bank, N.A., as seller and servicer
(the "Company").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Purchaser desires to purchase from time to time from the
Company and the Company desires to sell from time to time to the Purchaser
certain first-lien, fixed rate and adjustable rate residential mortgage loans
(the "Mortgage Loans") which shall be delivered in pools of whole loans (each, a
"Mortgage Loan Package") on various dates as provided herein (each, a "Closing
Date");
WHEREAS, each of the Mortgage Loans is secured by a mortgage, deed of
trust or other security instrument creating a first lien on a one-to-four family
residential dwelling located in the jurisdiction indicated on the Mortgage Loan
Schedule for the related Mortgage Loan; and
WHEREAS, the Purchaser and the Company wish to prescribe the manner of
purchase of the Mortgage Loans and the conveyance, servicing and control of the
Mortgage Loans;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Purchaser and the Company agree as
follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the content
otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan, those
customary mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan purchased
pursuant to this Agreement.
Agreement: This Seller's Warranties and Servicing Agreement and all
exhibits hereto, amendments hereof and supplements hereto.
ALTA: The American Land Title Association or any successor thereto.
Applicable Law: All provisions of statutes, rules and regulations,
interpretations and orders of governmental bodies or regulatory agencies
applicable to a Person, and all orders and decrees of all courts and arbitrators
in proceedings or actions in which the Person in question is a party.
Appraised Value: With respect to any Mortgage Loan, the lesser of (i) the
value set forth on the appraisal made in connection with the origination of the
related Mortgage Loan as the value of the related Mortgage Property, or (ii) the
purchase price paid for the Mortgage Property, provided, however, in the case of
a refinanced Mortgage Loan, such value shall be based solely on the appraisal
made in connection with the refinance of such Mortgage Loan.
Assignment of Mortgage or Assignment: An assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to reflect the sale of the Mortgage to the Purchaser or its designated assignee,
of if the related Mortgage has been recorded in the name of MERS or its
designee, such actions as are necessary to cause the Purchaser to be shown as
the owner of the related Mortgage on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages maintained by
MERS.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a day
on which banking and savings and loan institutions in the states where the
parties are located are authorized or obligated by law or executive order to be
closed.
Closing Date: The date or dates on which the Purchaser from time to time
shall purchase and the Company from time to time shall sell the Mortgage Loans
listed on the related Mortgage Loan Schedule with respect to the related
Mortgage Loan Package.
Code: The Internal Revenue Code of 1986, as it may be amended from time to
time or any successor statute thereto, and applicable U.S. Department of the
Treasury regulations issued pursuant thereto.
Company: ▇▇▇▇▇ Fargo Bank, N.A., or its successor in interest or
assigns, or any successor to the Company under this Agreement appointed as
herein provided.
Company Certification: The certification delivered by the Company in a
form substantially similar to Exhibit H of this Agreement.
Company Employees: The meaning assigned to such term in Section 4.13.
Condemnation Proceeds: All awards or settlements in respect of a Mortgaged
Property, whether permanent or temporary, partial or entire, by exercise of the
power of eminent domain or condemnation, to the extent not required to be
released to a Mortgagor in accordance with the terms of the related Mortgage
Loan Documents.
Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage Loan
purchased pursuant to this Agreement which contains a provision whereby the
Mortgagor is permitted to convert the Adjustable Rate Mortgage Loan to a Fixed
Rate Mortgage Loan in accordance with the terms of the related Mortgage Note.
Covered Loan: A Mortgage Loan categorized as "Covered" pursuant to the
Standard & Poor's Glossary for File Format for LEVELS(R) Version 5.6, Appendix
E, as revised from time to time and in effect on each related Closing Date.
Custodial Account: The separate account or accounts created and maintained
pursuant to Section 4.4.
Custodial Agreement: The agreement governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents if applicable, a form of which is annexed hereto as
Exhibit C.
Custodial Mortgage File: The items pertaining to a particular Mortgage
Loan referred to in items (1), (2), (3) and (4) of Exhibit B annexed hereto, and
any additional documents required to be added to the Custodial Mortgage File
pursuant to this Agreement that have been delivered to the Custodian as of the
related Closing Date.
Custodian: The custodian under the Custodial Agreement, or its successor
in interest or assigns, or any successor to the Custodian under the Custodial
Agreement as provided therein.
Cut-off Date: The date or dates designated as such on the related Mortgage
Loan Schedule with respect to the related Mortgage Loan Package.
Data File: The electronic data file prepared by Company and delivered to
the Purchaser including the data fields set forth on Exhibit A-1 with respect to
each Mortgage Loan.
Determination Date: The day preceding the Remittance Date, or if such day
is not a Business Day, the preceding Business Day.
Due Date: The first day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to each Remittance Date, the period commencing on
the second day of the month preceding the month in which such Remittance Date
occurs and ending on (and including) the first day of the month in which such
Remittance Date occurs.
Errors and Omissions Insurance Policy: An errors and omissions insurance
policy to be maintained by the Company pursuant to Section 4.12.
Escrow Account: The separate account or accounts created and maintained
pursuant to Section 4.6.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other related
document.
Event of Default: Any one of the conditions or circumstances enumerated in
Section 10.1.
Exchange Act: The Securities Exchange Act of 1934, as amended.
▇▇▇▇▇▇ ▇▇▇: ▇▇▇▇▇▇ ▇▇▇, and its successors.
FDIC: The Federal Deposit Insurance Corporation, and its successors.
Fidelity Bond: A fidelity bond to be maintained by the Company
pursuant to Section 4.12.
First Remittance Date: The date or dates designated as such on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan Package.
▇▇▇▇▇▇▇ Mac: ▇▇▇▇▇▇▇ Mac, and its successors.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased
pursuant to this Agreement.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan, the
fixed percentage amount set forth in the related Mortgage Note which amount is
added to the Index in accordance with the terms of the related Mortgage Note to
determine on each Interest Rate Adjustment Date the Mortgage Interest Rate for
such Mortgage Loan.
High Cost Loan: A Mortgage Loan classified as (a) a "high cost" loan under
the Home Ownership and Equity Protection Act of 1994, (b) a "high cost home,"
"threshold," "covered," (excluding New Jersey "Covered Home Loans" as that term
is defined in clause (1) of the definition of that term in the New Jersey Home
Ownership Security Act of 2002), "high risk home," "predatory" or similar loan
under any other applicable state, federal or local law or (c) a Mortgage Loan
categorized as "High Cost" pursuant to the Standard & Poor's Glossary for File
Format for LEVELS(R) Version 5.6, Appendix E, as revised from time to time and
in effect on each related Closing Date.
Home Loan: A Mortgage Loan categorized as "Home Loan" pursuant to the
Standard & Poor's Glossary for File Format for LEVELS(R) Version 5.6, Appendix
E, as revised from time to time and in effect on each related Closing Date.
Index: With respect to each Adjustable Rate Mortgage Loan, a rate per
annum set forth in the related loan documents.
Interim Funder: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS(R) System as the interim funder pursuant to the MERS
Procedures Manual.
Insurance Proceeds: Proceeds of any mortgage 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 Company would follow in servicing mortgage loans held for
its own account.
Interest Only Mortgage Loan: A Mortgage Loan for which an interest-only
payment feature is allowed during the period prior to the first Interest Rate
Adjustment Date.
Interest Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the Mortgage
Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Investor: With respect to each MERS Mortgage Loan, the Person named on the
MERS System as the investor pursuant to the MERS Procedures Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the amount per annum set forth on the Mortgage Loan Schedule.
Liquidation Proceeds: Cash (other than Insurance Proceeds or Condemnation
Proceeds) received in connection with the liquidation of a defaulted Mortgage
Loan, whether through the sale or assignment of such Mortgage Loan, trustee's
sale, foreclosure sale, sale of REO Property, or otherwise, or the sale of the
related Mortgaged Property if the Mortgaged Property is acquired in satisfaction
of the Mortgage Loan.
Loan-to-Value Ratio: With respect to any Mortgage Loan, the ratio of the
original loan amount of the Mortgage Loan at its origination or refinancing, as
applicable, to the Appraised Value of the Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS Procedure Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS System: The system of recording transfers of mortgages electronically
maintained by MERS.
MERS Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
MIN: The Mortgage Identification Number for any MERS Mortgage Loan.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Monthly Advance: The portion of each Monthly Payment that is delinquent
with respect to each Mortgage Loan at the close of business on the Determination
Date required to be advanced by the Company pursuant to Section 5.3 on the
Business Day immediately preceding the Remittance Date of the related month.
Monthly Payment: The scheduled monthly payment of principal and interest,
or in the case of an Interest Only Mortgage Loan, payments of interest on a
Mortgage Loan.
Monthly Remittance Advice: The meaning assigned to such term in Section
5.2.
Mortgage: The mortgage, deed of trust or other instrument and riders
thereto securing a Mortgage Note, which creates a first lien on an
unsubordinated estate in fee simple in real property securing the Mortgage Note.
Mortgage Interest Rate: The annual rate of interest borne on a Mortgage
Note in accordance with the provisions of the Mortgage Note.
Mortgage Interest Rate Cap: With respect to an Adjustable Rate Mortgage
Loan, the limit on each Mortgage Interest Rate adjustment as set forth in the
related Mortgage Note.
Mortgage Loan: An individual mortgage loan which is the subject of this
Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the related Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Retained Mortgage File, the Custodial Mortgage
File, the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan.
Mortgage Loan Documents: With respect to a Mortgage Loan, the original
related Mortgage Note with applicable addenda and riders, the original related
security instrument and the originals of any required addenda and riders, the
original related Assignment and any original intervening related Assignments,
the original related title insurance policy, and the related appraisal report.
Mortgage Loan Package: Each pool of Mortgage Loans, which shall be
purchased by the Purchaser from the Company from time to time on each Closing
Date.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan, the
annual rate of interest remitted to the Purchaser, which shall be equal to the
Mortgage Interest Rate minus the Servicing Fee Rate.
Mortgage Loan Schedule: A schedule of Mortgage Loans included in each
Mortgage Loan Package, such schedule setting forth the following information
with respect to each Mortgage Loan: (1) the Company's Mortgage Loan number; (2)
the address, city, state and zip code of the Mortgaged Property; (3) a code
indicating whether the Mortgaged Property is a single family residence,
two-family residence, three-family residence, four-family residence, planned
unit development; (4) the Gross Margin; (5) the current Mortgage Interest Rate;
(6) the Servicing Fee Rate; (7) the current Monthly Payment; (8) the original
term to maturity; (9) the scheduled maturity date (and, if different, the stated
maturity date indicated on the Mortgage Note on its date of origination); (10)
the principal balance of the Mortgage Loan as of the related Cut-off Date after
deduction of payments of principal due on or before the related Cut-off Date
whether or not collected; (11) the Loan-to-Value Ratio; (12) the Interest Rate
Adjustment Date; (13) the Lifetime Rate Cap under the terms of the Mortgage
Note; (14) whether the Mortgage Loan is convertible or not; (15) a code
indicating the mortgage guaranty insurance company and (16) a field indicating
whether the Mortgage Loan is a Home Loan.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage and riders thereto.
Mortgaged Property: The real property securing repayment of the debt
evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Officer's Certificate: A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President, a Vice President, an Assistant
Vice President, the Treasurer, the Secretary or one of the Assistant Treasurers
or Assistant Secretaries of the Company, and delivered to the Purchaser as
required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an employee
of the Company, reasonably acceptable to the Purchaser.
Pass-Through Transfer: The sale or transfer of some or all of the Mortgage
Loans by the Purchaser to a trust to be formed as part of a publicly issued or
privately placed mortgage-backed securities transaction.
Periodic Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum amount by
which the Mortgage Interest Rate therein may increase or decrease on an Interest
Rate Adjustment Date above or below the Mortgage Interest Rate previously in
effect. The Periodic Rate Cap for each Adjustable Rate Mortgage Loan is the rate
set forth on the Mortgage Loan Schedule.
Periodic Rate Floor: With respect to each Adjustable Rate Mortgage Loan,
the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may decrease on an Interest
Rate Adjustment Date below the Mortgage Interest Rate previously in effect. The
Periodic Rate Floor for each Adjustable Rate Mortgage Loan is the rate set forth
on the Mortgage Loan Schedule.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
insurance represented to be in effect pursuant to Section 3.2(xxxii), or any
replacement policy therefor obtained by the Servicer pursuant to Section 4.8.
Prime Rate: The prime rate announced to be in effect from time to time, as
published as the average rate in The Wall Street Journal.
Principal Balance: As to each Mortgage Loan, (i) the actual outstanding
principal balance of the Mortgage Loan at the related Cut-off Date after giving
effect to payments of principal due on or before such date, whether or not
received, minus (ii) all amounts attributable to principal collected from or on
behalf of the Mortgagor, including the principal portion of Liquidation
Proceeds, Condemnation Proceeds, and Insurance Proceeds.
Principal Prepayment: Any payment or other recovery of principal on a
Mortgage Loan which is received in advance of its scheduled Due Date, including
any prepayment penalty or premium thereon and which is not accompanied by an
amount of interest representing scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment.
Principal Prepayment Period: With respect to each Remittance Date, the
period commencing on the first day of the month preceding the month in which
such Remittance Date occurs, and ending on the last day of such month.
Purchase Price: The purchase price for a Mortgage Loan Package specified
in the related Purchase Price and Terms Letter.
Purchase Price and Terms Letter: Those certain agreements setting forth
the general terms and conditions of the transaction consummated herein and
identifying the Mortgage Loans to be purchased from time to time hereunder,
between the Company and the Purchaser.
Purchaser: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, or its successor in interest or
any successor to the Purchaser under this Agreement as herein provided.
Qualification Defect: With respect to a Mortgage Loan, (a) a defective
document in the Retained Mortgage File or Custodial Mortgage File, (b) the
absence of a document in the Retained Mortgage File or Custodial Mortgage File,
or (c) the breach of any representation, warranty or covenant with respect to
the Mortgage Loan made by the Company, but, in each case, only if the affected
Mortgage Loan would cease to qualify as a "qualified mortgage" for purposes of
the REMIC Provisions.
Qualified Depository: A federal or state chartered depository institution,
the deposits in which are insured by the FDIC to the applicable limits and the
short-term unsecured debt obligations of which (or, in the case of a depository
institution that is a subsidiary of a holding company, the short-term unsecured
debt obligations of such holding company) are rated A-1 by Standard & Poor's
Ratings Group and Prime-1 by ▇▇▇▇▇'▇ Investors Service, Inc. (or a comparable
rating if another rating agency is specified by the Purchaser by written notice
to the Company) at the time any deposits are held on deposit therein; provided
however, that in the event any of the Mortgage Loans are subject to a
Pass-Through Transfer, the Company agrees that the holding company or other
entity which maintains any accounts subject to this definition, shall satisfy
the rating requirements established by any Rating Agency which rates securities
issued as part of the Pass-Through Transfer.
Qualified Insurer: A mortgage guaranty insurance company duly authorized
and licensed where required by law to transact mortgage guaranty insurance
business and approved as an insurer by ▇▇▇▇▇▇ ▇▇▇.
Rating Agency: ▇▇▇▇▇'▇ Investors Service, Inc., Standard & Poor's Ratings
Group, division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Fitch, Inc (doing business as
"Fitch Ratings"), or any other nationally recognized statistical credit rating
agency rating any security issued in connection with any Pass-Through Transfer.
Rating Agency Delivery Event: The meaning specified in Section 9.1(h) of
this Agreement.
Reconstitution Date: The date on which any or all of the Mortgage Loans
serviced under this Agreement shall be reconstituted as part of a Pass-Through
Transfer or Whole Loan Transfer pursuant to Section 9.1 hereof. The
Reconstitution Date shall be such date the Purchaser shall designate in writing
to the Company.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to a
REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter 1,
Subtitle A of the Code, and related provisions, regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance Advice Date: The 10th Business Day of each month.
Remittance Date: The 18th day (or if such 18th day is not a Business Day,
the first Business Day immediately preceding such date) of any month, beginning
with the First Remittance Date.
REO Disposition: The final sale by the Company of any REO Property.
REO Disposition Proceeds: All amounts received with respect to an REO
Disposition pursuant to Section 4.16.
REO Property: A Mortgaged Property acquired by the Company on behalf of
the Purchaser through foreclosure or by deed in lieu of foreclosure, as
described in Section 4.16.
Repurchase Price: Unless agreed otherwise by the Purchaser and the Company
(including without limitation as set forth in the related Purchase Price and
Terms Letter), a price equal to (i) the Scheduled Principal Balance of the
Mortgage Loan plus (ii) interest on such Scheduled Principal Balance at the
Mortgage Loan Remittance Rate from the date on which interest has last been paid
and distributed to the Purchaser to the last day of the month of repurchase less
amounts received or advanced in respect of such repurchased Mortgage Loan which
are being held in the Custodial Account for distribution in the month of
repurchase, to the extent such amounts are actually paid to the Purchaser upon
the repurchase of the related Mortgage Loan, plus (iii) any costs and damages,
including reasonable attorneys' fees and costs, incurred by the trust in the
applicable Pass-Through Transfer in connection with any violation by the
Mortgage Loan of any predatory or abusive lending law.
Retained Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in items (5), (6), (7) and (8) of Exhibit B annexed hereto, and any
additional documents required to be added to the Retained Mortgage File pursuant
to this Agreement, which items are retained in the possession of the Company.
Scheduled Principal Balance: As to each Mortgage Loan and as of any date
of determination, (i) the principal balance of the Mortgage Loan at the related
Cut-off Date after giving effect to payments of principal due on or before such
date, whether or not received, minus (ii) all amounts previously collected by
the Company as servicer hereunder or advanced and distributed to the Purchaser
with respect to the related Mortgage Loan representing payments or recoveries of
principal or advances made in lieu thereof.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses other than Monthly Advances (including reasonable
attorney's fees and disbursements) incurred in the performance by the Company of
its servicing obligations, including, but not limited to, the cost of (a) the
preservation, restoration and protection of the Mortgaged Property, (b) any
enforcement or judicial proceedings, including foreclosures, (c) the management
and liquidation of any REO Property and (d) compliance with the obligations
under Section 4.8.
Servicing Fee: With respect to each Mortgage Loan, the amount of the per
annum fee the Purchaser shall pay to the Company, which shall, for a period of
one full month, be equal to one-twelfth of the product of (a) the Servicing Fee
Rate and (b) the Scheduled Principal Balance of such Mortgage Loan. Such fee
shall be payable monthly, computed on the basis of the same principal amount and
same period for which any related interest payment on a Mortgage Loan is
computed. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds, to the
extent permitted by Section 4.5) of such Monthly Payment collected by the
Company, or as otherwise provided under Section 4.5.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per annum
set forth in the related Purchase Price and Terms Letter.
Servicing File: With respect to each Mortgage Loan, the file retained by
the Company consisting of originals of all documents in the Retained Mortgage
File which are not delivered to the Custodian and copies of the Mortgage Loan
Documents listed in the Custodial Agreement the originals of which are delivered
to the Custodian pursuant to Section 2.3.
Servicing Officer: Any officer of the Company involved in or responsible
for the administration and servicing of the Mortgage Loans whose name appears on
a list of servicing officers furnished by the Company to the Purchaser upon
request, as such list may from time to time be amended.
Time$aver(R) Mortgage Loan: A Mortgage Loan which has been refinanced
pursuant to a Company program that allows a rate/term refinance of an existing
Company-serviced loan with minimal documentation.
Whole Loan Transfer: Any sale or transfer of some or all of the Mortgage
Loans by the Purchaser to a third party, which sale or transfer is not a
Pass-Through Transfer.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES; BOOKS AND
RECORDS; DELIVERY OF DOCUMENTS
Section 2.1 Conveyance of Mortgage Loans; Possession of Mortgage Files;
Maintenance of Servicing Files.
The Company, simultaneously with the delivery of the Mortgage Loan
Schedule with respect to the related Mortgage Loan Package to be purchased on
each Closing Date, shall execute and deliver an Assignment and Conveyance
Agreement in the form attached hereto as Exhibit A (the "Assignment and
Conveyance Agreement").
The Company, simultaneously with the execution and delivery of each
Assignment and Conveyance Agreement, shall sell, transfer, assign, set over and
convey to the Purchaser, without recourse, but subject to the terms of this
Agreement, all the right, title and interest of the Company in and to the
Mortgage Loans, including all interest and principal received by the Company on
or with respect to the related Mortgage Loans after the related Cut-off Date
(and including Monthly Payments due after the related Cut-off Date but received
by the Company on or before the related Cut-off Date, but not including payments
of principal and interest due on the Mortgage Loans on or before the related
Cut-off Date).
The principal balance of each Mortgage Loan as of the related Cut-off Date
shall be determined after application of payments of principal due on or before
the related Cut-off Date whether or not collected. Therefore, payments of
scheduled principal and interest prepaid for a Due Date beyond the related
Cut-off Date shall not be applied to the principal balance as of the related
Cut-off Date. Such prepaid amounts (minus interest at the Servicing Fee Rate)
shall be the property of the Purchaser. The Company shall deposit any such
prepaid amounts into the Custodial Account, which account is established for the
benefit of the Purchaser for subsequent remittance by the Company to the
Purchaser, and shall remit such amounts as provided in Section 5.1.
With respect to each Closing Date and pursuant to Section 2.3, the Company
shall deliver the Custodial Mortgage File to the Custodian. The Retained
Mortgage File for each Mortgage Loan shall be held in trust by the Company for
the benefit of the Purchaser as the owner thereof. Additionally and separate to
the Retained Mortgage File, the Company shall maintain a Servicing File
consisting of a copy of the contents of the Custodial Mortgage File and the
Retained Mortgage File. The possession of each Retained Mortgage File by the
Company shall be at the will of the Purchaser, and such retention and possession
by the Company shall be in a custodial capacity only. The possession of each
Servicing File by the Company shall be at the will of the Purchaser for the sole
purpose of servicing the related Mortgage Loan, and such retention and
possession by the Company shall be in a custodial capacity only. Upon the sale
of the Mortgage Loans the ownership of each Mortgage Note, the related Mortgage
and the related Custodial Mortgage File, Retained Mortgage File and Servicing
File shall vest immediately in the Purchaser, and the ownership of all records
and documents with respect to the related Mortgage Loan prepared by or which
come into the possession of the Company shall vest immediately in the Purchaser
and shall be retained and maintained by the Company, in trust, at the will of
the Purchaser and only in such custodial capacity. The Company shall release its
custody of the contents of any Retained Mortgage File and Servicing File only in
accordance with written instructions from the Purchaser, unless such release is
required as incidental to the Company's servicing of the Mortgage Loans, in the
case of the Servicing File, or is in connection with a repurchase of any
Mortgage Loan pursuant to Sections 2.03, 3.3 or 6.2.
In addition, in connection with the assignment of any MERS Mortgage Loan,
the Company agrees that it will cause, at its own expense, the MERS(R) System to
indicate that such Mortgage Loans have been assigned by the Company to the
Purchaser in accordance with this Agreement by including (or deleting, in the
case of Mortgage Loans which are repurchased in accordance with this Agreement)
in such computer files the information required by the MERS(R) System to
identify the Purchaser of such Mortgage Loans. Prior to the assignment of any
MERS Mortgage Loan, the Purchaser will provide the Company with Purchaser's MERS
registration number. The Company further agrees that it will not alter the
information referenced in this paragraph with respect to any Mortgage Loan
during the term of this Agreement unless and until such Mortgage Loan is
repurchased in accordance with the terms of this Agreement.
Section 2.2 Books and Records; Transfers of Mortgage Loans.
From and after the sale of the Mortgage Loans to the Purchaser all rights
arising out of the Mortgage Loans including but not limited to all funds
received on or in connection with the Mortgage Loans, shall be received and held
by the Company in trust for the benefit of the Purchaser as owner of the
Mortgage Loans, and the Company shall retain record title to the related
Mortgages for the sole purpose of facilitating the servicing and the supervision
of the servicing of the Mortgage Loans.
The sale of each Mortgage Loan shall be reflected on the Company's balance
sheet and other financial statements as a sale of assets by the Company. The
Company shall be responsible for maintaining, and shall maintain, a complete set
of books and records for each Mortgage Loan which shall be marked clearly to
reflect the ownership of each Mortgage Loan by the Purchaser. In particular, the
Company shall maintain in its possession, available for inspection by the
Purchaser, or its designee, and shall deliver to the Purchaser upon demand,
evidence of compliance with all federal, state and local laws, rules and
regulations, and requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, including but not
limited to documentation as to the method used in determining the applicability
of the provisions of the Flood Disaster Protection Act of 1973, as amended, to
the Mortgaged Property, documentation evidencing insurance coverage and
eligibility of any condominium project for approval by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac, and records of periodic inspections as required by Section 4.13. To the
extent that original documents are not required for purposes of realization of
Liquidation Proceeds or Insurance Proceeds, documents maintained by the Company
may be in the form of microfilm or microfiche or such other reliable means of
recreating original documents, including but not limited to, optical imagery
techniques so long as the Company complies with the requirements of the ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac Selling and Servicing Guide, as amended from time to time.
The Company shall maintain with respect to each Mortgage Loan and shall
make available for inspection by any Purchaser or its designee the related
Servicing File during the time the Purchaser retains ownership of a Mortgage
Loan and thereafter in accordance with Applicable Law.
The Company shall keep at its servicing office books and records in which,
subject to such reasonable regulations as it may prescribe, the Company shall
note transfers of Mortgage Loans. No transfer of a Mortgage Loan may be made
unless such transfer is in compliance with the terms hereof. For the purposes of
this Agreement, the Company shall be under no obligation to deal with any Person
with respect to this Agreement or the Mortgage Loans unless the books and
records show such Person as the owner of the Mortgage Loan. The Purchaser may,
subject to the terms of this Agreement, sell and transfer one or more of the
Mortgage Loans. The Purchaser also shall advise the Company of the transfer.
Upon receipt of notice of the transfer, the Company shall ▇▇▇▇ its books and
records to reflect the ownership of the Mortgage Loans of such assignee, and
shall release the previous Purchaser from its obligations hereunder with respect
to the Mortgage Loans sold or transferred. Such notification of a transfer shall
include a final loan schedule which shall be received by the Company no fewer
than five (5) Business Days before the monthly Determination Date. If such
notification is not received as specified above, the Company's duties to remit
and report to the new purchaser(s) as required by Section 5 shall begin with the
first Determination Date after the Reconstitution Date.
Section 2.3 Delivery of Documents.
Pursuant to the Custodial Agreement delivered to the Purchaser prior to or
contemporaneously with the delivery of this Agreement, the Company shall deliver
and release to the Custodian those Mortgage Loan Documents as required by the
Custodial Agreement and by this Agreement with respect to each Mortgage Loan.
The Custodian shall certify its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement. The
Company will be responsible for the Custodian's fees and expenses with respect
to the delivery and certification of those Mortgage Loan Documents required to
be delivered pursuant to the Custodial Agreement. The Company will be
responsible for the fees and expenses related to the recording of the initial
Assignments of Mortgage (including any fees and expenses related to any
preparation and recording of any intervening or prior assignments of the
Mortgage Loans to the Company or to any prior owners of or mortgagees with
respect to the Mortgage Loans). The Purchaser will be responsible for the
Custodian's fees and expenses with respect to the initial inventory and
maintenance of the Mortgage Loans on or after the related Closing Date,
including the costs associated with clearing exceptions.
Within 180 days after the related Closing Date, the Company shall deliver
to the Custodian each of the documents described in Exhibit B not delivered
pursuant to the Agreement. Upon the occurrence of the events described in
Section 9.1(h), Section 11.2 or Section 11.3 of this Agreement or in the event
the Company fails to allow the Purchaser access to the Retained Mortgage File as
required pursuant to Section 2.5 (each such occurrence, a "Delivery Event"), the
Company shall deliver to the Custodian the additional documents required to be
delivered pursuant to the Custodial Agreement within the time period specified
therein. All of the provisions of this Section 2.3 relating to a failure to
deliver required documentation, delays in such delivery and the delivery of
defective documentation shall apply equally to any obligation on the part of the
Company to deliver documents which arises after the related Closing Date upon
the occurrence of a Delivery Event.
The Company shall pay all initial recording fees for the Assignments of
Mortgage and any other fees in connection with the transfer of all original
documents to the Purchaser or its designee. The Company shall prepare, in
recordable form, all Assignments of Mortgage necessary to assign the Mortgage
Loans to the Purchaser, or its designee. The Company shall be responsible for
recording the Assignments of Mortgage.
The Company shall forward to the Custodian original documents evidencing
an assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 4.1 or 6.1 within one week of their
execution, provided, however, that the Company shall provide the Custodian with
a certified true copy of any such document submitted for recordation within ten
(10) days of its execution, and shall provide the original of any document
submitted for recordation or a copy of such document certified by the
appropriate public recording office to be a true and complete copy of the
original within 60 days of its submission for recordation.
In the event the public recording office is delayed in returning any
original document, which the Company is required to deliver at any time to the
Custodian in accordance with the terms of the Custodial Agreement or which the
Company is required to maintain in the Retained Mortgage File, the Company shall
deliver to the Custodian or to the Retained Mortgage File, as applicable, within
240 days of its submission for recordation, a copy of such document and an
Officer's Certificate, which shall (i) identify the recorded document; (ii)
state that the recorded document has not been delivered to the Custodian due
solely to a delay by the public recording office, (iii) state the amount of time
generally required by the applicable recording office to record and return a
document submitted for recordation, and (iv) specify the date the applicable
recorded document will be delivered to the Custodian. The Company will be
required to deliver the document to the Custodian by the date specified in (iv)
above. An extension of the date specified in (iv) above may be requested from
the Purchaser, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, if the originals or certified copies
required in this Section 2.3 are not delivered as required within 180 days
following the related Closing Date or as otherwise extended as set forth above,
or within the designated time period, following any date subsequent to the
related Closing Date as of which the Company becomes obligated to deliver
additional documents from its Retained Mortgage File pursuant to the Custodial
Agreement, the related Mortgage Loan shall, upon request of the Purchaser, be
repurchased by the Company in accordance with Section 3.3 hereof; provided,
however, that the foregoing repurchase obligation shall not apply in the event
the Company cannot deliver such items due to a delay caused by the recording
office in the applicable jurisdiction; provided that the Company shall deliver
instead a recording receipt of such recording office or, if such recording
receipt is not available, an Officer's Certificate from the Company confirming
that such documents have been accepted for recording. Any such document shall be
delivered to the Purchaser or its designee promptly upon receipt thereof from
the related recording office.
If the Company, the Purchaser or the Custodian finds any document or
documents constituting a part of a Retained Mortgage File or the Custodial
Mortgage File pertaining to a Mortgage Loan to be defective (or missing) in any
material respect (regardless of whether the Company was required to deliver such
document(s) to the Custodian pursuant to this Agreement or whether such
document(s) were to remain in the possession of the Company), and such defect or
missing document materially and adversely affects the value of the related
Mortgage Loan or the interests of the Purchaser therein, the party discovering
such defect shall promptly so notify the Company. The Company shall have a
period of 90 days after receipt of such written notice within which to correct
or cure any such defect. The Company hereby covenants and agrees that, if any
material defect cannot be corrected or cured, the Company will, upon the
expiration of the applicable cure period described above, repurchase the related
Mortgage Loan in the manner set forth in Section 3.3; provided, however, that
with respect to any Mortgage Loan, if such defect constitutes a Qualification
Defect, any such repurchase must take place within 75 days of the date such
defect is discovered.
Notwithstanding the foregoing, with respect to a Mortgage Loan, if, at the
end of such 90-day period, the Company delivers an Officer's Certificate to the
Purchaser certifying that the Company is using good faith efforts to correct or
cure such defect and identifying progress made, then the Purchaser shall grant
the Company an extension to correct or cure such defect. The extension shall not
extend beyond (1) the date that is 75 days after the date the defect is
discovered, or, (2) if the defect is not a Qualification Defect (as evidenced by
an Opinion of Counsel), the date that is 30 days beyond the original 90-day cure
period. If the defect is not a Qualification Defect, additional 30-day
extensions may be obtained pursuant to the same procedure, as long as the
Company demonstrates continued progress toward a correction or cure; provided
that no extension shall be granted beyond 180 days from the date on which the
Company received the original notice of the defect.
Notwithstanding the foregoing, with respect to a Mortgage Loan, the
failure of the Purchaser to notify the Company of any defective or missing
document in either the Retained Mortgage File or Custodial Mortgage File within
such 90-day period, or the failure of the Purchaser to require the Company to
cure or repurchase the related Mortgage Loan upon expiration of such 90-day
period, shall not constitute a waiver of its rights hereunder, including the
rights with respect to a Mortgage Loan, to require the Company to repurchase the
affected Mortgage Loan and the right to indemnification pursuant to Section 3.3
hereof.
Section 2.4 Mortgage Schedule.
The Company shall provide the Purchaser with certain information
constituting a listing of the Mortgage Loans, in each Mortgage Loan Package, to
be purchased under this Agreement (the "Mortgage Loan Schedule"). The Mortgage
Loan Schedule shall conform to the definition of "Mortgage Loan Schedule"
hereunder.
Section 2.5 Examination of Mortgage Files.
Prior to the related Closing Date, the Company shall (a) deliver to the
Purchaser in escrow, for examination, the Custodial Mortgage File for each
Mortgage Loan, including a copy of the Assignment of Mortgage, pertaining to
each Mortgage Loan, or (b) make the Mortgage Files available to the Purchaser
for examination at the Company's offices or such other location as shall
otherwise be agreed upon by the Purchaser and the Company. Such examination may
be made by the Purchaser or by any prospective purchaser of the Mortgage Loans
from the Purchaser, at any time before or after the related Closing Date upon
prior reasonable notice to the Company. The fact that the Purchaser or any
prospective purchaser of the Mortgage Loans has conducted or has failed to
conduct any partial or complete examination of the Custodial Mortgage Files
shall not affect the Purchaser's (or any of its successor's) rights to demand
repurchase, substitution or other relief as provided under this Agreement.
The Company shall make the Retained Mortgage Files available to the
Purchaser for examination at the Company's offices or such other location as
shall otherwise be agreed upon by the Purchaser and the Company. Such
examination may be made by the Purchaser or by any prospective purchaser of the
Mortgage Loans from the Purchaser, at any time before or after the related
Closing Date upon prior reasonable notice to the Company. The fact that the
Purchaser or any prospective purchaser of the Mortgage Loans has conducted or
has failed to conduct any partial or complete examination of the Retained
Mortgage Files shall not affect the Purchaser's (or any of its successor's)
rights to demand repurchase, substitution or other relief as provided under this
Agreement.
Section 2.6 Representations, Warranties and Agreements of the Company.
The Company agrees and acknowledges that it shall, as a condition to the
consummation of the transactions contemplated hereby, make the representations
and warranties specified in Sections 3.1 and 3.2 as of the related Closing Date.
The Company, without conceding that the Mortgage Loans are securities, hereby
makes the following additional representations, warranties and agreements which
shall be deemed to have been made as of the related Closing Date: Neither the
Company nor anyone acting on its behalf has offered, transferred, pledged, sold
or otherwise disposed of any Mortgage Loans, any interest in any Mortgage Loans
or any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of any Mortgage Loans, any interest in any
Mortgage Loans or any other similar security from, or otherwise approached or
negotiated with respect to any Mortgage Loans, any interest in any Mortgage
Loans or any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other manner, or
taken any other action which would constitute a distribution of the Mortgage
Loans under the Securities Act of 1933, as amended (the "1933 Act") or which
would render the disposition of any Mortgage Loans a violation of Section 5 of
the 1933 Act or require registration pursuant thereto, nor will it act, nor has
it authorized or will it authorize any person to act, in such manner with
respect to the Mortgage Loans.
Section 2.7 Representation, Warranties and Agreement of Purchaser.
The Purchaser, without conceding that the Mortgage Loans are securities,
hereby makes the following representations, warranties and agreements, which
shall have been deemed to have been made as of the related Closing Date.
(i) the Purchaser understands that the Mortgage Loans have not been
registered under the 1933 Act or the securities laws of any state;
(ii) the Purchaser is acquiring the Mortgage Loans for its own
account only and not for any other person; and
(iii) the Purchaser considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks
of investment in the Mortgage Loans.
Section 2.8 Closing.
The closing for the purchase and sale of the Mortgage Loans shall take
place on the related Closing Date. At the Purchaser's option, each Closing shall
be either: by telephone, confirmed by letter or wire as the parties shall agree;
or conducted in person, at such place as the parties shall agree.
The closing shall be subject to each of the following conditions:
(i) all of the representations and warranties of the Company under
this Agreement shall be true and correct as of the related Closing Date
and no event shall have occurred which, with notice or the passage of
time, would constitute a default under this Agreement;
(ii) the Purchaser shall have received, or the Purchaser's attorneys
shall have received in escrow, all Closing Documents as specified in
Section 2.9 of this Agreement, in such forms as are agreed upon and
acceptable to the Purchaser, duly executed by all signatories other than
the Purchaser as required pursuant to the respective terms thereof;
(iii) the Company shall have delivered and released to the Custodian
all documents required pursuant to this Agreement and the Custodial
Agreement; and
(iv) all other terms and conditions of this Agreement shall have
been complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Company on the related Closing Date the Purchase Price by wire transfer of
immediately available funds to the account designated by the Company.
Section 2.9 Closing Documents.
The Closing Documents for the Mortgage Loans to be purchased on each
Closing Date shall consist of fully executed originals of the following
documents:
(i) this Agreement (to be executed and delivered only for the
initial Closing Date);
(ii) with respect to the initial Closing Date, the Custodial
Agreement, dated as of the initial Cut-off Date;
(iii) the related Mortgage Loan Schedule, segregated by Mortgage
Loan Package, to be attached to the related Assignment and Conveyance as
the Mortgage Loan Schedule thereto;
(iv) a Custodian's Certification, as required under the Custodial
Agreement;
(v) an officer's certificate of the Company substantially in the
form of Exhibit F attached hereto (with respect to the initial Closing
Date);
(vi) an Opinion of Counsel of the Company, in the form of Exhibit D
hereto (with respect to the initial Closing Date); and
(vii) Assignment and Conveyance Agreement in the form of Exhibit A
hereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH
Section 3.1 Company Representations and Warranties.
The Company hereby represents and warrants to the Purchaser that, as of
the related Closing Date:
(i) Due Organization and Authority.
The Company is a national banking association duly organized, validly
existing and in good standing under the laws of the United States and has
all licenses necessary to carry on its business as now being conducted and
is licensed, qualified and in good standing in each state where a
Mortgaged Property is located if the laws of such state require licensing
or qualification in order to conduct business of the type conducted by the
Company, and in any event the Company is in compliance with the laws of
any such state to the extent necessary to ensure the enforceability of the
related Mortgage Loan and the servicing of such Mortgage Loan in
accordance with the terms of this Agreement; the Company has the full
power and authority to execute and deliver this Agreement and to perform
in accordance herewith; the execution, delivery and performance of this
Agreement (including all instruments of transfer to be delivered pursuant
to this Agreement) by the Company and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this Agreement
evidences the valid, binding and enforceable obligation of the Company;
and all requisite action has been taken by the Company to make this
Agreement valid and binding upon the Company in accordance with its terms;
(ii) Ordinary Course of Business.
The consummation of the transactions contemplated by this Agreement are in
the ordinary course of business of the Company, which is in the business
of selling and servicing loans, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Company pursuant
to this Agreement are not subject to the bulk transfer or any similar
statutory provisions in effect in any applicable jurisdiction;
(iii) No Conflicts.
Neither the execution and delivery of this Agreement, the acquisition of
the Mortgage Loans by the Company, the sale of the Mortgage Loans to the
Purchaser or the transactions contemplated hereby, nor the fulfillment of
or compliance with the terms and conditions of this Agreement will
conflict with or result in a breach of any of the terms, articles of
incorporation or by-laws or any legal restriction or any agreement or
instrument to which the Company is now a party or by which it is bound, or
constitute a default or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Company or its property
is subject, or impair the ability of the Purchaser to realize on the
Mortgage Loans, or impair the value of the Mortgage Loans;
(iv) Ability to Service.
The Company is an approved seller/servicer of residential mortgage loans
for ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac, with the facilities, procedures, and
experienced personnel necessary for the sound servicing of mortgage loans
of the same type as the Mortgage Loans. The Company is a HUD approved
mortgagee pursuant to Section 203 of the National Housing Act and is in
good standing to sell mortgage loans to and service mortgage loans for
▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac, and no event has occurred, including but not
limited to a change in insurance coverage, which would make the Company
unable to comply with ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac eligibility requirements
or which would require notification to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(v) Reasonable Servicing Fee.
The Company acknowledges and agrees that the Servicing Fee represents
reasonable compensation for performing such services and that the entire
Servicing Fee shall be treated by the Company, for accounting and tax
purposes, as compensation for the servicing and administration of the
Mortgage Loans pursuant to this Agreement;
(vi) Ability to Perform.
The Company does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant contained in this
Agreement. The Company is solvent and the sale of the Mortgage Loans will
not cause the Company to become insolvent. The sale of the Mortgage Loans
is not undertaken to hinder, delay or defraud any of the Company's
creditors;
(vii) No Litigation Pending.
There is no action, suit, proceeding or investigation pending or
threatened against the Company which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Company, or
in any material impairment of the right or ability of the Company to carry
on its business substantially as now conducted, or in any material
liability on the part of the Company, or which would draw into question
the validity of this Agreement or the Mortgage Loans or of any action
taken or to be contemplated herein, or which would be likely to impair
materially the ability of the Company to perform under the terms of this
Agreement;
(viii) Selection Process
The Mortgage Loans were selected from among the outstanding adjustable
rate one to four family mortgage loans in the Company's mortgage banking
portfolio at the related Closing Date as to which the representations and
warranties in Section 3.2 could be made and such selection was not made in
a manner so as to affect adversely the interests of the Purchaser.
(ix) No Consent Required.
No consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by
the Company of or compliance by the Company with this Agreement or the
sale of the Mortgage Loans as evidenced by the consummation of the
transactions contemplated by this Agreement, or if required, such approval
has been obtained prior to the related Closing Date;
(x) No Untrue Information.
Neither this Agreement nor any statement, report or other document
furnished or to be furnished pursuant to this Agreement or in connection
with the transactions contemplated hereby contains any untrue statement of
fact or omits to state a fact necessary to make the statements contained
therein not misleading;
(xi) Sale Treatment.
The Company has determined that the disposition of the Mortgage Loans
pursuant to this Agreement will be afforded sale treatment for accounting
and tax purposes;
(xii) No Material Change.
There has been no material adverse change in the business, operations,
financial condition or assets of the Company since the date of the
Company's most recent financial statements;
(xiii) No Brokers' Fees.
The Company has not dealt with any broker, investment banker, agent or
other Person that may be entitled to any commission or compensation in the
connection with the sale of the Mortgage Loans; and
(xiv) MERS Status
The Company is a member of MERS in good standing.
Section 3.2 Representations and Warranties Regarding Individual Mortgage
Loans.
As to each Mortgage Loan, the Company hereby represents and warrants to
the Purchaser that as of the related Closing Date:
(i) Mortgage Loans as Described.
The information set forth in the Mortgage Loan Schedule and the
information contained on the electronic Data File is true and correct;
(ii) Payment History.
All payments required to be made up to the Cutoff Date for each Mortgage
Loan under the terms of the Mortgage Note have been made and credited. No
payment under any Mortgage Loan has been 30 days delinquent more than one
time within twelve months prior to the related Closing Date;
(iii) No Outstanding Charges.
There are no defaults by the Company in complying with the terms of the
Mortgage Note or Mortgage, and all taxes, governmental assessments,
insurance premiums, leasehold payments, water, sewer and municipal
charges, which previously became due and owing have been paid, or an
escrow of funds has been established for every such item which remains
unpaid and which has been assessed but is not yet due and payable. The
Company has not advanced funds, or induced or solicited directly or
indirectly, the payment of any amount required under the Mortgage Loan,
except for interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage Loan proceeds, whichever is later, to the day
which precedes by one month the Due Date of the first installment of
principal and interest;
(iv) Original Terms Unmodified.
The terms of the Mortgage Note and Mortgage have not been impaired,
waived, altered or modified in any respect, except by a written instrument
which has been recorded, if necessary to protect the interests of the
Purchaser, and which has been delivered to the Purchaser. The substance of
any such waiver, alteration or modification has been approved by the
mortgage insurer, if the Mortgage Loan is insured, the title insurer, to
the extent required by the policy, and its terms are reflected on the
Mortgage Loan Schedule. No Mortgagor has been released, in whole or in
part. No Mortgage Loan has been modified so as to restructure the payment
obligations or re-age the Mortgage Loan;
(v) No Defenses.
The Mortgage Loan is not subject to any right of rescission, set-off,
counterclaim or defense, including without limitation the defense of
usury, nor will the operation of any of the terms of the Mortgage Note or
the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense,
including without limitation the defense of usury, and no such right of
rescission, set-off, counterclaim or defense has been asserted with
respect thereto;
(vi) No Satisfaction of Mortgage.
The Mortgage has not been satisfied, canceled, subordinated or rescinded,
in whole or in part, and the Mortgaged Property has not been released from
the lien of the Mortgage, in whole or in part, nor has any instrument been
executed that would effect any such satisfaction, release, cancellation,
subordination or rescission;
(vii) Validity of Mortgage Documents.
The Mortgage Note and the Mortgage and any other agreement executed and
delivered by a Mortgagor in connection with a Mortgage Loan are genuine,
and each is the legal, valid and binding obligation of the maker thereof
enforceable in accordance with its terms (including, without limitation,
any provisions therein relating to prepayment charges). All parties to the
Mortgage Note and the Mortgage had legal capacity to enter into the
Mortgage Loan and to execute and deliver the Mortgage Note and the
Mortgage, and the Mortgage Note and the Mortgage have been duly and
properly executed by such parties;
(viii) No Fraud.
No error, omission, misrepresentation, negligence, fraud or similar
occurrence with respect to a Mortgage Loan has taken place on the part of
the Company, the Mortgagor, or, to the best of the Company's knowledge,
any appraiser, any builder, or any developer, or any other party involved
in the origination of the Mortgage Loan or in the application of any
insurance in relation to such Mortgage Loan;
(ix) Compliance with Applicable Laws.
Any and all requirements of any federal, state or local law including,
without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity,
predatory and abusive lending or disclosure laws applicable to the
Mortgage Loan, including, without limitation, any provisions relating to
prepayment charges, have been complied with, the consummation of the
transactions contemplated hereby will not involve the violation of any
such laws or regulations, and the Company shall maintain in its
possession, available for the Purchaser's inspection, and shall deliver to
the Purchaser upon demand, evidence of compliance with all such
requirements. All inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same, including
but not limited to certificates of occupancy and fire underwriting
certificates, have been made or obtained from the appropriate authorities;
(x) Location and Type of Mortgaged Property.
The Mortgaged Property is located in the state identified in the related
Mortgage Loan Schedule and consists of a single parcel (or more than one
contiguous parcels) of real property with a detached single family
residence erected thereon, or a two- to four-family dwelling, or an
individual condominium unit in a condominium project, or an individual
unit in a planned unit development or a townhouse. If the Mortgaged
Property is a condominium unit or a planned unit development (other than a
de minimis planned unit development), such condominium, or planned unit
development project meets the Company's eligibility requirements as set
forth in the Company's underwriting guidelines. No Mortgage Loan is
secured by manufactured housing. As of the related appraisal date for each
Mortgaged Property, no portion of any Mortgaged Property has been used for
commercial purposes outside of the Company's underwriting guidelines;
(xi) Valid First Lien.
The Mortgage is a valid, subsisting and enforceable first lien on
the Mortgaged Property, including all buildings on the Mortgaged
Property and all installations and mechanical, electrical, plumbing,
heating and air conditioning systems located in or annexed to such
buildings, and all additions, alterations and replacements made at
any time with respect to the foregoing. The lien of the Mortgage is
subject only to:
(a) the lien of current real property taxes and assessments
not yet due and payable;
(b) covenants, conditions and restrictions, rights of
way, easements and other matters of the public record
as of the date of recording acceptable to mortgage
lending institutions generally and specifically
referred to in the lender's title insurance policy or
attorney's title opinion delivered to the originator
of the Mortgage Loan and (i) referred to or otherwise
considered in the appraisal made for the originator
of the Mortgage Loan and (ii) which do not adversely
affect the Appraised Value of the Mortgaged Property
set forth in such appraisal; and
(c) other matters to which like properties are commonly
subject which do not materially interfere with the
benefits of the security intended to be provided by the
mortgage or the use, enjoyment, value or marketability
of the related Mortgaged Property;
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, subsisting and enforceable first
lien and first priority security interest on the property described
therein and the Company has full right to sell and assign the same
to the Purchaser;
(xii) Full Disbursement of Proceeds.
The proceeds of the Mortgage Loan have been fully disbursed, except
for escrows established or created due to seasonal weather
conditions, and there is no requirement for future advances
thereunder. All costs, fees and expenses incurred in making or
closing the Mortgage Loan and the recording of the Mortgage were
paid, and the Mortgagor is not entitled to any refund of any amounts
paid or due under the Mortgage Note or Mortgage;
(xiii) Ownership.
The Company is the sole owner of record and holder of the Mortgage
Loan and the related Mortgage Note and the Mortgage are not assigned
or pledged, and the Company has good and marketable title thereto
and has full right and authority to transfer and sell the Mortgage
Loan to the Purchaser. The Company is transferring the Mortgage Loan
free and clear of any and all encumbrances, liens, pledges,
equities, participation interests, claims, charges or security
interests of any nature encumbering such Mortgage Loan;
(xiv) Origination/Doing Business.
The Mortgage Loan was originated by a savings and loan association,
a savings bank, a commercial bank, a credit union, an insurance
company, or similar institution which is supervised and examined by
a federal or state authority or by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to Sections 203
and 211 or the National Housing Act. All parties which have had any
interest in the Mortgage Loan, whether as mortgagee, assignee,
pledgee or otherwise, are (or, during the period in which they held
and disposed of such interest, were) (1) in compliance with any and
all applicable licensing requirements of the laws of the state
wherein the Mortgaged Property is located, and any qualification
requirements of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, and (2) organized under
the laws of such state, or (3) qualified to do business in such
state, or (4) federal savings and loan associations or national
banks having principal offices in such state, or (5) not doing
business in such state;
(xv) Title Insurance.
The Mortgage Loan is covered by an ALTA lender's title insurance
policy or other generally acceptable form of policy of insurance
acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, issued by a title insurer
acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and qualified to do business
in the jurisdiction where the Mortgaged Property is located,
insuring the Company, its successors and assigns, as to the first
priority lien of the Mortgage in the original principal amount of
the Mortgage Loan, subject only to the exceptions contained in
clauses (a), (b) and (c) of paragraph (xi) of this Section 3.02, and
against any loss by reason of the invalidity or unenforceability of
the lien resulting from the provisions of the Mortgage providing for
adjustment to the Mortgage Interest Rate and Monthly Payment;
provided, however, that in the case of any Mortgage Loan secured by
a Mortgaged Property located in a jurisdiction where such policies
are generally not available, the Mortgage Loan is the subject of an
opinion of counsel of the type customarily rendered in such
jurisdiction in lieu of title insurance. The Company is the sole
insured of such lender's title insurance policy, and such lender's
title insurance policy is in full force and effect and will be in
force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such
lender's title insurance policy, and no prior holder of the
Mortgage, including the Company, has done, by act or omission,
anything which would impair the coverage of such lender's title
insurance policy;
(xvi) No Mechanics' Liens.
There are no mechanics' or similar liens or claims which have been
filed for work, labor or material (and no rights are outstanding
that under the law could give rise to such liens) affecting the
related Mortgaged Property which are or may be liens prior to, or
equal or coordinate with, the lien of the related Mortgage which are
not insured against by the title insurance policy referenced in
clause (xv) above;
(xvii) Location of Improvements; No Encroachments.
Except as insured against by the title insurance policy referenced
in clause (xv) above, all improvements which were considered in
determining the Appraised Value of the Mortgaged Property lay wholly
within the boundaries and building restriction lines of the
Mortgaged Property and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or
being part of the Mortgaged Property is in violation of any
applicable zoning law or regulation;
(xviii) Customary Provisions.
The Mortgage and the related Mortgage Note contain customary and
enforceable provisions such as to render the rights and remedies of
the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security provided thereby,
including, (i) in the case of a Mortgage designated as a deed of
trust, by trustee's sale, and (ii) otherwise by judicial
foreclosure. There is no homestead or other exemption available to a
Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the Mortgage;
(xix) Occupancy of the Mortgaged Property.
As of the date of origination, the Mortgaged Property was lawfully
occupied under Applicable Law;
(xx) No Additional Collateral.
The Mortgage Note is not and has not been secured by any collateral,
pledged account or other security except the lien of the
corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in (xi) above;
(xxi) Deeds of Trust.
In the event that the Mortgage constitutes a deed of trust, a
trustee, duly qualified under Applicable Law to serve as such, has
been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the
Mortgagee to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor;
(xxii) Transfer of Mortgage Loans.
As to any Mortgage Loan which is not a MERS Mortgage Loan, the
Assignment of Mortgage is in recordable form and is acceptable for
recording under the laws of the jurisdiction in which the Mortgaged
Property is located;
(xxiii) Mortgaged Property Undamaged.
The Mortgaged Property is undamaged by waste, water, fire,
earthquake or earth movement, windstorm, flood, tornado or other
casualty so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the
premises were intended;
(xxiv) Collection Practices; Escrow Deposits.
The origination and collection practices used with respect to the
Mortgage Loan have been in accordance with Acceptable Servicing
Practices, and have been in all material respects legal and proper,
and in accordance with the terms of the Mortgage Note and Mortgage.
All Escrow Payments have been collected in full compliance with
state and federal law. An escrow of funds is not prohibited by
Applicable Law and has been established to pay for every item that
remains unpaid and has been assessed but is not yet due and payable.
No escrow deposits or Escrow Payments or other charges or payments
due the Company have been capitalized under the Mortgage Note. All
Mortgage Interest Rate adjustments have been made in compliance with
state and federal law and the terms of the related Mortgage and
Mortgage Note on the related Interest Rate Adjustment Date;
(xxv) No Condemnation.
To the best of Company's knowledge, there is no proceeding pending
or threatened for the total or partial condemnation of the related
Mortgaged Property;
(xxvi) The Appraisal.
The Mortgage Loan Documents contain an appraisal of the related
Mortgaged Property, As to each Time$aver(R) Mortgage Loan, the
appraisal may be from the original of the existing Company-serviced
loan, which was refinanced via such Time$aver(R) Mortgage Loan. The
appraisal was conducted by an appraiser who had no interest, direct
or indirect, in the Mortgaged Property or in any loan made on the
security thereof; and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and the appraisal and
the appraiser both satisfy the applicable requirements of ▇▇▇▇▇▇ Mae
or ▇▇▇▇▇▇▇ Mac;
(xxvii) Insurance.
The Mortgaged Property securing each Mortgage Loan is insured by an
insurer acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac against loss by
fire, such hazards as are covered under a standard extended coverage
endorsement and such other hazards as are customary in the area
where the Mortgaged Property is located pursuant to insurance
policies conforming to the requirements of Section 4.10, in an
amount which is not less than the lesser of 100% of the insurable
value of the Mortgaged Property and the outstanding principal
balance of the Mortgage Loan, but in no event less than the minimum
amount necessary to fully compensate for any damage or loss on a
replacement cost basis; if the Mortgaged Property is a condominium
unit, it is included under the coverage afforded by a blanket policy
for the project; the insurance policy contains a standard clause
naming the originator of such mortgage loan, its successor and
assigns, as insured mortgagee; if upon origination of the Mortgage
Loan, the improvements on the Mortgaged Property were in an area
identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards, a flood insurance
policy meeting the requirements of the current guidelines of the
Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not
less than the least of (A) the outstanding principal balance of the
Mortgage Loan, (B) the full insurable value and (C) the maximum
amount of insurance which was available under the Flood Disaster
Protection Act of 1973, as amended. All individual insurance
policies contain a standard mortgagee clause naming the Company and
its successors and assigns as mortgagee and all premiums thereon
have been paid. The Mortgage obligates the Mortgagor thereunder to
maintain all such insurance at the Mortgagor's cost and expense, and
on the Mortgagor's failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at such Mortgagor's
cost and expense, and to seek reimbursement therefor from the
Mortgagor. The hazard insurance policy is the valid and binding
obligation of the insurer, is in full force and effect, and will be
in full force and effect and inure to the benefit of the Purchaser
upon the consummation of the transactions contemplated by this
Agreement and the Company has not acted or failed to act so as to
impair the coverage of any such insurance policy or the validity,
binding effect and enforceability thereof;
(xxviii) Servicemembers' Civil Relief Act.
The Mortgagor has not notified the Company, and the Company has no
knowledge of any relief requested or allowed to the Mortgagor under
the Servicemembers' Civil Relief Act, as amended;
(xxix) Payment Terms.
The Mortgage Note is payable on the first day of each month in
equal monthly installments of principal and interest, which
installments of interest are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate
Adjustment Date, with interest calculated and payable in arrears,
sufficient to amortize the Mortgage Loan fully by the stated
maturity date, over an original term of not more than thirty years
from origination and once the amortization period starts, payments
are calculated to fully amortize by maturity. No Mortgage Loan has
a shared appreciation or other contingent interest feature, or
permits negative amortization. The Mortgage Interest Rate as well
as the Lifetime Rate Cap and the Periodic Rate Cap for each
Mortgage Loan are as set forth for such Mortgage Loan in the
Mortgage Loan Schedule;
(xxx) No Defaults.
Except with respect to delinquencies identified on the Mortgage
Loan Schedule, there is no default, breach, violation or event of
acceleration existing under any Mortgage or Mortgage Note and no
event that, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default,
breach, violation or event of acceleration, and the Company has not
waived any default, breach, violation or event of acceleration;
(xxxi) Loan-to-Value Ratio; Modifications; No
Foreclosures.
The Loan-to-Value Ratio of each Mortgage Loan was less than 100% at
the time of its origination or refinancing, as applicable. No
Mortgage Loan is subject to a written foreclosure agreement or
pending foreclosure proceedings;
(xxxii) Primary Mortgage Insurance.
Each Mortgage Loan with an LTV at origination in excess of 80% will
be subject to a Primary Mortgage Insurance Policy, issued by an
insurer acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, in at least such
amounts as are required by ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ ▇▇▇. All
provisions of such Primary Mortgage Insurance Policy have been and
are being complied with, such policy is in full force and effect,
and all premiums due thereunder have been paid. Any Mortgage
subject to any such Primary Mortgage Insurance Policy obligates the
Mortgagor thereunder to maintain such insurance and to pay all
premiums and charges in connection therewith unless terminable in
accordance with ▇▇▇▇▇▇▇ Mac standards or Applicable Law;
(xxxiii) Underwriting Guidelines.
The Mortgage Loan was underwritten in accordance with the Company's
underwriting guidelines in effect at the time of origination with
exceptions thereto exercised in a reasonable manner;
(xxxiv) No Bankruptcy.
To the best of the Company's knowledge, no Mortgagor was a debtor
in any state or federal bankruptcy or insolvency proceeding at the
time the Mortgage Loan was originated and as of the related Closing
Date, the Company has not received notice that any Mortgagor is a
debtor under any state or federal bankruptcy or insolvency
proceeding.
(xxxv) No Additional Payments.
There is no obligation on the part of the Company or any other
party to make payments in addition to those made by the Mortgagor;
(xxxvi) Comparable Custodial Mortgage Loan File.
Each document or instrument in the related Custodial or Retained
Mortgage File, whether delivered to the Custodian or not is in a
form generally acceptable to prudent mortgage lenders that
regularly originate or purchase mortgage loans comparable to the
Mortgage Loans for sale to prudent investors in the secondary
market that invest in mortgage loans such as the Mortgage Loans;
(xxxvii) Contents of the Retained Mortgage File.
The Retained Mortgage File contains the documents listed in items
(5) through (8) of Exhibit B;
(xxxviii) HOEPA.
No Mortgage Loan is a High Cost Loan or Covered Loan;
(xxxix) Fair Credit Reporting Act.
The Company, in its capacity as servicer for each Mortgage Loan,
has fully furnished, in accordance with the Fair Credit Reporting
Act and its implementing regulations, accurate and complete
information (e.g., favorable and unfavorable) on its borrower
credit files to Equifax, Experian and Trans Union Credit
Information Company (three of the credit repositories), on a
monthly basis;
(xl) No Arbitration.
No Mortgage Loan originated on or after August 1, 2004 requires the
related Mortgagor to submit to arbitration to resolve any dispute
arising out of or relating in any way to the Mortgage Loan
transaction;
(xli) No Pledged Assets.
No Mortgage Loan is subject to the Servicer's Pledged Asset
Program;
(xlii) No Credit Insurance Policies.
No Mortgagor was required to purchase any credit life, disability,
accident or health insurance product as a condition of obtaining
the extension of credit. No Mortgagor was required to obtain a
prepaid single premium credit life, disability, accident or health
insurance policy in connection with the origination of the
Mortgage Loan; No proceeds from any Mortgage Loan were used to
purchase single premium credit insurance policies as part of the
origination of, or as a condition to closing, such Mortgage Loan;
(xliii) Prepayment Penalty Term.
No Mortgage Loan originated on or after October 1, 2002, will
impose a prepayment premium for a term in excess of three years
after its origination. No Mortgage Loan originated before October
1, 2002, will impose a prepayment premium for a term in excess of
five years after its origination;
(xliv) Tax Service Contract; Flood Certification
Contract.
Each Mortgage Loan shall have a tax service contract and, if
applicable, a flood insurance contract which shall have a term of
the life of the Mortgage Loan. Each such tax service and flood
insurance contract shall be fully transferable without penalty,
premium or cost to the Purchaser or its designee, unless, with
respect to tax service contract, the Company is terminated
pursuant to Section 11.2 hereof;
(xlv) Violation of Environmental Laws.
There is no pending action or proceeding directly involving any
Mortgaged Property of which the Company is aware in which
compliance with any environmental law, rule or regulation is an
issue; and to the best of the Company's knowledge, nothing further
remains to be done to satisfy in full all requirements of each
such law, rule or regulation constituting a prerequisite to use
and enjoyment of said property;
(xlvi) No Buydowns.
No Mortgage Loan contains provisions pursuant to which Monthly
Payments are (a) paid or partially paid with funds deposited in
any separate account established by the Company, the Mortgagor or
anyone on behalf of the Mortgagor, (b) paid by any source other
than the Mortgagor or (c) contains any other similar provisions
which may constitute a "buydown" provision;
(xlvii) Interest Calculation.
Interest on each Mortgage Loan is calculated on the basis of a
360-day year consisting of twelve 30-day months;
(xlviii) The Mortgagor.
The Mortgagor is one or more natural persons and/or trustees for
an Illinois land trust or a trustee under a "living trust" and
such "living trust" is in compliance with the Underwriting
Guidelines;
(xlix) No Construction Loans.
No Mortgage Loan was made in connection with (i) the construction
or rehabilitation of a Mortgage Property or (ii) facilitating the
trade-in or exchange of a Mortgaged Property other than a
construction-to-permanent loan which has converted to a permanent
Mortgage Loan;
(l) Balloon Payments, Graduated Payments or Contingent
Interests.
No Mortgage Loan is a graduated payment mortgage loan and no
Mortgage Loan has a shared appreciation or other contingent
interest feature. If a Mortgage Loan has a balloon payment
feature, the Mortgage Note is payable in monthly payments based on
a fifteen- or thirty-year amortization schedule and a final
monthly payment substantially greater than the preceding monthly
payment which is sufficient to amortize the remaining principal of
the Mortgage Loan;
(li) Ground Leases.
With respect to each Mortgage Loan that is secured in whole or in
part by the interest of the mortgagor as a lessee under a ground
lease of the related Mortgaged Property (a "Ground Lease") and not
by a fee interest in such Mortgaged Property and as further
specified in the underwriting guidelines of the Company:
(a) The mortgagor is the owner of a valid and subsisting
interest as tenant under the Ground Lease;
(b) The Ground Lease is in full force and effect, unmodified
and not supplemented by any writing or otherwise;
(c) The Company has not received notice of default by the
mortgagor under the Ground Lease or of circumstances
which, with the passage of time or the giving of notice
or both, would constitute an event of default;
(d) The term of the Ground Lease exceeds the maturity date
of the related Mortgage Loan by at least five years;
(e) The Ground Lease or a memorandum thereof has been
recorded and by its terms permits the leasehold estate
to be mortgaged;
(f) The Ground Lease does not contain any default provisions
that could give rise to forfeiture or termination of the
Ground Lease except for the non-payment of the Ground
Lease rents;
(g) The execution, delivery and performance of the Mortgage
do not require the consent (other than those consents
which have been obtained and are in full force and
effect) under, and will not contravene any provision of
or cause a default under, the Ground Lease; and
(h) The Ground Lease provides that the leasehold can be
transferred, mortgaged and sublet an unlimited number of
times either without restriction or on payment of a
reasonable fee and delivery of reasonable documentation
to the lessor.
(lii) Conversion.
The Adjustable Rate Mortgage Loan is not a Convertible Mortgage
Loan;
(liii) Anti-Money Laundering Laws.
With respect to each Mortgage Loan, the Company has complied with
all applicable anti-money laundering laws and regulations (the
"Anti-Money Laundering Laws"), and has established an anti-money
laundering compliance program as required by the applicable
Anti-Money Laundering Laws, and maintains, and will maintain,
sufficient information to identify the applicable Mortgagor for
purposes of the Anti-Money Laundering Laws; and
(liv) Due on Sale.
The Mortgage or Mortgage Note contains an enforceable provision,
to the extent not prohibited by federal law, for the acceleration
of the payment of the unpaid principal balance of the related
Mortgage Loan in the event the related Mortgaged Property is sold
without the prior consent of the mortgagee thereunder; provided
that, with respect to Mortgage Notes which bear an adjustable rate
of interest, such provision shall not be enforceable if the
Mortgagor causes to be submitted to the Company to evaluate the
intended transferee as if a new Mortgage Loan were being made to
such transferee, and the Company reasonably determines that the
security will not be impaired by such Mortgage Loan assumption and
that the risk of breach of any covenant or agreement in such
Mortgage is acceptable to the Purchaser.
Section 3.3 Repurchase.
It is understood and agreed that the representations and warranties set
forth in Sections 3.1 and 3.2 shall survive the sale of the Mortgage Loans to
the Purchaser and the delivery of the Mortgage Loan Documents to the Custodian
and shall inure to the benefit of the Purchaser, notwithstanding any restrictive
or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the
examination or failure to examine any Custodial Mortgage File or Retained
Mortgage File. Upon discovery by either the Company or the Purchaser of a breach
of any of the foregoing representations and warranties which materially and
adversely affects the value of the Mortgage Loans or the interest of the
Purchaser (or which materially and adversely affects the interests of Purchaser
in the related Mortgage Loan in the case of a representation and warranty
relating to a particular Mortgage Loan), the party discovering such breach shall
give prompt written notice to the other.
Within 90 days of the earlier of either discovery by or notice to the
Company of any breach of a representation or warranty which materially and
adversely affects the value of the Mortgage Loans, (i) the Company shall use its
best efforts promptly to cure such breach in all material respects and (ii) if
such breach cannot be cured, the Company shall, at the Purchaser's option,
repurchase such Mortgage Loan at the Repurchase Price. In the event that a
breach shall involve any representation or warranty set forth in Section 3.1,
and such breach cannot be cured within 90 days of the earlier of either
discovery by or notice to the Company of such breach, all of the Mortgage Loans
shall, at the Purchaser's option, be repurchased by the Company at the
Repurchase Price. Any repurchase of a Mortgage Loan or Loans pursuant to the
foregoing provisions of this Section 3.3 shall be accomplished by deposit in the
Custodial Account of the amount of the Repurchase Price as required in Section
4.4, for distribution to Purchaser on the Remittance Date for the month
following the date of the repurchase, after deducting therefrom any amount
received in respect of such repurchased Mortgage Loan or Loans and being held in
the Custodial Account for future distribution for application in accordance with
Section 5.1.
Notwithstanding the above paragraphs, within 60 days of the earlier of
either discovery by, or notice to, the Company of any breach of the
representations or warranties set forth in clauses, (xxxviii), (xl) or (xlvi) of
Section 3.2, the Company shall repurchase such Mortgage Loan at the Repurchase
Price.
If pursuant to the foregoing provisions the Company repurchases a Mortgage
Loan that is a MERS Mortgage Loan, the Company shall either (i) cause MERS to
execute and deliver an assignment of the Mortgage in recordable form to transfer
the Mortgage from MERS to the Company on behalf of the Purchaser and shall cause
such Mortgage to be removed from registration on the MERS(R) System in
accordance with MERS' rules and regulations or (ii) cause MERS to designate on
the MERS(R) System the Purchaser as the beneficial holder with respect to such
Mortgage Loan.
At the time of repurchase, the Purchaser and the Company shall arrange for
the reassignment of the repurchased Mortgage Loan to the Company and the
delivery to the Company of any documents held by the Custodian relating to the
repurchased Mortgage Loan. In the event of a repurchase, the Company shall,
simultaneously with such reassignment, give written notice to the Purchaser that
such repurchase has taken place and amend the Mortgage Loan Schedule to reflect
the withdrawal of the repurchased Mortgage Loan from this Agreement.
In addition to such repurchase obligation, the Company shall indemnify the
Purchaser and hold it harmless against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a breach of the
Company's representations and warranties contained in this Agreement. It is
understood and agreed that the obligations of the Company set forth in this
Section 3.3 to cure or repurchase a defective Mortgage Loan and to indemnify the
Purchaser as provided in this Section 3.3, constitute the sole remedies of the
Purchaser respecting a breach of the foregoing representations and warranties.
Any cause of action against the Company relating to or arising out of the
breach of any representations and warranties made in Sections 3.1 and 3.2 shall
accrue as to any Mortgage Loan upon the earliest of (i) discovery of such breach
by the Company or the Purchaser or notice thereof by the Purchaser to the
Company, (ii) failures by the Company to cure such breach or repurchase such
Mortgage Loan as specified above, and (iii) demand upon the Company by the
Purchaser for compliance with this Agreement.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.1 Company to Act as Servicer.
The Company, as an independent contractor, shall service and administer
the Mortgage Loans and shall have full power and authority, acting alone or
through the utilization of a third party servicing provider, to do any and all
things in connection with such servicing and administration which the Company
may deem necessary or desirable, consistent with the terms of this Agreement and
with Accepted Servicing Practices. The Servicer shall be responsible for any and
all acts of a third party servicing provider, and the Servicer's utilization of
a third party servicing provider shall in no way relieve the liability of the
Servicer under this Agreement.
Consistent with the terms of this Agreement and subject to the REMIC
Provisions if the Mortgage Loans have been transferred to a REMIC, the Company
may waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to any Mortgagor if in the Company's reasonable and prudent
determination such waiver, modification, postponement or indulgence is not
materially adverse to the Purchaser. In the event of any such modification which
permits the deferral of interest or principal payments on any Mortgage Loan, the
Company shall, on the Business Day immediately preceding the Remittance Date in
any month in which any such principal or interest payment has been deferred,
deposit in the Custodial Account from its own funds, in accordance with Section
5.3, the difference between (a) such month's principal and one month's interest
at the Mortgage Loan Remittance Rate on the unpaid principal balance of such
Mortgage Loan and (b) the amount paid by the Mortgagor. The Company shall be
entitled to reimbursement for such advances to the same extent as for all other
advances made pursuant to Section 5.3. Without limiting the generality of the
foregoing, the Company shall continue, and is hereby authorized and empowered,
to execute and deliver on behalf of itself and the Purchaser, all instruments of
satisfaction or cancellation, or of partial or full release, discharge and all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties. If reasonably required by the Company, the
Purchaser shall furnish the Company with any powers of attorney and other
documents necessary or appropriate to enable the Company to carry out its
servicing and administrative duties under this Agreement.
In servicing and administering the Mortgage Loans, the Company shall
employ procedures (including collection procedures) and exercise the same care
that it customarily employs and exercises in servicing and administering
mortgage loans for its own account, giving due consideration to Accepted
Servicing Practices where such practices do not conflict with the requirements
of this Agreement, and the Purchaser's reliance on the Company.
Notwithstanding anything to the contrary contained herein, the Company
shall not waive a prepayment penalty except under the following circumstances:
(i) such waiver would, in the reasonable judgment of the Company, maximize
recovery of total proceeds taking into account the value of such prepayment
penalty and the related Mortgage Loan and, if such waiver is made in connection
with a refinancing of the related Mortgage Loan, such refinancing is related to
a default or a reasonably foreseeable default; or (ii) the Company obtains a
written Opinion of Counsel, which may be in-house counsel for the Company,
opining that any prepayment penalty or charge is not legally enforceable in the
circumstances under which the related Principal Prepayment occurs. In the event
the Company waives any prepayment penalty, other than as set forth in (i) and
(ii) above, the Company shall deposit the amount of any such prepayment penalty
in the Custodial Account for distribution to the Purchaser on the next
Remittance Date.
The Company is authorized and empowered by the Purchaser, in its own name,
when the Company believes it appropriate in its reasonable judgment to register
any Mortgage Loan on the MERS(R) System, or cause the removal from the
registration of any Mortgage Loan on the MERS(R) System, to execute and deliver,
on behalf of the Purchaser, any and all instruments of assignment and other
comparable instruments with respect to such assignment or re-recording of a
Mortgage in the name of MERS, solely as nominee for the Purchaser and its
successors and assigns. The Company will comply in all material respects with
the rules and procedures of MERS in connection with the servicing of the MERS
Mortgage Loans for as long as such Mortgage Loans are registered with MERS.
Section 4.2 Liquidation of Mortgage Loans.
In the event that any payment due under any Mortgage Loan and not
postponed pursuant to Section 4.1 is not paid when the same becomes due and
payable, or in the event the Mortgagor fails to perform any other covenant or
obligation under the Mortgage Loan and such failure continues beyond any
applicable grace period, the Company shall take such action as (1) the Company
would take under similar circumstances with respect to a similar mortgage loan
held for its own account for investment, (2) shall be consistent with Accepted
Servicing Practices, and (3) the Company shall determine prudently to be in the
best interest of Purchaser. In the event that any payment due under any Mortgage
Loan is not postponed pursuant to Section 4.1 and remains delinquent for a
period of 90 days or any other default continues for a period of 90 days beyond
the expiration of any grace or cure period, the Company shall commence
foreclosure proceedings, the Company shall notify the Purchaser in writing of
the Company's intention to do so, and the Company shall not commence foreclosure
proceedings if the Purchaser objects to such action within three (3) Business
Days of receiving such notice. In the event the Purchaser objects to such
foreclosure action, the Company shall not be required to make Monthly Advances
with respect to such Mortgage Loan, pursuant to Section 5.3, and the Company's
obligation to make such Monthly Advances shall terminate on the 90th day
referred to above. In such connection, the Company shall from its own funds make
all necessary and proper Servicing Advances, provided, however, that the Company
shall not be required to expend its own funds in connection with any foreclosure
or towards the restoration or preservation of any Mortgaged Property, unless it
shall determine (a) that such preservation, restoration and/or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan to Purchaser after
reimbursement to itself for such expenses and (b) that such expenses will be
recoverable by it either through Liquidation Proceeds (respecting which it shall
have priority for purposes of withdrawals from the Custodial Account pursuant to
Section 4.5) or through Insurance Proceeds (respecting which it shall have
similar priority).
Notwithstanding anything to the contrary contained herein, in connection
with a foreclosure or acceptance of a deed in lieu of foreclosure, in the event
the Company has reasonable cause to believe that a Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, or if the Purchaser
otherwise requests an environmental inspection or review of such Mortgaged
Property, such an inspection or review is to be conducted by a qualified
inspector. The cost for such inspection or review shall be borne by the
Purchaser. Upon completion of the inspection or review, the Company shall
promptly provide the Purchaser with a written report of the environmental
inspection.
After reviewing the environmental inspection report, the Purchaser shall
determine how the Company shall proceed with respect to the Mortgaged Property.
In the event (a) the environmental inspection report indicates that the
Mortgaged Property is contaminated by hazardous or toxic substances or wastes
and (b) the Purchaser directs the Company to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, the Company shall be reimbursed for
all reasonable costs associated with such foreclosure or acceptance of a deed in
lieu of foreclosure and any related environmental clean up costs, as applicable,
from the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse the Company, the Company shall be entitled to be
reimbursed from amounts in the Custodial Account pursuant to Section 4.5 hereof.
In the event the Purchaser directs the Company not to proceed with foreclosure
or acceptance of a deed in lieu of foreclosure, the Company shall be reimbursed
for all Servicing Advances made with respect to the related Mortgaged Property
from the Custodial Account pursuant to Section 4.5 hereof.
Section 4.3 Collection of Mortgage Loan Payments.
Continuously from the date hereof until the principal and interest on all
Mortgage Loans are paid in full, the Company shall proceed diligently to collect
all payments due under each of the Mortgage Loans when the same shall become due
and payable in accordance with Accepted Servicing Practices, and shall, in
accordance with RESPA and applicable state law, take special care in
ascertaining and estimating Escrow Payments and all other charges that will
become due and payable with respect to the Mortgage Loan and the Mortgaged
Property, to the end that the installments payable by the Mortgagors will be
sufficient to pay such charges as and when they become due and payable.
Section 4.4 Establishment of and Deposits to Custodial Account.
The Company shall segregate and hold all funds collected and received
pursuant to a Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts,
in the form of time deposit or demand accounts, titled "▇▇▇▇▇ Fargo Bank, N.A.,
in trust for the Purchaser of Residential Mortgage Loans serviced under a
Seller's Warranties and Servicing Agreement, dated as of August 1, 2004, and
various Mortgagors - P & I", or as otherwise directed in writing by the
Purchaser or its assigns after the related Closing Date in connection with any
Whole Loan Transfer or Pass-Through Transfer. The Custodial Account shall be
established with a Qualified Depository. Upon request of the Purchaser and
within ten (10) days thereof, the Company shall provide the Purchaser with
written confirmation of the existence of such Custodial Account. The Custodial
Account shall at all times be insured to the fullest extent allowed by
Applicable Law. Funds deposited in the Custodial Account may be drawn on by the
Company in accordance with Section 4.5.
The Company shall deposit in the Custodial Account within one Business Day
(or two Business Days in the case of the amounts described in clauses (iii)
through (v) below) of the Company's receipt, and retain therein, the following
collections received by the Company and payments made by the Company after the
related Cut-off Date, other than payments of principal and interest due on or
before the related Cut-off Date:
(1) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(2) all payments on account of interest on the Mortgage Loans,
adjusted to the Mortgage Loan Remittance Rate;
(3) all Liquidation Proceeds;
(4) all Insurance Proceeds including amounts required to be
deposited pursuant to Section 4.10 (other than proceeds to be held in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with Section 4.14),
Section 4.11 and Section 4.15;
(5) all Condemnation Proceeds which are not applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 4.14;
(6) any amount required to be deposited in the Custodial Account
pursuant to Section 4.1, 5.1, 5.3, 6.1 or 6.2;
(7) any amounts payable in connection with the repurchase of any
Mortgage Loan pursuant to Section 2.3, 3.3 or 6.2;
(8) with respect to each Principal Prepayment an amount (to be paid
by the Company out of its funds) which, when added to all amounts
allocable to interest received in connection with the Principal
Prepayment, equals one month's interest on the amount of principal so
prepaid at the Mortgage Loan Remittance Rate;
(9) any amounts required to be deposited by the Company pursuant to
Section 4.11 in connection with the deductible clause in any blanket
hazard insurance policy; and
(10) any amounts received with respect to or related to any REO
Property and all REO Disposition Proceeds pursuant to Section 4.16.
The foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges and assumption
fees, to the extent permitted by Section 6.1, need not be deposited by the
Company into the Custodial Account. Any interest paid on funds deposited in the
Custodial Account by the depository institution shall accrue to the benefit of
the Company and the Company shall be entitled to retain and withdraw such
interest from the Custodial Account pursuant to Section 4.5. The Company shall
reimburse the Custodial Account for any losses incurred as a result of the
investment of amounts on deposit in the Custodial Account.
Section 4.5 Permitted Withdrawals From Custodial Account.
The Company shall, from time to time, withdraw funds from the Custodial
Account for the following purposes:
(1) to make payments to the Purchaser in the amounts and in the
manner provided for in Section 5.1;
(2) to reimburse itself for Monthly Advances of the Company's funds
made pursuant to Section 5.3, the Company's right to reimburse itself
pursuant to this subclause (2) being limited to amounts received on the
related Mortgage Loan which represent late payments of principal and/or
interest respecting which any such advance was made, it being understood
that, in the case of any such reimbursement, the Company's right thereto
shall be prior to the rights of Purchaser, except that, where the Company
is required to repurchase a Mortgage Loan pursuant to Section 2.3, 3.3 or
6.2, the Company's right to such reimbursement shall be subsequent to the
payment to the Purchaser of the Repurchase Price pursuant to such sections
and all other amounts required to be paid to the Purchaser with respect to
such Mortgage Loan;
(3) to reimburse itself for unreimbursed Servicing Advances, and for
any unpaid Servicing Fees, the Company's right to reimburse itself
pursuant to this subclause (3) with respect to any Mortgage Loan being
limited to related Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds and such other amounts as may be collected by the Company from
the Mortgagor or otherwise relating to the Mortgage Loan, it being
understood that, in the case of any such reimbursement, the Company's
right thereto shall be prior to the rights of Purchaser, except that where
the Company is required to repurchase a Mortgage Loan pursuant to Section
2.3, 3.3 or 6.2, in which case the Company's right to such reimbursement
shall be subsequent to the payment to the Purchaser of the Repurchase
Price pursuant to such sections and all other amounts required to be paid
to the Purchaser with respect to such Mortgage Loan;
(4) to pay itself as servicing compensation any interest on funds
deposited in the Custodial Account;
(5) to reimburse itself for expenses incurred to the extent
reimbursable pursuant to Section 8.1;
(6) to pay any amount required to be paid pursuant to Section 4.16
related to any REO Property, it being understood that, in the case of any
such expenditure or withdrawal related to a particular REO Property, the
amount of such expenditure or withdrawal from the Custodial Account shall
be limited to amounts on deposit in the Custodial Account with respect to
the related REO Property;
(7) to reimburse itself for any Servicing Advances or REO expenses
after liquidation of the Mortgaged Property not otherwise reimbursed
above;
(8) to reimburse the trustee with respect to any Pass-Through
Transfer for any unreimbursed Monthly Advances or Servicing Advances made
by the Trustee, as applicable, the right to reimbursement pursuant to this
subclause (8) with respect to any Mortgage Loan being limited to related
Liquidation Proceeds, proceeds of REO Dispositions, Condemnation Proceeds,
Insurance Proceeds and such other amounts as may be collected by the
Company from the Mortgagor or otherwise relating to the Mortgage Loan, it
being understood that, in the case of such reimbursement, such trustee's
right thereto shall be prior to the rights of the Company to reimbursement
under (2) and (3), and prior to the rights of the Purchaser under (1);
(9) to remove funds inadvertently placed in the Custodial Account by
the Company; and
(10) to clear and terminate the Custodial Account upon the
termination of this Agreement.
In the event that the Custodial Account is interest bearing, on each
Remittance Date, the Company shall withdraw all interest earned on funds on
deposit in the Custodial Account. The Company may use such withdrawn funds only
for the purposes described in this Section 4.5.
Section 4.6 Establishment of and Deposits to Escrow Account.
The Company shall segregate and hold all funds collected and received
pursuant to a Mortgage Loan constituting Escrow Payments separate and apart from
any of its own funds and general assets and shall establish and maintain one or
more Escrow Accounts, in the form of time deposit or demand accounts, titled,
"▇▇▇▇▇ Fargo Bank, N.A., in trust for the Purchaser under the Seller's
Warranties and Servicing Agreement dated as of August 1, 2004 and/or subsequent
purchasers of Mortgage Loans, and various Mortgagors - T & I." The Escrow
Accounts shall be established with a Qualified Depository, in a manner which
shall provide maximum available insurance thereunder. Upon request of the
Purchaser and within ten (10) days thereof, the Company shall provide the
Purchaser with written confirmation of the existence of such Escrow Account.
Funds deposited in the Escrow Account may be drawn on by the Company in
accordance with Section 4.7.
The Company shall deposit in the Escrow Account or Accounts within two (2)
Business Days of the Company's receipt, and retain therein:
(1) all Escrow Payments collected on account of the Mortgage Loans,
for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement;
(2) all amounts representing Insurance Proceeds or Condemnation
Proceeds which are to be applied to the restoration or repair of any
Mortgaged Property; and
(3) all amounts representing proceeds of any Primary Mortgage
Insurance Policy.
The Company shall make withdrawals from the Escrow Account only to effect
such payments as are required under this Agreement, as set forth in Section 4.7.
The Company shall be entitled to retain any interest paid on funds deposited in
the Escrow Account by the depository institution, other than interest on
escrowed funds required by law to be paid to the Mortgagor. To the extent
required by law, the Company shall pay interest on escrowed funds to the
Mortgagor notwithstanding that the Escrow Account may be non-interest bearing or
that interest paid thereon is insufficient for such purposes. The Company shall
reimburse the Escrow Account for any losses incurred as a result of the
investment of amounts on deposit in the Escrow Account.
Section 4.7 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the Company
only:
(1) to effect timely payments of ground rents, taxes, assessments,
water rates, mortgage insurance premiums, condominium charges, fire and
hazard insurance premiums or other items constituting Escrow Payments for
the related Mortgage;
(2) to reimburse the Company for any Servicing Advances made by the
Company pursuant to Section 4.8 with respect to a related Mortgage Loan,
but only from amounts received on the related Mortgage Loan which
represent late collections of Escrow Payments thereunder;
(3) to refund to any Mortgagor any funds found to be in excess of
the amounts required under the terms of the related Mortgage Loan;
(4) for transfer to the Custodial Account and application to reduce
the principal balance of the Mortgage Loan in accordance with the terms of
the related Mortgage and Mortgage Note;
(5) for application to restoration or repair of the Mortgaged
Property in accordance with the procedures outlined in Section 4.14;
(6) to pay to the Company, or any Mortgagor to the extent required
by law, any interest paid on the funds deposited in the Escrow Account;
(7) to remove funds inadvertently placed in the Escrow Account by
the Company;
(8) to apply the proceeds of Primary Mortgage Insurance as if such
proceeds were payments on, or Liquidation Proceeds of, the related
Mortgage Loan, as the case may be; and
(9) to clear and terminate the Escrow Account on the termination of
this Agreement.
Section 4.8 Payment of Taxes, Insurance and Other Charges.
With respect to each Mortgage Loan, the Company shall maintain accurate
records reflecting the status of ground rents, taxes, assessments, water rates,
sewer rents, and other charges which are or may become a lien upon the Mortgaged
Property and fire and hazard insurance coverage and shall obtain, from time to
time, all bills for the payment of such charges (including renewal premiums) and
shall effect payment thereof prior to the applicable penalty or termination
date, employing for such purpose deposits of the Mortgagor in the Escrow Account
which shall have been estimated and accumulated by the Company in amounts
sufficient for such purposes, as allowed under the terms of the Mortgage. The
Company assumes full responsibility for the timely payment of all such bills and
shall effect timely payment of all such charges irrespective of each Mortgagor's
faithful performance in the payment of same or the making of the Escrow
Payments, and the Company shall make advances from its own funds to effect such
payments.
Section 4.9 Protection of Accounts.
The Company may transfer the Custodial Account or the Escrow Account to a
different Qualified Depository from time to time, upon prior written notice to
the Purchaser.
Section 4.10 Maintenance of Hazard Insurance.
The Company shall cause to be maintained for each Mortgage Loan hazard
insurance such that all buildings upon the Mortgaged Property are insured by an
insurer acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, against loss by fire, hazards
of extended coverage and such other hazards as are customary in the area where
the Mortgaged Property is located, in an amount which is at least equal to the
lesser of (i) the maximum insurable value of the improvements securing such
Mortgage Loan and (ii) the greater of (a) the outstanding principal balance of
the Mortgage Loan and (b) an amount such that the proceeds thereof shall be
sufficient to prevent the Mortgagor or the loss payee from becoming a
co-insurer. In the event a hazard insurance policy shall be in danger of being
terminated, or in the event the insurer shall cease to be acceptable to ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac, the Company shall notify the Purchaser and the related
Mortgagor, and shall use its best efforts, as permitted by Applicable Law, to
obtain from another Qualified Insurer a replacement hazard insurance policy
substantially and materially similar in all respects to the original policy. In
no event, however, shall a Mortgage Loan be without a hazard insurance policy at
any time, subject only to Section 4.11 hereof.
If upon origination of the Mortgage Loan, the related Mortgaged Property
was located in an area identified by the Flood Emergency Management Agency as
having special flood hazards (and such flood insurance has been made available)
a flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration is in effect with a generally acceptable
insurance carrier acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, in an amount
representing coverage equal to the lesser of (i) the minimum amount required,
under the terms of coverage, to compensate for any damage or loss on a
replacement cost basis (or the unpaid balance of the mortgage if replacement
cost coverage is not available for the type of building insured) and (ii) the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended.
If a Mortgage is secured by a unit in a condominium project, the Company
shall verify that the coverage required of the owner's association, including
hazard, flood, liability, and fidelity coverage, is being maintained in
accordance with then current ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac requirements, secure from
the owner's association its agreement to notify the Company promptly of any
change in the insurance coverage or of any condemnation or casualty loss that
may have a material effect on the value of the Mortgaged Property as security.
In the event that any Purchaser or the Company shall determine that the
Mortgaged Property should be insured against loss or damage by hazards and risks
not covered by the insurance required to be maintained by the Mortgagor pursuant
to the terms of the Mortgage, the Company shall communicate and consult with the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the desirability of protection of the Mortgaged Property.
All policies required hereunder shall name the Company as loss payee and
shall be endorsed with standard or union mortgagee clauses, without
contribution, which shall provide for at least 30 days prior written notice of
any cancellation, reduction in amount or material change in coverage.
The Company shall not interfere with the Mortgagor's freedom of choice in
selecting either his insurance carrier or agent, provided, however, that the
Company shall not accept any such insurance policies from insurance companies
unless such companies are acceptable to ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac and are
licensed to do business in the jurisdiction in which the Mortgaged Property is
located. The Company shall determine that such policies provide sufficient risk
coverage and amounts, that they insure the property owner, and that they
properly describe the property address.
Pursuant to Section 4.4, any amounts collected by the Company under any
such policies (other than amounts to be deposited in the Escrow Account and
applied to the restoration or repair of the related Mortgaged Property, or
property acquired in liquidation of the Mortgage Loan, or to be released to the
Mortgagor, in accordance with the Company's normal servicing procedures as
specified in Section 4.4) shall be deposited in the Custodial Account subject to
withdrawal pursuant to Section 4.5.
Section 4.11 Maintenance of Primary Mortgage Insurance Policy; Claims.
With respect to each Mortgage Loan with a LTV in excess of 80%, the
Company shall, without any cost to the Purchaser, maintain or cause the
Mortgagor to maintain in full force and effect a Primary Mortgage Insurance
Policy insuring that portion of the Mortgage Loan in excess of a percentage in
conformance with ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac requirements. The Company shall pay
or shall cause the Mortgagor to pay the premium thereon on a timely basis, at
least until the LTV of such Mortgage Loan is reduced to 80%, or such amount as
required by Applicable Law, or such other amount as ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac
permits for cancellation of mortgage insurance. In the event that such Primary
Mortgage Insurance Policy shall be terminated, the Company shall obtain from
another insurer a comparable replacement policy, with a total coverage equal to
the remaining coverage of such terminated Primary Mortgage Insurance Policy. If
the insurer shall cease to be a qualified insurer, the Company shall determine
whether recoveries under the Primary Mortgage Insurance Policy are jeopardized
for reasons related to the financial condition of such insurer, it being
understood that the Company shall in no event have any responsibility or
liability for any failure to recover under the Primary Mortgage Insurance Policy
for such reason. If the Company determines that recoveries are so jeopardized,
it shall notify the Purchaser and the Mortgagor, if required, and obtain from
another qualified insurer a replacement insurance policy. The Company shall not
take any action which would result in noncoverage under any applicable Primary
Mortgage Insurance Policy of any loss which, but for the actions of the Company
would have been covered thereunder. In connection with any assumption or
substitution agreement entered into or to be entered into pursuant to Subsection
6.1, the Company shall promptly notify the insurer under the related Primary
Mortgage Insurance Policy, if any, of such assumption or substitution of
liability in accordance with the terms of such Primary Mortgage Insurance Policy
and shall take all actions which may be required by such insurer as a condition
to the continuation of coverage under such Primary Mortgage Insurance Policy. If
such Primary Mortgage Insurance Policy is terminated as a result of such
assumption or substitution of liability, the Company shall obtain a replacement
Primary Mortgage Insurance Policy as provided above.
In connection with its activities as servicer, the Company agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any Primary Mortgage Insurance Policy in a timely fashion in
accordance with the terms of such Primary Mortgage Insurance Policy and, in this
regard, to take such action as shall be necessary to permit recovery under any
Primary Mortgage Insurance Policy respecting a defaulted Mortgage Loan. Pursuant
to Section 4.6, any amounts collected by the Company under any Primary Mortgage
Insurance Policy shall be deposited in the Escrow Account, subject to withdrawal
pursuant to Section 4.7.
Section 4.12 Maintenance of Mortgage Impairment Insurance.
In the event that the Company shall obtain and maintain a blanket policy
insuring against losses arising from fire and hazards covered under extended
coverage on all of the Mortgage Loans, then, to the extent such policy provides
coverage in an amount equal to the amount required pursuant to Section 4.10 and
otherwise complies with all other requirements of Section 4.10, it shall
conclusively be deemed to have satisfied its obligations as set forth in Section
4.10. The Company shall prepare and make any claims on the blanket policy as
deemed necessary by the Company in accordance with Accepted Servicing Practices.
Any amounts collected by the Company under any such policy relating to a
Mortgage Loan shall be deposited in the Custodial Account subject to withdrawal
pursuant to Section 4.5. Such policy may contain a deductible clause, in which
case, in the event that there shall not have been maintained on the related
Mortgaged Property a policy complying with Section 4.10, and there shall have
been a loss which would have been covered by such policy, the Company shall
deposit in the Custodial Account at the time of such loss the amount not
otherwise payable under the blanket policy because of such deductible clause,
such amount to be deposited from the Company's funds, without reimbursement
therefor. Upon request of any Purchaser, the Company shall cause to be delivered
to such Purchaser a certified true copy of such policy and a statement from the
insurer thereunder that such policy shall in no event be terminated or
materially modified without 30 days' prior written notice to such Purchaser.
Section 4.13 Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
The Company shall maintain with responsible companies, at its own expense,
a blanket Fidelity Bond and an Errors and Omissions Insurance Policy, with broad
coverage on all officers, employees or other persons acting in any capacity
requiring such persons to handle funds, money, documents or papers relating to
the Mortgage Loans ("Company Employees"). Any such Fidelity Bond and Errors and
Omissions Insurance Policy shall be in the form of the Mortgage Banker's Blanket
Bond and shall protect and insure the Company against losses, including forgery,
theft, embezzlement, fraud, errors and omissions and negligent acts of such
Company Employees. Such Fidelity Bond and Errors and Omissions Insurance Policy
also shall protect and insure the Company against losses in connection with the
release or satisfaction of a Mortgage Loan without having obtained payment in
full of the indebtedness secured thereby. No provision of this Section 4.13
requiring such Fidelity Bond and Errors and Omissions Insurance Policy shall
diminish or relieve the Company from its duties and obligations as set forth in
this Agreement. The minimum coverage under any such bond and insurance policy
shall be at least equal to the amounts acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
Upon the request of any Purchaser, the Company shall cause to be delivered to
such Purchaser a certified true copy of such fidelity bond and insurance policy
and a statement from the surety and the insurer that such fidelity bond and
insurance policy shall in no event be terminated or materially modified without
30 days' prior written notice to the Purchaser.
Section 4.14 Inspections.
If any Mortgage Loan is more than 45 days delinquent, the Company or its
agent shall inspect the Mortgaged Property as promptly as practicable after the
45th day of delinquency and shall conduct subsequent inspections in accordance
with Accepted Servicing Practices or as may be required by the primary mortgage
guaranty insurer. The Company shall keep a record of each such inspection and,
upon request, shall provide the Purchaser with such information.
Section 4.15 Restoration of Mortgaged Property.
The Company need not obtain the approval of the Purchaser prior to
releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be
applied to the restoration or repair of the Mortgaged Property if such release
is in accordance with Accepted Servicing Practices. For claims greater than
$15,000, at a minimum the Company shall comply with the following conditions in
connection with any such release of Insurance Proceeds or Condemnation Proceeds:
(i) the Company shall receive satisfactory independent verification
of completion of repairs and issuance of any required approvals with
respect thereto;
(ii) the Company shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to
requiring waivers with respect to mechanics' and materialmen's liens;
(iii) the Company shall verify that the Mortgage Loan is not in
default; and
(iv) pending repairs or restoration, the Company shall place the
Insurance Proceeds or Condemnation Proceeds in the Escrow Account.
If the Purchaser is named as an additional loss payee, the Company is
hereby empowered to endorse any loss draft issued in respect of such a claim in
the name of the Purchaser.
Section 4.16 Claims.
In connection with its activities as servicer, the Company agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer in a timely fashion and, in this regard, to take such action as shall be
necessary to permit recovery respecting a defaulted Mortgage Loan. Pursuant to
Section 4.04, any amounts collected by the Company under any guaranty shall be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
4.5.
Section 4.17 Title, Management and Disposition of REO Property.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Company, or in the event the Company is not
authorized or permitted to hold title to real property in the state where the
REO Property is located, or would be adversely affected under the "doing
business" or tax laws of such state by so holding title, or the perfection of
the ownership or security interest of the Purchaser in such REO Property would
be adversely effected, the deed or certificate of sale shall be taken in the
name of such Person or Persons as shall be consistent with an Opinion of Counsel
obtained by the Company from any attorney duly licensed to practice law in the
state where the REO Property is located. The Person or Persons holding such
title other than the Purchaser shall acknowledge in writing that such title is
being held as nominee for the Purchaser.
The Company shall manage, conserve, protect and operate each REO Property
for the Purchaser solely for the purpose of its prompt disposition and sale. The
Company, either itself or through an agent selected by the Company, shall
manage, conserve, protect and operate the REO Property in the same manner that
it manages, conserves, protects and operates other foreclosed property for its
own account, and in the same manner that similar property in the same locality
as the REO Property is managed. The Company shall attempt to sell the same (and
may temporarily rent the same for a period not greater than one year, except as
otherwise provided below) on such terms and conditions as the Company deems to
be in the best interest of the Purchaser.
The Company shall use its best efforts to dispose of the REO Property as
soon as possible and shall sell such REO Property in any event within one year
after title has been taken to such REO Property, unless (i) a REMIC election has
not been made with respect to the arrangement under which the Mortgage Loans and
the REO Property are held, and (ii) the Company determines, and gives an
appropriate notice to the Purchaser to such effect, that a longer period is
necessary for the orderly liquidation of such REO Property. If a period longer
than one year is permitted under the foregoing sentence and is necessary to sell
any REO Property, (i) the Company shall report monthly to the Purchaser as to
the progress being made in selling such REO Property and (ii) if, with the
written consent of the Purchaser, a purchase money mortgage is taken in
connection with such sale, such purchase money mortgage (1) shall name the
Company as mortgagee, and (2) shall not be held pursuant to this Agreement, but
instead a separate participation agreement among the Company and Purchaser shall
be entered into with respect to such purchase money mortgage.
The Company shall also maintain on each REO Property fire and hazard
insurance with extended coverage in amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in the amount
required above.
Subject to 5 days' prior written notice to the Purchaser, at the address
specified in Section 12.5, of its intent to do so, the disposition of REO
Property shall be carried out by the Company at such price, and upon such terms
and conditions, as the Company deems to be in the best interests of the
Purchaser. The proceeds of sale of the REO Property shall be promptly deposited
in the Custodial Account. As soon as practical thereafter the expenses of such
sale shall be paid and the Company shall reimburse itself for any related
unreimbursed Servicing Advances, unpaid Servicing Fees and unreimbursed advances
made pursuant to Section 5.3. On the Remittance Date immediately following the
Principal Prepayment Period in which such sale proceeds are received the net
cash proceeds of such sale remaining in the Custodial Account shall be
distributed to the Purchaser.
The Company shall withdraw the Custodial Account funds necessary for the
proper operation management and maintenance of the REO Property, including the
cost of maintaining any hazard insurance pursuant to Section 4.10 and the fees
of any managing agent of the Company, or the Company itself. The Company shall
make monthly distributions on each Remittance Date to the Purchaser of the net
cash flow from the REO Property (which shall equal the revenues from such REO
Property net of the expenses described in the Section 4.16 and of any reserves
reasonably required from time to time to be maintained to satisfy anticipated
liabilities for such expenses).
Section 4.18 Real Estate Owned Reports.
Together with the statement furnished pursuant to Section 5.2, the Company
shall furnish to the Purchaser on or before the Remittance Date each month a
statement with respect to any REO Property covering the operation of such REO
Property for the previous month and the Company's efforts in connection with the
sale of such REO Property and any rental of such REO Property incidental to the
sale thereof for the previous month. That statement shall be accompanied by such
other information as the Purchaser shall reasonably request.
Section 4.19 Liquidation Reports.
Upon the foreclosure sale of any Mortgaged Property or the acquisition
thereof by the Purchaser pursuant to a deed in lieu of foreclosure, the Company
shall submit to the Purchaser a liquidation report with respect to such
Mortgaged Property.
Section 4.20 Reports of Foreclosures and Abandonments of Mortgaged
Property.
Following the foreclosure sale or abandonment of any Mortgaged Property,
the Company shall report such foreclosure or abandonment as required pursuant to
Section 6050J of the Code. The Company shall file information reports with
respect to the receipt of mortgage interest received in a trade or business and
information returns relating to cancellation of indebtedness income with respect
to any Mortgaged Property as required by the Code. Such reports shall be in form
and substance sufficient to meet the reporting requirements imposed by the Code.
Section 4.21 Fair Credit Reporting Act.
The Company, in its capacity as servicer for each Mortgage Loan, agrees to
fully furnish, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g., favorable and
unfavorable) on its borrower credit files to Equifax, Experian and Trans Union
Credit Information Company (three of the credit repositories), on a monthly
basis.
ARTICLE V
PAYMENTS TO PURCHASER
Section 5.1 Remittances.
On each Remittance Date the Company shall remit by wire transfer of
immediately available funds to the Purchaser (a) all amounts deposited in the
Custodial Account as of the close of business on the Determination Date (net of
charges against or withdrawals from the Custodial Account pursuant to Section
4.5), plus (b) all amounts, if any, which the Company is obligated to distribute
pursuant to Section 5.3, minus (c) any amounts attributable to Principal
Prepayments received after the applicable Principal Prepayment Period which
amounts shall be remitted on the following Remittance Date, together with any
additional interest required to be deposited in the Custodial Account in
connection with such Principal Prepayment in accordance with Section 4.4(viii);
and minus (d) any amounts attributable to Monthly Payments collected but due on
a Due Date or Dates subsequent to the first day of the month of the Remittance
Date.
All cash flows from prepayment penalties shall be passed through to the
Purchaser and shall not be waived by the Company, except pursuant to Section
4.1.
With respect to any remittance received by the Purchaser after the date on
which such payment was due, the Company shall pay to the Purchaser interest on
any such late payment at an annual rate equal to the Prime Rate, adjusted as of
the date of each charge, plus two percentage points, but in no event greater
than the maximum amount permitted by Applicable Law. Such interest shall be
deposited in the Custodial Account by the Company on the date such late payment
is made and shall cover the period commencing with the day following such second
Business Day and ending with the Business Day on which such payment is made,
both inclusive. Such interest shall be remitted along with the distribution
payable on the next succeeding Remittance Date. The payment by the Company of
any such interest shall not be deemed an extension of time for payment or a
waiver of any Event of Default by the Company.
Section 5.2 Statements to Purchaser.
Not later than the Remittance Advice Date, the Company shall furnish to
the Purchaser a Monthly Remittance Advice, including the information set forth
in Exhibit E attached hereto, with a trial balance report attached thereto, as
to the period ending on the last day of the preceding month, in a form to be
agreed upon by the Purchaser and the Company.
Section 5.3 Monthly Advances by Company.
On the Business Day immediately preceding each Remittance Date, the
Company shall deposit in the Custodial Account from its own funds or from
amounts held for future distribution an amount equal to all Monthly Payments
(with interest adjusted to the Mortgage Loan Remittance Rate) which were due on
the Mortgage Loans during the applicable Due Period and which were delinquent at
the close of business on the Determination Date immediately preceding such
Remittance Date or which were deferred pursuant to Section 4.1. Any amounts held
for future distribution and so used shall be replaced by the Company by deposit
in the Custodial Account on or before any future Remittance Date if funds in the
Custodial Account on such Remittance Date shall be less than payments to the
Purchaser required to be made on such Remittance Date. Notwithstanding the
foregoing, the Company shall not be permitted to make any advances from amounts
held for future distribution, and instead shall be required to make all advances
from its own funds, unless the Company, its parent, or their respective
successors hereunder shall have a long-term credit rating of at least "A" by
Fitch, Inc. (doing business as Fitch Ratings), "A" by Standard & Poor's Ratings
Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and "A2" by ▇▇▇▇▇'▇
Investors Service, Inc. The Company's obligation to make such Monthly Advances
as to any Mortgage Loan will continue through the last Monthly Payment due prior
to the payment in full of the Mortgage Loan, or through the earlier of: (i) the
last Remittance Date prior to the Remittance Date for the distribution of all
Liquidation Proceeds and other payments or recoveries (including Insurance
Proceeds and Condemnation Proceeds) with respect to the Mortgage Loan and (ii)
the Remittance Date prior to the date the Mortgage Loan is converted to REO
Property, provided however, that if requested by a Rating Agency in connection
with Pass-Through Transfer, the Company shall be obligated to make such advances
through the Remittance Date prior to the date on which cash is received in
connection with the liquidation of REO Property; provided, however, that such
obligation shall cease if the Company determines, in its sole reasonable
opinion, that advances with respect to such Mortgage Loan are non-recoverable by
the Company from Liquidation Proceeds, Insurance Proceeds, Condemnation
Proceeds, or otherwise with respect to a particular Mortgage Loan. In the event
that the Company determines that any such advances are non-recoverable, the
Company shall provide the Purchaser with a certificate signed by two officers of
the Company evidencing such determination.
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.1 Transfers of Mortgaged Property.
The Company shall use its best efforts to enforce any "due-on-sale"
provision contained in any Mortgage or Mortgage Note and to deny assumption by
the Person to whom the Mortgaged Property has been or is about to be sold
whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains liable on the Mortgage and the Mortgage Note. When the
Mortgaged Property has been conveyed by the Mortgagor, the Company shall, to the
extent it has knowledge of such conveyance, exercise its rights to accelerate
the maturity of such Mortgage Loan under the "due-on-sale" clause applicable
thereto, provided, however, that the Company shall not exercise such rights if
prohibited by law from doing so.
If the Company reasonably believes it is unable under Applicable Law to
enforce such "due-on-sale" clause, the Company shall enter into (i) an
assumption and modification agreement with the Person to whom such property has
been conveyed, pursuant to which such Person becomes liable under the Mortgage
Note and the original Mortgagor remains liable thereon or (ii) in the event the
Company is unable under Applicable Law to require that the original Mortgagor
remain liable under the Mortgage Note and the Company has the prior consent of
the primary mortgage guaranty insurer, a substitution of liability agreement
with the purchaser of the Mortgaged Property pursuant to which the original
Mortgagor is released from liability and the purchaser of the Mortgaged Property
is substituted as Mortgagor and becomes liable under the Mortgage Note. If an
assumption fee is collected by the Company for entering into an assumption
agreement the fee will be retained by the Company as additional servicing
compensation. In connection with any such assumption, neither the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage Loan,
the outstanding principal amount of the Mortgage Loan nor any other material
terms shall be changed without Purchaser's consent.
To the extent that any Mortgage Loan is assumable, the Company shall
inquire diligently into the credit worthiness of the proposed transferee, and
shall use the underwriting criteria for approving the credit of the proposed
transferee which are used with respect to underwriting mortgage loans of the
same type as the Mortgage Loan. If the credit of the proposed transferee does
not meet such underwriting criteria, the Company diligently shall, to the extent
permitted by the Mortgage or the Mortgage Note and by Applicable Law, accelerate
the maturity of the Mortgage Loan.
Section 6.2 Satisfaction of Mortgages and Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, the Company shall notify
the Purchaser in the Monthly Remittance Advice as provided in Section 5.2, and
may request the release of any Mortgage Loan Documents. If such Mortgage Loan is
a MERS Mortgage Loan, the Company is authorized to cause the removal from the
registration on the MERS System of such Mortgage and to execute and deliver, on
behalf of the Purchaser, any and all instruments of satisfaction or cancellation
or of partial or full release.
If the Company satisfies or releases a Mortgage without first having
obtained payment in full of the indebtedness secured by the Mortgage or should
the Company otherwise prejudice any rights the Purchaser may have under the
mortgage instruments, upon written demand of the Purchaser, the Company shall
repurchase the related Mortgage Loan at the Repurchase Price by deposit thereof
in the Custodial Account within 2 Business Days of receipt of such demand by the
Purchaser. The Company shall maintain the Fidelity Bond and Errors and Omissions
Insurance Policy as provided for in Section 4.12 insuring the Company against
any loss it may sustain with respect to any Mortgage Loan not satisfied in
accordance with the procedures set forth herein.
Section 6.3 Servicing Compensation.
As compensation for its services hereunder, the Company shall be entitled
to withdraw from the Custodial Account or to retain from interest payments on
the Mortgage Loans the amount of its Servicing Fee. The Servicing Fee shall be
payable monthly and shall be computed on the basis of the Scheduled Principal
Balance and for the period respecting which any related interest payment on a
Mortgage Loan is computed. The obligation of the Purchaser to pay the Servicing
Fee is limited to, and payable solely from, the interest portion of such Monthly
Payments.
Additional servicing compensation in the form of assumption fees, to the
extent provided in Section 6.01, and late payment charges shall be retained by
the Company to the extent not required to be deposited in the Custodial Account.
The Company shall be required to pay all expenses incurred by it in connection
with its servicing activities hereunder and shall not be entitled to
reimbursement thereof except as specifically provided for herein.
Section 6.4 Annual Statement as to Compliance.
For each Mortgage Loan Package, the Company shall deliver to the Purchaser
on or before February 28 each year, beginning in the calendar year immediately
succeeding the calendar year of the related Closing Date, an Officer's
Certificate, stating that (i) a review of the activities of the Company during
the preceding calendar year and of performance under this Agreement has been
made under such officer's supervision, and (ii) the Company has complied with
the provisions of this Agreement or similar agreements, and (iii) to the best of
such officer's knowledge, based on such review, the Company has fulfilled all
its obligations under this Agreement or similar agreements throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof and the action being taken by the Company to cure such default.
Section 6.5 Annual Independent Public Accountants' Servicing Report.
For each Mortgage Loan Package, on or before February 28 each year,
beginning in the calendar year immediately succeeding the calendar year of the
related Closing Date, the Company, at its expense, shall cause a firm of
independent public accountants which is a member of the American Institute of
Certified Public Accountants to furnish a statement to each Purchaser to the
effect that such firm has examined certain documents and records relating to the
servicing of the mortgage loans similar in nature and that such firm is of the
opinion that the provisions of this or similar agreements have been complied
with, and that, on the basis of such examination conducted substantially in
compliance with the Uniform Single Attestation Program for Mortgage Bankers,
nothing has come to their attention which would indicate that such servicing has
not been conducted in compliance therewith, except for (i) such exceptions as
such firm shall believe to be immaterial, and (ii) such other exceptions as
shall be set forth in such statement. By providing Purchaser a copy of a Uniform
Single Attestation Program Report from their independent public accountant's on
an annual basis, Company shall be considered to have fulfilled its obligations
under this Section 6.5.
Section 6.6 Right to Examine Company Records.
The Purchaser, or its designee, shall have the right to examine and audit
any and all of the books, records, or other information of the Company, whether
held by the Company or by another on its behalf, with respect to or concerning
this Agreement or the Mortgage Loans, during business hours or at such other
times as may be reasonable under applicable circumstances, upon reasonable
advance notice. The Purchaser shall pay its own expenses associated with such
examination.
Section 6.7 Compliance with REMIC Provisions.
If a REMIC election has been made with respect to the arrangement under
which the Mortgage Loans and REO Property are held, the Company shall not take
any action or fail to take any action or fail to cause the REMIC to take any
action, that, under the REMIC Provisions, if taken or not taken, as the case may
be, could (i) endanger the status of the REMIC as a REMIC or (ii) result in the
imposition of a tax upon the REMIC (including but not limited to the tax on
"prohibited transactions" as defined Section 860F(a)(2) of the Code and the tax
on "contributions" to a REMIC set forth in Section 860G(d) of the Code) unless
the Company has received an Opinion of Counsel (at the expense of the party
seeking to take such action) to the effect that the contemplated action will not
endanger such REMIC status or result in the imposition of any such tax.
ARTICLE VII
COMPANY TO COOPERATE
Section 7.1 Provision of Information.
During the term of this Agreement, the Company shall furnish to the
Purchaser such periodic, special, or other reports or information, and copies or
originals of any documents contained in the Servicing File for each Mortgage
Loan provided for herein. All other special reports or information not provided
for herein as shall be necessary, reasonable, or appropriate with respect to the
Purchaser or any regulatory agency will be provided at the Purchaser's expense.
All such reports, documents or information shall be provided by and in
accordance with all reasonable instructions and directions which the Purchaser
may give.
The Company shall execute and deliver all such instruments and take all
such action as the Purchaser may reasonably request from time to time, in order
to effectuate the purposes and to carry out the terms of this Agreement.
Section 7.2 Financial Statements; Servicing Facility.
In connection with marketing the Mortgage Loans, the Purchaser may make
available to a prospective Purchaser a Consolidated Statement of Operations of
the Company for the most recently completed two fiscal years for which such a
statement is available, as well as a Consolidated Statement of Condition at the
end of the last two fiscal years covered by such Consolidated Statement of
Operations. The Company, upon request, also shall make available any comparable
interim statements to the extent any such statements have been prepared by or on
behalf of the Company (and are available upon request to members or stockholders
of the Company or to the public at large).
The Company also shall make available to Purchaser or prospective
Purchaser a knowledgeable financial or accounting officer for the purpose of
answering questions respecting recent developments affecting the Company or the
financial statements of the Company, and to permit any prospective purchaser to
inspect the Company's servicing facilities for the purpose of satisfying such
prospective purchaser that the Company has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE VIII
THE COMPANY
Section 8.1 Indemnification; Third Party Claims.
The Company shall indemnify the Purchaser and hold it harmless against any
and all claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees and
expenses that the Purchaser may sustain in any way related to the failure of the
Company to perform its duties and service the Mortgage Loans in strict
compliance with the terms of this Agreement. The Company immediately shall
notify the Purchaser if a claim is made by a third party with respect to this
Agreement or the Mortgage Loans, assume (with the prior written consent of the
Purchaser) the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or the Purchaser in respect
of such claim. The Company shall follow any written instructions received from
the Purchaser in connection with such claim. The Purchaser promptly shall
reimburse the Company for all costs, fees or expenses advanced by it pursuant to
this paragraph except when the claim in any way results from, relates to or
arises out of any liability, obligation, act or omission of the Company,
including without limitation, the Company's indemnification obligation under
Section 3.3 and this Section 8.1, any repurchase obligation of the Company
hereunder including Sections 2.3, 3.3 and 6.2, or the failure of the Company to
service and administer the Mortgage Loans and otherwise perform its obligations
hereunder in strict compliance with the terms of this Agreement.
Section 8.2 Merger or Consolidation of the Company.
The Company shall keep in full effect its existence, rights and franchises
and shall 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 this Agreement or any of the Mortgage Loans and
to perform its duties under this Agreement.
Any Person into which the Company may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Company shall be a party, or any Person succeeding to the business of the
Company, shall be the successor of the Company hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding, provided, however, that
the successor or surviving Person shall be an institution which is a ▇▇▇▇▇▇
▇▇▇/▇▇▇▇▇▇▇ Mac-approved company in good standing. Furthermore, in the event the
Company transfers or otherwise disposes of all or substantially all of its
assets to an affiliate of the Company, such affiliate shall satisfy the
condition above, and shall also be fully liable to the Purchaser for all of the
Company's obligations and liabilities hereunder.
Section 8.3 Limitation on Liability of Company and Others.
Neither the Company nor any of the directors, officers, employees or
agents of the Company shall be under any liability to the Purchaser for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment, provided, however, that
this provision shall not protect the Company or any such Person against any
breach of warranties or representations made herein, or failure to perform its
obligations in strict compliance with any standard of care set forth in this
Agreement or any other liability which would otherwise be imposed under this
Agreement. The Company and any director, officer, employee or agent of the
Company may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Company shall not be under any obligation to appear in, prosecute or defend
any legal action which is not incidental to its duties to service the Mortgage
Loans in accordance with this Agreement and which in its opinion may involve it
in any expense or liability, provided, however, that the Company may, with the
consent of the Purchaser, undertake any such action which it may deem necessary
or desirable in respect to this Agreement and the rights and duties of the
parties hereto. In such event, the Company shall be entitled to reimbursement
from the Purchaser of the reasonable legal expenses and costs of such action.
Section 8.4 Limitation on Resignation and Assignment by Company.
The Purchaser has entered into this Agreement with the Company and
subsequent Purchasers will purchase the Mortgage Loans in reliance upon the
independent status of the Company, and the representations as to the adequacy of
its servicing facilities, plant, personnel, records and procedures, its
integrity, reputation and financial standing, and the continuance thereof.
Therefore, the Company shall neither assign this Agreement or the servicing
rights hereunder, or sell or otherwise dispose of all of its property or assets
without the prior written consent of the Purchaser, which consent shall not be
unreasonably withheld.
The Company shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Company and the Purchaser or upon
the determination that its duties hereunder are no longer permissible under
Applicable Law and such incapacity cannot be cured by the Company. Any such
determination permitting the resignation of the Company shall be evidenced by an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Company's responsibilities and obligations hereunder in the manner provided in
Section 12.1.
Without in any way limiting the generality of this Section 8.4, in the
event that the Company either shall assign this Agreement or the servicing
responsibilities hereunder or sell or otherwise dispose of all or substantially
all of its property or assets without the prior written consent of the
Purchaser, then the Purchaser shall have the right to terminate this Agreement
upon notice given as set forth in Section 10.1, without any payment of any
penalty or damages and without any liability whatsoever to the Purchaser or any
third party.
ARTICLE IX
PASS-THROUGH TRANSFER
Section 9.1 Removal of Mortgage Loans from Inclusion Under this
Agreement Upon a Pass-Through Transfer
The Purchaser and the Company agree that with respect to some or all of
the Mortgage Loans, the Purchaser, at its sole option, may effect Whole Loan
Transfers or Pass-Through Transfers, retaining the Company as the Servicer
thereof or subservicer if a master servicer is employed, or as applicable the
"seller/servicer". From and after the Reconstitution Date, the Mortgage Loans
transferred may remain covered by this Agreement, insofar as the Company shall
continue to service such Mortgage Loans on behalf of the Purchaser in accordance
with the terms and provisions of this Agreement.
The Company shall cooperate with the Purchaser in connection with each
Whole Loan Transfer or Pass-Through Transfer in accordance with this Section
9.1. In connection therewith the Company shall:
(a) make all representations and warranties with respect to the
Mortgage Loans as of the related Closing Date and with respect
to the Company itself as of the closing date of each Whole
Loan Transfer or Pass-Through Transfer;
(b) negotiate in good faith and execute any seller/servicer
agreements required by the shelf registrant to effectuate the
foregoing provided such agreements create no greater
obligation or cost on the part of the Company than otherwise
set forth in this Agreement;
(c) with respect to any Mortgage Loans that are subject to a
Pass-Through Transfer or other securitization (a
"Securitization") in which the filing of a ▇▇▇▇▇▇▇▇-▇▇▇▇▇
certification directly with the Securities and Exchange
Commission is required, by February 28th of each year or in
connection with any additional ▇▇▇▇▇▇▇▇-▇▇▇▇▇ certification
required to be filed, upon thirty (30) days written request,
an officer of the Company shall execute and deliver a Company
Certification substantially in the form attached hereto as
Exhibit H, to the entity filing the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
certification directly with the Securities and Exchange
Commission (such as the Purchaser, any master servicer, any
trustee or any depositor) for the benefit of such entity and
such entity's affiliates and the officers, directors and
agents of such entity and such entity's affiliates, and shall
indemnify such entity or persons arising out of any breach of
the Company's obligations or representations relating thereto
as provided in such Company Certification;
(d) represent to the Purchaser, the depositor, the trustee, and
the initial purchaser of the securities issued in connection
with any Pass-Through Transfer that: (1) that the Company has
serviced the Mortgage Loans in accordance with the terms of
this Agreement, and has otherwise complied with all covenants
and obligations hereunder, and (2) that the Company has taken
no action that would, nor omitted to take any required action
the omission of which would, have the effect of impairing the
mortgage insurance or guarantee on the Mortgage Loans. The
Company also agrees to represent the accuracy of any
information provided to the Purchaser by the Company for
inclusion in any prospectus supplement, offering memorandum or
term sheet prepared in connection with any Pass-Through
Transfers;
(e) deliver an opinion of counsel (which can be an opinion of
in-house counsel to the Company) reasonably acceptable to the
Purchaser; provided that any out-of-pocket, third party
expenses incurred by the Company in connection with the
foregoing shall be paid by the Purchaser;
(f) provide as applicable:
(i) any and all information and appropriate verification of
information which may be reasonably available to the
Company, whether through letters of its auditors and
counsel or otherwise, as the Purchaser shall request;
(ii) (x) a company certification executed by a senior officer
of the Company responsible for the servicing of the
Mortgage Loans, and (y) such additional statements,
certificates or other similar documents of the Company
or reports from the Company's accountants in connection
with a Pass-Through Transfer and in substance as
required by Applicable Law; and
(iii) such additional representations, warranties, covenants,
opinions of counsel, letters from auditors, financial
description of the Company as servicer for inclusion in
any offering memorandum to be distributed to potential
investors in connection with a Pass-Through Transfer
with respect to the Mortgage Loans, and certificates of
public officials or officers of the Company as are
reasonably believed necessary by the trustee, any Rating
Agency, the Purchaser, as the case may be, in connection
with such Whole Loan Transfers or Pass-Through
Transfers. The Purchaser shall pay all third party costs
associated with the preparation of such information. The
Company shall execute any seller/servicer agreements
required within a reasonable period of time after
receipt of such seller/servicer agreements which time
shall be sufficient for the Company and Company's
counsel to review such seller/servicer agreements. Under
this Agreement, the Company shall retain a servicing fee
for each Mortgage Loan, at the Servicing Fee Rate;
(g) indemnify the Purchaser for any material misstatements,
omissions or alleged material misstatements or omissions
contained in the information provided pursuant to (d) or (f)
above; provided, that the Purchaser shall provide
indemnification to the Company, its successors or assigns,
with respect to any material misstatements, omissions or
alleged material misstatements or omissions contained in any
information (other than the information provided by the
Company pursuant to (d) or (f) above) in any securitization
offering materials; and
(h) if required at any time by the Rating Agencies in connection
with any Pass-Through Transfer, the Company shall deliver such
additional documents from its Retained Mortgage File to the
Custodian as the Rating Agencies may require (a "Rating Agency
Delivery Event").
In the event the Purchaser has elected to have the Company hold record
title to the Mortgages, prior to the Reconstitution Date and after the related
Closing Date the Company shall prepare an Assignment of Mortgage in blank or, at
the option of the Purchaser, to the trustee from the Company (to the extent such
Assignment has not been prepared on or before the related Closing Date)
acceptable to the trustee for each Mortgage Loan that is part of the Whole Loan
Transfers or Pass-Through Transfers. The Purchaser shall pay all preparation and
recording costs associated therewith. The Company shall execute each Assignment
of Mortgage, track such Assignments of Mortgage to ensure they have been
recorded and deliver them as required by the trustee upon the Company's receipt
thereof. Additionally, the Company shall prepare and execute, at the direction
of the Purchaser, any note endorsements in connection with any and all
seller/servicer agreements.
ARTICLE X
DEFAULT
Section 10.1 Events of Default.
Each of the following shall constitute an Event of Default on the part of
the Company:
(i) any failure by the Company to remit to the Purchaser
any payment required to be made under the terms of this
Agreement which continues unremedied for a period of three
Business Days after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been
given to the Company by the Purchaser; or
(ii) failure by the Company duly to observe or perform
in any material respect any other of the covenants or
agreements on the part of the Company set forth in this
Agreement which continues unremedied for a period of 30 days
after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to
the Company by the Purchaser or by the Custodian; or
(iii) failure by the Company to maintain its license to
do business in any jurisdiction where the Mortgaged Property
is located if such license is required; or
(iv) a decree or order of a court or agency or
supervisory authority having jurisdiction for the appointment
of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, including bankruptcy, marshaling of
assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been
entered against the Company and such degree or order shall
have remained in force undischarged or unstayed for a period
of 60 days; or
(v) the Company shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to the Company or of or
relating to all or substantially all of its property; or
(vi) the Company shall admit in writing its inability to
pay its debts generally as they become due, file a petition to
take advantage of any applicable insolvency, bankruptcy or
reorganization statute, make an assignment for the benefit of
its creditors, voluntarily suspend payment of its obligations
or cease its normal business operations for three Business
Days; or
(vii) the Company ceases to meet the qualifications of a
▇▇▇▇▇▇ Mae/▇▇▇▇▇▇▇ Mac servicer; or
(viii) the Company attempts to assign its right to
servicing compensation hereunder or to assign this Agreement
or the servicing responsibilities hereunder in violation of
Section 8.4; or
(ix) the taking of any action by the Company, any
Company Employee, any Affiliate or any director or employee
thereof that constitutes fraud or criminal activity in the
performance of its obligations under this Agreement or the
indictment of any of the foregoing Persons for criminal
activity related to the mortgage origination or servicing
activities of the Company, in each case, where such indictment
materially and adversely affects the ability of the Company to
perform its obligations under this Agreement (subject to the
condition that such indictment is not dismissed within 90
days).
In each and every such case, so long as an Event of Default shall not have
been remedied, in addition to whatever rights the Purchaser may have at law or
equity to damages, including injunctive relief and specific performance, the
Purchaser, by notice in writing to the Company, may terminate with cause all the
rights and obligations of the Company under this Agreement and in and to the
Mortgage Loans and the proceeds thereof.
Upon receipt by the Company of such written notice, all authority and
power of the Company under this Agreement, whether with respect to the Mortgage
Loans or otherwise, shall pass to and be vested in the successor appointed
pursuant to Section 12.1. Upon written request from any Purchaser, the Company
shall prepare, execute and deliver to the successor entity designated by the
Purchaser any and all documents and other instruments, place in such successor's
possession all Mortgage Files, and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, including but not limited to the transfer and endorsement or
assignment of the Mortgage Loans and related documents, at the Company's sole
expense. The Company shall cooperate with the Purchaser and such successor in
effecting the termination of the Company's responsibilities and rights
hereunder, including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited by
the Company to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
If any of the Mortgage Loans are MERS Mortgage Loans, in connection with
the termination or resignation (as described in Section 8.4) of the Company
hereunder, either (i) the successor servicer shall represent and warrant that it
is a member of MERS in good standing and shall agree to comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS, or (ii) the predecessor
servicer shall cooperate with the successor servicer either (x) in causing MERS
to execute and deliver an assignment of Mortgage in recordable form to transfer
the Mortgage from MERS to the Purchaser and to execute and deliver such other
notices, documents and other instruments as may be necessary to effect a
transfer of such Mortgage Loan or servicing of such Mortgage Loan on the MERS(R)
System to the successor servicer or (y) in causing MERS to designate on the
MERS(R) System the successor servicer as the servicer of such Mortgage Loan.
Section 10.2 Waiver of Defaults.
By a written notice, the Purchaser may waive any default by the Company in
the performance of its obligations hereunder and its consequences. Upon any
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
ARTICLE XI
TERMINATION
Section 11.1 Termination.
This Agreement shall terminate upon any of: (i) the later of the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan or the disposition of any REO Property with respect to the last
Mortgage Loan and the remittance of all funds due hereunder, (ii) mutual consent
of the Company and the Purchaser in writing or (iii) termination pursuant to
Section 10.1, 11.2 or 11.3.
Section 11.2 Termination Without Cause.
The Purchaser may terminate, at its sole option, any rights the Company
may have hereunder, without cause, as provided in this Section 11.2. Any such
notice of termination shall be in writing and delivered to the Company and any
Rating Agency by registered mail as provided in Section 12.5.
The Company shall be entitled to receive, as such liquidated damages, upon
its termination as servicer hereunder without cause pursuant to this Section
11.2 an amount equal to 2.50% of the aggregate outstanding principal amount of
the Mortgage Loans as of the termination date paid by the Purchaser to the
Company with respect to all of the Mortgage Loans. In the event of a termination
pursuant to this Section 11.2, the Company shall be required, at the expense of
the Purchaser, to deliver to the Custodian the entire contents of the Retained
Mortgage File, to the extent such contents were not previously delivered to the
Custodian pursuant to this Agreement or the Custodial Agreement.
Section 11.3 Termination With Cause.
Notwithstanding any other provision hereof to the contrary, the Purchaser,
at its option, may terminate this Agreement, and any rights the Company may have
hereunder, with cause upon ten (10) Business Days' prior written notice. For all
purposes of determining "cause" with respect to termination of this Agreement or
the rights of the Company hereunder, such term shall mean, without limitation,
termination upon the occurrence of any Event of Default hereunder which is not
cured within any applicable cure period. In the event of a termination of the
Company for cause under this Section 11.3, no liquidated damages shall be
payable to the Company pursuant to Section 11.2 and the Company shall be
required, at its own expense, to deliver to the Custodian the entire contents of
the Retained Mortgage File, to the extent such contents were not previously
delivered to the Custodian pursuant to this Agreement or the Custodial
Agreement.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1 Successor to Company.
Prior to termination of the Company's responsibilities and duties under
this Agreement pursuant to Sections 8.4, 10.1 or 11.1, the Purchaser shall, (i)
succeed to and assume all of the Company's responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor having the
characteristics set forth in Section 8.2 and which shall succeed to all rights
and assume all of the responsibilities, duties and liabilities of the Company
under this Agreement prior to the termination of Company's responsibilities,
duties and liabilities under this Agreement. In connection with such appointment
and assumption, the Purchaser may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor shall
agree. In the event that the Company's duties, responsibilities and liabilities
under this Agreement should be terminated pursuant to the aforementioned
sections, the Company shall discharge such duties and responsibilities during
the period from the date it acquires knowledge of such termination until the
effective date thereof with the same degree of diligence and prudence which it
is obligated to exercise under this Agreement, and shall take no action
whatsoever that might impair or prejudice the rights or financial condition of
its successor. The resignation or removal of the Company pursuant to the
aforementioned sections shall not become effective until a successor shall be
appointed pursuant to this Section 12.1 and shall in no event relieve the
Company of the representations and warranties made pursuant to Sections 3.1 and
3.2 and the remedies available to the Purchaser under Sections 2.3, 3.3 and 6.2,
it being understood and agreed that the provisions of such Sections 2.3, 3.1,
3.2, 3.3, 6.1 and 8.1 shall be applicable to the Company notwithstanding any
such sale, assignment, resignation or termination of the Company, or the
termination of this Agreement.
Any successor appointed as provided herein shall execute, acknowledge and
deliver to the Company and to the Purchaser an instrument accepting such
appointment, wherein the successor shall make the representations and warranties
set forth in Section 3.1, except for the portion of subsection (h) relating to
sale of the mortgage loans and all of subsections (j) and (l) thereof, whereupon
such successor shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Company, with like effect
as if originally named as a party to this Agreement. Any termination or
resignation of the Company or termination of this Agreement pursuant to Section
8.4, 10.1, 11.1, 11.2 or 11.3 shall not affect any claims that any Purchaser may
have against the Company arising out of the Company's actions or failure to act
prior to any such termination or resignation.
The Company shall deliver promptly to the successor servicer the funds in
the Custodial Account and Escrow Account and all Mortgage Files and related
documents and statements held by it hereunder and the Company shall account for
all funds and shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and definitively vest in the
successor all such rights, powers, duties, responsibilities, obligations and
liabilities of the Company.
Upon a successor's acceptance of appointment as such, the Company shall
notify by mail the Purchaser of such appointment in accordance with the
procedures set forth in Section 12.5.
Section 12.2 Amendment.
This Agreement may be amended from time to time by written agreement
signed by the Company and the Purchaser.
Section 12.3 Governing Law.
This Agreement shall be construed in accordance with the laws of the State
of New York and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
Each of the Company and the Purchaser hereby knowingly, voluntarily and
intentionally waives any and all rights it may have to a trial by jury in
respect or any litigation based on, or arising out of, under, or in connection
with, this Agreement, or any other documents and instruments executed in
connection herewith, or any course of conduct, course of dealing, statements
(whether oral or written), or actions of the Company or the Purchaser. This
provision is a material inducement for the Purchaser to enter into this
Agreement.
Section 12.4 Duration of Agreement.
This Agreement shall continue in existence and effect until terminated as
herein provided. This Agreement shall continue notwithstanding transfers of the
Mortgage Loans by the Purchaser.
Section 12.5 Notices.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, addressed as follows:
(i) if to the Company with respect to servicing and investor
reporting issues:
▇▇▇▇▇ Fargo Bank, N.A.
1 Home Campus, MAC #X2401042
Des Moines, Iowa 503280001
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇▇▇▇
if to the Company with respect to all other issues:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, MAC X3906-012
Tel: (▇▇▇) ▇▇▇-▇▇▇▇; Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ Fargo Bank, N.A.
1 Home Campus, MAC #X240106T
Des Moines, Iowa 503280001
Attention: General Counsel
Tel: (▇▇▇) ▇▇▇-▇▇▇▇; Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished to the
Purchaser in writing by the Company;
(ii) if to Purchaser:
▇▇▇▇▇▇▇ Sachs Mortgage Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇; Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ Sachs Mortgage Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇; Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished to the
Company in writing by the Purchaser.
Section 12.6 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement.
Section 12.7 Relationship of Parties.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of the
Company shall be rendered as an independent contractor and not as agent for the
Purchaser.
Section 12.8 Execution; Successors and Assigns.
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Section 8.4, this Agreement
shall inure to the benefit of and be binding upon, and shall be enforceable by,
the Company and the Purchaser and their respective successors and assigns,
including without limitation, any trustee appointed by the Purchaser with
respect to any Whole Loan Transfer or Pass-Through Transfer. The parties agree
that this Agreement and signature pages thereof may be transmitted between them
by facsimile and that faxed signatures may constitute original signatures and
that a faxed signature page containing the signature (faxed or original) is
binding on the parties.
Section 12.9 Recordation of Assignments of Mortgage.
To the extent permitted by Applicable Law, as to each Mortgage Loan which
is not a MERS Mortgage Loan, each of the Assignments of Mortgage 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
Mortgaged Properties are situated, and in any other appropriate public recording
office or elsewhere, which recordation shall have been effected at the Company's
expense in the event recordation is either necessary under Applicable Law or
requested by the Purchaser at its sole option.
Section 12.10 Assignment by Purchaser.
The Purchaser shall have the right, without the consent of the Company to
assign, in whole or in part, its interest under this Agreement with respect to
some or all of the Mortgage Loans, and designate any Person to exercise any
rights of the Purchaser hereunder, by executing an Assignment and Assumption
Agreement substantially in the form of Exhibit F hereto and the assignee or
designee shall accede to the rights and obligations hereunder of the Purchaser
with respect to such Mortgage Loans. All references to the Purchaser in this
Agreement shall be deemed to include its assignee or designee.
Section 12.11 Solicitation of Mortgagor.
Neither party shall, after the related Closing Date, take any action to
solicit the refinancing of any Mortgage Loan. It is understood and agreed that
neither (i) promotions undertaken by either party or any affiliate of either
party which are directed to the general public at large, including, without
limitation, mass mailings based upon commercially acquired mailing lists,
newspaper, radio, television advertisements nor (ii) serving the refinancing
needs of a Mortgagor who, without solicitation, contacts either party in
connection with the refinance of such Mortgage or Mortgage Loan, shall
constitute solicitation under this Section.
IN WITNESS WHEREOF, the Company and the Purchaser have caused their names
to be signed hereto by their respective duly authorized officers as of the day
and year first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY
By: ▇▇▇▇▇▇▇ Sachs Real Estate
Funding Corp., its General Partner
By:_____________________________________
Name:___________________________________
Title:__________________________________
▇▇▇▇▇ FARGO BANK, N.A.,
As Company
By:_____________________________________
Name:___________________________________
Title:__________________________________
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the _____ day of August 2004 before me, a Notary Public in and for said
State, personally appeared , known to me to be the of ▇▇▇▇▇▇▇ Sachs Real Estate
Funding Corp., the general partner of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, the
partnership that executed the within instrument and also known to me to be the
person who executed it on behalf of said partnership, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office seal the
day and year in this certificate first above written.
Notary Public
My Commission expires_____________________
STATE OF MARYLAND )
) ss:
COUNTY OF ▇▇▇▇▇▇▇▇▇▇ )
On the _____ day of August 2004 before me, a Notary Public in and for said
State, personally appeared ____________, known to me to be the _______________
of ▇▇▇▇▇ Fargo Bank, N.A., the national banking association that executed the
within instrument and also known to me to be the person who executed it on
behalf of said bank, and acknowledged to me that such bank executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office seal the
day and year in this certificate first above written.
Notary Public
My Commission expires
EXHIBIT A
ASSIGNMENT AND CONVEYANCE
On this ___ day of __________, ____, for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, ▇▇▇▇▇ Fargo Bank,
N.A. ("Company"), as (i) the Seller under that certain Purchase Price and Terms
Letter, dated as of ___________, _____ (the "PPTA"), (ii) the Company under that
certain Master Seller's Warranties and Servicing Agreement, dated as of August
1, 2004 (the "Purchase Agreement" and, together with the PPTL, the "Agreements")
does hereby sell, transfer, assign, set over and convey to ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Company ("Purchaser") as the Purchaser under the Agreements, and the
Purchaser hereby accepts from the Company, without recourse, but subject to the
terms of the Agreements, all right, title and interest of, in and to the
Mortgage Loans listed on the Mortgage Loan Schedule attached hereto as Exhibit A
(the "Mortgage Loans"). Pursuant to Section 2.03 of the Purchase Agreement, the
Company has delivered the Custodial Mortgage File to the Custodian. The Retained
Mortgage File and the Servicing File for each Mortgage Loan shall be retained by
the Company pursuant to Section 2.1 of the Purchase Agreement.
In accordance with Article 2 of the Purchase Agreement, the
Purchaser accepts the Mortgage Loans listed on Exhibit A attached hereto.
Notwithstanding the foregoing the Purchaser does not waive any rights or
remedies it may have under the Agreements.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
▇▇▇▇▇ FARGO BANK, N.A.
By:_________________________________
Name:_______________________________
Title:______________________________
Accepted and Agreed:
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY
By: ▇▇▇▇▇▇▇ Sachs Real Estate
Funding Corp., its General Partner
By:________________________________
Name:______________________________
Title:_____________________________
EXHIBIT A
MORTGAGE LOAN SCHEDULE
(Available upon request.)
EXHIBIT A-1
DATA FILE ELEMENTS
(1) the Mortgagor's first and last name;
(2) a code indicating whether the Mortgaged Property is owner-occupied;
(3) the original date of the Mortgage Loan and the remaining months to
maturity from the Cut-off Date, based on the original amortization
schedule;
(4) the date on which the first Monthly Payment was due on the Mortgage Loan;
(5) the current Monthly Payment;
(6) the amount of the Monthly Payment as of the Cut-off Date;
(7) the last Due Date on which a Monthly Payment was actually applied to the
Stated Principal Balance;
(8) the original principal amount of the Mortgage Loan;
(9) the first Adjustment Date;
(10) a code indicating the purpose of the loan (i.e., purchase, financing,
Rate/Term Refinancing, Cash-Out Refinancing);
(11) the maximum Mortgage Interest Rate under the terms of the Mortgage Note;
(12) the Mortgage Interest Rate at origination;
(13) the Periodic Interest Rate Cap;
(14) the Index;
(15) the date on which the first Monthly Payment was due on the Mortgage Loan
and, if such date is not consistent with the Due Date currently in effect,
such Due Date;
(16) a code indicating the documentation style (i.e., full (providing two years
employment verification - 2 years W-2's and current paystub or 2 years
1040's for self employed borrowers), alternative or reduced),
(17) a code indicating if the Mortgage Loan is subject to a PMI Policy,
(18) the Appraised Value of the Mortgage Property,
(19) the sale price of the Mortgaged Property, if applicable,
(20) the Mortgagor's and Co-Mortgagor's (if applicable) social security
numbers;
(21) the Mortgagor's FICO score;
(22) the street address of the Mortgaged Property including the city, state,
county and zip code;
(23) term of prepayment penalty;
(24) a code indicating whether the Mortgaged Property is a single family
residence, a 2-4 family dwelling, a PUD, a townhouse, manufactured
housing, a unit in a condominium project, or a mobile home;
(25) a code indicating the product type;
(26) a code indicating the Credit Grade of the Mortgage Loan;
(27) the Loan to Value Ratio;
(28) the Mortgage Interest Rate as of the Cut-off Date;
(29) the stated maturity date;
(30) the original principal amount of the Mortgage Loan;
(31) the sale balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after deduction of payments of principal due on or before
the Cut-off Date;
(32) the Mortgage Loan purpose type;
(33) the next Interest Rate Adjustment Date;
(34) the Gross Margin;
(35) the Note date of the Mortgage Loan;
(36) the Appraised value;
(37) the Mortgagor's and Co-Mortgagor's race;
(38) the Mortgagor's and Co-Mortgagor's gender;
(39) the qualifying monthly income of the Mortgagor;
(40) a code indicating whether the loan was originated through a correspondent,
retail or wholesale channel;
(41) the amount of the monthly principal and interest payment at the time of
origination;
(42) the Mortgage Insurance Certificate Number and percentage of coverage, if
applicable;
(43) borrower date of birth;
(44) a code indicating first time buyer;
(45) the monthly servicing fee;
(46) a code indicating the HMDA data;
(47) whether the Mortgage Loan is convertible,
(48) a code indicating whether the Mortgage Loan is a Time$aver(R) Mortgage
Loan,
(49) a code indicating whether the Mortgage Loan is a Cooperative Loan,
(50) the MIN Number for each MERS Mortgage Loan,
(51) LEX number,
(52) employer name,
(53) subsidy code,
(54) a code indicating whether the Mortgage Loan is a relocation loan;
(55) a code indicating whether the Mortgage Loan is a temporary buydown;
(56) the master service fee, if applicable,
(57) servicer name,
(58) total Loan-to-Value,
(59) the Mortgagor's electronic credit score;
(60) a code indicating whether the Mortgage Loan is a leasehold loan;
(61) a code indicating whether the Mortgage Loan is an Alt A loan,
(62) a code indicating whether the Mortgage Loan is a no ratio loan,
(63) citizenship type code,
(64) lien status,
(65) loan RSCA indicator,
(66) terminal didget
(67) servicer code,
(68) loan term number,
(69) a code indicating whether the Mortgage Loan is a pledged asset,
(70) effective LTV percentage for pledged asset mortgage loans,
(71) a code indicating whether the Mortgage Loan is an interest only loan,
(72) a code indicating whether the Mortgage Loan is a MERS Mortgage Loan.
EXHIBIT B
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Retained and Custodial Mortgage
Files shall include the respective items listed below, which shall be available
for inspection by the Purchaser and any prospective Purchaser, and which shall
be retained by the Company in the Retained Mortgage File or Servicing File or
delivered to the Custodian pursuant to the Custodial Agreement and Sections 2.1
and 2.3 of the Master Seller's Warranties and the Servicing Agreement to which
this Exhibit is attached (the "Agreement"):
With respect to each Custodial Mortgage File:
(1) The original Mortgage Note bearing all intervening endorsements, endorsed
"Pay to the order of ______________, without recourse" and signed in the
name of the Company by an authorized officer (in the event that the
Mortgage Loan was acquired by the Company in a merger, the signature must
be in the following form: "[Company], successor by merger to [name of
predecessor]"; and in the event that the Mortgage Loan was acquired or
originated by the Company while doing business under another name, the
signature must be in the following form: "[Company], formerly know as
[previous name]").
(2) The originals or certified true copies of all assumption, modification,
consolidation or extension agreements, 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 assumption, modification, consolidation or extension
agreements.
(3) The original Assignment of Mortgage for each Mortgage Loan, in form and
substance acceptable for recording, from the Company to "______________"
or as otherwise directed by the Purchaser. If the Mortgage Loan was
acquired by the Company in a merger, the Assignment of Mortgage must be
made by "[Company], successor by merger to [name of predecessor]." If the
Mortgage Loan was acquired or originated by the Company while doing
business under another name, the Assignment of Mortgage must be by
"[Company], formerly know as [previous name]." Subject to the foregoing
and where permitted under the Applicable Laws of the jurisdiction wherein
the Mortgaged property is located, such Assignments of Mortgage may be
made by blanket assignments for Mortgage Loans secured by the Mortgaged
Properties located in the same county.
(4) The original of any personal endorsement, surety and/or guaranty agreement
executed in connection with the Mortgage Note, if any.
With respect to each Retained Mortgage File:
(5) Except as set forth below, and for each Mortgage Loan that is not a MERS
Mortgage Loan, the original Mortgage, with evidence of recording thereon
or a certified true and correct copy of the Mortgage sent for recordation.
If in connection with any Mortgage Loan, the Company cannot deliver or
cause to be delivered the original Mortgage with evidence of recording
thereon on or prior to the related Closing Date because of a delay caused
by the public recording office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost or because such public
recording office retains the original recorded Mortgage, the Company shall
deliver or cause to be delivered to the Custodian, a photocopy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Company stating that
such Mortgage has been dispatched to the appropriate public recording
office for recordation and that the original recorded Mortgage or a copy
of such Mortgage certified by such public recording office to be a true
and complete copy of the original recorded Mortgage will be promptly
delivered to the Custodian upon receipt thereof by the Company; or (ii) in
the case of a Mortgage where a public recording office retains the
original recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such Mortgage
certified by such public recording office or by the title insurance
company that issued the title policy to be a true and complete copy of the
original recorded Mortgage.
(6) Originals or certified true copies of all intervening assignments of the
Mortgage necessary to show a complete chain of title from the original
mortgagee to the Company, with evidence of recording thereon, or if any
such intervening assignment has not been returned from the applicable
recording office or has been lost or if such public recording office
retains the original recorded assignments of mortgage, the Company shall
deliver or cause to be delivered to the Custodian, a photocopy of such
intervening assignment, together with (i) in the case of a delay caused by
the public recording office, an Officer's Certificate of the Company
stating that such intervening assignment of mortgage has been dispatched
to the appropriate public recording office for recordation and that such
original recorded intervening assignment of mortgage or a copy of such
intervening assignment of mortgage certified by the appropriate public
recording office or by the title insurance company that issued the title
policy to be a true and complete copy of the original recorded intervening
assignment of mortgage will be promptly delivered to the Custodian upon
receipt thereof by the Company; or (ii) in the case of an intervening
assignment where a public recording office retains the original recorded
intervening assignment or in the case where an intervening assignment is
lost after recordation in a public recording office, a copy of such
intervening assignment certified by such public recording office to be a
true and complete copy of the original recorded intervening assignment.
(7) The original mortgage policy of title insurance or other evidence of title
such as a copy of the title commitment or copy of the preliminary title
commitment.
(8) Any security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
With respect to each Mortgage Loan, the Servicing File shall include each of the
following items to the extent in the possession of the Company or in the
possession of the Company's agent(s):
(9) Verification of Mortgage Insurance.
(10) The original hazard insurance policy and, if required by law, flood
insurance policy, in accordance with Section 4.10 of the Agreement.
(11) Residential loan application.
(12) Mortgage Loan closing statement.
(13) Verification of employment and income, unless originated under the
Company's Limited Documentation program, ▇▇▇▇▇▇ ▇▇▇ Timesaver Plus.
(14) Verification of acceptable evidence of source and amount of down payment.
(15) Credit report on the Mortgagor, if available.
(16) Residential appraisal report.
(17) Photograph of the Mortgaged Property.
(18) Survey of the Mortgaged Property, if required by the title company or
Applicable Law.
(19) Copy of each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title policy, i.e.
map or plat, restrictions, easements, sewer agreements, home association
declarations, etc.
(20) All required disclosure statements.
(21) If available, termite report, structural engineer's report, water
potability and septic certification.
(22) Sales contract, if applicable.
(23) Evidence of payment of taxes and insurance premiums, insurance claim
files, correspondence, current and historical computerized data files, and
all other processing, underwriting and closing papers and records which
are customarily contained in a mortgage loan file and which are required
to document the Mortgage Loan or to service the Mortgage Loan.
(24) Amortization schedule, if available.
(25) Original power of attorney, if applicable.
In the event an Officer's Certificate of the Company is delivered to the
Custodian because of a delay caused by the public recording office in returning
any recorded document, the Company shall deliver to the Custodian, within 240
days of the related Closing Date, an Officer's Certificate which shall (i)
identify the recorded document, (ii) state that the recorded document has not
been delivered to the Custodian due solely to a delay caused by the public
recording office, (iii) state the amount of time generally required by the
applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will be
delivered to the Custodian. The Company shall be required to deliver to the
Custodian the applicable recorded document by the date specified in (iv) above.
An extension of the date specified in (iv) above may be requested from the
Purchaser, which consent shall not be unreasonably withheld.
EXHIBIT C
FORM OF CUSTODIAL AGREEMENT
(Available upon request.)
EXHIBIT D
FORM OF MASTER OPINION OF COUNSEL
Re: Sale of Mortgage Loans by
▇▇▇▇▇ Fargo Bank, N.A. to
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company
Dear Sir/Madam:
I am _____ of ▇▇▇▇▇ Fargo Bank, N.A. and have acted as counsel to ▇▇▇▇▇
Fargo Bank, N.A. (the "Company"), with respect to certain matters in connection
with the sale by the Company of the mortgage loans (the "Mortgage Loans")
pursuant to that certain Master Seller's Warranties and Servicing Agreement (the
"Seller's Warranties and Servicing Agreement") by and between the Company and
▇▇▇▇▇▇▇ Sachs Mortgage Company (the "Purchaser"), dated as of August 1, 2004,
which sale is in the form of whole Mortgage Loans. Capitalized terms not
otherwise defined herein have the meanings set forth in the Seller's Warranties
and Servicing Agreement.
I have examined the following documents:
1. the Seller's Warranties and Servicing Agreement;
2. the Custodial Agreement;
3. the form of endorsement of the Mortgage Notes; and
4. such other documents, records and papers as I have deemed necessary and
relevant as a basis for this opinion.
To the extent I have deemed necessary and proper, I have relied upon the
representations and warranties of the Company contained in the Seller's
Warranties and Servicing Agreement. I have assumed the authenticity of all
documents submitted to me as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
documents.
Based upon the foregoing, it is my opinion that:
1. The Company is a national banking association duly organized, validly
existing and in good standing under the laws of the United States.
2. The Company has the power to engage in the transactions contemplated by
the Seller's Warranties and Servicing Agreement and the Custodial Agreement and
all requisite power, authority and legal right to execute and deliver the
Seller's Warranties and Servicing Agreement, the Custodial Agreement and the
Mortgage Loans, and to perform and observe the terms and conditions of such
instruments.
3. Each person who, as an officer or attorney-in-fact of the Company,
signed (a) the Seller's Warranties and Servicing Agreement, (b) the Custodial
Agreement , and (c) any other document delivered prior hereto or on the date
hereof in connection with the sale and servicing of the Mortgage Loans in
accordance with the Seller's Warranties and Servicing Agreement was, at the
respective times of such signing and delivery, and is, as of the date hereof,
duly elected or appointed, qualified and acting as such officer or
attorney-in-fact, and the signatures of such persons appearing on such documents
are their genuine signatures.
4. Each of the Seller's Warranties and Servicing Agreement, the Custodial
Agreement and the Mortgage Loans, has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement enforceable
in accordance with its terms, subject to the effect of insolvency, liquidation,
conservatorship and other similar laws administered by the Federal Deposit
Insurance Corporation affecting the enforcement of contract obligations of
insured banks and subject to the application of the rules of equity, including
those respecting the availability of specific performance, none of which will
materially interfere with the realization of the benefits provided thereunder or
with the Purchaser's ownership of the Mortgage Loans.
5. The Company has been duly authorized to allow any of its officers to
execute any and all documents by original or facsimile signature in order to
complete the transactions contemplated by the Seller's Warranties and Servicing
Agreement and the Custodial Agreement and in order to execute the endorsements
to the Mortgage Notes and the assignments of the Mortgages, and the original or
facsimile signature of the officer at the Company executing the Seller's
Warranties and Servicing Agreement, the Custodial Agreement, the endorsements to
the Mortgage Notes and the assignments of the Mortgages represents the legal and
valid signature of said officer of the Company.
6. Either (i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with the Seller's
Warranties and Servicing Agreement, the Custodial Agreement or the sale and
delivery of the Mortgage Loans or the consummation of the transactions
contemplated by the Seller's Warranties and Servicing Agreement and the
Custodial Agreement; or (ii) any required consent, approval, authorization or
order has been obtained by the Company.
7. Neither the consummation of the transactions contemplated by, nor the
fulfillment of the terms of the Seller's Warranties and Servicing Agreement and
the Custodial Agreement, will conflict with or results in or will result in a
breach of or constitutes or will constitute a default under the charter or
by-laws of the Company, the terms of any indenture or other agreement or
instrument to which the Company is a party or by which it is bound or to which
it is subject, or violates any statute or order, rule, regulations, writ,
injunction or decree of any court, governmental authority or regulatory body to
which the Company is subject or by which it is bound.
8. There is no action, suit, proceeding or investigation pending or, to
the best of my knowledge, threatened against the Company which, in my opinion,
either in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties or
assets of the Company or in any material impairment of the right or ability of
the Company to carry on its business substantially as now conducted or in any
material liability on the part of the Company or which would draw into question
the validity of the Seller's Warranties and Servicing Agreement, and the
Custodial Agreement, or of any action taken or to be taken in connection with
the transactions contemplated thereby, or which would be likely to impair
materially the ability of the Company to perform under the terms of the Seller's
Warranties and Servicing Agreement and the Custodial Agreement.
9. For purposes of the foregoing, I have not regarded any legal or
governmental actions, investigations or proceedings to be "threatened" unless
the potential litigant or governmental authority has manifested to the legal
department of the Company or an employee of the Company responsible for the
receipt of process a present intention to initiate such proceedings; nor have I
regarded any legal or governmental actions, investigations or proceedings as
including those that are conducted by state or federal authorities in connection
with their routine regulatory activities. The sale of each Mortgage Note and
Mortgage as and in the manner contemplated by the Seller's Warranties and
Servicing Agreement is sufficient fully to transfer all right, title and
interest of the Company thereto as noteholder and mortgagee, apart from the
rights to service the Mortgage Loans pursuant to the Seller's Warranties and
Servicing Agreement.
10. The form of endorsement that is to be used with respect to the
Mortgage Loans is legally valid and sufficient to duly endorse the Mortgage
Notes to the Purchaser. Upon the completion of the endorsement of the Mortgage
Notes and the completion of the assignments of the Mortgages, and the recording
thereof, the endorsement of the Mortgage Notes, the delivery to the Custodian of
the completed assignments of the Mortgages, and the delivery of the original
endorsed Mortgage Notes to the Custodian would be sufficient to permit the
entity to which such Mortgage Note is initially endorsed at the Purchaser's
direction, and to whom such assignment of Mortgages is initially assigned at the
Purchaser's direction, to avail itself of all protection available under
Applicable Law against the claims of any present or future creditors of the
Company, and would be sufficient to prevent any other sale, transfer,
assignment, pledge or hypothecation of the Mortgages and the Mortgage Notes by
the Company from being enforceable, such that in a properly presented and argued
case under title 11, United States Code (the "Bankruptcy Code"), in which the
Company were the debtor, a bankruptcy court having jurisdiction over the Company
would consider the transfer of the Mortgage Loans from the Company to the
Purchaser to be a true sale of the Mortgage Loans from the Company to the
Purchaser and not a secured loan by the Purchaser to the Company and,
accordingly, the Mortgage Loans and the payments and other collections thereon
(other than those at any given time that may be commingled with unrelated funds
held by the Company) and the proceeds thereof transferred to the Purchaser by
the Company in accordance with the Company's Warranties and Servicing Agreement
would not be deemed property of the Company's estate for purposes of Section 541
of the Bankruptcy Code or be subject to the automatic stay provisions of Section
362 of the Bankruptcy Code.
This opinion is given to you for your sole benefit, and no other person or
entity is entitled to rely hereon except that the purchaser or purchasers to
which you initially and directly resell the Mortgage Loans may rely on this
opinion as if it were addressed to them as of its date.
Sincerely,
EXHIBIT E
ITEMS TO BE INCLUDED IN MONTHLY REMITTANCE ADVICE
On the related Closing Date, the Company shall deliver to the Purchaser an
initial set-up report (the "Initial Set-up Report"), dated as of the related
Cut-off Date, which shall set forth certain information regarding the Mortgage
Pool. Such information shall include, without limitation, the principal balance
of each Mortgage Loan, the interest rate, delinquency status and any other
information requested by the Purchaser. For each month after the related Closing
Date, the Company shall provide a monthly remittance advice report (the "Monthly
Remittance Advice Reports") to the Purchaser, which shall set forth for each
Mortgage Loan, the trial balance, interest rate, delinquency, foreclosure and
related default information, and such other information as may be requested by
the Purchaser. The Initial Set-up Report and the Monthly Remittance Advice
Reports will be delivered in an Excel format or in such other electronic format
as agreed to by the parties. Each Initial Set-up Report and Monthly Remittance
Advice Report shall contain only such information as is readily available to the
Company and is mutually agreed to by Company and the Purchaser.
EXHIBIT F
FORM OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this _____ day of
__________________, 200_, among ▇▇▇▇▇ Fargo Bank, N.A., a ______________________
(the "Servicer"), ____________________________ a _________________________ (the
"Assignee"), and _____________________________, a ________________________ (the
"Assignor).
WHEREAS, ▇▇▇▇▇▇▇ Sachs Mortgage Company and the Servicer have
entered into a certain Master Seller's Warranties and Servicing Agreement dated
as of August 1, 2004 (the "Servicing Agreement"), pursuant to which the Servicer
sold certain mortgage loans listed on the mortgage loan schedule attached as an
exhibit to the Servicing Agreement;
WHEREAS, the Assignee has agreed on certain terms and conditions to
purchase from the Assignor certain mortgage loans (the "Mortgage Loans"), which
Mortgage Loans are subject to the provisions of the Servicing Agreement and are
listed on the mortgage loan schedule attached as Exhibit 1 hereto (the "Mortgage
Loan Schedule");
WHEREAS, pursuant to a Trust Agreement, dated as of [______ __],
200__ (the "Trust Agreement"), between GS Mortgage Securities Corp., as
Depositor, and [______], as Trustee (the "Trustee"), the Assignee will transfer
the Mortgage Loans to the Trustee, together with the Assignee's rights in the
Sale and Servicing Agreement;
NOW THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption.
(a) The Assignor hereby assigns to the Assignee all of its
right, title and interest in and to the Mortgage Loans and Servicing Agreement,
to the extent relating to the Mortgage Loans (other than the rights of the
Assignor to indemnification thereunder), and the Assignee hereby assumes all of
the Assignor's obligations under the Servicing Agreement, to the extent relating
to the Mortgage Loans from and after the date hereof, and the Servicer hereby
acknowledges such assignment and assumption and hereby agrees to the release of
the Assignor from any obligations under the Servicing Agreement from and after
the date hereof, to the extent relating to the Mortgage Loans. Notwithstanding
the foregoing, it is understood that the Assignor is not released from liability
for any breaches of the representations and warranties made in Section 3.6 of
the Servicing Agreement, and the Assignee is not undertaking any such liability
hereunder.
(b) The Assignor represents and warrants to the Assignee that the
Assignor has not taken any action which would serve to impair or encumber the
Assignor's ownership interest in the Mortgage Loans since the date of the
Servicing Agreement.
(c) The Servicer and the Assignor shall have the right to amend,
modify or terminate the Servicing Agreement without the joinder of the Assignee
with respect to mortgage loans not conveyed to the Assignee hereunder, provided,
however, that such amendment, modification or termination shall not affect or be
binding on the Assignee.
2. Accuracy of Servicing Agreement.
The Servicer and the Assignor represent and warrant to the Assignee
that (i) attached hereto as Exhibit 2 is a true, accurate and complete copy of
the Servicing Agreement, (ii) the Servicing Agreement is in full force and
effect as of the date hereof, (iii) the Servicing Agreement has not been amended
or modified in any respect and (iv) no notice of termination has been given to
the Servicer under the Servicing Agreement.
3. Recognition of Purchaser.
From and after the date hereof, the Servicer shall note the transfer
of the Mortgage Loans to the Assignee in its books and records, shall recognize
the Assignee as the owner of the Mortgage Loans and shall service the Mortgage
Loans for the benefit of the Assignee pursuant to the Servicing Agreement, the
terms of which are incorporated herein by reference. It is the intention of the
Assignor, Servicer and Assignee that the Servicing Agreement shall be binding
upon and inure to the benefit of the Servicer and the Assignee and their
successors and assigns.
4. Representations and Warranties of the Assignee. The Assignee
hereby represents and warrants to the Assignor as follows:
(a) Decision to Purchase. The Assignee represents and warrants
that it is a sophisticated investor able to evaluate the risks and merits of the
transactions contemplated hereby, and that it has not relied in connection
therewith upon any statements or representations of the Assignor or the Servicer
other than those contained in the Servicing Agreement or this Agreement.
(b) Authority. The Assignee hereto represents and warrants
that it is duly and legally authorized to enter into this Agreement and to
perform its obligations hereunder and under the Servicing Agreement.
(c) Enforceability. The Assignee hereto represents and
warrants that this Agreement has been duly authorized, executed and delivered by
it and (assuming due authorization, execution and delivery thereof by each of
the other parties hereto) constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
5. Representations and Warranties of the Assignor. The Assignor
hereby represents and warrants to the Assignee as follows:
(a) The Assignor has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the State
of New York with full power and authority (corporate and other) to enter into
and perform its obligations under the Servicing Agreement and this Assignment
Agreement.
(b) This Assignment Agreement has been duly executed and
delivered by the Assignor, and, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a legal, valid, and
binding agreement of the Assignor, 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 Assignor of
this Assignment 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 Assignment Agreement
have been duly authorized by all necessary corporate action on the part of the
Assignor; neither the execution and delivery by the Assignor of this Assignment
Agreement, nor the consummation by the Assignor of the transactions therein
contemplated, nor compliance by the Assignor with the provisions thereof, will
conflict with or result in a breach of, or constitute a default under, any of
the provisions of the governing documents of the Assignor or any law,
governmental rule or regulation or any material judgment, decree or order
binding on the Assignor or any of its properties, or any of the provisions of
any material indenture, mortgage, deed of trust, contract or other instrument to
which the Assignor is a party or by which it is bound.
(e) There are no actions, suits or proceedings pending or, to
the knowledge of the Assignor, threatened, before or by any court,
administrative agency, arbitrator or governmental body (A) with respect to any
of the transactions contemplated by this Assignment Agreement or (B) with
respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and will if determined adversely to the
Assignor materially adversely affect its ability to perform its obligations
under this Assignment Agreement.
(f) Except for the sale to the Assignee, the Assignor has not
assigned or pledged any Mortgage Note or the related Mortgage or any interest or
participation therein.
(g) The Assignor has not satisfied, canceled, or subordinated
in whole or in part, or rescinded the Mortgage, and the Assignor has not
released the Mortgaged Property from the lien of the Mortgage, in whole or in
part, nor has the Assignor executed an instrument that would effect any such
release, cancellation, subordination, or rescission. The Assignor has not
released any Mortgagor, in whole or in part, except in connection with an
assumption agreement or other agreement approved by the related Federal Insurer,
to the extent such approval was required.
It is understood and agreed that the representations and warranties
set forth in this Section 5 shall survive delivery of the respective Mortgage
Files to the Custodian and shall inure to the benefit of the Assignee and its
assigns notwithstanding any restrictive or qualified endorsement or assignment.
Upon the discovery by the Assignor or the Assignee and its assigns of a breach
of the foregoing representations and warranties, the party discovering such
breach shall give prompt written notice to the other parties to this Assignment
Agreement, and in no event later than two (2) Business Days from the date of
such discovery. It is understood and agreed that the obligations of the Assignor
set forth in Section 6 to repurchase a Mortgage Loan constitute the sole
remedies available to the Assignee and its assigns on their behalf respecting a
breach of the representations and warranties contained in this Section 5. It is
further understood and agreed that the Assignor shall be deemed not to have made
the representations and warranties in this Section 5 with respect to, and to the
extent of, representations and warranties made, as to the matters covered in
this Section 5, by the Servicer in the Servicing Agreement (or any officer's
certificate delivered pursuant thereto).
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in this
Section 5, and no other affiliate of the Assignor has made any representations
or warranties of any kind to the Assignee.
6. Repurchase of Mortgage Loans.
Upon discovery or notice of any breach by the Assignor of any
representation, warranty, or covenant under this Assignment Agreement that
materially and adversely affects the value of any Mortgage Loan or the interest
of the Assignee 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 Assignee therein if the Assignee
incurs a loss as a result of such defect or breach), the Assignee promptly shall
request that the Assignor cure such breach and, if the Assignor does not cure
such breach in all material respects within 60 days from the date on which it is
notified of the breach, the Assignee may enforce the Assignor's obligation
hereunder to purchase such Mortgage Loan from the Assignee. Notwithstanding the
foregoing, however, if such breach is a Qualification Defect, such cure or
repurchase must take place within 75 days of the Defect Discovery Date.
In the event the Servicer has breached a representation or warranty
under the Servicing Agreement that is substantially identical to a
representation or warranty breached by the Assignor hereunder, the Assignee
shall first proceed against the Servicer. If the Servicer does not within 60
days after notification of the breach, take steps to cure such breach (which may
include certifying to progress made and requesting an extension of the time to
cure such breach, as permitted under the Servicing Agreement) or purchase, or
substitute for the Mortgage Loan, the Trustee shall be entitled to enforce the
obligations of the Assignor hereunder to cure such breach or to purchase the
Mortgage Loan from the Trust. In such event, the Assignor shall succeed to the
rights of the Assignee to enforce the obligations of the Servicer to cure such
breach or repurchase such Mortgage Loan under the terms of the related Servicing
Agreement with respect to such Mortgage Loan
Except as specifically set forth herein, the Assignee shall have no
responsibility to enforce any provision of this Assignment Agreement, to oversee
compliance hereof, or to take notice of any breach or default thereof.
7. Continuing Effect.
Except as contemplated hereby, the Servicing Agreement shall remain
in full force and effect in accordance with its terms.
8. Governing Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
9. Notices.
Any notices or other communications permitted or required hereunder
or under the Servicing Agreement shall be in writing and shall be deemed
conclusively to have been given if personally delivered at or mailed by
registered mail, postage prepaid, and return receipt requested or transmitted by
telex, telegraph or telecopier and confirmed by a similar mailed writing, to:
(i) in the case of the Servicer, [_________________, ____________________] or
such address as may hereafter be furnished by the Servicer; (ii) in the case of
the Assignee, _______________, _______________, Attention: ________________, or
such other address as may hereafter be furnished by the Assignee, and (iii) in
the case of the Assignor, __________________, Attention: _________________, or
such other address as may hereafter be furnished by the Assignor.
10. Counterparts.
This Agreement may be executed in counterparts, each of which when
so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same instrument.
11. Definitions.
Any capitalized term used but not defined in this Agreement has the
same meaning as in the Servicing Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
ASSIGNEE:
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
ASSIGNOR:
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
Acknowledged by:
SERVICER:
By:_________________________________
Name:_______________________________
Title:______________________________
EXHIBIT G
FORM OF COMPANY OFFICER'S CERTIFICATE
I, ______________________, hereby certify that I am a duly elected [Vice
President] of ▇▇▇▇▇ Fargo Bank, N.A., a national banking association organized
under the laws of the United States (the "Company") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy of
the articles of association of the Company which is in full force and effect on
the date hereof.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy of
the bylaws of the Company which are in effect on the date hereof.
3. The execution and delivery by the Company of the Seller's Warranties
and Servicing Agreement, dated as of August 1, 2004 (the "Sale and Servicing
Agreement") and the Custodial Agreement, dated as of August 1, 2004 (the
"Custodial Agreement" and, together with the Sale and Servicing Agreement, the
"Agreements") are in the ordinary course of business of the Company.
4. A true and correct copy of the resolution of the Mortgage Banking
Committee of the Board of Directors of the Company authorizing the Company to
enter into the Agreements is attached hereto as Exhibit 3.
5. Each person who, as an officer or representative of the Company, signed
(a) the Sale and Servicing Agreement, or (b) any other document delivered prior
hereto or on the date hereof in connection with any transaction described in the
Agreements was, at the respective times of such signing and delivery a duly
elected or appointed, qualified and acting officer or representative of the
Company and the signatures of such persons appearing on such documents are their
genuine signatures.
6. No proceedings for dissolution, merger, consolidation, liquidation,
conservatorship or receivership of the Company or for the sale of all or
substantially all of its assets is pending, or to my knowledge threatened, and
no such proceeding is contemplated by the Company.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of
the Company.
Dated: By:
Title: Vice President
I, __________________ the Secretary of __________________________, hereby
certify that _______________________ is a duly elected and acting Vice President
of the Company and that the signature appearing above is his genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: By:
Title: Secretary
EXHIBIT H
FORM OF ANNUAL CERTIFICATION
I, ______________________, Vice President of ▇▇▇▇▇ Fargo Bank, N.A. (the
"Servicer"), certify to __________________, and its officers, directors, agents
and affiliates (in its role as ____________, the "____________"), and with the
knowledge and intent that they will rely upon this certification, that:
(i) Based on my knowledge, the information relating to the Mortgage Loans and
the servicing thereof submitted by the Servicer to the ___________ which is used
in connection with preparation of the reports on Form 8-K and the annual report
on Form 10-K filed with the Securities and Exchange Commission with respect to
each transaction listed on the attached Exhibit A, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading as of the date of this certification;
(ii) The servicing information required to be provided to the _____________ by
the Servicer under the relevant servicing agreements has been provided to the
______________;
(iii) I am responsible for reviewing the activities performed by the Servicer
under the relevant servicing agreements and based upon the review required by
the relevant servicing agreements, and except as disclosed in the Annual
Statement of Compliance, the Annual Independent Public Accountant's Servicing
Report and all servicing reports, officer's certificates and other information
relating to the servicing of the Mortgage Loans submitted to the ___________,
the Servicer has, as of the date of this certification fulfilled its obligations
under the relevant servicing agreements; and
(iv) I have disclosed to the ___________ all significant deficiencies relating
to the Servicer's compliance with the minimum servicing standards in accordance
with a review conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar standard as set forth in the relevant
servicing agreements.
(v) The Servicer shall indemnify and hold harmless the ___________ and its
officers, directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach by
the Servicer or any of its officers, directors, agents or affiliates of its
obligations under this Certification or the negligence, bad faith or willful
misconduct of the Servicer in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the
___________, then the Servicer agrees that it shall contribute to the amount
paid or payable by the ___________ as a result of the losses, claims, damages or
liabilities of the ___________ in such proportion as is appropriate to reflect
the relative fault of the ___________ on the one hand and the Servicer on the
other in connection with a breach of the Servicer's obligations under this
Certification or the Servicer's negligence, bad faith or willful misconduct in
connection therewith.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Servicer.
Dated: By:
Name:
Title:
EXHIBIT M
FORM OF REQUEST FOR RELEASE
(for Custodian)
In connection with the administration of the Mortgage Loans held by
you as Custodian on behalf of the Trustee on behalf of the Certificateholders,
we request the release, and acknowledge receipt, of the (Custodial File/[specify
documents]) for the Mortgage Loan described below, for the reason indicated.
Mortgagor's Name, Address & Zip Code:
------------------------------------
Mortgage Loan Number:
--------------------
Send Custodial File to:
----------------------
Reason for Requesting Documents (check one)
-------------------------------------------
_______ 1. Mortgage Loan Paid in Full. (The Company hereby certifies
that all amounts received in connection therewith have been
credited to the Collection Account as provided in the Trust
Agreement.)
_______ 2. Mortgage Loan Repurchase Pursuant to Section 2.05 of the
Trust Agreement, the Master Seller's Warranties and Servicing
Agreement, the Depositor Assignment Agreement or the Purchase
Assignment Agreement. (The Company hereby certifies that the
repurchase price has been credited to the Collection Account
as provided in the Trust Agreement.)
_______ 3. Mortgage Loan Liquidated by __________________. (The Company
hereby certifies that all proceeds of foreclosure, insurance,
condemnation or other liquidation have been finally received
and credited to the Collection Account pursuant to the Pooling
and Servicing Agreement.)
_______ 4. Mortgage Loan in Foreclosure.
_______ 5. Other (explain).
If box 1, 2 or 3 above is checked, and if all or part of the
Custodial File was previously released to us, please release to us our previous
request and receipt on file with you, as well as any additional documents in
your possession relating to the specified Mortgage Loan.
If box 4 or 5 above is checked, upon our return of all of the above
documents to you as the Custodian, please acknowledge your receipt by signing in
the space indicated below, and returning this form, if requested.
▇▇▇▇▇ FARGO BANK, N.A.
By:____________________________________
Name:
Title:
Date: