GS MORTGAGE SECURITIES CORP.,
Depositor,
XXXXXX LOAN SERVICING LP,
Servicer,
XXXXX FARGO BANK, N.A.,
Custodian,
AND
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee
POOLING AND SERVICING AGREEMENT
DATED AS OF NOVEMBER 1, 2005
GSAMP TRUST 2005-WMC2
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-WMC2
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 Trustee of the Mortgage Loans.........................................
Section 2.03. Representations, Warranties and Covenants of the Servicer...............................
Section 2.04. Non-Qualified Mortgages.................................................................
Section 2.05. Execution and Delivery of Certificates..................................................
Section 2.06. REMIC Matters...........................................................................
Section 2.07. Representations and Warranties of the Depositor.........................................
Section 2.08. Enforcement of Obligations for Breach of Mortgage Loan Representations..................
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Servicer to Service Mortgage Loans......................................................
Section 3.02. Subservicing Agreements between the Servicer and Subservicers...........................
Section 3.03. Successor Subservicers..................................................................
Section 3.04. Liability of the Servicer...............................................................
Section 3.05. No Contractual Relationship between Subservicers and the Trustee........................
Section 3.06. Assumption or Termination of Subservicing Agreements by Trustee.........................
Section 3.07. Collection of Certain Mortgage Loan Payments............................................
Section 3.08. Subservicing Accounts...................................................................
Section 3.09. Collection of Taxes, Assessments and Similar Items; Escrow Accounts.....................
Section 3.10. Collection Account......................................................................
Section 3.11. Withdrawals from the Collection Account.................................................
Section 3.12. Investment of Funds in the Collection Account and the Distribution Account..............
Section 3.13. Maintenance of Hazard Insurance, Errors and Omissions and Fidelity Coverage.............
Section 3.14. Enforcement of Due-on-Sale Clauses; Assumption Agreements...............................
Section 3.15. Realization upon Defaulted Mortgage Loans...............................................
Section 3.16. Release of Mortgage Files...............................................................
Section 3.17. Title, Conservation and Disposition of REO Property.....................................
Section 3.18. Notification of Adjustments.............................................................
Section 3.19. Access to Certain Documentation and Information Regarding the Mortgage Loans............
Section 3.20. Documents, Records and Funds in Possession of the Servicer to Be Held for the Trustee...
Section 3.21. Servicing Compensation..................................................................
Section 3.22. Annual Statement as to Compliance.......................................................
Section 3.23. Annual Independent Public Accountants' Servicing Statement; Financial Statements........
Section 3.24. Trustee to Act as Servicer..............................................................
Section 3.25. Compensating Interest...................................................................
Section 3.26. Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act................................................
Section 3.27. Excess Reserve Fund Account; Distribution Account.......................................
Section 3.28. Optional Purchase of Delinquent Mortgage Loans..........................................
ARTICLE IV
DISTRIBUTIONS AND ADVANCES BY THE SERVICER
Section 4.01. Advances................................................................................
Section 4.02. Priorities of Distribution..............................................................
Section 4.03. Monthly Statements to Certificateholders................................................
Section 4.04. Certain Matters Relating to the Determination of LIBOR..................................
Section 4.05. Allocation of Applied Realized Loss Amounts.............................................
Section 4.06. Distributions on the REMIC I Regular Interests..........................................
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 AND THE SERVICER
Section 6.01. Respective Liabilities of the Depositor and the Servicer................................
Section 6.02. Merger or Consolidation of the Depositor or the Servicer................................
Section 6.03. Limitation on Liability of the Depositor, the Servicer and Others.......................
Section 6.04. Limitation on Resignation of the Servicer...............................................
Section 6.05. Additional Indemnification by the Servicer; Third Party Claims..........................
Section 6.06. Servicing Rights Pledge.................................................................
ARTICLE VII
DEFAULT
Section 7.01. Events of Default.......................................................................
Section 7.02. Trustee to Act; Appointment of Successor................................................
Section 7.03. Notification to Certificateholders......................................................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of the Trustee...................................................................
Section 8.02. Certain Matters Affecting the Custodian and the Trustee.................................
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans...................................
Section 8.04. Trustee May Own Certificates............................................................
Section 8.05. Trustee's Fees and Expenses.............................................................
Section 8.06. Eligibility Requirements for the Trustee................................................
Section 8.07. Resignation and Removal of the Trustee..................................................
Section 8.08. Successor Trustee.......................................................................
Section 8.09. Merger or Consolidation of the Trustee..................................................
Section 8.10. Appointment of Co-Trustee or Separate Trustee...........................................
Section 8.11. Tax Matters.............................................................................
Section 8.12. Periodic Filings........................................................................
Section 8.13. Tax Classification of the Excess Reserve Fund Account...................................
Section 8.14. Custodial Responsibilities..............................................................
Section 8.15. Limitations on Custodial Responsibilities...............................................
ARTICLE IX
TERMINATION
Section 9.01. Termination upon Liquidation or Purchase of the Mortgage Loans..........................
Section 9.02. Final Distribution on the Certificates..................................................
Section 9.03. Additional Termination Requirements.....................................................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment...............................................................................
Section 10.02. Recordation of Agreement; Counterparts..................................................
Section 10.03. Governing Law...........................................................................
Section 10.04. Intention of Parties....................................................................
Section 10.05. Notices.................................................................................
Section 10.06. Severability of Provisions..............................................................
Section 10.07. Assignment; Sales; Advance Facilities...................................................
Section 10.08. Limitation on Rights of Certificateholders..............................................
Section 10.09. Inspection and Audit Rights.............................................................
Section 10.10. Certificates Nonassessable and Fully Paid...............................................
Section 10.11. Waiver of Jury Trial....................................................................
Section 10.12. Limitation of Damages...................................................................
SCHEDULES
Schedule I Mortgage Loan Schedule
Schedule II Representations and Warranties of Xxxxxx Loan Servicing LP
EXHIBITS
Exhibit A Form of Class A, Class M and Class B Certificates
Exhibit B Form of Class P Certificate
Exhibit C-1 Form of Class R-1 Certificate
Exhibit C-2 Form of R-2 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 Custodian
Exhibit G Form of Residual Transfer Affidavit
Exhibit H Form of Transferor Certificate
Exhibit I Form of Rule 144A Letter
Exhibit J Form of Investment Letter (Non-Rule 144A)
Exhibit K Form of Request for Release
Exhibit L Form of Contents of Each Mortgage File
Exhibit M Form of Certification to be provided with Form 10-K
Exhibit N Form of Trustee Certification to be provided to Depositor
Exhibit O Form of Servicer Certification to be provided to Depositor
Exhibit P Form of Power of Attorney
Exhibit Q Underlying Agreements
THIS POOLING AND SERVICING AGREEMENT, dated as of November 1,
2005, among GS MORTGAGE SECURITIES CORP., a Delaware corporation (the
"Depositor"), XXXXXX LOAN SERVICING LP, a Delaware limited partnership
("Xxxxxx"), XXXXX FARGO BANK, N.A., a national banking association (the
"Custodian"), and DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking
association (the "Trustee"),
W I T N E S S E T H:
In consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
PRELIMINARY STATEMENT
The Depositor intends to sell pass-through certificates to be
issued hereunder in multiple classes, which in the aggregate will evidence the
entire beneficial ownership interest of the Trust Fund created hereunder. The
Trust Fund will consist of a segregated pool of assets comprised of the Mortgage
Loans and certain other related assets subject to this Agreement.
REMIC I
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets subject to this Agreement (other than the Prepayment Premiums,
the Excess Reserve Fund Account and the Corridor Agreements) as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC I". The Class R-I Interest will be the sole class of
"residual interests" in REMIC I for purposes of the REMIC Provisions (as defined
herein). The following table irrevocably sets forth the designation, the REMIC I
Remittance Rate, the initial Uncertificated Balance and, for purposes of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the "latest possible
maturity date" for each of the REMIC I Regular Interests (as defined herein).
None of the REMIC I Regular Interests will be certificated.
REMIC I
REMITTANCE INITIAL LATEST POSSIBLE
DESIGNATION RATE UNCERTIFICATED BALANCE MATURITY DATE (1)
---------------- ------------- ------------------------ -------------------
LTAA Variable(2) $549,531,281.55 November 2035
LTA1A Variable(2) $ 1,331,450.00 November 2035
LTA1B Variable(2) $ 332,860.00 November 2035
LTA2A Variable(2) $ 1,307,165.00 November 2035
LTA2B Variable(2) $ 951,605.00 November 2035
LTA2C Variable(2) $ 332,980.00 November 2035
LTM1 Variable(2) $ 400,935.00 November 2035
LTM2 Variable(2) $ 131,775.00 November 2035
LTM3 Variable(2) $ 187,850.00 November 2035
LTM4 Variable(2) $ 84,110.00 November 2035
LTM5 Variable(2) $ 89,720.00 November 2035
LTM6 Variable(2) $ 67,290.00 November 2035
LTB1 Variable(2) $ 64,485.00 November 2035
LTB2 Variable(2) $ 61,685.00 November 2035
LTZZ Variable(2) $ 5,871,014.11 November 2035
LT1SUB Variable(2) $ 10,569.18 November 2035
LT1GRP Variable(2) $ 43,855.38 November 2035
LT2SUB Variable(2) $ 16,458.86 November 2035
LT2GRP Variable(2) $ 68,293.86 November 2035
LTXX Variable(2) $560,607,028.38 November 2035
---------------------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month immediately following
the month of the maturity date for the Mortgage Loan with the latest
maturity date has been designated as the "latest possible maturity
date" for each REMIC I Regular Interest.
(2) Calculated in accordance with the definition of "REMIC I Remittance
Rate" herein.
REMIC II
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II." The Class R-II Interest will evidence the sole class
of "residual interests" in REMIC II for purposes of the REMIC Provisions. The
following table irrevocably sets forth the designation, the Pass-Through Rate,
the initial aggregate Certificate Balance and, for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the "latest possible maturity
date" for the indicated Classes of Certificates or REMIC II Regular Interests
(which will be uncertificated). The Trust Fund will also issue the Class P
Certificates, which will not be issued by any REMIC created hereunder.
INITIAL AGGREGATE LATEST POSSIBLE
DESIGNATION PASS-THROUGH RATE CERTIFICATE BALANCE MATURITY DATE (1)
-------------------- ----------------- -------------------- -----------------
Class A-1A Variable(2) $266,290,000 November 2035
Class A-1B Variable(2) $ 66,572,000 November 2035
Class A-2A Variable(2) $261,433,000 November 2035
Class A-2B Variable(2) $190,321,000 November 2035
Class A-2C Variable(2) $ 66,596,000 November 2035
Class M-1 Variable(2) $ 80,187,000 November 2035
Class M-2 Variable(2) $ 26,355,000 November 2035
Class M-3 Variable(2) $ 37,570,000 November 2035
Class M-4 Variable(2) $ 16,822,000 November 2035
Class M-5 Variable(2) $ 17,944,000 November 2035
Class M-6 Interest Variable(2) $ 13,458,000 November 2035
Class B-1 Interest Variable(2) $ 12,897,000 November 2035
Class B-2 Interest Variable(2) $ 12,337,000 November 2035
Class X Interest N/A(3) $ 52,710,411.32 November 2035
-----------------
(1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month immediately following
the month of the maturity date for the Mortgage Loan with the latest
maturity date has been designated as the "latest possible maturity
date" for each Class of Certificates.
(2) Calculated in accordance with the definition of "Pass-Through Rate"
herein.
(3) The Class X Interest will accrue interest at their variable
Pass-Through Rate on the Notional Amount of the Class X Interest
outstanding from time to time which shall equal the Uncertificated
Balance of the REMIC I Regular Interests. The Class X Interest will not
accrue interest on its Certificate Balance.
REMIC III
As provided herein, the Trustee will elect to treat the Class
M-6 Interest as a REMIC for federal income tax purposes, and such segregated
pool of assets will be designated as "REMIC III." The Class R-III Interest will
evidence the sole class of "residual interests" in REMIC III for purposes of the
REMIC Provisions. The following table irrevocably sets forth the designation,
the Pass-Through Rate, the initial aggregate Certificate Balance and, for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for the indicated Class of Certificates.
INITIAL AGGREGATE
CERTIFICATE PRINCIPAL LATEST POSSIBLE
DESIGNATION PASS-THROUGH RATE BALANCE MATURITY DATE(1)
-------------------------------- ------------------------ --------------------------- --------------------------
Class M-6 Certificates Variable(2) $ 13,458,000 November 2035
----------------
1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month immediately following
the month of the maturity date for the Mortgage Loan with the latest
maturity date has been designated as the "latest possible maturity
date" for the Class M-6 Certificates.
(2) The Class M-6 Certificates shall receive 100% of amounts received in
respect of the Class M-6 Interest.
REMIC IV
As provided herein, the Trustee will elect to treat the Class
B-1 Interest as a REMIC for federal income tax purposes, and such segregated
pool of assets will be designated as "REMIC IV." The Class R-IV Interest will
evidence the sole class of "residual interests" in REMIC IV for purposes of the
REMIC Provisions. The following table irrevocably sets forth the designation,
the Pass-Through Rate, the initial aggregate Certificate Balance and, for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for the indicated Class of Certificates.
INITIAL AGGREGATE
CERTIFICATE PRINCIPAL LATEST POSSIBLE
DESIGNATION PASS-THROUGH RATE BALANCE MATURITY DATE(1)
-------------------------------- ------------------------ --------------------------- --------------------------
Class B-1 Certificates Variable(2) $ 12,897,000 November 2035
----------------
1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month immediately following
the month of the maturity date for the Mortgage Loan with the latest
maturity date has been designated as the "latest possible maturity
date" for the Class B-1 Certificates.
(2) The Class B-1 Certificates shall receive 100% of amounts received in
respect of the Class B-1 Interest.
REMIC V
As provided herein, the Trustee will elect to treat the Class
B-2 Interest as a REMIC for federal income tax purposes, and such segregated
pool of assets will be designated as "REMIC V." The Class R-V Interest will
evidence the sole class of "residual interests" in REMIC V for purposes of the
REMIC Provisions. The following table irrevocably sets forth the designation,
the Pass-Through Rate, the initial aggregate Certificate Balance and, for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for the indicated Class of Certificates.
INITIAL AGGREGATE
CERTIFICATE PRINCIPAL LATEST POSSIBLE
DESIGNATION PASS-THROUGH RATE BALANCE MATURITY DATE(1)
-------------------------------- ------------------------ --------------------------- --------------------------
Class B-2 Certificates Variable(2) $ 12,337,000 November 2035
----------------
1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month immediately following
the month of the maturity date for the Mortgage Loan with the latest
maturity date has been designated as the "latest possible maturity
date" for the Class B-2 Certificates.
(2) The Class B-2 Certificates shall receive 100% of amounts received in
respect of the Class B-2 Interest.
REMIC VI
As provided herein, the Trustee will elect to treat the Class
X Interest as a REMIC for federal income tax purposes, and such segregated pool
of assets will be designated as "REMIC VI." The Class R-VI Interest will
evidence the sole class of "residual interests" in REMIC VI for purposes of the
REMIC Provisions. The following table irrevocably sets forth the designation,
the Pass-Through Rate, the initial aggregate Certificate Balance and, for
purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for the indicated Class of Certificates.
INITIAL AGGREGATE
CERTIFICATE PRINCIPAL LATEST POSSIBLE
DESIGNATION PASS-THROUGH RATE BALANCE MATURITY DATE(1)
-------------------------------- ------------------------ --------------------------- --------------------------
Class X Certificates Variable(2) $ 52,710,411.32 November 2035
----------------
1) For purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month immediately following
the month of the maturity date for the Mortgage Loan with the latest
maturity date has been designated as the "latest possible maturity
date" for the Class X Certificates.
(2) The Class X Certificates shall receive 100% of amounts received in
respect of the Class X Interest.
The minimum denomination for each Class of the Class A
Certificates will be $25,000, 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 each Class of the Subordinated Certificates, will
be $25,000 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) each of the Class R-1
Certificates and Class R-2 Certificates will be a 100% Percentage Interest in
such Class and (b) each of the Class X Certificates and Class P Certificates
will be a 1% Percentage Interest in 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.......... Class A-1A, Class X-0X, Xxxxx X-0X, Xxxxx X-0X and Class A-2C Certificates.
Class R Certificates.......... The Class R-1 Certificates and Class R-2 Certificates.
Class B Certificates.......... Class B-1 Certificates and Class B-2 Certificates.
Class M Certificates.......... Class M-1, Class M-2, Class M-3, Class M-4, Class M-5 and Class M-6 Certificates.
Delay Certificates............ None.
ERISA-Restricted
Certificates.................. Class R Certificates, Class P Certificates and Class X Certificates; any
certificate with a rating below the lowest applicable permitted rating under the
Underwriters' Exemption.
LIBOR Certificates............ The Class A Certificates and the Subordinated Certificates.
Non-Delay Certificates........ Class A, Class X and Subordinated Certificates.
Offered Certificates.......... All Classes of Certificates other than the Private Certificates.
Physical Certificates......... Class P, Class X and Class R Certificates.
Private Certificates.......... Class M-6, Class B-1, Class B-2, Class P, Class X and Class R Certificates.
Rating Agencies............... Moody's and Standard & Poor's.
Regular Certificates.......... All Classes of Certificates other than the Class P Certificates and Class R
Certificates.
Residual Certificates......... Class R-1 Certificates and Class R-2 Certificates.
Subordinated Certificates..... Class M Certificates and Class B Certificates.
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Agreement, the following words
and phrases, unless the context otherwise requires, shall have the following
meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan, those
mortgage servicing practices set forth in Section 3.01(a) of this Agreement.
Account: Any of the Collection Account, the Distribution
Account, any Escrow Account or the Excess Reserve Fund Account. Each Account
shall be an Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect
to any Distribution Date for each Class of the LIBOR 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 4.02.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage
Loan.
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.
Adjustment Date: As to any Mortgage Loan, the first Due Date
on which the related Mortgage Interest Rate adjusts as set forth in the related
Mortgage Note and each Due Date thereafter on which the Mortgage Interest Rate
adjusts as set forth in the related Mortgage Note.
Advance: Any P&I Advance or Servicing Advance.
Advance Facility: A financing or other facility as described
in Section 10.07.
Advance Facility Notice: As defined in Section 10.07.
Advance Financing Person: The Person to whom the Servicer's
rights under this Agreement to be reimbursed for any P&I Advances or Servicing
Advances have been assigned pursuant to Section 10.07.
Advance Reimbursement Amounts: As defined in Section 10.07.
Affiliate: With respect to any Person, any other Person
controlling, controlled by or under common control with such first Person. For
the purposes of this definition, "control" means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all
amendments or supplements hereto.
Amount Held for Future Distribution: As to the Certificates on
any Distribution Date, the aggregate amount held in the Collection Account at
the close of business on the related Remittance Date on account of (i) Principal
Prepayments, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds
on the Mortgage Loans received after the end of the related Prepayment Period
and (ii) all Scheduled Payments on the Mortgage Loans due after the end of the
related Due Period.
Applied Realized Loss Amount: With respect to any Distribution
Date, the amount, if any, by which the aggregate Class Certificate Balance of
the LIBOR Certificates after distributions of principal on such Distribution
Date exceeds the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date.
Appraised Value: (i) With respect to any First Lien Mortgage
Loan, the value of the related Mortgaged Property based upon the appraisal made
for the originator at the time of origination of the Mortgage Loan or the sales
price of the Mortgaged Property at such time of origination, whichever is less,
and (ii) with respect to any Second Lien Mortgage Loan, the value, determined
pursuant to the Underwriting Guidelines, of the related Mortgaged Property as of
the origination of the Second Lien Mortgage Loan; provided, however, that in the
case of a refinanced Mortgage Loan, such value is based solely upon the
appraisal made at the time of origination of such refinanced Mortgage Loan.
Assignment of Mortgage: An assignment of the Mortgage, notice
of transfer or equivalent instrument in recordable form (other than the
assignee's name and recording information not yet returned from the recording
office), reflecting the sale of the Mortgage to the Trust.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Trustee (x) the sum of (i) all
scheduled installments of interest (net of the related Expense Fees) and
principal due on the Due Date on such Mortgage Loans in the related Due Period
and received on or prior to the related Determination Date, together with any
P&I Advances in respect thereof; (ii) all Condemnation Proceeds, Insurance
Proceeds and Liquidation Proceeds received during the related Prepayment Period
(in each case, net of unreimbursed expenses incurred in connection with a
liquidation or foreclosure and unreimbursed Advances, if any); (iii) all partial
or full prepayments on the Mortgage Loans received during the related Prepayment
Period together with all Compensating Interest paid by the Servicer in
connection therewith (excluding Prepayment Premiums); (iv) all amounts received
with respect to such Distribution Date as the Substitution Adjustment Amount or
the Repurchase Price in respect of a Deleted Mortgage Loan substituted for or a
Mortgage Loan repurchased by the Purchaser or WMC, as applicable, as of such
Distribution Date; and (v) the proceeds received with respect to the termination
of the Trust Fund pursuant to clause (a) of Section 9.01, reduced by (y) all
amounts in reimbursement for P&I Advances and Servicing Advances previously made
with respect to the Mortgage Loans and other amounts as to which the Servicer,
the Depositor, the Trustee (or co-trustee) or the Custodian are entitled to be
paid or reimbursed pursuant to this Agreement.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the 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
LIBOR Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of LIBOR Certificates is
based upon the Loan Group I WAC Cap, the Loan Group II WAC Cap or the WAC Cap,
the excess, if any, of (i) the Accrued Certificate Interest Distribution Amount
such Class of LIBOR Certificates would otherwise be entitled to receive on such
Distribution Date had such Pass-Through Rate not been subject to the Loan Group
I WAC Cap, the Loan Group II WAC Cap or the WAC Cap, as applicable, over (ii)
the Accrued Certificate Interest Distribution Amount payable on such Class of
Certificates on such Distribution Date taking into account the Loan Group I WAC
Cap, the Loan Group II WAC Cap or the WAC Cap, as applicable, and (B) the Basis
Risk Carry Forward Amount for such Class of LIBOR Certificates for all previous
Distribution Dates not previously paid, together with interest thereon at a rate
equal to the applicable Pass-Through Rate for such Class of LIBOR Certificates
for such Distribution Date (without giving effect to the Loan Group I WAC Cap,
the Loan Group II WAC Cap or the WAC Cap, as applicable).
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 sum of (a) the Class X Distributable Amount
(prior to any reduction for Basis Risk Payments from the Excess Reserve Fund
Account) and (b) amounts paid pursuant to the related Corridor Agreement.
Best's: Best's Key Rating Guide, as the same shall be amended
from time to time.
Book-Entry Certificates: As specified in the Preliminary
Statement.
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, Texas and Illinois, (b) the State in which the
Servicer's servicing operations are located, or (c) the State in which the
Trustee's operations are located, are authorized or obligated by law or
executive order to be closed.
Certificate: Any one of the Certificates executed by the
Trustee in substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of LIBOR 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 reduced
by the amount of any Applied Realized Loss Amounts previously allocated to such
Class of Certificates pursuant to Section 4.05; 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). With respect to the
Class X Certificates, the excess, if any, of (A) the aggregate Uncertificated
Balances of the REMIC I Regular Interests over (B) the then aggregate Class
Certificate Balance of the Class A Certificates, Class M Certificates and Class
B Certificates then outstanding. The 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 Trustee is
entitled to rely conclusively on a certification of the Depositor or any
Affiliate of the Depositor in determining which Certificates are registered in
the name of an Affiliate of the Depositor.
Certification: As defined in Section 8.12(b).
Class: All Certificates bearing the same class designation as
set forth in the Preliminary Statement.
Class A Certificates: As specified in the Preliminary
Statement.
Class A Certificate Group: Either of the Class A-1 Certificate
Group or the Class A-2 Certificate Group, as applicable.
Class A Principal Allocation Percentage. With respect to any
Distribution Date, the percentage equivalent of a fraction, determined as
follows: (i) in the case of the Class A-1 Certificate Group, the numerator of
which is (x) the portion of the Principal Remittance Amount for such
Distribution Date that is attributable to principal received or advanced on the
Group I Mortgage Loans and the denominator of which is (y) the Principal
Remittance Amount for such Distribution Date; and (ii) in the case of the Class
A-2 Certificate Group, the numerator of which is (x) the portion of the
Principal Remittance Amount for such Distribution Date that is attributable to
principal received or advanced on the Group II Mortgage Loans and the
denominator of which is (y) the Principal Remittance Amount for such
Distribution Date.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class Certificate Balances of
the Class A Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) 51.80% 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-1A Certificates: All Certificates bearing the class
designation of "Class A-1A."
Class A-1B Certificates: All Certificates bearing the class
designation of "Class A-1B."
Class A-1 Certificate Group: The Class A-1A Certificates and
Class A-1B Certificates, collectively.
Class A-1 Corridor Agreement: The interest rate corridor
agreement with respect to the Class A-1A Certificates and Class A-1B
Certificates, dated November 23, 2005, between the Purchaser and the Corridor
Agreement Provider.
Class A-2A Certificates: All Certificates bearing the class
designation of "Class A-2A."
Class A-2B Certificates: All Certificates bearing the class
designation of "Class A-2B."
Class A-2C Certificates: All Certificates bearing the class
designation of "Class A-2C."
Class A-2 Certificate Group: The Class A-2A, Class A-2B and
Class A-2C Certificates, collectively.
Class A-2 Corridor Agreement: The interest rate corridor
agreement with respect to the Class A-2A, Class A-2B and Class A-2C
Certificates, dated November 23, 2005, between the Purchaser and the Corridor
Agreement Provider.
Class B-1 Certificates: All Certificates bearing the class
designation of "Class B-1."
Class B-1 Interest: An uncertificated interest in the Trust
Fund held by the Trustee on behalf of the Holders of the Class B-1 Certificates,
evidencing a Regular Interest in REMIC IV for purposes of the REMIC Provisions.
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date) and (H) the Class Certificate Balance of the Class B-1 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 88.40 % and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class B-1 REMIC: As described in the Preliminary Statement.
Class B-2 Certificates: All Certificates bearing the class
designation of "Class B-2."
Class B-2 Interest: An uncertificated interest in the Trust
Fund held by the Trustee on behalf of the Holders of the Class B-2 Certificates,
evidencing a Regular Interest in REMIC V for purposes of the REMIC Provisions.
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 M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (H) 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 (I) the Class Certificate Balance of the
Class B-2 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 90.60% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class B-2 REMIC: As described in the Preliminary Statement.
Class Certificate Balance: With respect to any Class and as to
any date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class M-1 Certificates: All Certificates bearing the class
designation of "Class M-1."
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), and (B) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) 66.10%
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 M-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), and (C) the Class Certificate Balance of the
Class M-2 Certificates immediately prior to such Distribution Date over (ii) the
lesser of (A) 70.80% 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 M-3 Certificates: All Certificates bearing the class
designation of "Class M-3."
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), and (D) the Class
Certificate Balance of the Class M-3 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 77.50% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class M-4 Certificates: All Certificates bearing the class
designation of "Class M-4."
Class M-4 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date) and (E) the Class Certificate Balance of the Class M-4 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 80.50% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-5 Certificates: All Certificates bearing the class
designation of "Class M-5."
Class M-5 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date) and (F) the Class Certificate Balance of the
Class M-5 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 83.70% 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-6 Certificates: All Certificates bearing the class
designation of "Class M-6."
Class M-6 Interest: An uncertificated interest in the Trust
Fund held by the Trustee on behalf of the Holders of the Class M-6 Certificates,
evidencing a Regular Interest in REMIC III for purposes of the REMIC Provisions.
Class M-6 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date) and (G) the Class
Certificate Balance of the Class M-6 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 86.10% 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: As defined in the Preliminary Statement.
Class R-1 Certificates: All Certificates bearing the class
designation of "Class R-1", evidencing ownership of the Class R-I Interest and
the Class R-II Interest.
Class R-I Interest: The uncertificated Residual Interest in
REMIC I.
Class R-2 Certificates: All Certificates bearing the class
designation of "Class R-2", evidencing ownership of the Class R-III Interest,
Class R-IV Interest, Class R-V Interest and teh Class R-VI Interest.
Class R-II Interest: The uncertificated Residual Interest in
REMIC II.
Class R-III Interest: The uncertificated Residual Interest in
REMIC III.
Class R-IV Interest: The uncertificated Residual Interest in
REMIC IV.
Class R-V Interest: The uncertificated Residual Interest in
REMIC V.
Class R-VI Interest: The uncertificated Residual Interest in
REMIC VI.
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 from the Excess Reserve Fund
Account to pay Basis Risk Carry Forward Amounts.
Class X REMIC: As described in the Preliminary Statement.
Closing Date: November 23, 2005.
Code: The Internal Revenue Code of 1986, including any
successor or amendatory provisions.
Collection Account: As defined in Section 3.10(a).
Combined Loan-to-Value Ratio or CLTV: As of the date of
origination and as to any Second Lien Mortgage Loan, the ratio, expressed as a
percentage, of (a) the sum of (i) the outstanding principal balance of the
Second Lien Mortgage Loan as of the date of origination and (ii) the outstanding
principal balance as of the date of origination of any mortgage loan or mortgage
loans that are senior or equal in priority to the Second Lien Mortgage Loan and
which are secured by the same Mortgaged Property to (b) the Appraised Value.
Compensating Interest: For any Distribution Date, the lesser
of (a) the Prepayment Interest Shortfall, if any, for such Distribution Date,
with respect to voluntary Principal Prepayments in Full (excluding any payments
made upon liquidation of the Mortgage Loan) during the related Prepayment
Period, and (b) one-half of the Servicing Fee payable to the Servicer for such
Distribution Date.
Condemnation Proceeds: All awards, compensation and/or
settlements in respect of a Mortgaged Property, whether permanent or temporary,
partial or entire, by exercise of the power of eminent domain or condemnation,
to the extent not required to be released to a Mortgagor in accordance with the
terms of the related Mortgage Loan Documents.
Corporate Trust Office: The designated office of the Trustee
in the State of California at which at any particular time its corporate trust
business with respect to this Agreement is administered, which office at the
date of the execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx
Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attn: Trust Administration - GS05W2,
facsimile no. (000) 000-0000 and which is the address to which notices to and
correspondence with the Trustee should be directed.
Corresponding Certificate: With respect to each REMIC I
Regular Interest, as follows:
REMIC I Regular Interest Class
------------------------------ --------
REMIC I Regular Interest LTA1A A-1A
REMIC I Regular Interest LTA1B A-1B
REMIC I Regular Interest LTA2A A-2A
REMIC I Regular Interest LTA2B A-2B
REMIC I Regular Interest LTA2C A-2C
REMIC I Regular Interest LTM1 M-1
REMIC I Regular Interest LTM2 M-2
REMIC I Regular Interest LTM3 M-3
REMIC I Regular Interest LTM4 M-4
REMIC I Regular Interest LTM5 M-5
REMIC I Regular Interest LTM6 M-6
REMIC I Regular Interest LTB1 B-1
REMIC I Regular Interest LTB2 B-2
Corridor Agreements: The Class A-1 Corridor Agreement, the
Class A-2 Corridor Agreement and the Subordinate Corridor Agreement,
collectively.
Corridor Agreement Provider: Xxxxxxx Sachs Capital Markets,
L.P., a Delaware limited partnership, and its successors in interest.
Cumulative Loss Event: With respect to any Distribution Date,
a Cumulative Loss Event occurs if the Cumulative Loss Percentage exceeds the
applicable percentage set forth below with respect to such Distribution Date:
DISTRIBUTION DATE OCCURRING IN LOSS PERCENTAGE
------------------------------------------- ---------------------------------------------------
December 2008 through November 2009 4.10% of the Cut-off Date Pool Principal Balance
------------------------------------------- ---------------------------------------------------
December 2009 through November 2010 5.85% of the Cut-off Date Pool Principal Balance
------------------------------------------- ---------------------------------------------------
December 2010 through November 2011 7.25% of the Cut-off Date Pool Principal Balance
------------------------------------------- ---------------------------------------------------
December 2011 and thereafter 8.00% of the Cut-off Date Pool Principal Balance
------------------------------------------- ---------------------------------------------------
Cumulative Loss Percentage: As of any date of determination,
the percentage equivalent of a fraction, the numerator of which is the aggregate
amount of Realized Losses on the Mortgage Loans for the period from the Cut-off
Date to the date of determination and the denominator of which is the Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
Custodial File: With respect to each Mortgage Loan, the file
retained by the Custodian consisting of items (a) - (h) as listed on Exhibit L
hereto.
Custodian: Xxxxx Fargo Bank, N.A., a national banking
association, and its successors in interest, as applicable.
Custodian Fee: As to each Mortgage Loan and any Distribution
Date, an amount equal to one month's interest at the Custodian Fee Rate on the
Stated Principal Balance of such Mortgage Loan as of the preceding Distribution
Date (or as of the Closing Date in the case of the first Distribution Date) or,
in the event of any payment of interest which accompanies a Principal Prepayment
in Full made by the Mortgagor, interest at the Custodian Fee Rate on the Stated
Principal Balance of such Mortgage Loan for the period covered by such payment
of interest.
Custodian Fee Rate: The rate set forth in the separate fee
agreement that has been executed between the Custodian and the Trustee and that
relates to the Mortgage Loans.
Cut-off Date: November 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).
Data Tape Information: The information provided by the
Purchaser as of the Cut-off Date to the Depositor setting forth the following
information with respect to each Mortgage Loan: (1) the Purchaser's Mortgage
Loan identifying number; (2) the Mortgagor's name; (3) the street address of the
Mortgaged Property including the city, state and zip code; (4) a code indicating
whether the Mortgaged Property is owner-occupied, a second home or investment
property; (5) the number and type of residential units constituting the
Mortgaged Property (i.e., a single family residence, a 2-4 family residence, a
unit in a condominium project or a unit in a planned unit development or a
manufactured housing unit); (6) the original months to maturity or the remaining
months to maturity from the Cut-off Date, in any case based on the original
amortization schedule and, if different, the maturity expressed in the same
manner but based on the actual amortization schedule; (7) with respect to First
Lien Mortgage Loans, the Loan-to-Value Ratio at origination, and with respect to
the Second Lien Mortgage Loans, the Combined Loan-to-Value Ratio; (8) the
Mortgage Interest Rate as of the Cut-off Date; (9) the date on which the
Scheduled Payment was due on the Mortgage Loan and, if such date is not
consistent with the Due Date currently in effect, such Due Date; (10) the stated
maturity date; (11) the amount of the Scheduled Payment as of the Cut-off Date;
(12) the last payment date on which a Scheduled Payment was actually applied to
pay interest and the outstanding principal balance; (13) the original principal
amount of the Mortgage Loan; (14) the principal balance of the Mortgage Loan as
of the close of business on the Cut-off Date, after deduction of payments of
principal due and collected on or before the Cut-off Date; (15) with respect to
Adjustable Rate Mortgage Loans, the Adjustment Date; (16) with respect to
Adjustable Rate Mortgage Loans, the Gross Margin; (17) with respect to
Adjustable Rate Mortgage Loans, the Lifetime Rate Cap under the terms of the
Mortgage Note; (18) with respect to Adjustable Rate Mortgage Loans, a code
indicating the type of Index; (19) with respect to Adjustable Rate Mortgage
Loans, the Periodic Mortgage Interest Rate Cap under the terms of the Mortgage
Note; (20) the type of Mortgage Loan (i.e., fixed rate, adjustable rate, first
lien, second lien); (21) a code indicating the purpose of the loan (i.e.,
purchase, rate and term refinance, equity take-out refinance); (22) a code
indicating the documentation style (i.e., full documentation, limited
documentation or stated income); (23) the loan credit classification (as
described in the Underwriting Guidelines); (24) whether such Mortgage Loan
provides for a Prepayment Premium; (25) the Prepayment Premium period of such
Mortgage Loan, if applicable; (26) a description of the Prepayment Premium, if
applicable; (27) the Mortgage Interest Rate as of origination; (28) the credit
risk score (FICO score) at origination; (29) the date of origination; (30) the
Mortgage Interest Rate adjustment period; (31) the Mortgage Interest Rate floor;
(32) the Mortgage Interest Rate calculation method (i.e., 30/360, simple
interest, other); (33) a code indicating whether the Mortgage Loan has been
modified; (34) with respect to First Lien Mortgage Loans, the current
Loan-to-Value Ratio, and with respect to Second Lien Mortgage Loans, the current
Combined Loan-to-Value Ratio; (35) the one year payment history; (36) the Due
Date for the first Scheduled Payment; (37) the original Scheduled Payment due;
(38) with respect to the related Mortgagor, the debt-to-income ratio; (39) the
Appraised Value of the Mortgaged Property; (40) the sales price of the Mortgaged
Property if the Mortgage Loan was originated in connection with the purchase of
the Mortgaged Property; and (41) a code indicating whether a Mortgage Loan is or
has been 30 days delinquent. With respect to the Mortgage Loans in the
aggregate: (1) the number of Mortgage Loans; (2) the current aggregate
outstanding principal balance of the Mortgage Loans; (3) the weighted average
Mortgage Interest Rate of the Mortgage Loans; and (4) the weighted average
maturity of the Mortgage Loans.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the United
States Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which
became final and non-appealable, except for such a reduction resulting from a
Deficient Valuation or any reduction that results in a permanent forgiveness of
principal.
Deficient Valuation: With respect to any Mortgage Loan, a
valuation of the related Mortgaged Property by a court of competent jurisdiction
in an amount less than the then outstanding principal balance of the Mortgage
Loan, which valuation results from a proceeding initiated under the United
States Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a
Physical Certificate and any Certificate issued in lieu of a Book-Entry
Certificate pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Deleted Mortgage Loan: A Mortgage Loan that is removed from
the Trust pursuant to the terms of this Agreement.
Denomination: With respect to each Certificate, the amount set
forth on the face thereof as the "Initial Certificate Balance of this
Certificate" or the Percentage Interest appearing on the face thereof.
Depositor: GS Mortgage Securities Corp., a Delaware
corporation, and its successors in interest.
Depository: The initial Depository shall be The Depository
Trust Company, the nominee of which is CEDE & Co., as the registered Holder of
the Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust
company, including the Trustee, that (a) is incorporated under the laws of the
United States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated "P-1" by Moody's, "A-1" by Standard & Poor's and "F1+" by Fitch (in
each case, to the extent they are designated as Rating Agencies in the
Preliminary Statement).
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 Distribution Date,
the 18th day of the calendar month in which such Distribution Date occurs or, if
such day is not a Business Day, the immediately preceding Business Day.
Distribution Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Section 3.27(b) in the name of the
Trustee for the benefit of the Certificateholders and designated "Deutsche Bank
National Trust Company in trust for registered holders of GSAMP Trust 2005-WMC2
Mortgage Pass-Through Certificates, Series 2005-WMC2." Funds in the Distribution
Account shall be held in trust for the Certificateholders for the uses and
purposes set forth in this Agreement and may be invested in Permitted
Investments.
Distribution Date: The 25th day of each calendar month after
the initial issuance of the Certificates, or if such day is not a Business Day,
the next succeeding Business Day, commencing in December 2005.
Document Certification and Exception Report: The report
attached to Exhibit F hereto.
Due Date: The day of the month on which the Scheduled Payment
is due on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
the Distribution Date occurs and ending on the first day of the calendar month
in which the Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a
federal or state-chartered depository institution or trust company that complies
with the definition of Eligible Institution, (ii) an account maintained with the
corporate trust department of a federal depository institution or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal
Regulation Section 9.10(b), which, in either case, has corporate trust powers
and is acting in its fiduciary capacity or (iii) any other account acceptable to
each Rating Agency. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with the Trustee.
Each Eligible Account shall be a separate account.
Eligible Institution: A federal or state-chartered depository
institution or trust company the commercial paper, short-term debt obligations,
or other short-term deposits of which are rated "A-1+" by Standard & Poor's if
the amounts on deposit are to be held in the account for no more than 365 days
(or at least "A-2" by Standard & Poor's if the amounts on deposit are to be held
in the account for no more than 30 days), or the long-term unsecured debt
obligations of which are rated at least "AA-" by Standard & Poor's if the
amounts on deposit are to be held in the account for no more than 365 days, and
the commercial paper, short-term debt obligations or other short-term deposits
of which are rated at least "P-1" by Moody's and "F1+" by Fitch (or a comparable
rating if another Rating Agency is specified by the Depositor by written notice
to the Servicer and the Trustee) (in each case, to the extent they are
designated as Rating Agencies in the Preliminary Statement).
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 Account: The Eligible Account or Accounts established
and maintained pursuant to Section 3.09(b).
Escrow Payments: As defined in Section 3.09(b) of this
Agreement.
Event of Default: As defined in Section 7.01.
Excess Overcollateralized Amount: With respect to any
Distribution Date, the excess, if any, of (a) the Overcollateralized Amount on
such Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account
created and maintained by the Trustee pursuant to Sections 3.27(a) in the name
of the Trustee for the benefit of the Regular Certificateholders and designated
"Deutsche Bank National Trust Company in trust for registered holders of GSAMP
Trust 2005-WMC2, Mortgage Pass-Through Certificates, Series 2005-WMC2." 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, the Custodian Fee Rate and the
Trustee Fee Rate.
Expense Fees: As to each Mortgage Loan, the sum of the
Servicing Fee, the Custodian Fee and the Trustee Fee.
Extra Principal Distribution Amount: As of any Distribution
Date, the lesser of (x) the related Total Monthly Excess Spread for such
Distribution Date and (y) the related Overcollateralization Deficiency for such
Distribution Date.
Xxxxxx Xxx: The Federal National Mortgage Association and its
successors in interest.
Xxxxxx Mae Guides: The Xxxxxx Xxx Seller's Guide and the
Xxxxxx Mae Servicer's Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, and its
successors in interest.
Final Recovery Determination: With respect to any defaulted
Mortgage Loan or any REO Property (other than a Mortgage Loan or REO Property
purchased by WMC or the Purchaser as contemplated by this Agreement), a
determination made by the Servicer that all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries which the
Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer shall
maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
Final Scheduled Distribution Date: The Final Scheduled
Distribution Date for each Class of Certificates is the Distribution Date
occurring in November 2035.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first
lien Mortgage on the related Mortgaged Property.
Fitch: Fitch, Inc., and its successors in interest. If Fitch
is designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Fitch shall be Fitch, Inc., Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: MBS Monitoring - GSAMP
Trust 2005-WMC2, or such other address as Fitch may hereafter furnish to the
Depositor, the Servicer, the Custodian and the Trustee.
Fixed Rate Mortgage Loan: A fixed rate Mortgage Loan.
Forbearance: As defined in Section 3.07(a).
Xxxxxxx 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.
Gross Margin: With respect to each Adjustable Rate Mortgage
Loan, the fixed percentage amount set forth in the related Mortgage Note to be
added to the applicable Index to determine the Mortgage Interest Rate.
Group I Mortgage Loan: A Mortgage Loan in Loan Group 2.
Group II Mortgage Loan: A Mortgage Loan in Loan Group 2.
Group I Sequential Trigger Event: With respect to any
Distribution Date before the 25th Distribution Date, if the aggregate amount of
Realized Losses incurred since the Cut-off Date through the last day of the
related Prepayment Period divided by the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date exceeds 1.40%, or if, on or after the
25th Distribution Date, a Trigger Event is in effect.
Home Loan: A Mortgage Loan categorized as "Home Loan" pursuant
to Appendix E of Standard & Poor's Glossary.
Index: As to each Adjustable Rate Mortgage Loan, the index
from time to time in effect for the adjustment of the Mortgage Interest Rate set
forth as such on the related Mortgage Note.
Initial Certification: The Initial Certification submitted by
the Custodian substantially in the form of Exhibit E.
Insurance Policy: With respect to any Mortgage Loan included
in the Trust Fund, any insurance policy, including all riders and endorsements
thereto in effect, including any replacement policy or policies for any
Insurance Policies.
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 LIBOR
Certificates for any Distribution Date, the period commencing on the immediately
preceding Distribution Date (or, for the initial Distribution Date, the Closing
Date) and ending on the day immediately preceding the current Distribution Date.
For purposes of computing interest accruals on each Class of LIBOR Certificates,
each Interest Accrual Period has the actual number of days in such period and
each year is assumed to have 360 days. For purposes of computing interest
accruals on the REMIC I Regular Interests and the Class X Certificates, each
Interest Accrual Period has 30 days in such period and each year is assumed to
have 360 days.
Interest Only Mortgage Loan: A Mortgage Loan for which the
related Mortgage Note provides for Scheduled Payments of interest only for a
period of time as specified in the related Mortgage Note.
Interest Rate Corridor Payments: (x) With respect to the Class
A-1 Certificates and the first 27 Distribution Dates, an amount equal to the
product of (a)(i) the number of basis points by which the lesser of (A)
one-month LIBOR (determined in accordance with the terms of the Class A-1
Corridor Agreement) and (B) 10.2400% exceeds (ii) the strike rate percentage set
forth on the interest rate corridor agreement schedule attached to the Class A-1
Corridor Agreement, (b) a notional amount equal to the lesser of (A) the amount
set forth as the interest rate corridor notional amount on the schedule attached
to the Class A-1 Corridor Agreement and (B) the aggregate Class Certificate
Balance of the Class A-1A Certificates and Class A-1B Certificates, and (c) the
actual number of days in the applicable Interest Accrual Period divided by 360;
(y) with respect to the Class A-2 Certificates and the first 27 Distribution
Dates, an amount equal to the product of (a)(i) the number of basis points by
which the lesser of (A) one-month LIBOR (determined in accordance with the terms
of the Class A-2 Corridor Agreement) and (B) 10.2978% exceeds (ii) the strike
rate percentage set forth on the interest rate corridor agreement schedule
attached to the Class A-2 Corridor Agreement, (b) a notional amount equal to the
lesser of (A) the amount set forth as the interest rate corridor notional amount
on the schedule attached to the Class A-2 Corridor Agreement and (B) the
aggregate Class Certificate Balance of the Class A-2A, Class A-2B and Class A-2C
Certificates, and (c) the actual number of days in the applicable Interest
Accrual Period divided by 360; and (z) with respect to the Class X-0, Xxxxx X-0,
Class M-3, Class M-4, Class M-5, Class M-6, Class B-1 and Class B-2 Certificates
and the first 39 Distribution Dates, an amount equal to the product of (a)(i)
the number of basis points by which the lesser of (A) one-month LIBOR
(determined in accordance with the terms of the Subordinate Corridor Agreement)
and (B) 9.6891% exceeds (ii) the strike rate percentage set forth on the
interest rate corridor agreement schedule attached to the Subordinate Corridor
Agreement, (b) a notional amount equal to the lesser of (A) the amount set forth
as the interest rate corridor notional amount on the schedule attached to the
Subordinate Corridor Agreement and (B) the aggregate Class Certificate Balance
of the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class
B-1 and Class B-2 Certificates, and (c) the actual number of days in the
applicable Interest Accrual Period divided by 360.
Interest Remittance Amount: With respect to any Distribution
Date and the Mortgage Loans in a Loan Group, that portion of Available Funds
attributable to interest relating to the Mortgage Loans in that Loan Group.
Investment Account: As defined in Section 3.12(a).
Late Collections: With respect to any Mortgage Loan and any
Due Period, all amounts received after the Remittance Date immediately following
such Due Period, whether as late payments of Scheduled Payments or as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal and/or interest due (without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note) but delinquent for such Due Period and not previously recovered.
Lender: As defined in Section 10.07.
LIBOR: With respect to any Interest Accrual Period for the
LIBOR Certificates, the rate determined by the Trustee on the related LIBOR
Determination Date on the basis of the offered rate for one-month U.S. dollar
deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on such date; provided, that if such rate does not appear on Telerate Page
3750, the rate for such date will be determined on the basis of the rates at
which one-month U.S. dollar deposits are offered by the Reference Banks at
approximately 11:00 a.m. (London time) on such date to prime banks in the London
interbank market. In such event, the Trustee shall request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16%). If fewer than two quotations are provided as
requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Trustee (after
consultation with the Depositor), at approximately 11:00 a.m. (New York City
time) on such date for one-month U.S. dollar deposits of leading European banks.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: With respect to any Interest Accrual
Period for the LIBOR Certificates, the second London Business Day preceding the
commencement of such Interest Accrual Period.
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.
Liquidated Mortgage Loan: With respect to any Distribution
Date, a defaulted Mortgage Loan (including any REO Property) which was
liquidated or charged off in the calendar month preceding the month of such
Distribution Date and as to which the Servicer has certified (in accordance with
this Agreement) that it has made a Final Recovery Determination.
Liquidation Event: With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made as to such Mortgage Loan; or (iii) such Mortgage
Loan is removed from coverage under this Agreement by reason of its being
purchased, sold or replaced pursuant to or as contemplated by this Agreement.
With respect to any REO Property, either of the following events: (i) a Final
Recovery Determination is made as to such REO Property; or (ii) such REO
Property is removed from coverage under this Agreement by reason of its being
purchased pursuant to this Agreement.
Liquidation Proceeds: The amounts, other than Insurance
Proceeds, Condemnation Proceeds or those received following the acquisition of
REO Property, received in connection with the liquidation of a defaulted
Mortgage Loan, whether through a trustee's sale, foreclosure sale or otherwise,
including any Subsequent Recoveries.
Xxxxxx: Xxxxxx Loan Servicing LP, a Delaware limited
partnership, and its successors in interest.
Loan Group: Either of Loan Group I or Loan Group II.
Loan Group I: The Group I Mortgage Loans.
Loan Group I WAC Cap: With respect to the Mortgage Loans as of
any Distribution Date, the product of (i) the weighted average of the Adjusted
Net Mortgage Interest Rates then in effect on the beginning of the related Due
Period on the Group I Mortgage Loans, and (ii) a fraction, the numerator of
which is 30 and the denominator of which is the actual number of days in the
Interest Accrual Period related to such Distribution Date. For federal income
tax purposes, the equivalent of the foregoing shall be expressed as the weighted
average of the REMIC I Remittance Rate on REMIC I Regular Interest LT1GRP,
weighted on the basis of the Uncertificated Balance of such REMIC I Regular
Interest.
Loan Group II: The Group II Mortgage Loans.
Loan Group II WAC Cap: With respect to the Mortgage Loans as
of any Distribution Date, the product of (i) the weighted average of the
Adjusted Net Mortgage Interest Rates then in effect on the beginning of the
related Due Period on the Group II Mortgage Loans, and (ii) a fraction, the
numerator of which is 30 and the denominator of which is the actual number of
days in the Interest Accrual Period related to such Distribution Date. For
federal income tax purposes, the equivalent of the foregoing shall be expressed
as the weighted average of the REMIC I Remittance Rate on REMIC I Regular
Interest LT2GRP, weighted on the basis of the Uncertificated Balance of such
REMIC I Regular Interest.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan,
the ratio (expressed as a percentage) of the original outstanding principal
amount of the Mortgage Loan as of the Cut-off Date (unless otherwise indicated),
to either (a) if the Mortgage Loan was made to finance the acquisition of the
related Mortgaged Property, the least of (i) the purchase price of the Mortgaged
Property, (ii) the Appraised Value of the Mortgaged Property at origination, or
(iii) the Review Appraisal Value of the Mortgaged Property; or (b) if the
Mortgage Loan was a refinancing or modification, the Appraised Value of the
Mortgaged Property at the time of the refinancing or modification.
London Business Day: Any day on which dealings in deposits of
United States dollars are transacted in the London interbank market.
Marker Rate: With respect to the Class X Interest and any
Distribution Date, a per annum rate equal to two (2) times the weighted average
of the REMIC I Remittance Rate for each of REMIC I Regular Interest LTA1A, REMIC
I Regular Interest LTA1B, REMIC I Regular Interest LTA2A, REMIC I Regular
Interest LTA2B, REMIC I Regular Interest LTA2C, REMIC I Regular LTM1, REMIC I
Regular Interest LTM2, REMIC I Regular LTM3, REMIC I Regular Interest LTM4,
REMIC I Regular Interest LTM5, REMIC I Regular Interest LTM6, REMIC I Regular
Interest LTB1, REMIC I Regular Interest LTB2 and REMIC I Regular Interest LTZZ,
with the rate on each such REMIC I Regular Interest (other than REMIC I Regular
Interest LTZZ) subject to a cap equal to the related Pass-Through Rate for the
Corresponding Certificate for the purpose of this calculation for such
Distribution Date and with the rate on REMIC I Regular Interest LTZZ subject to
a cap of zero for the purpose of this calculation; provided however, each such
cap (other than the cap on REMIC I Regular Interest LTZZ) shall be multiplied by
a fraction the numerator of which is the actual number of days in the related
Interest Accrual Period and the denominator of which is 30.
Maximum LTZZ Uncertificated Interest Deferral Amount: With
respect to any Distribution Date, the excess of (i) accrued interest at the
REMIC I Remittance Rate applicable to REMIC I Regular Interest LTZZ for such
Distribution Date on a balance equal to the Uncertificated Balance of REMIC I
Regular Interest LTZZ minus the REMIC I Overcollateralization Amount, in each
case for such Distribution Date, over (ii) Uncertificated Interest on REMIC I
Regular Interest LTA1A, REMIC I Regular Interest LTA1B, REMIC I Regular Interest
LTA2A, REMIC I Regular Interest LTA2B, REMIC I Regular Interest LTA2C, REMIC I
Regular LTM1, REMIC I Regular Interest LTM2, REMIC I Regular LTM3, REMIC I
Regular Interest LTM4, REMIC I Regular Interest LTM5, REMIC I Regular Interest
LTM6, REMIC I Regular Interest LTB1 and REMIC I Regular Interest LTB2 with the
rate on each such REMIC I Regular Interest subject to a cap equal to the related
Pass-Through Rate for the corresponding Certificate for the purpose of this
calculation for such Distribution Date; provided however, each such cap for
shall be multiplied by a fraction the numerator of which is the actual number of
days in the related Interest Accrual Period and the denominator of which is 30.
MERS: As defined in Section 2.01(b).
MERS Designated Mortgage Loan: Mortgage Loans for which (a)
WMC or the Purchaser has designated or will designate MERS as, and has taken or
will take such action as is necessary to cause MERS to be, the mortgagee of
record, as nominee for WMC or the Purchaser, in accordance with the MERS
Procedures Manual and (b) WMC or the Purchaser has designated or will designate
the Trust as the Investor on the MERS(R) System.
MERS Procedures Manual: The MERS Procedures Manual, as it may
be amended, supplemented or otherwise modified from time to time.
MERS(R) System: MERS mortgage electronic registry system, as
more particularly described in the MERS Procedures Manual.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.03.
Moody's: Xxxxx'x Investors Service, Inc., and its successors
in interest. If Xxxxx'x is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 10.05(b) the address for notices to Moody's
shall be Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Mortgage Pass-Through Group, or such other address
as Moody's may hereafter furnish to the Depositor, the Servicer, the Custodian
and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument
identified on the Mortgage Loan Schedule as securing a Mortgage Note, including
all riders thereto.
Mortgage File: The items pertaining to a particular Mortgage
Loan contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the
subject of this Agreement, each Mortgage Loan originally sold and subject to
this Agreement being identified on the Mortgage Loan Schedule, which Mortgage
Loan includes, without limitation, the Mortgage File, the Custodial File, the
Servicing File, the Scheduled Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition proceeds,
Prepayment Premiums and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan, excluding replaced or
repurchased Mortgage Loans.
Mortgage Loan Documents: The mortgage loan documents
pertaining to each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans delivered
to the Trustee on the Closing Date and referred to on Schedule I, such schedule
setting forth the following information with respect to each Mortgage Loan as of
the Cut-off Date: (1) the Purchaser's Mortgage Loan identifying number; (2) the
Mortgagor's name; (3) the street address of the Mortgaged Property including the
city, state and zip code; (4) a code indicating whether the Mortgaged Property
is owner-occupied, a second home or investment property; (5) the number and type
of residential units constituting the Mortgaged Property (i.e., a single family
residence, a 2-4 family residence, a unit in a condominium project or a unit in
a planned unit development or a manufactured housing unit); (6) the original
months to maturity or the remaining months to maturity from the Cut-off Date, in
any case based on the original amortization schedule and, if different, the
maturity expressed in the same manner but based on the actual amortization
schedule; (7) with respect to First Lien Mortgage Loans, the Loan-to-Value Ratio
at origination, and with respect to Second Lien Mortgage Loans, the Combined
Loan-to-Value Ratio, at origination; (8) the Mortgage Interest Rate as of the
Cut-off Date; (9) the date on which the Scheduled Payment was due on the
Mortgage Loan and, if such date is not consistent with the Due Date currently in
effect, such Due Date; (10) the stated maturity date; (11) the amount of the
Scheduled Payment as of the Cut-off Date; (12) the last payment date on which a
Scheduled Payment was actually applied to pay interest and the outstanding
principal balance; (13) the original principal amount of the Mortgage Loan; (14)
the principal balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after deduction of payments of principal due and collected on or
before the Cut-off Date; (15) with respect to Adjustable Rate Mortgage Loans,
the Adjustment Date; (16) with respect to Adjustable Rate Mortgage Loans, the
Gross Margin; (17) with respect to Adjustable Rate Mortgage Loans, the Lifetime
Rate Cap under the terms of the Mortgage Note; (18) with respect to Adjustable
Rate Mortgage Loans, a code indicating the type of Index; (19) with respect to
Adjustable Rate Mortgage Loans, the Periodic Mortgage Interest Rate Cap under
the terms of the Mortgage Note; (20) with respect to Adjustable Rate Mortgage
Loans, the Periodic Mortgage Interest Rate Floor under the terms of the Mortgage
Note; (21) the type of Mortgage Loan (i.e., fixed rate, adjustable rate, first
lien, second lien); (22) a code indicating the purpose of the loan (i.e.,
purchase, rate and term refinance, equity take-out refinance); (23) a code
indicating the documentation style (i.e., full documentation, limited
documentation or stated income); (24) the loan credit classification (as
described in the Underwriting Guidelines); (25) whether such Mortgage Loan
provides for a Prepayment Premium; (26) the Prepayment Premium period of such
Mortgage Loan, if applicable; (27) a description of the Prepayment Premium, if
applicable; (28) the Mortgage Interest Rate as of origination; (29) the credit
risk score (FICO score) at origination; (30) the date of origination; (31) the
Mortgage Interest Rate adjustment period; (32) the Mortgage Interest Rate
adjustment percentage; (33) the Mortgage Interest Rate floor; (34) the Mortgage
Interest Rate calculation method (i.e., 30/360, simple interest, other); (35) a
code indicating whether the Mortgage Loan is assumable; (36) a code indicating
whether the Mortgage Loan has been modified; (37) the one year payment history;
(38) the Due Date for the first Scheduled Payment; (39) the original Scheduled
Payment due; (40) with respect to the related Mortgagor, the debt-to-income
ratio; (41) the Appraised Value of the Mortgaged Property; (42) the sales price
of the Mortgaged Property if the Mortgage Loan was originated in connection with
the purchase of the Mortgaged Property; (43) a code indicating if the Mortgage
Loan is an Interest Only Mortgage Loan; (44) a code indicating whether such
Mortgage Loan is a Home Loan; (45) a code indicating whether a Mortgage Loan is
or has been 30 days delinquent; (46) MERS Indemnification Number; and (47) Loan
Group. With respect to the related Mortgage Loans in the aggregate: (1) the
number of Mortgage Loans; (2) the current aggregate outstanding principal
balance of the Mortgage Loans; (3) the weighted average Mortgage Interest Rate
of the Mortgage Loans; and (4) the weighted average maturity of the Mortgage
Loans.
Mortgage Note: The note or other evidence of the indebtedness
of a Mortgagor under a Mortgage Loan, including all riders thereto.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the
amount remaining for distribution pursuant to Section 4.02(a)(iii) (before
giving effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date,
the amount by which the sum of the Prepayment Interest Shortfalls for such
Distribution Date exceeds the sum of the Compensating Interest payments made
with respect to such Distribution Date.
NIM Issuer: The entity established as the issuer of the NIM
Securities.
NIM Securities: Any debt securities secured or otherwise
backed by some or all of the Class X and Class P Certificates that are rated by
one or more Rating Agencies.
NIM Trustee: The trustee for the NIM Securities.
90+ Day Delinquent Mortgage Loan: Each Mortgage Loan with
respect to which any portion of a Scheduled Payment is, as of the last day of
the prior Due Period, three months or more past due (without giving effect to
any grace period), including each Mortgage Loan in foreclosure, all REO Property
and each Mortgage Loan for which the Mortgagor has filed for bankruptcy.
Non-Delay Certificates: As specified in the Preliminary
Statement.
Non-Permitted Transferee: As defined in Section 8.11(e).
Nonrecoverable P&I Advance: Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Property that, in the
good faith business judgment of the Servicer, will not or, in the case of a
proposed P&I Advance, would not be ultimately recoverable from related late
payments, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds on
such Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advances
previously made or proposed to be made in respect of a Mortgage Loan or REO
Property, which, in the good faith business judgment of the Servicer, will not
or, in the case of a proposed Servicing Advance, would not, be ultimately
recoverable from related Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or otherwise.
Non-Rule 144A Investment Letter: As defined in Section
5.02(b).
Notice of Final Distribution: The notice to be provided
pursuant to Section 9.02 to the effect that final distribution on any of the
Certificates shall be made only upon presentation and surrender thereof.
Notional Amount: With respect to the Class X Certificates and
any Distribution Date, the Uncertificated Balance of the REMIC I Regular
Interests for such Distribution Date. As of the Closing Date, the Notional
Amount of the Class X Certificates is equal to $1,121,492,411.32.
Notional Balance: With respect to the Class X Certificates for
purposes solely of the face thereof, the aggregate Stated Principal Balance of
the Mortgage Loans.
Offered Certificates: As specified in the Preliminary
Statement.
Officer's Certificate: A certificate signed by an officer of
the Servicer with responsibility for the servicing of the Mortgage Loans and
listed on a list delivered to the Trustee pursuant to this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for the Servicer or a Subservicer, reasonably acceptable to the
Trustee; provided, that any Opinion of Counsel relating to (a) qualification of
any Trust REMIC as a REMIC or (b) compliance with the REMIC Provisions, must be
(unless otherwise stated in such Opinion of Counsel) an opinion of counsel who
(i) is in fact independent of the Servicer of the Mortgage Loans, (ii) does not
have any material direct or indirect financial interest in the Servicer of the
Mortgage Loans or in an Affiliate of either and (iii) is not connected with the
Servicer of the Mortgage Loans as an officer, employee, director or person
performing similar functions.
Optional Termination Date: The date determined by the Servicer
and specified in a written notice to the Trustee, which may occur on or after
the Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans, as of the last day of the related Due Period, is equal to 10.00%
or less of the Cut-off Date Pool Principal Balance.
OTS: Office of Thrift Supervision, and any successor thereto.
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 Trustee or
delivered to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which
other Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan
with a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan 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 Certificates as of such Distribution Date (after giving effect
to the payment of the Principal Remittance Amount on such Certificates on such
Distribution Date).
Overcollateralization Deficiency: With respect to any
Distribution Date, the excess, if any, of (a) the Specified Overcollateralized
Amount applicable to such Distribution Date over (b) the Overcollateralized
Amount applicable to such Distribution Date.
Overcollateralization Floor: With respect to any Distribution
Date, 0.50% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date. Notwithstanding the foregoing, on and after any
Distribution Date following the reduction of the aggregate Class Certificate
Balance of the Class A Certificates, Class M Certificates and Class B
Certificates to zero, the Overcollateralization Floor shall be zero.
Overcollateralization Reduction Amount: With respect to any
Distribution Date, an amount equal to the lesser of (a) the Excess
Overcollateralized Amount and (b) the Net Monthly Excess 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 Class A,
Class M and Class B Certificates, the following percentages: Class A-1A, 0.250%;
Class A-1B, 0.310%, Class A-2A, 0.110%, Class A-2B, 0.260%, Class A-2C, 0.350%,
Class M-1, 0.430%; Class M-2, 0.460%, Class M-3, 0.630%, Class M-4, 0.680%,
Class M-5, 1.150%, Class M-6, 1.250%, Class B-1, 1.810% and Class B-2, 2.500%.
On the first Distribution Date after the Optional Termination Date, the
Pass-Through Margins shall increase to: Class A-1A, 0.500%; Class A-1B, 0.620%,
Class A-2A, 0.220%, Class A-2B, 0.520%, Class A-2C, 0.700%, Class M-1, 0.645%;
Class M-2, 0.690%, Class M-3, 0.945%, Class M-4, 1.020%, Class M-5, 1.725%,
Class M-6, 1.875%, Class B-1, 2.715% and Class B-2, 3.750%.
Pass-Through Rate: With respect to the Class A-1A and Class
A-1B Certificates, the least of (i) LIBOR plus the related Pass-Through Margin,
(ii) the Group I WAC Cap and (iii) the WAC Cap. With respect to the Class A-2A,
Class A-2B and Class A-2C Certificates, the least of (i) LIBOR plus the related
Pass-Through Margin, (ii) the Group II WAC Cap and (iii) the WAC Cap. With
respect to the Class M and Class B Certificates, a rate per annum equal to the
lesser of (i) LIBOR plus the related Pass-Through Margin and (ii) the WAC Cap.
With respect to the Class X Interest and any Distribution
Date, a rate per annum equal to the percentage equivalent of a fraction, the
numerator of which is the sum of the amounts calculated pursuant to clauses (A)
through (O) below, and the denominator of which is the aggregate Uncertificated
Balances of REMIC I Regular Interest LTAA, REMIC I Regular Interest LTA1A, REMIC
I Regular Interest LTA1B, REMIC I Regular Interest LTA2A, REMIC I Regular
Interest LTA2B, REMIC I Regular Interest LTA2C, REMIC I Regular LTM1, REMIC I
Regular Interest LTM2, REMIC I Regular LTM3, REMIC I Regular Interest LTM4,
REMIC I Regular Interest LTM5, REMIC I Regular Interest LTM6, REMIC I Regular
Interest LTB1 and REMIC I Regular Interest LTB2, REMIC I Regular Interest LTZZ.
For purposes of calculating the Pass-Through Rate for the Class X Interest, the
numerator is equal to the sum of the following components:
(A) the REMIC I Remittance Rate for REMIC I Regular Interest LTAA
minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest LTAA;
(B) the REMIC I Remittance Rate for REMIC I Regular Interest LTA
minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest LTA;
(C) the REMIC I Remittance Rate for REMIC I Regular Interest LTA
minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest LTA;
(D) the REMIC I Remittance Rate for REMIC I Regular Interest LTA
minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest LTA;
(E) the REMIC I Remittance Rate for REMIC I Regular Interest LTA
minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest LTA;
(F) the REMIC I Remittance Rate for REMIC I Regular Interest LTA
minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest LTA;
(G) the REMIC I Remittance Rate for REMIC I Regular Interest LTM1
minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest LTM1;
(H) the REMIC I Remittance Rate for REMIC I Regular Interest LTM2
minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest LTM2;
(I) the REMIC I Remittance Rate for REMIC I Regular Interest LTM3
minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest LTM3;
(J) the REMIC I Remittance Rate for REMIC I Regular Interest LTM4
minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest LTM4;
(K) the REMIC I Remittance Rate for REMIC I Regular Interest LTM5
minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest LTM5;
(L) the REMIC I Remittance Rate for REMIC I Regular Interest LTM6
minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest LTM6;
(M) the REMIC I Remittance Rate for REMIC I Regular Interest LTB1
minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest LTB1;
(N) the REMIC I Remittance Rate for REMIC I Regular Interest LTB2
minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest LTB2; and
(O) the REMIC I Remittance Rate for REMIC I Regular Interest LTZZ
minus the Marker Rate, applied to an amount equal to the
Uncertificated Balance of REMIC I Regular Interest LTZZ.
With respect to the Class X Certificates, 100% of amounts
distributed in respect of the Class X Interest.
P&I Advance: As to any Mortgage Loan or REO Property, any
advance made by the Servicer in respect of any Remittance Date representing the
aggregate of all payments of principal and interest, net of the Servicing Fee,
that were due during the related Due Period on the Mortgage Loans and that were
delinquent on the related Remittance Date, plus certain amounts representing
assumed payments not covered by any current net income on the Mortgaged
Properties acquired by foreclosure or deed in lieu of foreclosure as determined
pursuant to Section 4.01 (which advances shall not include principal or interest
shortfalls due to bankruptcy proceedings or application of the Relief Act).
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 Mortgage Interest Rate Cap: With respect to each
Adjustable Rate Mortgage Loan, 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
Adjustment Date above or below the Mortgage Interest Rate previously in effect.
The Periodic Mortgage Interest Rate Cap for each Adjustable Rate Mortgage Loan
is the rate set forth on the Mortgage Loan Schedule.
Periodic Mortgage Interest Rate Floor: With respect to each
Adjustable Rate Mortgage Loan, the provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute minimum amount by
which the Mortgage Interest Rate therein may increase or decrease on an
Adjustment Date above or below the Mortgage Interest Rate previously in effect.
The Periodic Mortgage Interest Rate Floor for each Adjustable Rate Mortgage Loan
is the rate set forth on the Mortgage Loan Schedule.
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 "A-1+" by
Standard & Poor's, "P-1" by Moody's and "F1+" by Fitch (in each case,
to the extent they are designated as Rating Agencies in the Preliminary
Statement);
(iii) repurchase obligations with respect to any security
described in clause (i) above entered into with a Depository
Institution (acting as principal);
(iv) securities bearing interest or sold at a discount that
are issued by any corporation incorporated under the laws of the United
States of America or any state thereof and that are rated by each
Rating Agency that rates such securities in its highest long-term
unsecured rating categories at the time of such investment or
contractual commitment providing for such investment;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand
or on a specified date not more than 30 days after the date of
acquisition thereof) that is rated by each Rating Agency that rates
such securities in its highest short-term unsecured debt rating
available at the time of such investment;
(vi) units of money market funds, including money market funds
advised by the Depositor or the Trustee or an Affiliate thereof, that
have been rated "Aaa" by Moody's, "AAAm" or "AAAm-G" by Standard &
Poor's and at least "AA" by Fitch (in each case, to the extent they are
designated as Rating Agencies in the Preliminary Statement); and
(vii) if previously confirmed in writing to the Trustee, any
other demand, money market or time deposit, or any other obligation,
security or investment, as may be acceptable to the Rating Agencies as
a permitted investment of funds backing "Aaa" or "AAA" rated
securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
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 any Trust REMIC to
fail to qualify as a REMIC at any time that the Certificates are outstanding.
The terms "United States," "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of Xxxxxxx 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.
Plan: As defined in Section 5.02(b).
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 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 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
Prepayment Period.
Prepayment Period: With respect to any Distribution Date, the
calendar month preceding the calendar month in which such Distribution Date
occurs.
Prepayment Premium: Any prepayment premium, penalty or charge
collected by the Servicer with respect to a Mortgage Loan from a Mortgagor in
connection with any voluntary Principal Prepayment pursuant to the terms of the
related Mortgage Note.
Principal Distribution Amount: For any Distribution Date, the
sum of (i) the Basic Principal Distribution Amount for such Distribution Date
and (ii) the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other
recovery of principal on a Mortgage Loan (including upon liquidation of a
Mortgage Loan) which is received in advance of its scheduled Due Date, excluding
any Prepayment Premium and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by
a Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution
Date, the amount equal to the sum of the following amounts (without duplication)
with respect to the related Due Period: (i) each Scheduled Payment of principal
on a Mortgage Loan due during such Due Period and received by the Servicer on or
prior to the related Determination Date or advanced by the Servicer for the
related Remittance Date, (ii) all Principal Prepayments received during the
related Prepayment Period, (iii) all Liquidation Proceeds, Condemnation Proceeds
and Insurance Proceeds on the Mortgage Loans allocable to principal actually
collected by the Servicer during the related Prepayment Period, (iv) the portion
of the Repurchase Price allocable to principal with respect to each Deleted
Mortgage Loan, the repurchase obligation for which arose during the related
Prepayment Period, that was repurchased during the period from the prior
Distribution Date through the Remittance Date for the current Distribution Date,
(v) the portion of all Substitution Adjustment Amounts allocable to principal
with respect to the substitutions of Mortgage Loans that occur during the
calendar month in which such Distribution Date occurs, and (vi) the allocable
portion of the proceeds received with respect to the termination of the Trust
Fund pursuant to clause (a) of Section 9.01 (to the extent such proceeds relate
to principal).
Privacy Laws: Title V of the Gramm Xxxxx Xxxxxx Act of 1999,
as amended, and all applicable regulations promulgated thereunder.
Private Certificates: As specified in the Preliminary
Statement.
Prospectus Supplement: The Prospectus Supplement, dated
November 18, 2005, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchase Agreement: The Flow Mortgage Loan Purchase and
Warranties Agreement, dated as of July 27, 2005, between the Purchaser and WMC.
Purchaser: Xxxxxxx Sachs Mortgage Company, a New York limited
partnership, and its successors in interest, as purchaser of the Mortgage Loans
under the Purchase 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. References
herein to a given rating or rating category of a Rating Agency shall mean such
rating category without giving effect to any modifiers. For purposes of Section
10.05(b), the addresses for notices to each Rating Agency shall be the address
specified therefor in the definition corresponding to the name of such Rating
Agency, or such other address as either such Rating Agency may hereafter furnish
to the Depositor and the Servicer.
Realized Losses: With respect to any date of determination and
any Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid
principal balance of such Liquidated Mortgage Loan together with accrued and
unpaid interest thereon exceeds (b) the Liquidation Proceeds 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 and the
Certificates (other than the Class P Certificates and Class X Certificates), the
close of business on the last Business Day of the related Interest Accrual
Period; provided, however, that for any Certificate issued in definitive form,
the Record Date shall be the close of business on the last Business Day of the
month preceding the month in which such applicable Distribution Date occurs.
With respect to any Distribution Date and the Class P Certificates and Class X
Certificates, the last business day of the month preceding the related
Distribution Date.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary
Statement.
Relief Act: The Servicemembers Civil Relief Act.
Relief Act Interest Shortfall: With respect to any
Distribution Date and any Mortgage Loan, any reduction in the amount of interest
or principal collectible on such Mortgage Loan for the most recently ended Due
Period as a result of the application of the Relief Act or any similar state or
local statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC I: As specified in the Preliminary Statement.
REMIC I Interest Loss Allocation Amount: With respect to any
Distribution Date, an amount equal to (a) the product of (i) 50% of the
aggregate Stated Principal Balance of the Mortgage Loans and REO Properties then
outstanding and (ii) the REMIC I Remittance Rate for REMIC I Regular Interest
LTAA minus the Marker Rate, divided by (b) 12.
REMIC I Marker Allocation Percentage: 50% of any amount
payable or loss attributable from the Mortgage Loans, which shall be allocated
to REMIC I Regular Interest LTAA, REMIC I Regular Interest LTA1A, REMIC I
Regular Interest LTA1B, REMIC I Regular Interest LTA2A, REMIC I Regular Interest
LTA2B, REMIC I Regular Interest LTA2C, REMIC I Regular LTM1, REMIC I Regular
Interest LTM2, REMIC I Regular LTM3, REMIC I Regular Interest LTM4, REMIC I
Regular Interest LTM5, REMIC I Regular Interest LTM6, REMIC I Regular Interest
LTB1, REMIC I Regular Interest LTB2 and REMIC I Regular Interest LTZZ.
REMIC I Overcollateralization Amount: With respect to any date
of determination, (i) 0.50% of the aggregate Uncertificated Balances of the
REMIC I Regular Interests minus (ii) the aggregate of the Uncertificated
Balances of REMIC I Regular Interest LTA1A, REMIC I Regular Interest LTA1B,
REMIC I Regular Interest LTA2A, REMIC I Regular Interest LTA2B, REMIC I Regular
Interest LTA2C, REMIC I Regular LTM1, REMIC I Regular Interest LTM2, REMIC I
Regular LTM3, REMIC I Regular Interest LTM4, REMIC I Regular Interest LTM5,
REMIC I Regular Interest LTM6, REMIC I Regular Interest LTB1 and REMIC I Regular
Interest LTB2, in each case as of such date of determination.
REMIC I Principal Loss Allocation Amount: With respect to any
Distribution Date, an amount equal to (a) the product of (i) 0.50% of the
aggregate Stated Principal Balance of the Mortgage Loans and REO Properties then
outstanding and (ii) 1 minus a fraction, the numerator of which is two times the
aggregate of the Uncertificated Balances of REMIC I Regular Interest LTA1A,
REMIC I Regular Interest LTA1B, REMIC I Regular Interest LTA2A, REMIC I Regular
Interest LTA2B, REMIC I Regular Interest LTA2C, REMIC I Regular LTM1, REMIC I
Regular Interest LTM2, REMIC I Regular LTM3, REMIC I Regular Interest LTM4,
REMIC I Regular Interest LTM5, REMIC I Regular Interest LTM6, REMIC I Regular
Interest LTB1, REMIC I Regular Interest LTB2 and REMIC I Regular Interest LTZZ.
REMIC I Regular Interest: Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I. Each REMIC I Regular Interest shall accrue
interest at the related REMIC I Remittance Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto. The designations for
the respective REMIC I Regular Interests are set forth in the Preliminary
Statement hereto.
REMIC I Remittance Rate: With respect to REMIC I Regular
Interest LTAA, REMIC I Regular Interest LTA1A, REMIC I Regular Interest LTA1B,
REMIC I Regular Interest LTA2A, REMIC I Regular Interest LTA2B, REMIC I Regular
Interest LTA2C, REMIC I Regular LTM1, REMIC I Regular Interest LTM2, REMIC I
Regular LTM3, REMIC I Regular Interest LTM4, REMIC I Regular Interest LTM5,
REMIC I Regular Interest LTM6, REMIC I Regular Interest LTB1 and REMIC I Regular
Interest LTB2, REMIC I Regular Interest LTZZ, REMIC I Regular Interest LT1SUB,
REMIC I Regular Interest LT2SUB and REMIC I Regular Interest LTXX, the weighted
average the Adjusted Net Mortgage Interest Rates then in effect on the beginning
of the related Due Period on the Mortgage Loans. With respect to REMIC I Regular
Interest LT1GRP, the weighted average the Adjusted Net Mortgage Interest Rates
then in effect on the beginning of the related Due Period on the Group I
Mortgage Loans, with respect REMIC I Regular Interest LT2GRP, the weighted
average the Adjusted Net Mortgage Interest Rates then in effect on the beginning
of the related Due Period on the Group II Mortgage Loans.
REMIC I Required Overcollateralization Amount: 0.50% of the
Overcollateralization Floor.
REMIC I Sub WAC Allocation Percentage: 50% of any amount
payable from or loss attributable to the Mortgage Loans, which shall be
allocated to REMIC I Regular Interest LT1SUB, REMIC I Regular Interest LT1GRP,
REMIC I Regular Interest LT2SUB, REMIC I Regular Interest LT2GRP and REMIC I
Regular Interest LTXX.
REMIC I Subordinated Balance Ratio: The ratio between the
Uncertificated Balances of each REMIC I Regular Interest ending with the
designation "SUB,", equal to the ratio between, with respect to each such REMIC
I Regular Interest, the excess of (x) the aggregate Stated Principal Balance of
the Mortgage Loans in the related Loan Group over (y) the current Certificate
Balance of Class A Certificates in the related Loan Group.
REMIC II: The segregated pool of assets consisting of all of
the REMIC I Regular Interests conveyed in trust to the Trustee, for the benefit
of the REMIC II Certificateholders, and all amounts deposited therein, with
respect to which a separate REMIC election is to be made.
REMIC II Certificate: Any Regular Certificate (other than a
Class M-6, Class B-1, Class B-2 or Class X Certificate).
REMIC II Certificateholder: The Holder of any REMIC II
Certificate.
REMIC III: The segregated pool of assets consisting of all of
the Class M-6 Interest conveyed in trust to the Trustee, for the benefit of the
Class M-6 Certificateholders, and all amounts deposited therein, with respect to
which a separate REMIC election is to be made.
REMIC IV: The segregated pool of assets consisting of all of
the Class B-1 Interest conveyed in trust to the Trustee, for the benefit of the
Class B-1 Certificateholders, and all amounts deposited therein, with respect to
which a separate REMIC election is to be made.
REMIC V: The segregated pool of assets consisting of all of
the Class B-2 Interest conveyed in trust to the Trustee, for the benefit of the
Class B-2 Certificateholders, and all amounts deposited therein, with respect to
which a separate REMIC election is to be made.
REMIC VI: The segregated pool of assets consisting of all of
the Class X Interest conveyed in trust to the Trustee, for the benefit of the
Class X Certificateholders, and all amounts deposited therein, with respect to
which a separate REMIC election is to be made.
REMIC Provisions: Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations promulgated thereunder, as the foregoing may be in
effect from time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, no
later than 12:30 PM, Central Time on the Business Day immediately preceding such
Distribution Date.
REO Disposition: The final sale by the Servicer of any REO
Property.
REO Imputed Interest: As to any REO Property, for any period,
an amount equivalent to interest (at the Mortgage Interest Rate net of the
Servicing Fee Rate that would have been applicable to the related Mortgage Loan
had it been outstanding) on the unpaid principal balance of the Mortgage Loan as
of the date of acquisition thereof (as such balance is reduced pursuant to
Section 3.15 by any income from the REO Property treated as a recovery of
principal).
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Reporting Date: The 18th day of each calendar month or the
immediately following Business Day if the 18th is not a Business Day.
Repurchase Price: With respect to any Mortgage Loan
repurchased by (a) the Purchaser, 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, the Trust or the
Trustee, as the case may be, in respect of a breach or defect, including,
without limitation, expenses arising out of the Servicer's or Trustee's, as the
case may be, enforcement of the Purchaser's repurchase obligation, to the extent
not included in clause (iii), and (v) any costs and damages incurred by the
Trust in connection with any violation by such Mortgage Loan of any predatory
lending law or abusive lending law or (b) WMC, the "Repurchase Price" as that
term is defined in the Underlying Agreements.
Request for Release: The Request for Release submitted by the
Servicer to the Custodian, with a copy to the Trustee, substantially in the form
of Exhibit K.
Residual Certificates: As specified in the Preliminary
Statement.
Responsible Officer: When used with respect to the Trustee,
any vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any associate or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers who at such time shall be officers to whom, with respect to
a particular matter, such matter is referred because of such officer's knowledge
of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement.
Review Appraisal Value: As defined in the Underwriting
Guidelines.
Rule 144A Letter: As defined in Section 5.02(b).
Scheduled Payment: The scheduled monthly payment on a Mortgage
Loan due on any Due Date allocable to principal and/or interest on such Mortgage
Loan which, unless otherwise specified herein, shall give effect to any related
Debt Service Reduction and any Deficient Valuation that affects the amount of
the monthly payment due on such Mortgage Loan.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second
lien Mortgage on the related Mortgaged Property.
Securities Act: The Securities Act of 1933, as amended.
Senior Enhancement Percentage: With respect to any
Distribution Date, the percentage obtained by dividing (x) the sum of (i) the
aggregate Class Certificate Balance of the Subordinated Certificates and (ii)
the Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
Senior Specified Enhancement Percentage: As of any date of
determination, 48.20%.
Servicer: Xxxxxx.
Servicer Remittance Report: As defined in Section 4.03(d).
Servicer's Assignee: As defined in Section 10.07.
Servicing Advances: The reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred by the Servicer in the performance of
its servicing obligations in connection with a default, delinquency or other
unanticipated event, including, but not limited to, the cost of (i) the
preservation, restoration, inspection and protection of a Mortgaged Property,
(ii) any enforcement or judicial proceedings, including foreclosures and
litigation, in respect of a particular Mortgage Loan, (iii) the management
(including reasonable fees in connection therewith) and liquidation of any REO
Property and (iv) the performance of its obligations under Sections 3.01, 3.09,
3.13 and 3.15. The Servicer shall not be required to make any Nonrecoverable
Servicing Advances.
Servicing Fee: With respect to each Mortgage Loan and any
Distribution Date, an amount equal to the product of (i) one-twelfth of the
Servicing Fee Rate, and (ii) the Stated Principal Balance of such Mortgage Loan
as of the first day of the calendar month preceding the month in which such
Distribution Date occurs. Such fee shall be payable monthly, and shall be pro
rated for any portion of a month during which the Mortgage Loan is serviced by
the Servicer under this Agreement. The Servicing Fee is payable solely from the
interest portion (including recoveries with respect to interest from Liquidation
Proceeds, Insurance Proceeds, Condemnation Proceeds and proceeds received with
respect to REO Properties, to the extent permitted by Section 3.11) of such
Scheduled Payment collected by the Servicer or as otherwise provided under
Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.50%
per annum.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer consisting of originals or copies of all documents in
the Mortgage File which are not delivered to the Trustee in the Custodial File
and copies of the Mortgage Loan Documents set forth in Exhibit L hereto.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee by the Servicer on the Closing Date pursuant to this Agreement, as
such list may from time to time be amended.
Servicing Rights: Any and all of the following: (a) all rights
and obligations to service the Mortgage Loans; (b) any compensation for
servicing the Mortgage Loans; (c) any late fees, penalties or similar payments
with respect to the Mortgage Loans (other than prepayment penalties); (d) all
agreements or documents creating, defining or evidencing any such servicing
rights to the extent they relate to such servicing rights; (e) any interest on
Escrow Accounts allowed by law or other similar payments with respect to the
Mortgage Loans and any amounts actually collected with respect thereto; (f) all
accounts and other rights to payment related to any of the property described in
this paragraph; (g) the right to possess and use any and all servicing files,
servicing records, data tapes, computer records, or other information pertaining
to the Mortgage Loans to the extent relating to the past, present or prospective
servicing of the Mortgage Loans; and (h) all rights, powers and privileges
incident to any of the foregoing.
Servicing Rights Pledgee: One or more lenders, selected by the
Servicer, to which the Servicer may pledge and assign all of its right, title
and interest in, to and under this Agreement pursuant to and as provided in
Section 6.06, including without limitation JPMorgan Chase Bank, National
Association as the representative of certain lenders.
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with
respect to which any portion of a Scheduled Payment is, as of the last day of
the prior Due Period, two months or more past due (without giving effect to any
grace period), each Mortgage Loan in foreclosure, all REO Property and each
Mortgage Loan for which the Mortgagor has filed for bankruptcy.
Specified Overcollateralized Amount: Prior to the Stepdown
Date, an amount equal to 4.70% of the Cut-off Date Pool Principal Balance. On
and after the Stepdown Date, an amount equal to 9.40% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, subject,
until the Class Certificate Balance of each Class of LIBOR Certificates has been
reduced to zero, to a minimum amount equal to the Overcollateralization Floor;
provided, however, that if, on any Distribution Date, a Trigger Event has
occurred, the Specified Overcollateralized Amount shall not be reduced to the
applicable percentage of the then current aggregate Stated Principal Balance of
the Mortgage Loans until the Distribution Date on which a Trigger Event is no
longer occurring. On and after the date on which the Class Certificate Balance
of each Class of LIBOR Certificates has been reduced to zero, the Specified
Overcollateralized Amount shall thereafter equal zero.
SPV: As defined in Section 10.07.
Subordinate Corridor Agreement: The interest rate corridor
agreement with respect to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class
M-5, Class M-6, Class B-1 and Class B-2 Certificates, dated November 23, 2005,
between the Purchaser and the Corridor Agreement Provider.
Standard & Poor's: Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., and its successors in interest. If
Standard & Poor's is designated as a Rating Agency in the Preliminary Statement,
for purposes of Section 10.05(b) the address for notices to Standard & Poor's
shall be Standard & Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Residential Mortgage Surveillance Group - GSAMP Trust 2005-WMC2, or
such other address as Standard & Poor's may hereafter furnish to the Depositor,
the Servicer, the Custodian and the Trustee.
Standard & Poor's Glossary: Version 5.6(b) of the Standard &
Poor's LEVELS(R) Glossary.
Start-up Day: As defined in Section 2.06.
Stated Principal Balance: As to each Mortgage Loan and as of
any date of determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date, minus (ii) all amounts previously remitted to the Trustee with respect to
the related Mortgage Loan representing payments or recoveries of principal
including advances in respect of Scheduled Payments of principal, and plus (iii)
any amounts added to the unpaid principal balance of such Mortgage Loan in
connection with a modification thereof. For purposes of any Distribution Date,
the Stated Principal Balance of any Mortgage Loan will give effect to any
Scheduled Payments of principal received by the Servicer on or prior to the
related Determination Date or advanced by the Servicer for the related
Remittance Date and any unscheduled principal payments and other unscheduled
principal collections received during the related Prepayment Period, and the
Stated Principal Balance of any Mortgage Loan that has prepaid in full or has
become a Liquidated Mortgage Loan during the related Prepayment Period shall be
zero.
Stepdown Date: The earlier to occur of (a) the date on which
the 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
December 2008, and (ii) the first Distribution Date on which the Senior
Enhancement Percentage is greater than or equal to the Senior Specified
Enhancement Percentage.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subsequent Recoveries: Amounts received with respect to any
Liquidated Mortgage Loan after it has become a Liquidated Mortgage Loan.
Subservicer: As defined in Section 3.02(a).
Subservicing Account: As defined in Section 3.08.
Subservicing Agreements: As defined in Section 3.02(a).
Substitute Mortgage Loan: A Mortgage Loan eligible to be
substituted for a Deleted Mortgage Loan pursuant to the terms of the Underlying
Agreements.
Substitution Adjustment Amount: Any amount required to be paid
in connection with a Substitute Mortgage Loan pursuant to the Underlying
Agreements.
Tax Service Contract: As defined in Section 3.09(a).
Telerate Page 3750: The display page currently so designated
on the Bridge Telerate Service (or such other page as may replace that page on
that service for displaying comparable rates or prices).
Termination Price: As defined in Section 9.01.
Total Monthly Excess Spread: As to any Distribution Date, an
amount equal to the excess if any, of (i) the interest collected on the Mortgage
Loans received by the Servicer on or prior to the related Determination Date or
advanced by the Servicer for the related Remittance Date (net of Expense Fees)
over (ii) the sum of the interest payable to the Classes of LIBOR Certificates
on such Distribution Date pursuant to Section 4.02(a)(i).
Transfer: Any direct or indirect transfer or sale of any
Ownership Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a
Trigger Event exists if (i) the quotient (expressed as a percentage) of (1) the
rolling three month average of the aggregate unpaid principal balance of 60+ Day
Delinquent Mortgage Loans, divided by (2) the aggregate unpaid principal balance
of the Mortgage Loans as of the last day of the related Due Period, equals or
exceeds 33% 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 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
----------------------------------------- --------------------------------------------------
December 2007 through November 2008 1.400% for the first month, plus an additional
1/12th of 1.700% for each month thereafter
----------------------------------------- --------------------------------------------------
December 2008 through November 2009 3.100% for the first month, plus an additional
1/12th of 1.750% for each month thereafter
----------------------------------------- --------------------------------------------------
December 2009 through November 2010 4.850% for the first month, plus an additional
1/12th of 1.400% for each month thereafter
----------------------------------------- --------------------------------------------------
December 2010 through November 2011 6.250% for the first month, plus an additional
1/12th of 0.750% for each month thereafter
----------------------------------------- --------------------------------------------------
December 2011 and thereafter 7.000%
----------------------------------------- --------------------------------------------------
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 Collection Account, the Excess Reserve Fund Account, the Distribution
Account, and all amounts deposited therein pursuant to the applicable provisions
of this Agreement; (iii) property that secured a Mortgage Loan and has been
acquired by foreclosure, deed-in-lieu of foreclosure or otherwise; (iv) the
Depositor's rights under the Underlying Agreements; (v) the Corridor Agreements;
and (vi) all proceeds of the conversion, voluntary or involuntary, of any of the
foregoing.
Trust REMIC: Any of REMIC I, REMIC II, REMIC III, REMIC IV,
REMIC V or REMIC VI, as applicable.
Trustee: Deutsche Bank National Trust Company and its
successors and, if a successor trustee is appointed hereunder, such successor.
Trustee Fee: As to each Mortgage Loan and any Distribution
Date, an amount equal to one month's interest at the related Trustee Fee Rate on
the Stated Principal Balance of such Mortgage Loan as of the preceding
Distribution Date (or as of the Closing Date in the case of the first
Distribution Date) or, in the event of any payment of interest which accompanies
a Principal Prepayment in Full made by the Mortgagor, interest at the Trustee
Fee Rate on the Stated Principal Balance of such Mortgage Loan for the period
covered by such payment of interest.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.0027%
per annum.
Uncertificated Balance: The amount of the REMIC I Regular
Interests outstanding as of any date of determination. As of the Closing Date,
the Uncertificated Balance of each REMIC I Regular Interest shall equal the
amount set forth in the Preliminary Statement hereto as its initial
uncertificated balance. On each Distribution Date, the Uncertificated Balance of
the REMIC I Regular Interest shall be reduced by all distributions of principal
made on such REMIC I Regular Interest on such Distribution Date pursuant to
Section 4.06 and, if and to the extent necessary and appropriate, shall be
further reduced on such Distribution Date by Realized Losses as provided in
Section 4.05 and the Uncertificated Balance of REMIC I Regular Interest I-LTZZ
shall be increased by interest deferrals as provided in Section 4.06. The
Uncertificated Balance of each REMIC I Regular Interest shall never be less than
zero.
Uncertificated Interest: With respect to any REMIC I Regular
Interest for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the Uncertificated Balance thereof immediately
prior to such Distribution Date. Uncertificated Interest in respect of the REMIC
I Regular Interests shall accrue on the basis of a 360-day year consisting of
twelve 30-day months. Uncertificated Interest with respect to each Distribution
Date, as to any REMIC I Regular Interest, shall be reduced by an amount equal to
the sum of (a) the aggregate Prepayment Interest Shortfall, if any, for such
Distribution Date to the extent not covered by payments pursuant to Section 3.25
of this Agreement and (b) the aggregate amount of any Relief Act Interest
Shortfall, if any allocated, in each case, to such REMIC I Regular Interest
pursuant to Section 4.02. In addition, Uncertificated Interest with respect to
each Distribution Date, as to any Uncertificated REMIC Regular Interest, shall
be reduced by Realized Losses, if any, allocated to such Uncertificated REMIC
Regular Interest pursuant to Section 4.05.
Underlying Agreements: Collectively, the Purchase Agreement,
without the mortgage loan schedule exhibits, and the WMC Assignment Agreement,
copies of each of which are attached hereto as Exhibit Q.
Underwriters' Exemption: Any exemption listed in footnote 1
of, and amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487
(2002), or any successor exemption.
Underwriting Guidelines: The underwriting guidelines attached
to the Purchase Agreement.
Unpaid Interest Amount: As of any Distribution Date and any
Class of Certificates, the sum of (a) the portion of the Accrued Certificate
Interest Distribution Amount from Distribution Dates prior to the current
Distribution Date remaining unpaid immediately prior to the current Distribution
Date and (b) interest on the amount in clause (a) above 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.
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 P
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class X
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, the product of (i) the weighted average of the Adjusted Net
Mortgage Interest Rates then in effect on the beginning of the related Due
Period on the Mortgage Loans, and (ii) a fraction, the numerator of which is 30
and the denominator of which is the actual number of days in the Interest
Accrual Period related to such Distribution Date. For federal income tax
purposes, the equivalent of the foregoing shall be expressed as the weighted
average of the REMIC I Remittance Rates on REMIC I Regular Interest LT1SUB and
REMIC I Regular Interest LT2SUB, weighted on the basis of the Uncertificated
Balance of such REMIC I Regular Interest.
WMC: WMC Mortgage Corp., a California corporation, and its
successors in interest.
WMC Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of November 23, 2005, among the Purchaser, the
Depositor and WMC.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans. (a) The Depositor, concurrently with
the execution and delivery hereof, hereby sells, transfers, assigns, sets over
and otherwise conveys to the Trustee for the benefit of the Certificateholders,
without recourse, all the right, title and interest of the Depositor in and to
the Trust Fund and the Trustee, on behalf of the Trust, hereby accepts the Trust
Fund.
(b) In connection with the transfer and assignment of each Mortgage Loan,
the Depositor has delivered or caused to be delivered to the Custodian
for the benefit of the Certificateholders the following documents or
instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note (with all applicable riders) bearing all
intervening endorsements, endorsed "Pay to the order of _________,
without recourse" and signed in the name of the last endorsee. To the
extent that there is no room on the face of the Mortgage Notes for
endorsements, the endorsement may be contained on an allonge unless the
Custodian is advised by the Depositor or the Purchaser that state law
does not so allow. If the Mortgage Loan was acquired by the Purchaser
in a merger, the endorsement must be by "[last endorsee], successor by
merger to [name of predecessor]". If the Mortgage Loan was acquired or
originated by the last endorsee while doing business under another
name, the endorsement must be by "[last endorsee], formerly known as
[previous name]";
(ii) the original of any guarantee executed in connection with the Mortgage
Note;
(iii) the original Mortgage (with all applicable riders) with evidence of
recording thereon or a certified true copy of such Mortgage submitted
for recording. If in connection with any Mortgage Loan, the Depositor
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 Depositor shall deliver or cause to be delivered
to the Custodian, a photocopy of such Mortgage, together with (A) in
the case of a delay caused by the public recording office, an Officer's
Certificate of WMC (or certified by the title company, escrow agent, or
closing attorney) stating that such Mortgage has been dispatched to the
appropriate public recording office for recordation and that the
original recorded Mortgage or a copy of such Mortgage certified by such
public recording office to be a true and complete copy of the original
recorded Mortgage will be promptly delivered to the Custodian upon
receipt thereof by WMC; or (B) in the case of a Mortgage where a public
recording office retains the original recorded Mortgage or in the case
where a Mortgage is lost after recordation in a public recording
office, a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded
Mortgage;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon or a
certified true copy of such agreement submitted for recording;
(v) the original Assignment of Mortgage for each Mortgage Loan endorsed in
blank and in recordable form;
(vi) the originals of all intervening assignments of mortgage (if any)
evidencing a complete chain of assignment from the originator to the
last endorsee with evidence of recording thereon, or if any such
intervening assignment has not been returned from the applicable
recording office or has been lost or if such public recording office
retains the original recorded assignments of mortgage, the Depositor
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 Certificate of the
Purchaser or WMC (or certified by the title company, escrow agent, or
closing attorney) stating that such intervening assignment of mortgage
has been dispatched to the appropriate public recording office for
recordation and that such original recorded intervening assignment of
mortgage or a copy of such intervening assignment of mortgage certified
by the appropriate public recording office to be a true and complete
copy of the original recorded intervening assignment of mortgage will
be promptly delivered to the Custodian upon receipt thereof by the
Purchaser or WMC, as applicable; 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 or duplicate original or certified copy of lender's title
policy and all riders thereto or, any one of an original title binder,
an original preliminary title report or an original title commitment,
or a copy thereof certified by the title company; and
(viii) a security agreement, chattel mortgage or equivalent document executed
in connection with the Mortgage (if provided).
The Depositor shall use reasonable efforts to assist the
Custodian, the Trustee and the Servicer in enforcing the obligations of WMC and
the Purchaser under the Underlying Agreements.
Each Mortgage Loan for which a Mortgage Note is missing shall
be evidenced by a lost note affidavit as of the Closing Date. In the event, for
purposes of the Closing Date, one or more lost note affidavits are provided to
cover multiple missing Mortgage Notes, the Depositor shall use reasonable
efforts to cause WMC or the Purchaser to deliver to the Custodian the applicable
individual lost note affidavits within ten (10) Business Days of the Closing
Date. If WMC and the Purchaser fail to deliver the required individual lost note
affidavits within the specified period of time, the Trustee shall notify the
Depositor to cause WMC or the Purchaser, as applicable, to take such remedial
actions, including, without limitation, the repurchase by such Person of such
Mortgage Loan within 60 days of the Closing Date.
The Depositor shall use reasonable efforts to cause WMC or the
Purchaser, as the case may be, to deliver to the Custodian, the applicable
recorded document promptly upon receipt from the respective recording office but
in no event later than 120 days from the Closing Date.
If any Mortgage has been recorded in the name of Mortgage
Electronic Registration System, Inc. ("MERS") or its designee, no Assignment of
Mortgage in favor of the Trustee will be required to be prepared or delivered
and instead, the Servicer shall take all reasonable actions as are necessary at
the expense of the Depositor to cause the Trust to be shown as the owner of the
related Mortgage Loan on the records of MERS for the purpose of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
The Depositor shall use reasonable efforts to cause WMC or the
Purchaser to forward, with respect to the Mortgage Loans, to the Custodian
additional original documents, and additional documents evidencing an
assumption, modification, consolidation or extension of a Mortgage Loan approved
by WMC, in accordance with the terms of the Underlying Agreements. 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 use
reasonable efforts to cause the Purchaser to deliver to the Custodian
Assignments of Mortgages, in blank, for each Mortgage Loan (except with respect
to each MERS Designated Mortgage Loan). The Depositor shall use reasonable
efforts to cause the Purchaser to cause the Assignments of Mortgage with
completed recording information to be provided to the Servicer in a reasonably
acceptable manner. No later than thirty (30) Business Days following the later
of the Closing Date and the date of receipt by the Servicer of the fully
completed Assignments of Mortgages in recordable form, the Servicer shall
promptly submit or cause to be submitted for recording, at the expense of the
Purchaser or the Depositor, at no expense to the Trust Fund, the Servicer or the
Custodian in the appropriate public office for real property records, each
Assignment of Mortgage referred to in Section 2.01(b)(v). Notwithstanding the
foregoing, however, for administrative convenience and facilitation of servicing
and to reduce closing costs, the Assignments of Mortgage shall not be required
to be completed and submitted for recording with respect to any Mortgage Loan
(i) if the Trustee and each Rating Agency has received an opinion of counsel
(which opinion shall not be an expense of the Trustee, the Servicer or the Trust
Fund), satisfactory in form and substance to the Trustee and each Rating Agency,
to the effect that the recordation of such Assignments of Mortgage in any
specific jurisdiction is not necessary to protect the Trustee's interest in the
related Mortgage Note or (ii) if such Mortgage Loan is a MERS Designated
Mortgage Loan. If the Assignment of Mortgage is to be recorded, the Depositor
shall use reasonable efforts to cause the Purchaser to assign the Mortgage at
the Purchaser's expense to "Deutsche Bank National Trust Company as trustee
under the Pooling and Servicing Agreement dated as of November 1, 2005, GSAMP
Trust 2005-WMC2." In the event that any such assignment is lost or returned
unrecorded because of a defect therein with respect to any Mortgage Loan, and
such defect is not cured, the Trustee shall cause the Depositor to cause the
Purchaser to repurchase, and the Depositor shall use reasonable efforts to cause
the Purchaser to repurchase, such Mortgage Loan pursuant to the WMC Assignment
Agreement.
On or prior to the Closing Date, the Depositor shall deliver
to the Custodian a copy of the Data Tape Information in electronic, machine
readable medium in a form mutually acceptable to the Depositor, the Custodian
and the Trustee. Within ten (10) Business Days of the Closing Date, the
Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the
Custodian, the Trustee and the Servicer, and the Custodian shall, promptly upon
receipt of the Mortgage Loan Schedule (or any other mortgage loan schedules
received by the Custodian from the Depositor), inform the Depositor of receipt
thereof.
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 90 days following the Closing Date, and in the
event that the Purchaser or WMC, as applicable, does not cure such failure
within 60 days of discovery or receipt of written notification of such failure
from the Depositor, the related Mortgage Loan shall, upon the request of the
Depositor, be repurchased by the Purchaser or WMC, as applicable, pursuant to
the Underlying Agreements, at the price and in the manner specified in the
Purchase Agreement (with respect to WMC) or this Agreement (with respect to the
Purchaser). The foregoing repurchase obligation shall not apply in the event
that the Purchaser or WMC, as applicable, 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 Depositor shall cause the
Purchaser or WMC, as applicable, to 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 Purchaser or WMC, as applicable, 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 Depositor shall be deemed to have been satisfied upon
delivery 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 "GSAMP Trust 2005-WMC2" and Deutsche
Bank National Trust Company is hereby appointed as Trustee in accordance with
the provisions of this Agreement. The parties hereto acknowledge and agree that
it is the policy and intention of the Trust to acquire only Mortgage Loans
meeting the requirements set forth in this Agreement.
(d) The Trust shall have the capacity, power and authority, and the Trustee on
behalf of the Trust is hereby authorized, to accept the sale, transfer,
assignment, set over and conveyance by the Depositor to the Trust of all the
right, title and interest of the Depositor in and to the Trust Fund (including,
without limitation, the Mortgage Loans and the Underlying Agreements) pursuant
to Section 2.01(a).
Section 2.02. Acceptance by the Trustee of the Mortgage Loans. The Trustee, on
behalf of the Trust, hereby accepts the Trust Fund and assumes the obligations
of the Depositor under the Underlying Agreements from and after the Closing Date
and solely insofar as they relate to the Mortgage Loans. For avoidance of doubt,
the parties acknowledge that all obligations so assumed are obligations of the
Trust and, to the extent such obligations are payment or monetary obligations,
are payable solely from the Trust Fund, and not of the Trustee in its individual
capacity. The Custodian acknowledges receipt of the documents identified in the
Initial Certification in the form annexed hereto as Exhibit E, and the Trustee
declares that the Custodian, on the Trustee's behalf, holds and will hold such
documents and the other documents delivered to the Custodian pursuant to Section
2.01, and that the Trustee 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 States of Utah and 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, Xxxxxx and the Trustee an Initial Certification prior to the
Closing Date, or as the Depositor agrees to, on the Closing Date, certifying
receipt of a Mortgage Note and Assignment of Mortgage for each Mortgage Loan
with any exceptions thereon. The 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 reviewed by it are in its possession, and shall deliver
to the Depositor, Xxxxxx and the Trustee an Initial Certification, in the form
annexed hereto as Exhibit E, and shall deliver to the Depositor, Xxxxxx and the
Trustee a Document Certification and Exception Report, in the form annexed
hereto as Exhibit F, within 90 days after the Closing Date to the effect that,
as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage Loan specifically identified in such
certification as an exception and not covered by such certification): (i) all
documents required to be reviewed by it are in its possession; (ii) such
documents have been reviewed by it and appear regular on their face and relate
to such Mortgage Loan; (iii) based on its examination and only as to the
foregoing documents, the information set forth in items (1), (2) and (13) of the
Mortgage Loan Schedule and items (1), (2) and (13) of the Data Tape Information
respecting such Mortgage Loan is correct; and (iv) each Mortgage Note has been
endorsed as provided in Section 2.01 of this Agreement. The 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 Depositor shall use reasonable efforts to cause WMC and
the Purchaser to deliver to the Servicer copies of all trailing documents
required to be included in the Custodial File at the same time the original or
certified copies thereof are delivered to the Custodian, including but not
limited to such documents as the title insurance policy and any other Mortgage
Loan Documents upon return from the public recording office. The Depositor shall
use reasonable efforts to cause the Purchaser or WMC, as applicable, to deliver,
at such Person's expense, to the Servicer and in no event shall the Servicer be
responsible for any expenses relating to such delivery obligation.
Section 2.03. Representations, Warranties and Covenants of the Servicer. (a)
Xxxxxx hereby makes the representations and warranties set forth in Schedule II
hereto to the Depositor and the Trustee as of the Closing Date.
(b) It is understood and agreed by the Servicer that the representations and
warranties set forth in this Section 2.03 shall survive the transfer of the
Mortgage Loans by the Depositor to the Trustee, and shall inure to the benefit
of the Depositor and the Trustee notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment of Mortgage or the examination or
failure to examine any Mortgage File. Upon discovery by any of the Depositor,
the Trustee, the Custodian or the Servicer of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others.
(c) In connection with any repurchase or substitution of a Mortgage Loan
pursuant to the Underlying Agreements, the Servicer shall, based on information
provided by the Purchaser or WMC, as applicable, amend the Mortgage Loan
Schedule for the benefit of the Certificateholders to reflect the removal of
such Deleted Mortgage Loan and the substitution of the Substitute Mortgage Loan
or Loans and the Servicer shall deliver the amended Mortgage Loan Schedule to
the Custodian. The Servicer shall have no liability with respect to the
information provided by the Purchaser or WMC, as applicable, related to the
Substitute Mortgage Loan. Upon such substitution, the Substitute Mortgage Loan
or Loans shall be subject to the terms of this Agreement in all respects, and
the Purchaser or WMC, as applicable, pursuant to the WMC Assignment Agreement
shall be deemed to have made with respect to such Substitute Mortgage Loan or
Loans, as of the date of substitution, the representations and warranties made
pursuant to the WMC Assignment Agreement with respect to such Mortgage Loan.
Upon any such substitution and the deposit to the Collection Account of the
amount required to be deposited therein in connection with such substitution as
described in the following paragraph, the Custodian shall release the Mortgage
File held for the benefit of the Certificateholders relating to such Deleted
Mortgage Loan to the Purchaser or WMC, as applicable, and the Trustee shall
execute and deliver at such Person's direction such instruments of transfer or
assignment prepared by such Person, in each case without recourse, as shall be
necessary to vest title in such Person, or its designee, the Trustee's interest
in any Deleted Mortgage Loan repurchased or substituted for as described above
in this Section 2.03.
(d) For any month in which the Purchaser or WMC substitutes one or more
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer
will determine the amount (if any) by which the aggregate unpaid principal
balance of all such Substitute Mortgage Loans as of the date of substitution is
less than the aggregate Stated Principal Balance of all such Deleted Mortgage
Loans (after application of the scheduled principal portion of the Scheduled
Payments due in the Due Period of substitution). The Depositor shall use
reasonable efforts to cause the Purchaser to remit, with respect to any Mortgage
Loans for which the Purchaser is making a substitution, or shall use reasonable
efforts to cause WMC to remit, with respect to any Mortgage Loans for which WMC
is making a substitution, to the Servicer for deposit into the related
Collection Account on or before the next Remittance Date any Substitution
Adjustment Amount.
(e) In the event that a Mortgage Loan shall have been repurchased pursuant to
the Underlying Agreements, the Repurchase Price thereof shall be deposited in
the Collection Account by the Servicer pursuant to Section 3.10 on or before the
next Remittance Date and upon such deposit of the Repurchase Price and receipt
of a Request for Release in the form of Exhibit K hereto, the Custodian shall
release the related Custodial File held for the benefit of the
Certificateholders to such Person as directed by the Servicer, and the Trustee
shall execute and deliver at such Person's direction such instruments of
transfer or assignment prepared by such Person, in each case without recourse,
as shall be necessary to transfer title from the Trustee. It is understood and
agreed that the obligation under this Agreement of any Person to cure,
repurchase or replace any Mortgage Loan as to which a breach has occurred and is
continuing, together with satisfaction of any related indemnification
obligations, shall constitute the sole remedy against such Persons respecting
such breach available to Certificateholders, the Depositor, the Servicer, the
Custodian or the Trustee on their behalf.
The representations and warranties made pursuant to this
Section 2.03 shall survive delivery of the respective Custodial Files to the
Custodian for the benefit of the Certificateholders.
Section 2.04. Non-Qualified Mortgages. Upon discovery by the Depositor, the
Servicer, the Custodian or the Trustee that any Mortgage Loan does not
constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code, the party discovering such fact shall promptly (and in any event
within five (5) Business Days of discovery) give written notice thereof to the
other parties. In connection therewith, the Trustee shall require the Depositor
to cause WMC to repurchase, and the Depositor shall use reasonable efforts to
cause WMC to repurchase, the affected Mortgage Loan within 30 days of the
earlier of discovery or receipt of notice in the same manner as it would a
Mortgage Loan for a breach of representation or warranty made pursuant to
Section 2.03. The Trustee shall reconvey to WMC the Mortgage Loan to be released
pursuant hereto in the same manner, and on the same terms and conditions, as it
would a Mortgage Loan repurchased for breach of a representation or warranty
contained in Section 2.03.
Section 2.05. Execution and Delivery of Certificates. The Trustee acknowledges
the transfer and assignment to it of the Trust Fund and, concurrently with such
transfer and assignment, has executed and delivered to or upon the order of the
Depositor, the Certificates in authorized Denominations evidencing directly or
indirectly the entire ownership of the Trust Fund. The Trustee agrees to hold
the Trust Fund and exercise the rights referred to above for the benefit of all
present and future Holders of the Certificates.
Section 2.06. REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
The "Start-up Day" for purposes of the REMIC Provisions shall be the Closing
Date. The "latest possible maturity date" is the Distribution Date in November
2035, which is the Distribution Date following the latest Mortgage Loan maturity
date.
Amounts payable to the Class M-6 Certificates (other than any
Basis Risk Carry Forward Amounts) shall be deemed paid from REMIC II in respect
of the Class M-6 Interest to REMIC III as holder of the Class M-6 Interest.
Amounts payable to the Class B-1 Certificates (other than any Basis Risk Carry
Forward Amounts) shall be deemed paid from REMIC II in respect of the Class B-1
Interest to REMIC IV as holder of the Class B-1 Interest. Amounts payable to the
Class B-2 Certificates (other than any Basis Risk Carry Forward Amounts) shall
be deemed paid from REMIC II in respect of the Class B-2 Interest to REMIC V as
holder of the Class B-2 Interest. Amounts payable to the Class X Certificates
shall be deemed paid from REMIC II in respect of the Class X Interest to REMIC
VI as holder of the Class X Interest.
Section 2.07. Representations and Warranties of the Depositor. The Depositor
hereby represents, warrants and covenants to the Trustee and Xxxxxx 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; and
(h) Immediately prior to the transfer and assignment by the Depositor to the
Trustee on the Closing Date, the Depositor had good title to, and was the sole
owner of each Mortgage Loan, free of any interest of any other Person, and the
Depositor has transferred all right, title and interest in each Mortgage Loan to
the Trustee. The transfer of each Mortgage Note and each Mortgage as and in the
manner contemplated by this Agreement is sufficient either (i) fully to transfer
to the Trustee, for the benefit of the Certificateholders, all right, title, and
interest of the Depositor thereto as note holder and mortgagee or (ii) to grant
to the Trustee, for the benefit of the Certificateholders, the security interest
referred to in Section 10.04.
It is understood and agreed that the representations,
warranties and covenants set forth in this Section 2.07 shall survive delivery
of the respective Custodial Files to the Custodian or to a custodian, as the
case may be, and shall inure to the benefit of the Trustee.
Section 2.08. Enforcement of Obligations for Breach of Mortgage Loan
Representations. Upon discovery by any of the parties hereto of a breach of a
representation or warranty made by the Purchaser or WMC pursuant to the
Underlying Agreements, the party discovering such breach shall give prompt
written notice thereof to the other parties to this Agreement, WMC and/or the
Purchaser, as applicable. The Trustee shall take such action with respect to
such breach under the Underlying Agreements as may be necessary or appropriate
to enforce the rights of the Trust with respect thereto.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01. Servicer to Service Mortgage Loans. (a) For and on behalf of the
Certificateholders, the Servicer shall service and administer the Mortgage Loans
in accordance with the terms of this Agreement and the respective Mortgage Loans
and, to the extent consistent with such terms, in compliance with all applicable
federal, state and local laws, and in the same manner in which it services and
administers similar mortgage loans for its own portfolio, giving due
consideration to customary and usual standards of practice of mortgage lenders
and loan servicers administering similar mortgage loans but without regard to:
(i) any relationship that the Servicer, any Subservicer or any Affiliate of
the Servicer or any Subservicer may have with the related Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the Servicer or
any Affiliate of the Servicer;
(iii) the Servicer's obligation to make P&I Advances or Servicing Advances;
or
(iv) the Servicer's or any Subservicer's right to receive compensation for
its services hereunder or with respect to any particular transaction.
To the extent consistent with the foregoing, the Servicer
shall seek to maximize the timely and complete recovery of principal and
interest on the Mortgage Notes. Subject only to the above-described servicing
standards and the terms of this Agreement and of the respective Mortgage Loans,
the Servicer shall have full power and authority, acting alone or through
Subservicers as provided in Section 3.02, to do or cause to be done any and all
things in connection with such servicing and administration which it may deem
necessary or desirable. Without limiting the generality of the foregoing, the
Servicer in its own name, in the name of a Subservicer or in the name of the
Trustee solely in its capacity as Trustee for the Trust, is hereby authorized
and empowered when the Servicer believes it appropriate in its best judgment in
accordance with the servicing standards set forth above, to execute and deliver
any and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with respect to the
Mortgage Loans and the Mortgaged Properties and to institute foreclosure
proceedings or obtain a deed-in-lieu of foreclosure so as to convert the
ownership of such properties, and to hold or cause to be held title to such
properties, on behalf of the Trustee and in the name of the Trust. The Servicer
shall service and administer the Mortgage Loans in accordance with applicable
state and federal law and shall provide to the Mortgagors any reports required
to be provided to them thereby. The Servicer shall also comply in the
performance of this Agreement with all reasonable rules and requirements of each
insurer under any standard hazard insurance policy. Subject to Section 3.16, the
Custodian and the Trustee shall execute, at the written request of the Servicer,
and furnish to the Servicer and any Subservicer such documents as are necessary
or appropriate to enable the Servicer or any Subservicer to carry out their
servicing and administrative duties hereunder, and the Custodian and the Trustee
hereby grant to the Servicer, and this Agreement shall constitute, a power of
attorney to carry out such duties including a power of attorney to take title to
Mortgaged Properties after foreclosure on behalf of the Trustee and in the name
of the Trust. The Trustee shall execute a separate power of attorney in the form
attached hereto as Exhibit P in favor of the Servicer for the purposes described
herein to the extent necessary or desirable to enable the Servicer to perform
its duties hereunder. The Trustee shall not be liable for the actions of the
Servicer or any Subservicers or the use of such powers of attorney.
(b) Subject to Section 3.09(b), in accordance with Accepted Servicing Practices,
the Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the timely payment of taxes and assessments on the
Mortgaged Properties, which advances shall be Servicing Advances reimbursable in
the first instance from related collections from the Mortgagors pursuant to
Section 3.09(b), and further as provided in Section 3.11. Any cost incurred by
the Servicer or by Subservicers in effecting the timely payment of taxes and
assessments on a Mortgaged Property shall not be added to the unpaid principal
balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit.
(c) Notwithstanding anything in this Agreement to the contrary, the Servicer may
not make any future advances with respect to a Mortgage Loan (except as provided
in Section 4.01) and the Servicer shall not (i) permit any modification with
respect to any Mortgage Loan that would change the Mortgage Interest Rate,
reduce or increase the principal balance (except for reductions resulting from
actual payments of principal) or change the final maturity date on such Mortgage
Loan (except for (A) a reduction of interest or principal payments resulting
from the application of the Relief Act or any similar state statutes or (B) as
provided in Section 3.07(a), if the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of the Servicer, reasonably
foreseeable) or (ii) permit any modification, waiver or amendment of any term of
any Mortgage Loan that would both (A) effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed
Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to
fail to qualify as a REMIC under the Code or the imposition of any tax on
"prohibited transactions" or "contributions after the start-up day" under the
REMIC Provisions, or (iii) except as provided in Section 3.07(a), waive any
Prepayment Premiums.
(d) The Servicer may delegate its responsibilities under this Agreement;
provided, however, that no such delegation shall release the Servicer from the
responsibilities or liabilities arising under this Agreement.
Section 3.02. Subservicing Agreements between the Servicer and Subservicers.
(a) The Servicer may enter into subservicing agreements with subservicers (each,
a "Subservicer"), for the servicing and administration of the Mortgage Loans
("Subservicing Agreements").
(b) Each Subservicer shall be (i) authorized to transact business in the state
or states in which the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law to enable the
Subservicer to perform its obligations hereunder and under the Subservicing
Agreement, (ii) an institution approved as a mortgage loan originator by the
Federal Housing Administration or an institution that has deposit accounts
insured by the FDIC and (iii) a Xxxxxxx Mac or Xxxxxx Mae approved mortgage
servicer. Each Subservicing Agreement must impose on the Subservicer
requirements conforming to the provisions set forth in Section 3.08 and provide
for servicing of the Mortgage Loans consistent with the terms of this Agreement.
The Servicer will examine each Subservicing Agreement and will be familiar with
the terms thereof. The terms of any Subservicing Agreement will not be
inconsistent with any of the provisions of this Agreement. The Servicer and the
respective Subservicers may enter into and make amendments to the Subservicing
Agreements or enter into different forms of Subservicing Agreements; provided,
however, that any such amendments or different forms shall be consistent with
and not violate the provisions of this Agreement, and that no such amendment or
different form shall be made or entered into which could be reasonably expected
to be materially adverse to the interests of the Trustee, without the consent of
the Trustee. Any variation without the consent of the Trustee from the
provisions set forth in Section 3.08 relating to insurance or priority
requirements of Subservicing Accounts, or credits and charges to the
Subservicing Accounts or the timing and amount of remittances by the
Subservicers to the Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. The Servicer shall deliver to the
Trustee and the Depositor copies of all Subservicing Agreements, and any
amendments or modifications thereof, promptly upon the Servicer's execution and
delivery of such instruments.
(c) As part of its servicing activities hereunder, the Servicer (except as
otherwise provided in the last sentence of this paragraph), for the benefit of
the Trustee, shall enforce the obligations of each Subservicer under the related
Subservicing Agreement, including, without limitation, any obligation to make
advances in respect of delinquent payments as required by a Subservicing
Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Subservicing Agreements, and the pursuit
of other appropriate remedies, shall be in such form and carried out to such an
extent and at such time as the Servicer, in its good faith business judgment,
would require were it the owner of the related Mortgage Loans. The Servicer
shall pay the costs of such enforcement at its own expense, and shall be
reimbursed therefor only (i) from a general recovery resulting from such
enforcement, to the extent, if any, that such recovery exceeds all amounts due
in respect of the related Mortgage Loans or (ii) from a specific recovery of
costs, expenses or attorneys' fees against the party against whom such
enforcement is directed.
Section 3.03. Successor Subservicers. The Servicer shall be entitled to
terminate any Subservicing Agreement and the rights and obligations of any
Subservicer pursuant to any Subservicing Agreement in accordance with the terms
and conditions of such Subservicing Agreement. In the event of termination of
any Subservicer, all servicing obligations of such Subservicer shall be assumed
simultaneously by the Servicer without any act or deed on the part of such
Subservicer or the Servicer, and the Servicer either shall service directly the
related Mortgage Loans or shall enter into a Subservicing Agreement with a
successor Subservicer which qualifies under Section 3.02.
Any Subservicing Agreement shall include the provision that
such agreement may be immediately terminated by the Depositor or the Trustee
without fee, in accordance with the terms of this Agreement, in the event that
the Servicer shall, for any reason, no longer be the Servicer (including
termination due to an Event of Default).
Section 3.04. Liability of the Servicer. Notwithstanding any Subservicing
Agreement, any of the provisions of this Agreement relating to agreements or
arrangements between the Servicer and a Subservicer or reference to actions
taken through a Subservicer or otherwise, the Servicer shall remain obligated
and primarily liable to the Trustee for the servicing and administering of the
Mortgage Loans in accordance with the provisions of Section 3.01 without
diminution of such obligation or liability by virtue of such Subservicing
Agreements or arrangements or by virtue of indemnification from the Subservicer
and to the same extent and under the same terms and conditions as if the
Servicer alone were servicing and administering such Mortgage Loans. The
Servicer shall be entitled to enter into any agreement with a Subservicer for
indemnification of the Servicer by such Subservicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
Section 3.05. No Contractual Relationship between Subservicers and the Trustee.
Any Subservicing Agreement that may be entered into and any transactions or
services relating to the Mortgage Loans involving a Subservicer in its capacity
as such shall be deemed to be between the Subservicer and the Servicer alone,
and the Trustee (or any successor Servicer) shall not be deemed a party thereto
and shall have no claims, rights, obligations, duties or liabilities with
respect to the Subservicer except as set forth in Section 3.06. The Servicer
shall be solely liable for all fees owed by it to any Subservicer, irrespective
of whether the Servicer's compensation pursuant to this Agreement is sufficient
to pay such fees.
Section 3.06. Assumption or Termination of Subservicing Agreements by Trustee.
In the event the Servicer at any time shall for any reason no longer be the
Servicer (including by reason of the occurrence of an Event of Default), the
Trustee, or its designee, or the successor Servicer if the successor Servicer is
not the Trustee, shall thereupon assume all of the rights and obligations of the
Servicer under each Subservicing Agreement that the Servicer may have entered
into, with copies thereof provided to the Trustee prior to the Trustee assuming
such rights and obligations, unless the Trustee elects to terminate any
Subservicing Agreement in accordance with its terms as provided in Section 3.03.
Upon such assumption, the Trustee, its designee or the
successor servicer shall be deemed, subject to Section 3.03, to have assumed all
of the Servicer's interest therein and to have replaced the Servicer as a party
to each Subservicing Agreement to the same extent as if each Subservicing
Agreement had been assigned to the assuming party, except that (i) the Servicer
shall not thereby be relieved of any liability or obligations under any
Subservicing Agreement that arose before it ceased to be the Servicer and (ii)
none of the Depositor, the Trustee, their designees or any successor Servicer
shall be deemed to have assumed any liability or obligation of the Servicer that
arose before it ceased to be the Servicer.
The Servicer at its expense shall, upon request of the
Trustee, deliver to the assuming party all documents and records relating to
each Subservicing Agreement and the Mortgage Loans then being serviced and an
accounting of amounts collected and held by or on behalf of it, and otherwise
use its best efforts to effect the orderly and efficient transfer of the
Subservicing Agreements to the assuming party.
Section 3.07. Collection of Certain Mortgage Loan Payments. (a) The Servicer
shall make reasonable efforts to collect all payments called for under the terms
and provisions of the Mortgage Loans and shall, to the extent such procedures
shall be consistent with this Agreement and the terms and provisions of any
applicable Insurance Policies, follow such collection procedures as it would
follow with respect to mortgage loans comparable to the Mortgage Loans and held
for its own account. Consistent with the foregoing and Accepted Servicing
Practices, the Servicer may (i) waive any late payment charge or, if applicable,
any penalty interest, or (ii) extend the due dates for the Scheduled Payments
due on a Mortgage Note for a period of not greater than 180 days; provided, that
any extension pursuant to clause (ii) above shall not affect the amortization
schedule of any Mortgage Loan for purposes of any computation hereunder, except
as provided below. In the event of any such arrangement pursuant to clause (ii)
above, the Servicer shall make timely advances on such Mortgage Loan during such
extension pursuant to Section 4.01 and in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangements, subject to Section 4.01(d) pursuant to which the Servicer shall
not be required to make any such advances that are Nonrecoverable P&I Advances.
Notwithstanding the foregoing, in the event that any Mortgage Loan is in default
or, in the judgment of the Servicer, such default is reasonably foreseeable, the
Servicer, consistent with the standards set forth in Section 3.01, may also
waive, modify or vary any term of such Mortgage Loan (including modifications
that would change the Mortgage Interest Rate, forgive the payment of principal
or interest, extend the final maturity date of such Mortgage Loan or waive, in
whole or in part, a Prepayment Premium), accept payment from the related
Mortgagor of an amount less than the Stated Principal Balance in final
satisfaction of such Mortgage Loan, or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor
(any and all such waivers, modifications, variances, forgiveness of principal or
interest, postponements, or indulgences collectively referred to herein as
"Forbearance"); provided, however, that the final maturity date of any Mortgage
Loan may not be extended beyond the Final Scheduled Distribution Date for the
LIBOR Certificates. The Servicer's analysis supporting any Forbearance and the
conclusion that any Forbearance meets the standards of Section 3.01 shall be
reflected in writing in the applicable Servicing File. Notwithstanding the
foregoing, the Servicer may waive, in whole or in part, a Prepayment Premium
only under the following circumstances: (i) such waiver relates to a default or
a reasonably foreseeable default and would, in the reasonable judgment of the
Servicer, maximize recovery of total proceeds taking into account the value of
such Prepayment Premium and the related Mortgage Loan, (ii) such Prepayment
Premium is not permitted to be collected by applicable federal, state or local
law or regulation, (iii) the collection of such Prepayment Premium would be
considered "predatory" pursuant to written guidance published or issued by any
applicable federal, state or local regulatory authority acting in its official
capacity and having jurisdiction over such matters, (iv) the enforceability
thereof is limited (1) by bankruptcy, insolvency, moratorium, receivership or
other similar laws relating to creditor's rights generally or (2) due to
acceleration in connection with a foreclosure or other involuntary payment or
(v) if the Servicer has not been provided with information sufficient to enable
it to collect the Prepayment Premium. If a Prepayment Premium is waived other
than as permitted in this Section 3.07(a), then the Servicer is required to pay
the amount of such waived Prepayment Premium, for the benefit of the Holders of
the Class P Certificates, by depositing such amount into the Collection Account
as soon as possible after the date of payoff, but in no event later than five
(5) Business Days from such date.
(b) The Servicer shall give notice to the Trustee, each Rating Agency and the
Depositor of any proposed change of the location of the Collection Account
within a reasonable period of time prior to any change thereof.
Section 3.08. Subservicing Accounts. In those cases where a Subservicer is
servicing a Mortgage Loan pursuant to a Subservicing Agreement, the Subservicer
will be required to establish and maintain one or more accounts (collectively,
the "Subservicing Account"). The Subservicing Account shall be an Eligible
Account and shall otherwise be acceptable to the Servicer. The Subservicer shall
deposit in the clearing account (which account must be an Eligible Account) in
which it customarily deposits payments and collections on mortgage loans in
connection with its mortgage loan servicing activities on a daily basis, and in
no event more than one Business Day after the Subservicer's receipt thereof, all
proceeds of Mortgage Loans received by the Subservicer less its servicing
compensation to the extent permitted by the Subservicing Agreement, and shall
thereafter deposit such amounts in the Subservicing Account, in no event more
than two Business Days after the deposit of such funds into the clearing
account. The Subservicer shall thereafter deposit such proceeds in the
Collection Account or remit such proceeds to the Servicer for deposit in the
Collection Account not later than two Business Days after the deposit of such
amounts in the Subservicing Account. For purposes of this Agreement, the
Servicer shall be deemed to have received payments on the Mortgage Loans when
the Subservicer receives such payments.
Section 3.09. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts. (a) The Servicer shall ensure that each of the Mortgage Loans shall be
covered by a paid-in-full, life-of-the-loan tax service contract in effect with
respect to each Mortgage Loan (each, a "Tax Service Contract"); provided, that
WMC transferred a fully transferable Tax Service Contract to the Servicer at no
expense to the Servicer. Each Tax Service Contract shall be assigned to the
Trustee, or its designee, at the Servicer's expense in the event that the
Servicer is terminated as Servicer of the related Mortgage Loan.
(b) To the extent that the services described in this paragraph (b) are not
otherwise provided pursuant to the Tax Service Contracts described in paragraph
(a) hereof, the Servicer undertakes to perform such functions. To the extent the
related Mortgage Loan provides for Escrow Payments, the Servicer shall establish
and maintain, or cause to be established and maintained, one or more accounts
(the "Escrow Accounts"), which shall be Eligible Accounts. The Servicer shall
deposit in the clearing account (which account must be an Eligible Account) in
which it customarily deposits payments and collections on mortgage loans in
connection with its mortgage loan servicing activities on a daily basis, and in
no event more than one Business Day after the Servicer's receipt thereof, all
collections from the Mortgagors (or related advances from Subservicers) for the
payment of taxes, assessments, hazard insurance premiums and comparable items
for the account of the Mortgagors ("Escrow Payments") collected on account of
the Mortgage Loans and shall thereafter deposit such Escrow Payments in the
Escrow Accounts, in no event more than two Business Days after the deposit of
such funds in the clearing account, for the purpose of effecting the payment of
any such items as required under the terms of this Agreement. Withdrawals of
amounts from an Escrow Account may be made only to (i) effect payment of taxes,
assessments, hazard insurance premiums, and comparable items; (ii) reimburse the
Servicer (or a Subservicer to the extent provided in the related Subservicing
Agreement) out of related collections for any advances made pursuant to Section
3.01 (with respect to taxes and assessments) and Section 3.13 (with respect to
hazard insurance); (iii) refund to Mortgagors any sums as may be determined to
be overages; (iv) pay interest, if required and as described below, to
Mortgagors on balances in the Escrow Account; (v) clear and terminate the Escrow
Account at the termination of the Servicer's obligations and responsibilities in
respect of the Mortgage Loans under this Agreement; or (vi) recover amounts
deposited in error. As part of its servicing duties, the Servicer or
Subservicers shall pay to the Mortgagors interest on funds in Escrow Accounts,
to the extent required by law and, to the extent that interest earned on funds
in the Escrow Accounts is insufficient, to pay such interest from its or their
own funds, without any reimbursement therefor. To the extent that a Mortgage
does not provide for Escrow Payments, the Servicer shall determine whether any
such payments are made by the Mortgagor in a manner and at a time that is
necessary to avoid the loss of the Mortgaged Property due to a tax sale or the
foreclosure as a result of a tax lien. If any such payment has not been made and
the Servicer receives notice of a tax lien with respect to the Mortgage Loan
being imposed, the Servicer will, promptly and to the extent required to avoid
loss of the Mortgaged Property, advance or cause to be advanced funds necessary
to discharge such lien on the Mortgaged Property. The Servicer assumes full
responsibility for the payment of all such bills within such time and shall
effect payments of all such bills irrespective of the Mortgagor's faithful
performance in the payment of same or the making of the Escrow Payments and
shall make advances from its own funds to effect such payments; provided,
however, that such advances are deemed to be Servicing Advances.
Section 3.10. Collection Account. (a) On behalf of the Trustee, the Servicer
shall establish and maintain, or cause to be established and maintained, one or
more Eligible Accounts (such account or accounts, the "Collection Account"),
held in trust for the benefit of the Trustee. Funds in the Collection Account
shall not be commingled with any other funds of the Servicer. On behalf of the
Trustee, the Servicer shall deposit or cause to be deposited in the clearing
account (which account must be an Eligible Account) in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no event more than
one Business Day after the Servicer's receipt thereof, and shall thereafter
deposit in the Collection Account, in no event more than two Business Days after
the deposit of such funds into the clearing account, as and when received or as
otherwise required hereunder, the following payments and collections received or
made by it subsequent to the Cut-off Date (other than in respect of principal or
interest on the related Mortgage Loans due on or before the Cut-off Date), or
payments (other than Principal Prepayments) received by it on or prior to the
Cut-off Date but allocable to a Due Period subsequent thereto:
(i) all payments on account of principal, including Principal Prepayments,
on the Mortgage Loans;
(ii) all payments on account of interest (net of the related Servicing Fee)
on each Mortgage Loan;
(iii) all Insurance Proceeds and Condemnation Proceeds (to the extent such
Insurance Proceeds and Condemnation Proceeds are not to be applied to
the restoration of the related Mortgaged Property or released to the
related Mortgagor in accordance with the express requirements of law or
in accordance with prudent and customary servicing practices) and all
Liquidation Proceeds;
(iv) any amounts required to be deposited pursuant to Section 3.12 in
connection with any losses realized on Permitted Investments with
respect to funds held in the Collection Account;
(v) any amounts required to be deposited by the Servicer pursuant to the
second paragraph of Section 3.13(a) in respect of any
blanket policy deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or purchased in
accordance with this Agreement and any Substitution Adjustment Amount;
and
(vii) all Prepayment Premiums collected by the Servicer.
The foregoing requirements for deposit in the Collection
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, NSF fees, reconveyance fees, assumption fees and other similar fees and
charges need not be deposited by the Servicer in the Collection Account and
shall, upon collection, belong to the Servicer as additional compensation for
its servicing activities. In the event the Servicer shall deposit in the
Collection Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Collection Account, any provision herein
to the contrary notwithstanding.
(b) Funds in the Collection Account may be invested in
Permitted Investments in accordance with the provisions set forth in Section
3.12. The Servicer shall give notice to the Trustee and the Depositor of the
location of the Collection Account maintained by it when established and prior
to any change thereof.
Section 3.11. Withdrawals from the Collection Account. (a) The Servicer shall,
from time to time, make withdrawals from the Collection Account for any of the
following purposes or as described in Section 4.01:
(i) on or prior to the Remittance Date, to remit to the Trustee with
respect to such Distribution Date all Available Funds in respect of the
related Distribution Date together with all amounts representing
Prepayment Premiums from the Mortgage Loans received during the related
Prepayment Period;
(ii) to reimburse the Servicer for P&I Advances, but only to the extent of
amounts received which represent Late Collections (net of the related
Servicing Fees) of Scheduled Payments on Mortgage Loans with respect to
which such P&I Advances were made in accordance with the provisions of
Section 4.01;
(iii) to pay the Servicer or any Subservicer (A) any unpaid Servicing Fees or
(B) any unreimbursed Servicing Advances with respect to each Mortgage
Loan, but in each case only to the extent of any Late Collections or
other amounts as may be collected by the Servicer from a Mortgagor, or
otherwise received with respect to such Mortgage Loan (or the related
REO Property);
(iv) to pay to the Servicer as servicing compensation (in addition to the
Servicing Fee) on the Remittance Date any interest or investment income
earned on funds deposited in the Collection Account;
(v) to pay to the Purchaser or WMC, with respect to each Mortgage Loan that
has previously been repurchased or replaced pursuant to this Agreement
all amounts received thereon subsequent to the date of purchase or
substitution, as the case may be;
(vi) to reimburse the Servicer for any P&I Advance or Servicing Advance
previously made which the Servicer has determined to be a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance in
accordance with the provisions of Section 4.01;
(vii) to pay, or to reimburse the Servicer for advances in respect of,
expenses incurred in connection with any Mortgage Loan pursuant to
Section 3.15;
(viii) to reimburse the Servicer, the Depositor or the Trustee for expenses
incurred by or reimbursable to the Servicer, the Depositor or the
Trustee, as the case may be, pursuant to Section 6.03 or Section 8.05;
(ix) to reimburse the Servicer or the Trustee, as the case may be, for
expenses reasonably incurred in respect of the breach or defect giving
rise to the repurchase obligation under Section 2.03 of this Agreement
that were included in the Repurchase Price of the Mortgage Loan,
including any expenses arising out of the enforcement of the repurchase
obligation, to the extent not otherwise paid pursuant to the terms
hereof;
(x) to invest funds in Permitted Investments in accordance with Section
3.12;
(xi) to withdraw any amounts deposited in the Collection Account in error;
(xii) to withdraw any amounts held in the Collection Account and not required
to be remitted to the Trustee on the Remittance Date occurring in the
month in which such amounts are deposited into the Collection Account,
to reimburse the Servicer for unreimbursed Advances;
(xiii) to reimburse the Servicer for any P&I Advance or Servicing Advance
previously made with respect to a delinquent Mortgage Loan which
Mortgage Loan has been modified by the Servicer in accordance with the
terms of this Agreement; provided that the Servicer shall only
reimburse itself for such P&I Advances and Servicing Advances at the
time of such modification and shall reimburse itself after such
modification only as otherwise permitted under the other clauses of
this Section 3.11(a);
(xiv) to pay the Servicer or any Subservicer any unpaid Servicing Fees on a
Second Lien Mortgage Loan that has been charged off (A) out of any
Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds
received on the related First Lien Mortgage Loan that is secured by the
same Mortgaged Property, to the extent not recoverable from Late
Collections or any other amounts with respect to such Second Lien
Mortgage Loan pursuant to clause (iii) above or (B) to the extent not
recoverable pursuant to (A) of this clause (xiv), from any amounts on
deposit in the Collection Account; and
(xv) to clear and terminate the Collection Account upon termination of this
Agreement.
(b) The Servicer shall keep and maintain separate accounting, on a Mortgage
Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account, to the extent held by or on
behalf of it, pursuant to subclauses (a)(ii), (iii), (iv), (v), (vi),
(vii), (viii), (ix), (xiii) and (xiv) above. The Servicer shall provide
written notification to the Depositor, on or prior to the next
succeeding Remittance Date, upon making any withdrawals from the
Collection Account pursuant to subclause (a)(vi) above.
Section 3.12. Investment of Funds in the Collection Account and the Distribution
Account. (a) The Servicer may invest the funds in the Collection Account and the
Trustee may invest funds in the Distribution Account (for purposes of this
Section 3.12, such Accounts are referred to as an "Investment Account") in one
or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand no later than the Business Day immediately
preceding the date on which such funds are required to be withdrawn from such
account pursuant to this Agreement. All such Permitted Investments shall be held
to maturity, unless payable on demand. Any investment of funds in an Investment
Account shall be made in the name of the Trustee. The Trustee 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
Trustee or its agent, together with any document of transfer necessary to
transfer title to such investment to the Trustee. In the event amounts on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Trustee may:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on
the last day such Permitted Investment may otherwise
mature hereunder in an amount equal to the lesser of
(1) all amounts then payable thereunder and (2) the
amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder that
such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter
on deposit in the Investment Account.
(b) All income and gain realized from the investment of funds deposited in the
Collection Account held by or on behalf of the Servicer, shall be for the
benefit of the Servicer and shall be subject to its withdrawal in the manner set
forth in Section 3.11. The Servicer shall deposit in the Collection Account the
amount of any loss of principal incurred in respect of any such Permitted
Investment made with funds in such accounts immediately upon realization of such
loss.
(c) All income and gain realized from the investment of funds deposited in the
Distribution Account held by the Trustee shall be for the benefit of the
Trustee. The Trustee shall deposit in the Distribution Account the amount of any
loss of principal incurred in respect of any such Permitted Investment made with
funds in such accounts immediately upon realization of such loss.
(d) Except as otherwise expressly provided in this Agreement, if any default
occurs in the making of a payment due under any Permitted Investment, or if a
default occurs in any other performance required under any Permitted Investment,
the Trustee shall take such action as may be appropriate to enforce such payment
or performance, including the institution and prosecution of appropriate
proceedings.
(e) The Trustee or its Affiliates are permitted to receive additional
compensation that could be deemed to be in the Trustee's economic self-interest
for (i) serving as investment adviser, administrator, shareholder, servicing
agent, custodian or sub-custodian with respect to certain of the Permitted
Investments, (ii) using Affiliates to effect transactions in certain Permitted
Investments and (iii) effecting transactions in certain Permitted Investments.
(f) The Trustee shall not be liable for the amount of any loss incurred with
respect of any investment or lack of investment of funds held in any Investment
Account (except with respect to investments in the Distribution Account as
provided in Section 3.12(c)).
Section 3.13. Maintenance of Hazard Insurance, Errors and Omissions and Fidelity
Coverage. (a) The Servicer shall cause to be maintained for each Mortgage Loan
standard hazard insurance on the related Mortgaged Property in an amount which
is at least equal to the least of (i) the outstanding principal balance of such
Mortgage Loan, (ii) the amount necessary to fully compensate for any damage or
loss to the improvements that are a part of such property on a replacement cost
basis and (iii) the maximum insurable value of the improvements which are a part
of such Mortgaged Property, in each case in an amount not less than such amount
as is necessary to avoid the application of any coinsurance clause contained in
the related hazard insurance policy. The Servicer shall also cause to be
maintained fire insurance with extended coverage on each REO Property in an
amount which is at least equal to the lesser of (i) the maximum insurable value
of the improvements which are a part of such property and (ii) the outstanding
principal balance of the related Mortgage Loan at the time it became an REO
Property, plus accrued interest at the Mortgage Interest Rate and related
Servicing Advances. The Servicer will comply in the performance of this
Agreement with all reasonable rules and requirements of each insurer under any
such hazard policies. Any amounts to be collected by the Servicer under any such
policies (other than amounts to be applied to the restoration or repair of the
property subject to the related Mortgage or amounts to be released to the
Mortgagor in accordance with the procedures that the Servicer would follow in
servicing loans held for its own account, subject to the terms and conditions of
the related Mortgage and Mortgage Note) shall be deposited in the Collection
Account, subject to withdrawal pursuant to Section 3.11. Any cost incurred by
the Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to the Trustee, be added to the unpaid principal
balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit. It is understood and agreed that no earthquake or other
additional insurance is to be required of any Mortgagor other than pursuant to
such applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance. If the Mortgaged Property or REO
Property is at any time in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards and flood
insurance has been made available, the Servicer will cause to be maintained a
flood insurance policy in respect thereof. Such flood insurance shall be in an
amount equal to the lesser of (i) the unpaid principal balance of the related
Mortgage Loan and (ii) the maximum amount of such insurance available for the
related Mortgaged Property under the national flood insurance program (assuming
that the area in which such Mortgaged Property is located is participating in
such program).
In the event that the Servicer shall obtain and maintain a
blanket policy with an insurer having a General Policy Rating of B:VI or better
in Best's (or such other rating that is comparable to such rating) insuring
against hazard losses on all of the Mortgage Loans, it shall conclusively be
deemed to have satisfied its obligations as set forth in the first two sentences
of this Section 3.13, it being understood and agreed that such policy may
contain a deductible clause, in which case the Servicer shall, in the event that
there shall not have been maintained on the related Mortgaged Property or REO
Property a policy complying with the first two sentences of this Section 3.13,
and there shall have been one or more losses which would have been covered by
such policy, deposit to the Collection Account from its own funds the amount not
otherwise payable under the blanket policy because of such deductible clause. In
connection with its activities as administrator and servicer of the Mortgage
Loans, the Servicer agrees to prepare and present, on behalf of itself, the
Trustee claims under any such blanket policy in a timely fashion in accordance
with the terms of such policy.
(b) The Servicer shall keep in force during the term of this Agreement a policy
or policies of insurance covering errors and omissions for failure in the
performance of the Servicer's obligations under this Agreement, which policy or
policies shall be in such form and amount that would meet the requirements of
Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of the Mortgage Loans, unless
the Servicer has obtained a waiver of such requirements from Xxxxxx Mae or
Xxxxxxx Mac. The Servicer shall also maintain a fidelity bond in the form and
amount that would meet the requirements of Xxxxxx Mae or Xxxxxxx Mac, unless the
Servicer has obtained a waiver of such requirements from Xxxxxx Mae or Xxxxxxx
Mac. The Servicer shall provide the Trustee upon request with copies of any such
insurance policies and fidelity bond. The Servicer shall be deemed to have
complied with this provision if an Affiliate of the Servicer has such errors and
omissions and fidelity bond coverage and, by the terms of such insurance policy
or fidelity bond, the coverage afforded thereunder extends to the Servicer. Upon
request from the Trustee, the Servicer shall cause to be delivered to the
Trustee proof of coverage of the fidelity bond errors and omissions insurance
policy and a statement from the surety and the insurer that that surety and
insurer shall endeavor to notify the Trustee within 30 days prior to such
fidelity bond's errors and omissions insurance policy's termination or material
modification. The Servicer shall also cause each Subservicer to maintain a
policy of insurance covering errors and omissions and a fidelity bond which
would meet such requirements.
Section 3.14. Enforcement of Due-on-Sale Clauses; Assumption Agreements. The
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance of any Mortgaged Property by any Mortgagor (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise its
rights to accelerate the maturity of such Mortgage Loan under the "due-on-sale"
clause, if any, applicable thereto; provided, however, that the Servicer shall
not be required to take such action if, in its sole business judgment, the
Servicer believes it is not in the best interests of the Trust Fund and shall
not exercise any such rights if prohibited by law from doing so. If the Servicer
reasonably believes it is unable under applicable law to enforce such
"due-on-sale" clause or if any of the other conditions set forth in the proviso
to the preceding sentence apply, the Servicer will enter into an assumption and
modification agreement from or with the person to whom such property has been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note, the Servicer has the prior consent of the
primary mortgage guaranty insurer, if any, and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. The Servicer is also
authorized to enter into a substitution of liability agreement with such person,
pursuant to which the original Mortgagor is released from liability and such
person is substituted as the Mortgagor and becomes liable under the Mortgage
Note; provided, that no such substitution shall be effective unless such person
satisfies the underwriting criteria of the Servicer and has a credit risk rating
at least equal to that of the original Mortgagor. In connection with any
assumption, modification or substitution, the Servicer shall apply such
underwriting standards and follow such practices and procedures as shall be
normal and usual in its general mortgage servicing activities and as it applies
to other mortgage loans owned solely by it. The Servicer shall not take or enter
into any assumption and modification agreement, however, unless (to the extent
practicable in the circumstances) it shall have received confirmation, in
writing, of the continued effectiveness of any applicable hazard insurance
policy, or a new policy meeting the requirements of this Section is obtained.
Any fee collected by the Servicer in respect of an assumption or substitution of
liability agreement will be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, no material term of the
Mortgage Note (including but not limited to the related Mortgage Interest Rate
and the amount of the Scheduled Payment) may be amended or modified, except as
otherwise required pursuant to the terms thereof. The Servicer shall notify the
Custodian that any such substitution, modification or assumption agreement has
been completed by forwarding to the Custodian the executed original of such
substitution or assumption agreement, which document shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision
of this Agreement, the Servicer shall not be deemed to be in default, breach or
any other violation of its obligations hereunder by reason of any assumption of
a Mortgage Loan by operation of law or by the terms of the Mortgage Note or any
assumption which the Servicer may be restricted by law from preventing, for any
reason whatsoever. For purposes of this Section 3.14, the term "assumption" is
deemed to also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
Section 3.15. Realization upon Defaulted Mortgage Loans. The Servicer shall use
its best efforts, consistent with Accepted Servicing Practices, to foreclose
upon or otherwise comparably convert (which may include an acquisition of REO
Property) the ownership of properties securing such of the Mortgage Loans as
come into and continue in default and as to which no satisfactory arrangements
can be made for collection of delinquent payments pursuant to Section 3.07, and
which are not released from this Agreement pursuant to any other provision
hereof. The Servicer shall use reasonable efforts to realize upon such defaulted
Mortgage Loans in such manner as will maximize the receipt of principal and
interest by the Trustee, taking into account, among other things, the timing of
foreclosure proceedings; provided, however with respect to any Second Lien
Mortgage Loan, if, after such Mortgage Loan becomes 180 days or more delinquent,
the Servicer determines that a significant net recovery is not possible through
foreclosure, such Mortgage Loan may be charged off and the Mortgage Loan will be
treated as a Liquidated Mortgage Loan giving rise to a Realized Loss. The
foregoing is subject to the provisions that, in any case in which a Mortgaged
Property shall have suffered damage from an uninsured cause, the Servicer shall
not be required to expend its own funds toward the restoration of such property
unless it shall determine in its sole discretion (i) that such restoration will
increase the net proceeds of liquidation of the related Mortgage Loan to the
Trustee, after reimbursement to itself for such expenses, and (ii) that such
expenses will be recoverable by the Servicer through Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds from the related Mortgaged
Property, as contemplated in Section 3.11. The Servicer shall be responsible for
all other costs and expenses incurred by it in any such proceedings; provided,
however, that it shall be entitled to reimbursement thereof from the related
property, as contemplated in Section 3.11. In circumstances where the Servicer
determines that it would be uneconomical to foreclose on the related Mortgaged
Property, the Servicer may write off the entire outstanding principal balance of
the related Second Lien Mortgage Loan as bad debt.
The proceeds of any Liquidation Event or REO Disposition, as
well as any recovery resulting from a partial collection of Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds or any income from an REO
Property, will be applied in the following order of priority: first, to
reimburse the Servicer or any Subservicer for any related unreimbursed Servicing
Advances, pursuant to Section 3.11 or 3.17; second, to accrued and unpaid
interest on the Mortgage Loan or REO Imputed Interest, at the Mortgage Interest
Rate, to the date of the liquidation or REO Disposition, or to the Due Date
prior to the Remittance Date on which such amounts are to be distributed if not
in connection with a Liquidation Event or REO Disposition; third, to reimburse
the Servicer for any related xxxxxxxxxxxx X&X Advances, pursuant to Section
3.11; and fourth, as a recovery of principal of the Mortgage Loan. If the amount
of the recovery so allocated to interest is less than a full recovery thereof,
that amount will be allocated as follows: first, to unpaid Servicing Fees; and
second, as interest at the Mortgage Interest Rate (net of the Servicing Fee
Rate). The portion of the recovery so allocated to unpaid Servicing Fees shall
be reimbursed to the Servicer or any Subservicer pursuant to Section 3.11 or
3.17. The portions of the recovery so allocated to interest at the Mortgage
Interest Rate (net of the Servicing Fee Rate) and to principal of the Mortgage
Loan shall be applied as follows: first, to reimburse the Servicer or any
Subservicer for any related unreimbursed Servicing Advances in accordance with
Section 3.11 or 3.17, and second, to the Trustee in accordance with the
provisions of Section 4.02, subject to the last paragraph of Section 3.17 with
respect to certain excess recoveries from an REO Disposition.
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure, in
the event the Servicer has received actual notice of, or has actual knowledge of
the presence of, hazardous or toxic substances or wastes on the related
Mortgaged Property, or if the Trustee otherwise requests, the Servicer shall
cause an environmental inspection or review of such Mortgaged Property to be
conducted by a qualified inspector. Upon completion of the inspection, the
Servicer shall promptly provide the Trustee and the Depositor with a written
report of the environmental inspection.
After reviewing the environmental inspection report, the
Servicer shall determine how to proceed with respect to the Mortgaged Property.
In the event (a) the environmental inspection report indicates that the
Mortgaged Property is contaminated by hazardous or toxic substances or wastes
and (b) the Servicer shall proceed with foreclosure or acceptance of a deed in
lieu of foreclosure, the Servicer shall be reimbursed for all reasonable costs
associated with such foreclosure or acceptance of a deed in lieu of foreclosure
and any related environmental clean-up costs, as applicable, from the related
Liquidation Proceeds, or if the Liquidation Proceeds are insufficient to fully
reimburse the Servicer, the Servicer shall be entitled to be reimbursed from
amounts in the Collection Account pursuant to Section 3.11. In the event the
Servicer does not proceed with foreclosure or acceptance of a deed in lieu of
foreclosure, the Servicer shall be reimbursed from general collections for all
Servicing Advances made with respect to the related Mortgaged Property from the
Collection Account pursuant to Section 3.11. The Trustee shall not be
responsible for any determination made by the Servicer pursuant to this
paragraph or otherwise.
Section 3.16. Release of Mortgage Files. (a) Upon the payment in full of any
Mortgage Loan, or the receipt by the Servicer of a notification that payment in
full shall be escrowed in a manner customary for such purposes, the Servicer
will, within five (5) Business Days of the payment in full, notify the Custodian
by a certification (which certification shall include a statement to the effect
that all amounts received or to be received in connection with such payment
which are required to be deposited in the Collection Account pursuant to Section
3.10 have been or will be so deposited) of a Servicing Officer and shall request
delivery to it of the Custodial File by completing a Request for Release in the
form of Exhibit K hereto to the Custodian. Upon receipt of such certification
and Request for Release, the Custodian shall promptly release the related
Custodial File to the Servicer within three (3) Business Days. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Collection Account.
(b) From time to time and as appropriate for the servicing or foreclosure of any
Mortgage Loan, including, for this purpose, collection under any Insurance
Policy relating to the Mortgage Loans, the Custodian shall, upon request of the
Servicer and delivery to the Custodian, of a Request for Release, release the
related Custodial File to the Servicer, and the Trustee shall, at the direction
of the Servicer, execute such documents as shall be necessary to the prosecution
of any such proceedings and the Servicer shall retain the Mortgage File in trust
for the benefit of the Trustee. Such Request for Release shall obligate the
Servicer to return each and every document previously requested from the
Custodial File to the Custodian when the need therefor by the Servicer no longer
exists, unless the Mortgage Loan has been liquidated and the Liquidation
Proceeds relating to the Mortgage Loan have been deposited in the Collection
Account or the Mortgage File or such document has been delivered to an attorney,
or to a public trustee or other public official as required by law, for purposes
of initiating or pursuing legal action or other proceedings for the foreclosure
of the Mortgaged Property either judicially or non-judicially, and the Servicer
has delivered to the Custodian a certificate of a Servicing Officer certifying
as to the name and address of the Person to which such Mortgage File or such
document was delivered and the purpose or purposes of such delivery. Upon
receipt of a certificate of a Servicing Officer stating that such Mortgage Loan
was liquidated and that all amounts received or to be received in connection
with such liquidation that are required to be deposited into the related
Collection Account have been so deposited, or that such Mortgage Loan has become
an REO Property, a copy of the Request for Release shall be released by the
Custodian to the Servicer or its designee. Upon receipt of a Request for Release
under this Section 3.16, the Custodian shall deliver the related Custodial File
to the requesting Servicer by regular mail, unless the Servicer requests that
the Custodian deliver such Custodial File to the Servicer by overnight courier
(in which case such delivery shall be at the Servicer's expense); provided,
however, that in the event the Servicer has not previously received copies of
the relevant Mortgage Loan Documents necessary to service the related Mortgage
Loan in accordance with Accepted Servicing Practices, the Depositor shall use
reasonable efforts to cause the Purchaser to reimburse the Servicer for any
overnight courier charges incurred for the requested Custodial Files.
Upon written certification of a Servicing Officer, the Trustee
shall execute and deliver to the Servicer copies of any court pleadings,
requests for trustee's sale or other documents reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity, or shall exercise and deliver to the Servicer a power of attorney
sufficient to authorize the Servicer to execute such documents on its behalf.
Each such certification shall include a request that such pleadings or documents
be executed by the Trustee and a statement as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
Section 3.17. Title, Conservation and Disposition of REO Property. (a) This
Section shall apply only to REO Properties acquired for the account of the
Trustee and shall not apply to any REO Property relating to a Mortgage Loan
which was purchased or repurchased from the Trustee pursuant to any provision
hereof. In the event that title to any such REO Property is acquired, the
Servicer shall cause the deed or certificate of sale to be issued in the name of
the Trustee, on behalf of the Certificateholders.
(a) The Servicer shall manage, conserve, protect and operate each REO Property
for the Trustee solely for the purpose of its prompt disposition and sale. The
Servicer, either itself or through an agent selected by the Servicer, shall
manage, conserve, protect and operate the REO Property in the same manner that
it manages, conserves, protects and operates other foreclosed property for its
own account, and in the same manner that similar property in the same locality
as the REO Property is managed. The Servicer shall attempt to sell the same (and
may temporarily rent the same for a period not greater than one year, except as
otherwise provided below) on such terms and conditions as the Servicer deems to
be in the best interest of the Trustee. The Servicer shall notify the Trustee
from time to time as to the status of each REO Property.
(b) The Servicer shall use its best efforts to dispose of the REO Property as
soon as possible (subject to the Trustee's right to veto any proposed sale of
REO Property) and shall sell such REO Property in any event within three years
after title has been taken to such REO Property, unless the Servicer determines,
and gives an appropriate notice to the Trustee to such effect, that a longer
period is necessary for the orderly liquidation of such REO Property. If a
period longer than three years is permitted under the foregoing sentence and is
necessary to sell any REO Property, the Servicer shall report monthly to the
Trustee as to the progress being made in selling such REO Property.
Notwithstanding its veto rights, the Trustee has no obligation with respect to
REO Dispositions.
(c) The Servicer shall segregate and hold all funds collected and received in
connection with the operation of any REO Property separate and apart from its
own funds and general assets and shall deposit such funds in the Collection
Account.
(d) The Servicer shall deposit net of reimbursement to the Servicer for any
related outstanding Servicing Advances and unpaid Servicing Fees provided in
Section 3.11, or cause to be deposited, on a daily basis in the Collection
Account all revenues received with respect to the related REO Property and shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of the REO Property.
(e) The Servicer, upon an REO Disposition, shall be entitled to reimbursement
for any related unreimbursed Servicing Advances as well as any unpaid Servicing
Fees from proceeds received in connection with the REO Disposition, as further
provided in Section 3.11.
(f) Any net proceeds from an REO Disposition which are in excess of the unpaid
principal balance of the related Mortgage Loan plus all unpaid REO Imputed
Interest thereon through the date of the REO Disposition shall be retained by
the Servicer as additional servicing compensation.
(g) The Servicer shall use its reasonable best efforts to sell, or cause the
Subservicer to sell, any REO Property as soon as possible, but in no event later
than the conclusion of the third calendar year beginning after the year of its
acquisition by the REMIC unless (i) the Servicer applies for an extension of
such period from the Internal Revenue Service pursuant to the REMIC Provisions
and Code Section 856(e)(3), in which event such REO Property shall be sold
within the applicable extension period, or (ii) the Servicer obtains for the
Trustee an Opinion of Counsel, addressed to the Depositor, the Trustee and the
Servicer, to the effect that the holding by the Lower Tier REMIC of such REO
Property subsequent to such period will not result in the imposition of taxes on
"prohibited transactions" as defined in Section 860F of the Code or cause any
Trust REMIC to fail to qualify as a REMIC under the REMIC Provisions or
comparable provisions of relevant state laws at any time. The Servicer shall
manage, conserve, protect and operate each REO Property for the Trustee solely
for the purpose of its prompt disposition and sale in a manner which does not
cause such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) or result in the receipt by the Lower Tier REMIC
of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or any "net income from foreclosure property" which is
subject to taxation under Section 860G(a)(1) of the Code. Pursuant to its
efforts to sell such REO Property, the Servicer shall either itself or through
an agent selected by the Servicer protect and conserve such REO Property in the
same manner and to such extent as is customary in the locality where such REO
Property is located and may, incident to its conservation and protection of the
interests of the Trustee on behalf of the Certificateholders, rent the same, or
any part thereof, as the Servicer deems to be in the best interest of the
Trustee on behalf of the Certificateholders for the period prior to the sale of
such REO Property; provided, however, that any rent received or accrued with
respect to such REO Property qualifies as "rents from real property" as defined
in Section 856(d) of the Code.
Section 3.18. Notification of Adjustments. With respect to each Adjustable Rate
Mortgage Loan, the Servicer shall adjust the Mortgage Interest Rate on the
related Adjustment Date and shall adjust the Scheduled Payment on the related
mortgage payment adjustment date, if applicable, in compliance with the
requirements of applicable law and the related Mortgage and Mortgage Note. In
the event that an Index becomes unavailable or otherwise unpublished, the
Servicer shall select a comparable alternative index over which it has no direct
control and which is readily verifiable. The Servicer shall execute and deliver
any and all necessary notices required under applicable law and the terms of the
related Mortgage Note and Mortgage regarding the Mortgage Interest Rate and
Scheduled Payment adjustments. The Servicer shall promptly, upon written request
therefor, deliver to the Trustee such notifications and any additional
applicable data regarding such adjustments and the methods used to calculate and
implement such adjustments. Upon the discovery by the Servicer or the receipt of
notice from the Trustee that the Servicer has failed to adjust a Mortgage
Interest Rate or Scheduled Payment in accordance with the terms of the related
Mortgage Note, the Servicer shall deposit in the Collection Account from its own
funds the amount of any interest loss caused as such interest loss occurs.
Section 3.19. Access to Certain Documentation and Information Regarding the
Mortgage Loans. The Servicer shall provide, or cause the Subservicer to provide,
to the Depositor, the Trustee, the OTS or the FDIC and the examiners and
supervisory agents thereof access to the documentation regarding the Mortgage
Loans in its possession required by applicable regulations of the OTS. Such
access shall be afforded without charge, but only upon reasonable and prior
written request and during normal business hours at the offices of the Servicer,
the Depositor, the Trustee or any Subservicer. Nothing in this Section shall
derogate from the obligation of any such party to observe any applicable law
prohibiting disclosure of information regarding the Mortgagors and the failure
of any such party to provide access as provided in this Section as a result of
such obligation shall not constitute a breach of this Section.
Section 3.20. Documents, Records and Funds in Possession of the Servicer to Be
Held for the Trustee. The Servicer shall account fully to the Trustee for any
funds received by the Servicer or which otherwise are collected by the Servicer
as Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds in respect
of any Mortgage Loan. All Mortgage Files and funds collected or held by, or
under the control of, the Servicer in respect of any Mortgage Loans, whether
from the collection of principal and interest payments or from Liquidation
Proceeds, including, but not limited to, any funds on deposit in the Collection
Account, shall be held by the Servicer for and on behalf of the Trustee and
shall be and remain the sole and exclusive property of the Trustee, subject to
the applicable provisions of this Agreement. The Servicer also agrees that it
shall not create, incur or subject any Mortgage File or any funds that are
deposited in the Collection Account, the Distribution Account or any Escrow
Account, or any funds that otherwise are or may become due or payable to the
Trustee for the benefit of the Certificateholders, to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance, or assert by
legal action or otherwise any claim or right of setoff against any Mortgage File
or any funds collected on, or in connection with, a Mortgage Loan, except,
however, that the Servicer shall be entitled to set off against and deduct from
any such funds any amounts that are properly due and payable to the Servicer
under this Agreement.
Section 3.21. Servicing Compensation. (a) As compensation for its activities
hereunder, the Servicer shall, with respect to each Mortgage Loan, be entitled
to retain from deposits to the Collection Account and from Liquidation Proceeds,
Insurance Proceeds and Condemnation Proceeds related to such Mortgage Loan, the
Servicing Fee with respect to each Mortgage Loan (less any portion of such
amounts retained by any Subservicer). In addition, the Servicer shall be
entitled to recover unpaid Servicing Fees out of related late collections or
otherwise to the extent permitted in Section 3.11. The right to receive the
Servicing Fee may not be transferred in whole or in part except as provided in
Section 6.06 or in connection with the transfer of all of the Servicer's
responsibilities and obligations under this Agreement; provided, however, that
the Servicer may pay from the Servicing Fee any amounts due to a Subservicer
pursuant to a Subservicing Agreement entered into under Section 3.02.
(b) Additional servicing compensation in the form of assumption or modification
fees, late payment charges, NSF fees, reconveyance fees and other similar fees
and charges (other than Prepayment Premiums) shall be retained by the Servicer
only to the extent such fees or charges are received by the Servicer. The
Servicer shall also be entitled pursuant to Section 3.11(a)(iv) to withdraw from
the Collection Account, as additional servicing compensation, interest or other
income earned on deposits therein.
(c) The Servicer shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder (including payment of
premiums for any blanket policy insuring against hazard losses pursuant to
Section 3.13, servicing compensation of the Subservicer to the extent not
retained by it and the fees and expenses of independent accountants and any
agents appointed by the Servicer), and shall not be entitled to reimbursement
therefor except as specifically provided in Section 3.11.
Section 3.22. Annual Statement as to Compliance. The Servicer will deliver or
cause to be delivered to the Depositor, the Rating Agencies and the Trustee on
or before March 15th of each calendar year, commencing in 2006, an Officer's
Certificate stating, as to each signatory thereof, that (i) a review of the
activities of the Servicer during the preceding calendar year and of performance
under this Agreement or a similar agreement has been made under such officers'
supervision, and (ii) to the best of such officers' knowledge, based on such
review, the Servicer has fulfilled all of its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officers and the
nature and status thereof. Promptly after receipt of such Officer's Certificate,
the Depositor shall review such Officer's Certificate and, if applicable,
consult with the Servicer as to the nature of any defaults by the Servicer in
the fulfillment of any of the Servicer's obligations. The obligations of the
Servicer under this Section apply to each Servicer that serviced during the
applicable period, whether or not such Servicer is acting as the Servicer at the
time such Officer's Certificate is required to be delivered.
Section 3.23. Annual Independent Public Accountants' Servicing Statement;
Financial Statements. Not later than March 15th of each calendar year commencing
in 2006, the Servicer, at its expense, shall cause a nationally recognized firm
of independent certified public accountants to furnish to the Depositor, the
Rating Agencies and the Trustee a report stating that (i) it has obtained a
letter of representation regarding certain matters from the management of the
Servicer which includes an assertion that the Servicer has complied with certain
minimum residential mortgage loan servicing standards, identified in the Uniform
Single Attestation Program for Mortgage Bankers established by the Mortgage
Bankers Association of America, with respect to the servicing of residential
mortgage loans during the most recently completed calendar year and (ii) on the
basis of an examination conducted by such firm in accordance with standards
established by the American Institute of Certified Public Accountants, such
representation is fairly stated in all material respects, subject to such
exceptions and other qualifications that may be appropriate. In rendering its
report such firm may rely, as to matters relating to the direct servicing of
residential mortgage loans by Subservicers, upon comparable reports of firms of
independent certified public accountants rendered on the basis of examinations
conducted in accordance with the same standards (rendered within one year of
such report) with respect to those Subservicers. Promptly after receipt of such
report, the Depositor shall review such report and, if applicable, consult with
the Servicer as to the nature of any defaults by the Servicer in the fulfillment
of any of the Servicer's obligations. The obligations of the Servicer under this
Section apply to each Servicer that serviced during the applicable period,
whether or not such Servicer is acting as the Servicer at the time such report
is required to be delivered.
Section 3.24. Trustee to Act as Servicer. (a) In the event that the Servicer
shall for any reason no longer be the Servicer hereunder (including by reason of
an Event of Default), the Trustee or its successor, subject to the rights of the
Servicing Rights Pledgee (if any) under Sections 6.06 and 7.02, shall thereupon
assume all of the rights and obligations of the Servicer hereunder arising
thereafter (except that the Trustee shall not be (i) liable for losses of the
predecessor Servicer pursuant to Section 3.10 or any acts or omissions of the
predecessor Servicer hereunder, (ii) obligated to make Advances if it is
prohibited from doing so by applicable law, (iii) obligated to effectuate
repurchases or substitutions of Mortgage Loans hereunder, including but not
limited to repurchases or substitutions pursuant to Section 2.03, (iv)
responsible for expenses of the Servicer pursuant to Section 2.03 or (v) deemed
to have made any representations and warranties of the Servicer hereunder). Any
such assumption shall be subject to Sections 6.06 and 7.02.
(b) Every Subservicing Agreement entered into by the Servicer shall contain a
provision giving the successor Servicer the option to terminate such agreement
in the event a successor Servicer is appointed.
(c) If the Servicer shall for any reason no longer be the Servicer (including by
reason of any Event of Default), the Trustee (or any other successor Servicer)
may, at its option, succeed to any rights and obligations of the Servicer under
any Subservicing Agreement in accordance with the terms thereof; provided, that
the Trustee (or any other successor Servicer) shall not incur any liability or
have any obligations in its capacity as successor Servicer under a Subservicing
Agreement arising prior to the date of such succession unless it expressly
elects to succeed to the rights and obligations of the Servicer thereunder; and
the Servicer shall not thereby be relieved of any liability or obligations under
the Subservicing Agreement arising prior to the date of such succession.
(d) The Servicer shall, upon request of the Trustee, but at the expense of the
Servicer, deliver to the assuming party all documents and records relating to
each Subservicing Agreement (if any) and the Mortgage Loans then being serviced
thereunder and an accounting of amounts collected held by it and otherwise use
its best efforts to effect the orderly and efficient transfer of the
Subservicing Agreement to the assuming party.
Section 3.25. Compensating Interest. The Servicer shall remit to the Trustee on
each Remittance Date an amount from its own funds equal to Compensating Interest
payable by the Servicer for such Remittance Date.
Section 3.26. Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act. (a) With respect to each
Mortgage Loan, the Servicer shall fully furnish, in accordance with the Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information (e.g., favorable and unfavorable) on the related Mortgagor credit
files to Equifax, Experian, and TransUnion Credit Information Company (three of
the national credit repositories), on a monthly basis.
(a) The Servicer shall comply with all provisions of the Privacy Laws, relating
to the Mortgage Loans, the related borrowers and any "nonpublic personal
information" (as defined in the Privacy Laws) received by the Servicer
incidental to the performance of its obligations under this Agreement,
including, maintaining adequate information security procedures to protect such
nonpublic personal information and providing all privacy notices required by the
Privacy Laws.
Section 3.27. Excess Reserve Fund Account; Distribution Account.
(a) The Trustee shall establish and maintain the Excess Reserve Fund Account, on
behalf of the Class X Certificateholders, to receive any Basis Risk Payment and
any Interest Rate Corridor Payments and to pay to the LIBOR Certificateholders
Basis Risk Carry Forward Amounts.
On each Distribution Date on which there exists a Basis Risk
Carry Forward Amount on any Class of LIBOR Certificates after application of any
payments from the related Corridor Agreement, the Trustee shall (1) withdraw
from the Distribution Account and deposit in the Excess Reserve Fund Account, as
set forth in Section 4.02(a)(iii)(I), the lesser of the Class X Distributable
Amount (to the extent remaining after the distributions specified in Sections
4.02(a)(iii)(A)-(H)) and the aggregate remaining Basis Risk Carry Forward Amount
and (2) withdraw from the Excess Reserve Fund Account amounts necessary to pay
to such Class or Classes of Certificates the applicable remaining Basis Risk
Carry Forward Amounts. Such payments shall be allocated to those Classes based
upon the amount of remaining Basis Risk Carry Forward Amount owed to each such
Class and shall be paid in the priorities set forth in Section 4.02(a)(iii)(J).
The Trustee shall account for the Excess Reserve Fund Account
as an outside reserve fund within the meaning of Treasury Regulations Section
1.860G-2(h) and not as an asset of either Trust REMIC created pursuant to this
Agreement. The beneficial owners of the Excess Reserve Fund Account are the
Class X Certificateholders. For all federal income tax purposes, amounts
transferred by the Upper-Tier REMIC to the Excess Reserve Fund Account shall be
treated as first distributed by the Trustee to the Class Interest, from the
Class X Interest to the Class X Certificateholders, and then contributed by the
Class X Certificateholders to the Excess Reserve Fund Account.
Any Basis Risk Carry Forward Amounts distributed by the
Trustee to the LIBOR Certificateholders shall be accounted for by the Trustee as
amounts paid first to the Holders of the Class X Interest and then to the Class
X Certificates from the Class X Interest to the respective Class or Classes of
LIBOR Certificates. In addition, the Trustee shall account for the rights of
Holders of each Class of LIBOR Certificates to receive payments of Basis Risk
Carry Forward Amounts as rights in a separate limited recourse interest rate cap
contract written by the Class X Certificateholders in favor of Holders of each
such Class.
On each Distribution Date, payments from the Class A-1
Interest Rate Corridor Agreement, Class A-2 Interest Rate Corridor Agreement and
Subordinate Interest Rate Corridor Agreement will be distributed concurrently,
(x) from any Interest Rate Corridor Payments from the Class A-1 Interest Rate
Corridor Agreement that are on deposit in the Excess Reserve Fund with respect
to that Distribution Date, to the Class A-1A Certificates and Class A-1B
Certificates pro rata, based on their respective Class Certificate Balances, in
each case up to their respective unpaid remaining Basis Risk Carry Forward
Amounts; (y) from any Interest Rate Corridor Payments from the Class A-2
Interest Rate Corridor Agreement that are on deposit in the Excess Reserve Fund
with respect to that Distribution Date, to the Class A-2A, Class A-2B and Class
A-2C Certificates pro rata, based on their respective Class Certificate
Balances, in each case up to their respective unpaid remaining Basis Risk Carry
Forward Amounts; and (z) from any Interest Rate Corridor Payments from the
Subordinate Interest Rate Corridor Agreement on deposit in the Excess Reserve
Fund Account with respect to that Distribution Date, to the Class M-1, Class
M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class B-1 and Class B-2
certificates pro rata, based on their respective Class Certificate Balances, in
each case up to their respective unpaid remaining Basis Risk Carry Forward
Amounts.
Notwithstanding any provision contained in this Agreement, the
Trustee shall not be required to make any payments from the Excess Reserve Fund
Account except as expressly set forth in this Section 3.27(a).
(b) The Trustee shall establish and maintain the Distribution Account on behalf
of the Certificateholders. The Trustee shall, promptly upon receipt on the
Business Day received, deposit in the Distribution Account and retain therein
the following:
(i) the aggregate amount remitted by the Servicer to the Trustee pursuant to
Section 3.11;
(ii) any amount deposited by the Servicer pursuant to Section 3.12(b) in
connection with any losses on Permitted Investments;
(iii) any amounts remitted by the Servicer to the Trustee in respect of
Compensating Interest pursuant to Section 3.25; and
(iv) any other amounts deposited hereunder which are required to be deposited in
the Distribution Account.
In the event that the Servicer shall remit any amount not
required to be remitted, it may at any time direct the Trustee 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 Trustee which describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 4.02.
(c) In order to comply with its duties under the USA Patriot Act of 2001, the
Trustee shall obtain and verify certain information and documentation from the
other parties to this Agreement including, but not limited to, each such party's
name, address, and other identifying information.
Section 3.28. Optional Purchase of Delinquent Mortgage Loans. Each of the
Depositor and the Servicer, in each case in its sole discretion, shall have the
option, but shall not be obligated, to purchase any 90+ Delinquent Mortgage
Loans from the Trust Fund. During the first ten (10) days after a Mortgage Loan
becomes a 90+ Delinquent Mortgage Loan, the Depositor shall have the exclusive
option to purchase such 90+ Delinquent Mortgage Loan. The purchase price for any
such Mortgage Loan shall be 100% of the unpaid principal balance of such
Mortgage Loan plus accrued and unpaid interest on the related Mortgage Loan at
the applicable Mortgage Interest Rate, plus the amount of any unreimbursed
Servicing Advances made by the Servicer. Upon receipt of such purchase price,
the Servicer shall provide to the Trustee a Request for Release and the Trustee
shall promptly release to the Depositor or the Servicer, as applicable, the
Mortgage File relating to the Mortgage Loan being repurchased.
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01. Advances. (a) The amount of P&I Advances to be made by the
Servicer for any Remittance Date shall equal, subject to Section 4.01(c), the
sum of (i) with respect to First Lien Mortgage Loans, the aggregate amount of
Scheduled Payments (with each interest portion thereof net of the related
Servicing Fee), due during the Due Period immediately preceding such Remittance
Date in respect of such Mortgage Loans, which Scheduled Payments were not
received as of the close of business on the related Determination Date, (ii)
with respect to Second Lien Mortgage Loans for which Scheduled Payments were not
received as of the close of business on the related Determination Date, the
interest portion of the aggregate amount of Scheduled Payments (net of the
related Servicing Fee), due during the Due Period immediately preceding such
Remittance Date, (iii) with respect to each REO Property, which REO Property was
acquired during or prior to the related Prepayment Period and as to which such
REO Property an REO Disposition did not occur during the related Prepayment
Period, an amount equal to the REO Imputed Interest that would have been due on
the related Due Date in respect of the related Mortgage Loans and (iv) with
respect to each balloon mortgage loan a payment equal to the assumed monthly
payment that would have been due on the related Due Date based upon the original
principal amortization schedule for such balloon mortgage loan.
(b) On the Remittance Date, the Servicer shall remit in immediately available
funds to the Trustee for deposit in the Distribution Account an amount equal to
the aggregate amount of P&I Advances, if any, to be made in respect of the
Mortgage Loans and REO Properties for the related Remittance Date either (i)
from its own funds or (ii) from the Collection Account, to the extent of funds
held therein for future distribution (in which case, it will cause to be made an
appropriate entry in the records of the Collection Account that Amounts Held for
Future Distribution have been, as permitted by this Section 4.01, used by the
Servicer in discharge of any such P&I Advance) or (iii) in the form of any
combination of (i) and (ii) aggregating the total amount of P&I Advances to be
made by the Servicer with respect to the Mortgage Loans and REO Properties. Any
Amounts Held for Future Distribution and so used shall be appropriately
reflected in the Servicer's records and replaced by the Servicer by deposit in
the Collection Account on or before any future Remittance Date to the extent
required. In addition, the Servicer shall have the right to reimburse itself for
any outstanding P&I Advance made by it from its own funds from Amounts Held For
Future Distribution. Any funds so applied and transferred pursuant to the
previous sentence shall be replaced by the Servicer by deposit in the Collection
Account no later than the close of business on the related Remittance Date on
which such funds are required to be distributed pursuant to this Agreement.
(c) The obligation of the Servicer to make such P&I Advances is mandatory,
notwithstanding any other provision of this Agreement but subject to (d) below,
and, with respect to any Mortgage Loan or REO Property, shall continue until a
Final Recovery Determination in connection therewith or the removal thereof from
coverage under this Agreement, except as otherwise provided in this Section
4.01.
(d) Notwithstanding anything herein to the contrary, no P&I Advance or Servicing
Advance shall be required to be made hereunder by the Servicer if such P&I
Advance or Servicing Advance would, if made, constitute a Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance. The determination by the Servicer
that it has made a Nonrecoverable P&I Advance or a Nonrecoverable Servicing
Advance or that any proposed P&I Advance or Servicing Advance, if made, would
constitute a Nonrecoverable P&I Advance or a Nonrecoverable Servicing Advance,
respectively, shall be evidenced by an Officer's Certificate of the Servicer
delivered to the Trustee. In addition, the Servicer shall not be required to
advance any Relief Act Interest Shortfalls or to cover Prepayment Interest
Shortfalls in excess of its obligations under Section 3.25.
(e) Except as otherwise provided herein, the Servicer shall be entitled to
reimbursement pursuant to Section 3.11 for Servicing Advances from recoveries
from the related Mortgagor or from all Liquidation Proceeds and other payments
or recoveries (including Insurance Proceeds and Condemnation Proceeds) with
respect to the related Mortgage Loan.
Section 4.02. Priorities of Distribution. (a) On each Distribution Date, the
Trustee shall make the disbursements and transfers from amounts then on deposit
in the Distribution Account in the following order of priority and to the extent
of the Available Funds remaining:
(i) to the holders of each Class of LIBOR Certificates in the following
order of priority:
(A) concurrently, (1) from the Interest Remittance Amount related to the
Group I Mortgage Loans to the Class A-1A Certificates and Class A-1B
Certificates, their related Accrued Certificate Interest Distribution
Amounts and Unpaid Interest Amounts for such Distribution Date
allocated in accordance with clauses (iv) and (v) of this Section
4.02(a); and (2) from the Interest Remittance Amount related to the
Group II Mortgage Loans to the Class A-2A, Class A-2B and Class A-2C
Certificates, their related Accrued Certificate Interest Distribution
Amounts and Unpaid Interest Amounts for such Distribution Date
allocated in accordance with clauses (iv) and (v) of this Section
4.02(a); provided, that if the Interest Remittance Amount for either
Loan Group is insufficient to make the related payments set forth in
clause (1) or (2) above, any Interest Remittance Amount relating to the
other Loan Group remaining after payment of the related Accrued
Certificate Interest Distribution and Unpaid Interest Amount will be
available to cover that shortfall;
(B) from any remaining Interest Remittance Amount, to the Class M-1
Certificates, the Accrued Certificate Interest Distribution Amount for
such Class;
(C) from any remaining Interest Remittance Amount, to the Class M-2
Certificates, the Accrued Certificate Interest Distribution Amount for
such Class;
(D) from any remaining Interest Remittance Amount, to the Class M-3
Certificates, the Accrued Certificate Interest Distribution Amount for
such Class;
(E) from any remaining Interest Remittance Amount, to the Class M-4
Certificates, the Accrued Certificate Interest Distribution Amount for
such Class;
(F) from any remaining Interest Remittance Amount, to the Class M-5
Certificates, the Accrued Certificate Interest Distribution Amount for
such Class;
(G) from any remaining Interest Remittance Amount, to the Class M-6
Certificates, the Accrued Certificate Interest Distribution Amount for
such Class;
(H) from any remaining Interest Remittance Amount, to the Class B-1
Certificates, the Accrued Certificate Interest Distribution Amount for
such Class; and
(I) from any remaining Interest Remittance Amount, to the Class B-2
Certificates, the Accrued Certificate Interest Distribution Amount for
such Class;
(ii) (A) on each Distribution Date (a) prior to the Stepdown Date or (b)
with respect to which a Trigger Event is in effect, to the holders of
the Class or Classes of LIBOR Certificates then entitled to
distributions of principal as set forth below, an amount equal to the
Principal Distribution Amount in the following order of priority:
(a) to the Class A Certificates, allocated as
described in Section 4.02(c), until their respective Class
Certificate Balances are reduced to zero;
(b) sequentially, to the Class X-0, Xxxxx X-0, Class
M-3, Class M-4, Class M-5, Class M-6, Class B-1 and Class B-2
Certificates, in that order, until their respective Class
Certificate Balances 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 LIBOR
Certificates then entitled to distribution of principal, an
amount equal to, the Principal Distribution Amount in the
following amounts and order of priority:
(a) the lesser of (x) the Principal Distribution
Amount and (y) the Class A Principal Distribution Amount to
the Class A Certificates, allocated as described in Section
4.02(c), until the respective Class Certificate Balances
thereof are reduced to zero;
(b) 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 to the Class M-1
Certificates, until the Class Certificate Balance thereof has
been reduced to zero;
(c) 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 (y) the Class
M-2 Principal Distribution Amount to the Class M-2
Certificates, until the Class Certificate Balance thereof has
been reduced to zero;
(d) 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
M-3 Principal Distribution Amount to the Class M-3
Certificates, until the Class Certificate Balance thereof has
been reduced to zero;
(e) 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 M-3
Certificates in clause (ii)(B)(d) above, and (y) the Class M-4
Principal Distribution Amount, to the Class M-4 Certificates
until their Class Certificate Balance has been reduced to
zero;
(f) 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 M-3
Certificates in clause (ii)(B)(d) above and to the Class M-4
Certificates in clause (ii)(B)(e) above, and (y) the Class M-5
Principal Distribution Amount, to the Class M-5 Certificates
until their Class Certificate Balance has been reduced to
zero;
(g) 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 M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above and to the Class M-5
Certificates in clause (ii)(B)(f) above, and (y) the Class M-6
Principal Distribution Amount, to the Class M-6 Certificates
until their Class Certificate Balance has been reduced to
zero;
(h) 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 M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above, to the Class M-5
Certificates in clause (ii)(B)(f) above and to the Class M-6
Certificates in clause (ii)(B)(g) above, and (y) the Class B-1
Principal Distribution Amount, to the Class B-1 Certificates
until their Class Certificate Balance has been reduced to
zero; and
(i) 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 M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above, to the Class M-5
Certificates in clause (ii)(B)(f) above, to the Class M-6
Certificates in clause (ii)(B)(g) above and to the Class B-1
Certificates in clause (ii)(B)(h) above, and (y) the Class B-2
Principal Distribution Amount, to the Class B-2 Certificates
until their Class Certificate Balance has been reduced to
zero;
(iii) any amount remaining after the distributions in Section 4.02(a)(i) and
(ii) above shall be distributed in the following order of priority:
(A) to the Class M-1 Certificates, any Unpaid Interest Amount for such
Class;
(B) to the Class M-2 Certificates, any Unpaid Interest Amount for such
Class;
(C) to the Class M-3 Certificates, any Unpaid Interest Amount for such
Class;
(D) to the Class M-4 Certificates, any Unpaid Interest Amount for such
Class;
(E) to the Class M-5 Certificates, any Unpaid Interest Amount for such
Class;
(F) to the Class M-6 Certificates, any Unpaid Interest Amount for such
Class;
(G) to the Class B-1 Certificates, any Unpaid Interest Amount for such
Class;
(H) to the Class B-2 Certificates, any Unpaid Interest Amount for such
Class;
(I) to the Excess Reserve Fund Account, the amount of any Basis Risk
Payment for such Distribution Date to the extent not covered by the
related Interest Rate Corridor Payments;
(J) from funds on deposit in the Excess Reserve Fund Account with respect
to such Distribution Date (not including any Interest Rate Corridor
Payments included in that account), an amount equal to any Basis Risk
Carry Forward Amount with respect to the LIBOR Certificates for such
Distribution Date to such Classes in the same order and priority as set
forth in Section 4.02(a)(i), with the allocation to the Class A
Certificates being pro rata based on their respective Basis Risk Carry
Forward Amounts, in each case to the extent not covered by the related
Interest Rate Corridor Payments;
(K) to the Class X Certificates, the remainder of the Class X Distributable
Amount not distributed pursuant to Sections 4.02(a)(iii)(A)-(J);
(L) to the Class R-1 Certificates, any remaining amount, in respect of
REMIC I and REMIC II; and
(M) to the Class R-2 Certificates, any remaining amount, in respect of
REMIC III, REMIC IV, REMIC V and REMIC VI.
(iv) Solely for purposes of interest allocation calculations, the Interest
Remittance Amount attributable to Group I Mortgage Loans will be
allocated:
(A) first, pro rata (based on the accrued and unpaid interest distributable
pursuant to Section 4.02(a)(i)(A)(1)), to the Class A-1A Certificates
and the Class A-1B Certificates, the Accrued Certificate Interest
Distribution Amount and any Unpaid Interest Amount for each such Class;
and
(B) second, pro rata (based on the accrued and unpaid interest
distributable pursuant to Section 4.02(a)(i)(A)(2)), to the Class A-2A,
Class A-2B and Class A-2C Certificates, the Accrued Certificate
Interest Distribution Amount and any Unpaid Interest Amount for each
such Class, to the extent not otherwise previously paid from the
Interest Remittance Amount attributable to Group II Mortgage Loans;
(v) Solely for purposes of interest allocation calculations, the portion of
the interest Remittance Amount attributable to Group II Mortgage Loans
will be allocated:
(A) first, pro rata (based on the accrued and unpaid interest distributable
pursuant to Section 4.02(a)(i)(A)(2)), to the Class A-2A, Class A-2B
and Class A-2C Certificates, the Accrued Certificate Interest
Distribution Amount and any Unpaid Interest Amount for each such Class;
and
(B) second, pro rata (based on the accrued and unpaid interest
distributable pursuant to Section 4.02(a)(i)(A)(1)), to the Class A-1A
Certificates and the Class A-1B Certificates, the Accrued Certificate
Interest Distribution Amount and any Unpaid Interest Amount for each
such Class, to the extent not otherwise previously paid from the
Interest Remittance Amount attributable to Group I Mortgage Loans.
If on any Distribution Date, as a result of the foregoing
allocation rules, any Class of Class A Certificates does not receive the related
Accrued Certificate Interest Distribution Amount or the related Unpaid Interest
Amount, if any, then that unpaid amount will be recoverable by the holders of
those Classes, with interest thereon, on future Distribution Dates, as an Unpaid
Interest Amount, subject to the priorities described above. In the event the
Class Certificate Balance of any Class of 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.
Notwithstanding the foregoing, if the Stepdown Date is the
date on which the Class Certificate Balance of the Class A Certificates is
reduced to zero, any Principal Distribution Amount remaining after principal
distributions to the Class A Certificates pursuant to clause (ii)(A) above will
be included as part of the distributions pursuant to clause (ii)(B) above.
(b) On each Distribution Date, all amounts representing Prepayment Premiums from
the Mortgage Loans received during the related Prepayment Period shall be
distributed to the holders of the Class P Certificates.
(c) All principal distributions to the Holders of the Class A Certificates on
any Distribution Date shall be allocated between the Class A-1 Certificate Group
and the Class A-2 Certificate Group based on the Class A Principal Allocation
Percentage for the Class A-1 Certificate Group or the Class A-2 Certificate
Group, as applicable; provided, however, that if the aggregate Class Certificate
Balance of either Class A Certificate Group is reduced to zero, then the
remaining amount of principal distributions distributable to the Class A
Certificates on such Distribution Date, and the amount of such principal
distributions distributable on all subsequent Distribution Dates, shall be
distributed to the Class A Certificates remaining outstanding in accordance with
the principal distribution allocations set forth in this Section 4.02(c), until
their Class Certificate Balances have been reduced to zero. Any payments of
principal to the Class A-1 Certificate Group shall be made first from Available
Funds relating to the Group I Mortgage Loans. Any payments of principal to the
Class A-2 Certificate Group shall be made first from Available Funds relating to
the Group II Mortgage Loans.
Any principal distributions allocated to the Class A-1
Certificate Group shall be distributed pro rata between the Class A-1A
Certificates and the Class A-1B Certificates, based on their respective Class
Certificate Balances, until their Class Certificate Balances have been reduced
to zero. However, so long as a Group I Sequential Trigger Event is in effect,
principal distributions to the Class A-1 Certificate Group shall be allocated
first to the Class A-1A Certificates, until their Class Certificate Balance has
been reduced to zero, and then to the Class A-1B Certificates, until their Class
Certificate Balance has been reduced to zero.
Any principal distributions allocated to the Class A-2
Certificate Group shall be distributed sequentially, first to the Class A-2A
Certificates, until their Class Certificate Balance has been reduced to zero,
second, to the Class A-2B Certificates, until their Class Certificate Balance
has been reduced to zero and third, to the Class 2-AC Certificates, until their
Class Certificate Balance has been reduced to zero.
Notwithstanding the allocation of principal to the Class A
Certificates described in the preceding paragraph, from and after the
Distribution Date on which the aggregate Class Certificate Balances of the Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class B-1 and Class
B-2 Certificates and the principal balance of the Class X Certificates have been
reduced to zero, any principal distributions allocated to the Class A
Certificates are required to be allocated pro rata to the Class A Certificates,
based on their respective Certificate Principal Balances, except that so long as
a Group I Sequential Trigger Event is in effect, principal distributions
allocated to the Class A-1 Certificate Group will be allocated sequentially,
first, to the Class A-1A Certificates, until their Class Certificate Balance has
been reduced to zero, and, second, to the Class A-1B Certificates, until their
Class Certificate Balance has been reduced to zero.
(d) On any Distribution Date, any Relief Act Interest Shortfalls and Net
Prepayment Interest Shortfalls for such Distribution Date shall be allocated by
the Trustee pro rata, as a reduction of the Accrued Certificate Interest
Distribution Amount for the LIBOR Certificates, based on the amount of interest
to which such Classes would otherwise be entitled on such Distribution Date.
Section 4.03. Monthly Statements to Certificateholders. (a) Not later than each
Distribution Date, the Trustee shall make available to each Certificateholder,
the Servicer, the Depositor and each Rating Agency a statement setting forth
with respect to the related distribution:
(i) the amount thereof allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments and Liquidation Proceeds
included therein;
(ii) the amount thereof allocable to interest, any Unpaid Interest Amounts
included in such distribution and any remaining Unpaid Interest Amounts
after giving effect to such distribution, any Basis Risk Carry Forward
Amount for such Distribution Date and the amount of all Basis Risk
Carry Forward Amounts 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 paid to or retained by the Servicer or
the Trustee with respect to such Distribution Date;
(vii) the Pass-Through Rate for each such Class of Certificates with respect
to such Distribution Date;
(viii) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances reported by the
Servicer as outstanding as of the close of business on the
Determination Date immediately preceding such Distribution Date;
(ix) the number and aggregate outstanding principal balances of Mortgage
Loans (1) as to which the Scheduled Payment is delinquent 31 to 60
days, 61 to 90 days and 91 or more days, (2) that have become REO
Property, (3) that are in foreclosure and (4) that are in bankruptcy,
in each case as of the close of business on the last Business Day of
the immediately preceding month;
(x) for each of the preceding 12 calendar months, or all calendar months
since the related Cut-off Date, whichever is less, the aggregate dollar
amount of the Scheduled Payments (A) due on all Outstanding Mortgage
Loans on each of the Due Dates in each such month and (B) delinquent 60
days or more on each of the Due Dates in each such month;
(xi) with respect to all Mortgage Loans that became REO Properties during
the preceding calendar month, the aggregate number of such Mortgage
Loans and the aggregate Stated Principal Balance of such Mortgage Loans
as of the close of business on the Determination Date preceding such
Distribution Date and the date of acquisition thereof;
(xii) the total number and principal balance of any REO Properties (and
market value, if available) as of the close of business on the
Determination Date preceding such Distribution Date;
(xiii) whether a Trigger Event has occurred and is continuing (including the
calculation of thereof and the aggregate outstanding balance of all 60+
Day Delinquent Mortgage Loans) and whether a Group I Sequential Trigger
Event has occurred and is continuing;
(xiv) the amount on deposit in the Excess Reserve Fund Account (after giving
effect to distributions on such Distribution Date);
(xv) in the aggregate and for each Class of Certificates, the aggregate
amount of Applied Realized Loss Amounts incurred during the preceding
calendar month and aggregate Applied Realized Loss Amounts through such
Distribution Date;
(xvi) the amount of any Net Monthly Excess Cash Flow on such Distribution
Date and the allocation thereof to the Certificateholders with respect
to Applied Realized Loss Amounts and Unpaid Interest Amounts;
(xvii) the amount distributed on the Class P Certificates;
(xviii) the Overcollateralized Amount and Specified Overcollateralized Amount;
(xix) Prepayment Premiums collected by the Servicer;
(xx) the Cumulative Loss Percentage;
(xxi) the amount distributed on the Class X Certificates; and
(xxii) the amount of any Subsequent Recoveries for such Distribution Date.
(b) The Trustee's responsibility for providing the above statement to the
Certificateholders, each Rating Agency, the Servicer and the Depositor
is limited to the availability, timeliness and accuracy of the
information derived from the Servicer. The Trustee will provide the
above statement via the Trustee's internet website. The Trustee's
website will initially be located at xxxxx://xxx.xxx.xx.xxx/xxxx and
assistance in using the website can be obtained by calling the
Trustee's investor relations desk at 0-000-000-0000. A paper copy of
the above statement will also be made available upon request.
(c) Upon request, within a reasonable period of time after the end of each
calendar year, the Trustee shall cause to be furnished to each Person
who at any time during the calendar year was a Certificateholder, a
statement containing the information set forth in clauses (a)(i),
(a)(ii) and (a)(vi) of this Section 4.03 aggregated for such calendar
year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to
have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
(d) Not later than the Reporting Date, the Servicer that serviced the
Mortgage Loans for the period of time to which the monthly remittance
advice statement relates shall furnish to the Trustee a monthly
remittance advice statement (in a format mutually agreed upon by the
Servicer and the Trustee) containing such information as shall be
reasonably requested by the Trustee to provide the reports required by
Section 4.03(a) as to the accompanying remittance and the period ending
on the close of business on the last Business Day of the immediately
preceding month (the "Servicer Remittance Report").
The Servicer shall furnish to the Trustee an individual loan
accounting report, as of the last Business Day of each month, to document
Mortgage Loan payment activity on an individual Mortgage Loan basis. With
respect to each month, the corresponding individual loan accounting report (in
electronic format) shall be received by the Trustee no later than the Reporting
Date, which report shall contain the following:
(i) with respect to each Scheduled Payment, the amount of such remittance
allocable to principal (including a separate breakdown of any Principal
Prepayment, including the date of such prepayment, and any Prepayment
Premiums, along with a detailed report of interest on Principal
Prepayment amounts remitted in accordance with Section 3.25);
(ii) with respect to each Scheduled Payment, the amount of such remittance
allocable to interest;
(iii) the amount of servicing compensation received by the Servicer during
the prior distribution period;
(iv) the individual and aggregate Stated Principal Balance of the Mortgage
Loans;
(v) the aggregate of any expenses reimbursed to the Servicer during the
prior distribution period pursuant to Section 3.11;
(vi) each Mortgage Loan which has been altered, modified or varied during
such month, and the reason for such modification (i.e., extension of
maturity date or Mortgage Interest Rate);
(vii) 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;
(viii) with respect to each Liquidated Mortgage Loan, the amount of any
Realized Losses for such Mortgage Loan; and
(ix) any other information reasonably required by the Trustee to enable it
to prepare the Monthly Statement referred to in Section 4.03(a).
Section 4.04. Certain Matters Relating to the Determination of LIBOR. LIBOR
shall be calculated by the Trustee in accordance with the definition of "LIBOR".
Until all of the LIBOR Certificates are paid in full, the Trustee will at all
times retain at least four Reference Banks for the purpose of determining LIBOR
with respect to each LIBOR Determination Date. The Trustee initially shall
designate the Reference Banks (after consultation with the Depositor). Each
"Reference Bank" shall be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, shall not control, be
controlled by, or be under common control with, the Trustee and shall have an
established place of business in London. If any such Reference Bank should be
unwilling or unable to act as such or if the Trustee should terminate its
appointment as Reference Bank, the Trustee shall promptly appoint or cause to be
appointed another Reference Bank (after consultation with the Depositor). The
Trustee shall have no liability or responsibility to any Person for (i) the
selection of any Reference Bank for purposes of determining LIBOR or (ii) any
inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for
each Interest Accrual Period shall be determined by the Trustee on each LIBOR
Determination Date so long as the LIBOR Certificates are Outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the LIBOR Certificates in the table relating to the Certificates in the
Preliminary Statement. The Trustee shall not have any liability or
responsibility to any Person for its inability, following a good-faith
reasonable effort, to obtain quotations from the Reference Banks or to determine
the arithmetic mean referred to in the definition of LIBOR, all as provided for
in this Section 4.04 and the definition of LIBOR. The establishment of LIBOR and
each Pass-Through Rate for the LIBOR Certificates by the Trustee shall (in the
absence of manifest error) be final, conclusive and binding upon each Holder of
a Certificate and the Trustee.
Section 4.05. Allocation of Applied Realized Loss Amounts. Any Applied Realized
Loss Amounts shall be allocated by the Trustee 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 Balances shall be reduced by the
amount so allocated, and no funds will be distributable with respect to the
written down amounts (including without limitation Basis Risk Carry Forward
Amounts) or with respect to interest on the written down amounts on that
Distribution Date or any future Distribution Dates, even if funds are otherwise
available for distribution. Notwithstanding the foregoing, the Class Certificate
Balance of each Class of Subordinated Certificates that has been previously
reduced by Applied Realized Loss Amounts will be increased, in order of
seniority, by the amount of the Subsequent Recoveries (but not in excess of the
Applied Realized Loss Amount allocated to the applicable Class of Subordinated
Certificates).
The REMIC I Marker Allocation Percentage of all Realized
Losses on the Mortgage Loans shall be allocated by the Trustee on each
Distribution Date to the following REMIC I Regular Interests in the specified
percentages, as follows: first, to Uncertificated Interest payable to the REMIC
I Regular Interest LTAA and REMIC I Regular Interest LTZZ up to an aggregate
amount equal to the REMIC I Interest Loss Allocation Amount, 98.00% and 2.00%,
respectively; second, to the Uncertificated Balances of the REMIC I Regular
Interest LTAA and REMIC I Regular Interest LTZZ up to an aggregate amount equal
to the REMIC I Principal Loss Allocation Amount, 98.00% and 2.00%, respectively;
third, to the Uncertificated Balances of REMIC I Regular Interest LTAA, REMIC I
Regular Interest LTB2 and REMIC I Regular Interest LTZZ, 98.00%, 1.00% and
1.00%, respectively, until the Uncertificated Balance of REMIC I Regular
Interest LTB2 has been reduced to zero; fourth, to the Uncertificated Balances
of REMIC I Regular Interest LTAA, REMIC I Regular Interest LTB1 and REMIC I
Regular Interest LTZZ, 98.00%, 1.00% and 1.00%, respectively, until the
Uncertificated Balance of REMIC I Regular Interest LTB1 has been reduced to
zero; fifth, to the Uncertificated Balances of REMIC I Regular Interest LTAA,
REMIC I Regular Interest LTM6 and REMIC I Regular Interest LTZZ, 98.00%, 1.00%
and 1.00%, respectively, until the Uncertificated Balance of REMIC I Regular
Interest LTM6 has been reduced to zero; sixth, to the Uncertificated Balances of
REMIC I Regular Interest LTAA, REMIC I Regular Interest LTM5 and REMIC I Regular
Interest LTZZ, 98.00%, 1.00% and 1.00%, respectively, until the Uncertificated
Balance of REMIC I Regular Interest LTM5 has been reduced to zero; seventh, to
the Uncertificated Balances of REMIC I Regular Interest LTAA, REMIC I Regular
Interest LTM4 and REMIC I Regular Interest LTZZ, 98.00%, 1.00% and 1.00%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest LTM4
has been reduced to zero; eighth, to the Uncertificated Balances of REMIC I
Regular Interest LTAA, REMIC I Regular Interest LTM3 and REMIC I Regular
Interest LTZZ, 98.00%, 1.00% and 1.00%, respectively, until the Uncertificated
Balance of REMIC I Regular Interest LTM3 has been reduced to zero; ninth, to the
Uncertificated Balances of REMIC I Regular Interest LTAA, REMIC I Regular
Interest LTM2 and REMIC I Regular Interest LTZZ, 98.00%, 1.00% and 1.00%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest LTM2
has been reduced to zero; and tenth, to the Uncertificated Balances of REMIC I
Regular Interest LTAA, REMIC I Regular Interest LTM1 and REMIC I Regular
Interest LTZZ, 98.00%, 1.00% and 1.00%, respectively, until the Uncertificated
Balance of REMIC I Regular Interest LTM1 has been reduced to zero.
The REMIC I Sub WAC Allocation Percentage of all Realized
Losses shall be applied after all distributions have been made on each
Distribution Date first, so as to keep the Uncertificated Balance of each REMIC
I Regular Interest ending with the designation "GRP" equal to 0.01% of the
aggregate Stated Principal Balance of the Mortgage Loans in the related Loan
Group; second, to each REMIC I Regular Interest ending with the designation
"SUB," so that the Uncertificated Balance of each such REMIC I Regular Interest
is equal to 0.01% of the excess of (x) the aggregate Stated Principal Balance of
the Mortgage Loans in the related Loan Group over (y) the current Certificate
Balance of the Class A Certificate in the related Loan Group (except that if any
such excess is a larger number than in the preceding distribution period, the
least amount of Realized Losses shall be applied to such REMIC I Regular
Interests such that the REMIC I Subordinated Balance Ratio is maintained); and
third, any remaining Realized Losses shall be allocated to REMIC I Regular
Interest LTXX.
Section 4.06. Distributions on the REMIC I Regular Interests.
(a) (1) On each Distribution Date, the following amounts, in the following
order of priority, shall be distributed by REMIC I to REMIC II on
account of the REMIC I Regular Interests or withdrawn from the
Distribution Account and distributed to the holders of the Class R
Certificates, as the case may be:
(i) first, to the Holders of REMIC I Regular Interest LTAA, REMIC I Regular
Interest LTA1A, REMIC I Regular Interest LTA1B, REMIC I Regular
Interest LTA2A, REMIC I Regular Interest LTA2B, REMIC I Regular
Interest LTA2C, REMIC I Regular Interest LTM1, REMIC I Regular Interest
LTM2, REMIC I Regular Interest LTM3, REMIC I Regular Interest LTM4,
REMIC I Regular Interest LTM5, REMIC I Regular Interest LTM6, REMIC I
Regular Interest LTB1, REMIC I Regular Interest LTB2 and REMIC I
Regular Interest LTZZ, on a pro rata basis, in an amount equal to (A)
the Uncertificated Interest for such Distribution Date, plus (B) any
amounts in respect thereof remaining unpaid from previous Distribution
Dates. Amounts payable as Uncertificated Interest in respect of REMIC I
Regular Interest LTZZ shall be reduced and deferred when the REMIC I
Overcollateralized Amount is less than the REMIC I Required
Overcollateralization Amount, by the lesser of (x) the amount of such
difference and (y) the Maximum LTZZ Uncertificated Interest Deferral
Amount and such amount shall be payable to the Holders of REMIC I
Regular Interest LTA1A, REMIC I Regular Interest LTA1B, REMIC I Regular
Interest LTA2A, REMIC I Regular Interest LTA2B, REMIC I Regular
Interest LTA2C, REMIC I Regular Interest LTM1, REMIC I Regular Interest
LTM2, REMIC I Regular Interest LTM3, REMIC I Regular Interest LTM4,
REMIC I Regular Interest LTM5, REMIC I Regular Interest LTM6, REMIC I
Regular Interest LTB1 and REMIC I Regular Interest LTB2 in the same
proportion as the Overcollateralization Deficiency is allocated to the
Corresponding Certificates and the Uncertificated Principal Balance of
the REMIC I Regular Interest LTZZ shall be increased by such amount;
(ii) to the Holders of REMIC I Regular Interest LT1SUB, REMIC I Regular
Interest LT1GRP, REMIC I Regular Interest LT2SUB, REMIC I Regular
Interest LT2GRP and REMIC I Regular Interest LTXX, on a pro rata basis,
in an amount equal to (A) the Uncertificated Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining
unpaid from previous Distribution Dates;
(iii) to the Holders of REMIC I Regular Interests, in an amount equal to the
remainder of the REMIC I Marker Allocation Percentage of the Available
Funds for such Distribution Date after the distributions made pursuant
to clause (i) above, allocated as follows:
(a) 98.00% of such remainder (other than amounts
payable under clause (c) below) to the Holders of REMIC I
Regular Interest LTAA until the Uncertificated Balance of such
REMIC I Regular Interest is reduced to zero;
(b) 2.00% of such remainder (other than amounts
payable under clause (c) below) first, to the Holders of REMIC
I Regular Interest LTA1A, REMIC I Regular Interest LTA1B,
REMIC I Regular Interest LTA2A, REMIC I Regular Interest
LTA2B, REMIC I Regular Interest LTA2C, REMIC I Regular
Interest LTM1, REMIC I Regular Interest LTM2, REMIC I Regular
Interest LTM3, REMIC I Regular Interest LTM4, REMIC I Regular
Interest LTM5, REMIC I Regular Interest LTM6, REMIC I Regular
Interest LTB1 and REMIC I Regular Interest LTB2, 1.00% in the
same proportion as principal payments are allocated to the
Corresponding Certificates, until the Uncertificated Balances
of such REMIC I Regular Interests are reduced to zero and
second, to the Holders of REMIC I Regular Interest LTZZ,
(other than amounts payable under clause (c) below), until the
Uncertificated Balance of such REMIC I Regular Interest is
reduced to zero; and
(c) any remaining amount to the Holders of the Class
R Certificates (in respect of the Class R-I Interest);
provided, however, that (i) 98.00% and (ii) 2.00% of any principal payments that
are attributable to an Overcollateralization Reduction Amount shall be allocated
to the Holders of (i) REMIC I Regular Interest LTAA and (ii) REMIC I Regular
Interest LTZZ, respectively; and
(iv) to the Holders of REMIC I Regular Interests, in an amount equal to the
remainder of the REMIC I Sub WAC Allocation Percentage of Available
Funds for such Distribution Date after the distributions made pursuant
to clause (i) above, such that distributions of principal shall be
deemed to be made to the REMIC I Regular Interests first, so as to keep
the Uncertificated Balance of each REMIC I Regular Interest ending with
the designation "GRP" equal to 0.01% of the aggregate Stated Principal
Balance of the Mortgage Loans in the related Loan Group; second, to
each REMIC I Regular Interest ending with the designation "SUB," so
that the Uncertificated Balance of each such REMIC I Regular Interest
is equal to 0.01% of the excess of (x) the aggregate Stated Principal
Balance of the Mortgage Loans in the related Loan Group over (y) the
current Certificate Balance of the Class A Certificate in the related
Loan Group (except that if any such excess is a larger number than in
the preceding distribution period, the least amount of principal shall
be distributed to such REMIC I Regular Interests such that the REMIC I
Subordinated Balance Ratio is maintained); and third, any remaining
principal to REMIC I Regular Interest LTXX.
Notwithstanding the priorities and amounts of distribution of
funds pursuant to this Section 4.06, actual distributions of the Available Funds
shall be made only in accordance with Section 4.02.
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, which must be in excess of the applicable minimum denomination) and
aggregate denominations per Class set forth in the Preliminary Statement.
The Depositor hereby directs the Trustee to register the Class
P and Class X Certificates in the name of the Depositor or its designee. On a
date as to which the Depositor notifies the Trustee, the Depositor hereby
directs the Trustee to transfer the Class X and Class P Certificates in the name
of Xxxxxxx, Xxxxx & Co., or such other name or names as the Depositor shall
request (including any NIM Trustee). In the case of the Class R Certificates,
the Depositor hereby directs the Trustee to register such Certificates in the
name of the Servicer, an Affiliate of the Servicer, or a designee thereof.
Subject to Section 9.02 respecting the final distribution on
the Certificates, on each Distribution Date the Trustee shall make distributions
to each Certificateholder of record on the preceding Record Date either (x) by
wire transfer in immediately available funds to the account of such holder at a
bank or other entity having appropriate facilities therefor as directed by that
Certificateholder by written wire instructions provided to the Trustee or (y),
in the event that no wire instructions are provided to the Trustee, by check
mailed by first class mail to such Certificateholder at the address of such
Holder appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
such signatures were affixed, authorized to sign on behalf of the Trustee shall
bind the Trustee, notwithstanding that such individuals or any of them have
ceased to be so authorized prior to the authentication and delivery of any such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless authenticated by the Trustee by manual signature, and
such authentication upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their authentication. On
the Closing Date, the Trustee shall authenticate the Certificates to be issued
at the direction of the Depositor or any Affiliate thereof.
Section 5.02. Certificate Register; Registration of Transfer and Exchange of
Certificates. (a) The Trustee shall maintain, or cause to be maintained in
accordance with the provisions of Section 5.06, a Certificate Register for the
Trust Fund in which, subject to the provisions of subsections (b) and (c) below
and to such reasonable regulations as it may prescribe, the Trustee shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. Upon surrender for registration of transfer of
any Certificate, the Trustee shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder thereof or his attorney duly authorized in writing. In the event the
Depositor or an Affiliate of the Depositor transfers the Certificates, or a
portion thereof, to another Affiliate, it shall notify the Trustee in writing of
the affiliated status of the transferee. The Trustee shall have no liability
regarding the lack of notice with respect thereto.
No service charge to the Certificateholders shall be made for
any registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
In addition, (i) with respect to each Class R-1 Certificate,
the Certificateholder thereof may exchange, in the manner described above, the
Class R-1 Certificate for two separate Certificates, each representing such
Certificateholder's respective Percentage Interest in the Class R-I Interest and
the Class R-II Interest, respectively, in each case that was evidenced by the
Class R-1 Certificate being exchanged and (ii) with respect to each Class R-2
Certificate, the Certificateholder thereof may exchange, in the manner described
above, the Class R-2 Certificate for four separate Certificates, each
representing such Certificateholder's respective Percentage Interest in the
Class R-III Interest, the Class R-IV Interest, the Class R-V Interest and the
Class R-VI Interest, respectively, in each case that was evidenced by the Class
R-2 Certificate being exchanged.
(b) No transfer of a Private Certificate shall be made unless such transfer is
made pursuant to an effective registration statement under the Securities Act
and any applicable state securities laws or is exempt from the registration
requirements under said Act and such state securities laws. Except with respect
to (i) the transfer of the Class X, Class P or Class R Certificates to the
Depositor or an Affiliate of the Depositor, (ii) the transfer of the Class X
Certificates or Class P Certificates by the Depositor or any Affiliate of the
Depositor to the NIM Issuer or the NIM Trustee, (iii) a transfer of the Class X
Certificates or Class P Certificates from the NIM Issuer or the NIM Trustee to
the Depositor or an Affiliate of the Depositor or (iv) a transfer of a Class R
Certificate to the Servicer, an Affiliate of the Servicer, or its designee
(including, without limitation, an employee of the Servicer who is an
"accredited investor" as defined in Regulation D under the Securities Act), in
the event that a transfer of a Private Certificate which is a Physical
Certificate is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer shall certify to
the Trustee in writing the facts surrounding the transfer in substantially the
form set forth in Exhibit H (the "Transferor Certificate") and either (i) there
shall be delivered to the Trustee a letter in substantially the form of Exhibit
I (the "Rule 144A Letter") or Exhibit J (the "Non-Rule 144A Investment Letter")
or (ii) in the case of the Class X Certificates, there shall be delivered to the
Trustee at the expense of the transferor an Opinion of Counsel that such
transfer may be made without registration under the Securities Act. In the event
that a transfer of a Private Certificate which is a Book-Entry Certificate is to
be made in reliance upon an exemption from the Securities Act and such laws, in
order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer will be deemed to have made
as of the transfer date each of the certifications set forth in the Transferor
Certificate in respect of such Certificate and the transferee will be deemed to
have made as of the transfer date each of the certifications set forth in the
Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate. A transferee of any
Private Certificate who is not a "qualified institutional buyer" as that term is
defined in Rule 144A of the Securities Act must take delivery of such Private
Certificates in definitive form. 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 Servicer shall
cooperate with the Depositor in providing the Rule 144A information referenced
in the preceding sentence, including providing to the Depositor such information
regarding the Certificates, the Mortgage Loans and other matters regarding the
Trust Fund as the Depositor shall reasonably request to meet its obligation
under the preceding sentence. Each Holder of a Private Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee, the
Depositor and the Servicer against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state laws.
Except with respect to (i) the transfer of the Class X, Class
P or Class R Certificates to the Depositor or an Affiliate of the Depositor,
(ii) the transfer of the Class X Certificates or Class P Certificates by the
Depositor or an Affiliate of the Depositor to the NIM Issuer or the NIM Trustee,
(iii) a transfer of the Class X Certificates or Class P Certificates from the
NIM Issuer or the NIM Trustee to the Depositor or an Affiliate of the Depositor,
or (iv) a transfer of a Class R Certificate to the Servicer, an Affiliate of the
Servicer, or its designee (including, without limitation, an employee of the
Servicer who is an "accredited investor" as defined in Regulation D under the
Securities Act), no transfer of an ERISA-Restricted Certificate shall be made
unless the Trustee shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trustee (in the event such Certificate is a Private
Certificate or a Residual Certificate, such requirement is satisfied only by the
Trustee's receipt of a representation letter from the transferee substantially
in the form of Exhibit I or Exhibit J), to the effect that such transferee is
not an employee benefit plan or arrangement subject to Section 406 of ERISA, a
plan subject to Section 4975 of the Code or a plan subject to any Federal, state
or local law ("Similar Law") materially similar to the foregoing provisions of
ERISA or the Code, nor a Person acting on behalf of any such plan or arrangement
nor using the assets of any such plan or arrangement (collectively, a "Plan") 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 Class P Certificate presented for registration in the name of a Plan, an
Opinion of Counsel satisfactory to the Trustee and the Depositor, which Opinion
of Counsel shall not be an expense of the Trustee, the Depositor, the Servicer
or the Trust Fund, addressed to the Trustee, to the effect that the purchase 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 Servicer to any obligation in addition to those expressly undertaken in this
Agreement or to any liability. For purposes of the preceding sentence, with
respect to an ERISA-Restricted Certificate that is not a Private Certificate or
a Residual Certificate, in the event the representation letter referred to in
the preceding sentence is not furnished, such representation shall be deemed to
have been made to the Trustee by the transferee's (including an initial
acquirer's) acceptance of the ERISA-Restricted Certificates. Notwithstanding
anything else to the contrary herein, (a) any purported transfer of an
ERISA-Restricted Certificate, other than a Class P Certificate or a Residual
Certificate, to or on behalf of an employee benefit plan subject to ERISA, the
Code or Similar Law without the delivery to the Trustee of an Opinion of Counsel
satisfactory to the Trustee as described above shall be void and of no effect
and (b) any purported transfer of a Residual Certificate or Class P Certificate
to a transferee that does not make the representation in clause (i) above shall
be void and of no effect.
Each beneficial owner of a Class M-6, Class B-1 or Class B-2
Certificate or any interest therein must represent that either (i) it is not a
Plan or investing with assets of Plan, (ii) it has acquired and is holding such
certificate in reliance on the Prohibited Transaction Exemption 2002-41
("Exemption"), and that it understands that there are certain conditions to the
availability of the Exemption, including that such certificate must be rated, at
the time of purchase, not lower than "BBB-" (or its equivalent) by S&P, Fitch or
Xxxxx'x Investors Service, Inc., and such certificate is so rated, and that it
will represent that it is an "accredited investor" as defined in Rule 501(a)(1)
of Regulation D issued under the Securities Act and, in the case of a Class M-6,
Class B-1 or Class B-2 Certificate, will obtain a representation from any
transferee that such transferee is an accredited investor so long as it is
required to obtain a representation regarding compliance with the Securities Act
or (iii) (1) it is an insurance company, (2) the source of funds used to acquire
or hold the certificate or interest therein is an "insurance company general
account," as such term is defined in Prohibited Transaction Class Exemption
("PTCE") 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have
been satisfied.
The Class R Certificates and Class P Certificates may not 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.
To the extent permitted under applicable law (including, but
not limited to, ERISA), the Trustee shall be under no liability to any Person
for any registration of transfer of any ERISA-Restricted Certificate that is in
fact not permitted by this Section 5.02(b) or for making any payments due on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the transfer
was registered by the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions,
and the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall promptly notify
the Trustee of any change or impending change in its status as a Permitted
Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee shall
not register the Transfer of any Residual Certificate unless, in addition to the
certificates required to be delivered to the Trustee under subparagraph (b)
above, the Trustee shall have been furnished with an affidavit (a "Transfer
Affidavit") of the initial owner or the proposed transferee in the form attached
hereto as Exhibit G;
(iii) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership Interest
in a Residual Certificate, (B) to obtain a Transfer Affidavit from any Person
for whom such Person is acting as nominee, trustee or agent in connection with
any Transfer of a Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an Ownership
Interest in a Residual Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions of this
Section 5.02(c) shall be absolutely null and void and shall vest no rights in
the purported Transferee. If any purported transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section 5.02(c),
then the last preceding Permitted Transferee shall be restored to all rights as
Holder thereof retroactive to the date of registration of Transfer of such
Residual Certificate. The Trustee shall be under no liability to any Person for
any registration of Transfer of a Residual Certificate that is in fact not
permitted by Section 5.02(b) and this Section 5.02(c) or for making any payments
due on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
Transfer was registered after receipt of the related Transfer Affidavit,
Transferor Certificate and the Rule 144A Letter. The Trustee shall be entitled
but not obligated to recover from any Holder of a Residual Certificate that was
in fact not a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all payments
made on such Residual Certificate at and after either such time. Any such
payments so recovered by the Trustee shall be paid and delivered by the Trustee
to the last preceding Permitted Transferee of such Certificate; and
(v) The Depositor shall use its best efforts to make
available, upon receipt of written request from the Trustee, all information
necessary to compute any tax imposed under Section 860E(e) of the Code as a
result of a Transfer of an Ownership Interest in a Residual Certificate to any
Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set
forth in this Section 5.02(c) shall cease to apply (and the applicable portions
of the legend on a Residual Certificate may be deleted) with respect to
Transfers occurring after delivery to the Trustee of an Opinion of Counsel,
which Opinion of Counsel shall not be an expense of the Trust Fund, the Trustee,
the Depositor or the Servicer, to the effect that the elimination of such
restrictions will not cause any Trust REMIC to fail to qualify as a REMIC at any
time that the Certificates are Outstanding or result in the imposition of any
tax on the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any Ownership Interest in a Residual Certificate hereby
consents to any amendment of this Agreement which, based on an Opinion of
Counsel furnished to the Trustee, is reasonably necessary (a) to ensure that the
record ownership of, or any beneficial interest in, a Residual Certificate is
not transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and
opinions referred to above in this Section 5.02 in connection with transfer
shall be at the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates
shall at all times remain registered in the name of the Depository or its
nominee and at all times: (i) registration of the Certificates may not be
transferred by the Trustee except to another Depository; (ii) the Depository
shall maintain book-entry records with respect to the Certificate Owners and
with respect to ownership and transfers of such Book-Entry Certificates; (iii)
ownership and transfers of registration of the Book-Entry Certificates on the
books of the Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Trustee shall
deal with the Depository, Depository Participants and indirect participating
firms as representatives of the Certificate Owners of the Book-Entry
Certificates for purposes of exercising the rights of holders under this
Agreement, and requests and directions for and votes of such representatives
shall not be deemed to be inconsistent if they are made with respect to
different Certificate Owners; and (vi) the Trustee may rely and shall be fully
protected in relying upon information furnished by the Depository with respect
to its Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee
in writing that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository, and (ii) the Trustee or the
Depositor is unable to locate a qualified successor, or (y) the Depositor
notifies the Depository of its intent to terminate the book-entry system through
the Depository and, upon receipt of notice of such intent from the Depository,
the Depository Participants holding beneficial interests in the Book-Entry
Certificates agree to initiate such termination, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully-registered Certificates (the
"Definitive Certificates") to Certificate Owners requesting the same. Upon
surrender to the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. None of the Servicer, the
Depositor or the Trustee shall be liable for any delay in delivery of such
instruction and each may conclusively rely on, and shall be protected in relying
on, such instructions. The Depositor shall provide the Trustee with an adequate
inventory of Certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Trustee shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Trustee and the
Certificate Registrar, duly executed by the Certificateholder or his attorney
duly authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Certificate Registrar in accordance with its customary
practice. No service charge shall be made for any registration of transfer or
exchange of Private Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Private
Certificates.
Section 5.03. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate is surrendered to the Trustee, or
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) there is delivered to the Depositor, the
Servicer and the Trustee such security or indemnity as may be required by them
to hold each of them harmless, then, in the absence of notice to the Trustee
that such Certificate has been acquired by a bona fide purchaser, the Trustee
shall execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 5.03, the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 5.03 shall constitute complete and indefeasible evidence of
ownership, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 5.04. Persons Deemed Owners. The Servicer, the
Trustee, the Depositor and any agent of the Servicer, the Depositor or the
Trustee may treat the Person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions as provided
in this Agreement and for all other purposes whatsoever, and none of the
Servicer, the Trustee, the Depositor or any agent of the Servicer, the Depositor
or the Trustee shall be affected by any notice to the contrary.
Section 5.05. Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or the Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, the Servicer or such Certificateholders at
such recipients' expense the most recent list of the Certificateholders of such
Trust Fund held by the Trustee, if any. The Depositor and every
Certificateholder, by receiving and holding a Certificate, agree that the
Trustee shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 5.06. Maintenance of Office or Agency. The Trustee
will maintain or cause to be maintained at its expense an office or offices or
agency or agencies where Certificates may be surrendered for registration of
transfer or exchange. The Trustee initially designates the offices of its agent
located at DB Services Tennessee, 000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx
00000-0000, Attention: Transfer Unit. The Trustee will give prompt written
notice to the Certificateholders of any change in such location of any such
office or agency.
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.01. Respective Liabilities of the Depositor and the
Servicer. The Depositor and the Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them herein. Section 6.02. Merger or
Consolidation of the Depositor or the Servicer. The Depositor and the Servicer
will each keep in full effect its existence, rights and franchises as a
corporation or limited partnership, as the case may be, under the laws of the
United States or under the laws of one of the states thereof and will each
obtain and preserve its qualification to do business as a foreign corporation or
limited partnership, as applicable, in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor or the Servicer may be
merged or consolidated, or any Person resulting from any merger or consolidation
to which the Depositor or the Servicer shall be a party, or any person
succeeding to the business of the Depositor or the Servicer, shall be the
successor of the Depositor or the Servicer, as the case may be, hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or surviving Person to the Servicer shall
be qualified to sell mortgage loans to, and to service mortgage loans on behalf
of, Xxxxxx Xxx or Xxxxxxx Mac, and meets the requirements of Section 7.02, and
provided, further, that such merger, consolidation or succession does not
adversely affect the then current rating or ratings on the LIBOR Certificates.
Section 6.03. Limitation on Liability of the Depositor, the
Servicer and Others. Neither the Depositor, the Servicer nor any of their
respective directors, officers, employees or agents shall be under any liability
to the Certificateholders for any action taken or for refraining from the taking
of any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor, the Servicer or any such Person against any breach of representations
or warranties made by it herein or protect the Depositor, the Servicer or any
such Person from any liability which would otherwise be imposed by reasons of
willful misfeasance, bad faith or negligence (or gross negligence in the case of
the Depositor) in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder. The Depositor, the Servicer and any
director, officer, employee or agent of the Depositor and the Servicer may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor,
the Servicer and any director, officer, employee, Affiliate or agent of the
Depositor and the Servicer shall be indemnified by the Trust Fund and held
harmless against any loss, liability or expense incurred in connection with any
audit, controversy or judicial proceeding relating to a governmental taxing
authority or any legal action relating to this Agreement or the Certificates and
any loss, liability or expense incurred other than by reason of willful
misfeasance, bad faith or negligence (or gross negligence in the case of the
Depositor) in the performance of its respective duties hereunder or by reason of
reckless disregard of its respective obligations and duties hereunder. Neither
the Depositor nor the Servicer shall be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its respective
duties hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that each of the Depositor and the Servicer may in
its discretion undertake any such action (or direct the Trustee to undertake
such actions pursuant to Section 2.08 for the benefit of the Certificateholders)
that it may deem necessary or desirable in respect of this Agreement and the
rights and duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, and the Servicer shall be
entitled to be reimbursed therefor out of the Collection Account.
Notwithstanding anything to the contrary contained herein, the Servicer shall
not be liabile for any actions or inactions prior to the Cut-off Date of any
prior servicer of the related Mortgage Loans.
Section 6.04. Limitation on Resignation of the Servicer.
Subject to the provisions of Section 7.01, Section 6.02, the fourth and fifth
paragraphs of Section 7.02 and Section 6.06, the Servicer shall not assign this
Agreement or resign from the obligations and duties hereby imposed on it except
(i) by mutual consent of the Servicer, the Depositor and the Trustee, (ii) upon
the determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Servicer or (iii) upon
satisfaction of the following conditions: (a) the Servicer has proposed a
successor servicer to the Trustee in writing; and (b) each Rating Agency shall
have delivered a letter to the Trustee prior to the appointment of the successor
servicer stating that the proposed appointment of such successor servicer as
Servicer hereunder will not result in the reduction or withdrawal of the then
current rating of the Regular Certificates or the ratings that are in effect.
Any such determination permitting the resignation of the Servicer under clause
(ii) above shall be evidenced by an Opinion of Counsel (which opinion shall not
be an expense of the Trustee or the Trust Fund) to such effect delivered to the
Depositor and the Trustee which Opinion of Counsel shall be in form and
substance acceptable to the Depositor and the Trustee. No such resignation shall
become effective until a successor shall have assumed the Servicer's
responsibilities and obligations hereunder.
Section 6.05. Additional Indemnification by the Servicer;
Third Party Claims. The Servicer shall indemnify the Depositor (and any
Affiliate, director, officer, employee or agent of the Depositor) and the
Trustee and hold each of them harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that any of
them may sustain in any way related to (i) any breach by the Servicer of any of
its representations and warranties referred to in Section 2.03(a), (ii) any
error in any tax or information return prepared by the Servicer, or (iii) the
failure of the Servicer to perform its duties and service the Mortgage Loans in
compliance with the terms of this Agreement. The Servicer immediately shall
notify the Depositor and the Trustee if such claim is made by a third party with
respect to this Agreement or the Mortgage Loans, assume (with the prior written
consent of the Depositor and the Trustee) the defense of any such claim and pay
all expenses in connection therewith, including reasonable counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it, the Depositor or the Trustee in respect of such claim provided,
however, that the Servicer shall be entitled to be reimbursed for such amounts
in the event it is found that any of the above claims were unfounded. This
indemnity shall survive the termination of this Agreement or the earlier
resignation or removal of the Servicer.
Section 6.06. Servicing Rights Pledge. Notwithstanding
anything to the contrary which may be set forth in Section 6.04, the Trustee,
the Custodian and the Depositor hereby specifically (i) agree to the pledge and
assignment by the Servicer of all the Servicer's right, title and interest in,
to and under this Agreement to the Servicing Rights Pledgee, for the benefit of
certain lenders, and (ii) provided that no Servicer Event of Default exists,
agree that upon delivery to the Trustee by the Servicing Rights Pledgee of a
letter signed by the Servicer whereunder the Servicer shall resign as Servicer
under this Agreement, the Trustee shall appoint the Servicing Rights Pledgee or
its designee as successor Servicer, provided that at the time of such
appointment, the Servicing Rights Pledgee or such designee meets the
requirements of a successor Servicer pursuant to Section 7.02 and agrees to be
subject to the terms of this Agreement. If, pursuant to any provision hereof,
the duties of the Servicer are transferred to a successor, the entire amount of
the Servicing Fee and other compensation payable to the Servicer pursuant hereto
shall thereafter be payable to such successor.
ARTICLE VII
DEFAULT
Section 7.01. Events of Default. "Event of Default," wherever
used herein, means any one of the following events:
(a) any failure by the Servicer to remit to the Trustee any
payment required to be made under the terms of this Agreement which continues
unremedied for a period of one Business Day after the date upon which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Depositor or by the Trustee, or to the Servicer, the
Depositor and the Trustee by Certificateholders entitled to at least 25% of the
Voting Rights; or
(b) the failure on the part of the Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of the Servicer set forth in this Agreement which continues unremedied for
a period of thirty days (except that (x) such number of days shall be fifteen in
the case of a failure to pay any premium for any insurance policy required to be
maintained under this Agreement and (y) such number of days shall be ten in the
case of a failure to observe or perform any of the obligations set forth in
Sections 3.22, 3.23 or 8.12; provided, however, that in the event that the
Securities and Exchange Commission grants an extension of time to the Depositor
with respect to the Exchange Act filings referenced in Section 8.12(a), such ten
day cure period shall be extended by the same time period) after the earlier of
(i) the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Depositor or by the
Trustee, or to the Servicer, the Depositor and the Trustee by Certificateholders
of Certificates entitled to at least 25% of the Voting Rights and (ii) actual
knowledge of such failure by a Servicing Officer of the Servicer; provided,
however, that (except with respect to clauses (x) and (y) above) in the case of
a failure or breach that cannot be cured within 30 days after notice or actual
knowledge by the Servicer, the cure period may be extended for an additional 30
days upon delivery by the Servicer to the Trustee of a certificate to the effect
that the Servicer believes in good faith that the failure or breach can be cured
within such additional time period and the Servicer is diligently pursuing
remedial action; or
(c) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(d) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Servicer or of or relating to all or
substantially all of its property; or
(e) the Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(f) any failure of the Servicer to make any P&I Advance on any
Remittance Date required to be made from its own funds pursuant to Section 4.01
which continues unremedied for one Business Day immediately following the
Remittance Date; or
(g) if a Cumulative Loss Event occurs.
If an Event of Default described in clauses (a) through (g) of
this Section 7.01 shall occur, then, and in each and every such case, so long as
such Event of Default shall not have been remedied, the Trustee may, or at the
direction of Certificateholders entitled to a majority of the Voting Rights the
Trustee shall, by notice in writing to the Servicer and the Servicing Rights
Pledgee (if any) (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 (b) through (g) of this Section 7.01 unless and
until a Responsible Officer of the Trustee has actual knowledge of the
occurrence of such an Event of Default. In the event that a Responsible Officer
of the Trustee has actual knowledge of the occurrence of an Event of Default
described in clause (a) of this Section 7.01 (solely as to a default caused by a
failure to remit timely on a Remittance Date), the Trustee shall give notice (by
telephone or by email, facsimile or other writing) to the Servicer and the
Servicing Rights Pledgee (if any) of the occurrence of such default by the end
of business of the day on which such Responsible Officer obtains actual
knowledge of such occurrence; provided that failure to give such notice shall
not constitute a waiver of such default or Event of Default. Notwithstanding any
other provision of this Agreement, any remedy with respect to clause (a) of this
Section 7.01 shall be effective only if payment is received by the Trustee by no
later than noon (Eastern time) on the Business Day immediately following the
date of notice to the Servicer as set forth in the immediately preceding
sentence. If the Servicer fails to make such payment, the Trustee shall send
notice of termination (by email, facsimile or other writing) to the Servicer,
and, on and after the receipt by the Servicer of such notice, or upon receipt by
the Servicer of notice with respect to any other clause of this Section 7.01,
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 as the
successor Servicer subject to the rights of the Servicing Rights Pledgee (if
any) under Sections 6.06 and 7.02. The Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. Unless expressly provided in such written notice, no such termination
shall affect any obligation of the Servicer to pay amounts owed pursuant to
Article VIII. The Servicer agrees to cooperate with the Trustee in effecting the
termination of the Servicer's responsibilities and rights hereunder, including,
without limitation, the transfer to the Trustee of all cash amounts which shall
at the time be credited to the Collection Account of such predecessor Servicer,
or thereafter be received with respect to the Mortgage Loans.
Notwithstanding any termination of the activities of the
Servicer hereunder, the Servicer shall be entitled to receive from the Trust
Fund, prior to transfer of its servicing obligations hereunder, payment of all
accrued and unpaid portion of the Servicing Fees to which the Servicer would
have been entitled and to continue to receive reimbursement for all outstanding
P&I Advances and Servicing Advances in accordance with the terms of this
Agreement.
Section 7.02. Trustee to Act; Appointment of Successor. On and
after the time the Trustee gives, and the Servicer receives, a notice of
termination pursuant to Section 7.01, the Trustee shall, subject to and to the
extent provided in Section 3.06 and subject to the rights of the Servicing
Rights Pledgee, be the successor to the Servicer in its capacity as servicer
under this Agreement and the transactions set forth or provided for herein and
shall be subject to all the responsibilities, duties and liabilities relating
thereto placed on the Servicer by the terms and provisions hereof and applicable
law including the obligation to make P&I Advances or Servicing Advances pursuant
to Section 4.01. As compensation therefor, the Trustee shall be entitled to all
funds relating to the Mortgage Loans that the Servicer would have been entitled
to charge to the Collection Account if the Servicer had continued to act
hereunder including, if the Servicer was receiving the Servicing Fee, the
Servicing Fee and the income on investments or gain related to the Collection
Account (in addition to income on investments or gain related to the
Distribution Account for the benefit of the Trustee). 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 P&I Advances and
Servicing Advances pursuant to Section 4.01 or if it is otherwise unable to so
act, or, at the written request of Certificateholders entitled to a majority of
the Voting Rights, appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution the appointment of
which does not adversely affect the then current rating of the Certificates by
each Rating Agency, as the successor to the Servicer hereunder in the assumption
of all or any part of the responsibilities, duties or liabilities of the
Servicer hereunder. Any successor to the Servicer shall be an institution which
is a Xxxxxx Xxx- and Xxxxxxx 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 6.03 incurred prior to termination of the Servicer under Section 7.01),
with like effect as if originally named as a party to this Agreement; provided,
that each Rating Agency acknowledges that its rating of the Certificates in
effect immediately prior to such assignment and delegation will not be qualified
or reduced, as a result of such assignment and delegation. Pending appointment
of a successor to the Servicer hereunder, the Trustee, unless the Trustee is
prohibited by law from so acting, shall, subject to Section 3.05, act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it, the Depositor and such
successor shall agree; provided, however, that no such compensation shall be in
excess of the Servicing Fee and amounts paid to the Servicer from investments.
The Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Neither the
Trustee nor any other successor Servicer shall be deemed to be in default
hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof or any failure to perform, or any
delay in performing, any duties or responsibilities hereunder, in either case
caused by the failure of the Servicer to deliver or provide, or any delay in
delivering or providing, any cash, information, documents or records to it.
In the event that the Servicer is terminated pursuant to
Section 7.01, the terminated Servicer shall provide notices to the Mortgagors,
transfer the Servicing Files to a successor Servicer and pay all of its own
out-of-pocket costs and expenses at its own expense. In addition, all reasonable
out-of-pocket costs and expenses of a servicing transfer incurred by parties
other than the terminated Servicer (excluding set-up costs and other
administrative expenses of the successor Servicer, in which case the successor
Servicer shall pay for such costs and expenses but shall not be entitled to
reimbursement therefor from the Trust Fund), such an amount shall be paid by the
terminated Servicer promptly upon presentation of reasonable documentation of
such costs. If the Trustee is the predecessor Servicer (except in the case where
the Trustee in its role as successor Servicer is being terminated pursuant to
Section 7.01 by reason of an Event of Default caused solely by the Trustee as
the successor Servicer and not by the predecessor Servicer's actions or
omissions), such costs shall be paid by the prior terminated Servicer promptly
upon presentation of reasonable documentation of such costs.
Any successor to the Servicer as servicer shall give notice to
the Mortgagors of such change of Servicer, in accordance with applicable federal
and state law, and shall, during the term of its service as Servicer, maintain
in force the policy or policies that the Servicer is required to maintain
pursuant to Section 3.13.
Notwithstanding anything to the contrary set forth above, if,
pursuant to Section 6.06, the Servicer assigns all of its right, title and
interest in, to and under this Agreement to the Servicing Rights Pledgee or its
designee, the Trustee hereby agrees that such party shall be appointed successor
Servicer upon receipt of (i) a letter signed by the Servicer whereunder the
Servicer shall resign as Servicer under this Agreement, (ii) a letter signed by
the Servicing Rights Pledgee or its designee, whereunder such party acknowledges
such assignment and agrees to be the successor Servicer subject to the terms of
this Agreement and (iii) confirmation from the Rating Agencies that such
appointment will not cause any Rating Agency to withdraw or downgrade its
then-current ratings of any Class of Certificates.
In the event an Event of Default has occurred with respect to
the Servicer, notwithstanding anything to the contrary above, the Trustee and
the Depositor hereby agree that upon delivery to the Trustee by or on behalf of
the Servicing Rights Pledgee of a letter signed by the Servicer within ten
Business Days of the date on which the Trustee sent notice of such default,
whereunder the Servicer shall resign as Servicer under this Agreement, the
Trustee shall appoint the Servicing Rights Pledgee or its designee as successor
Servicer, provided that at the time of appointment, the Servicing Rights Pledgee
or such designee meets the requirements of a successor Servicer set forth above
and the Servicing Rights Pledgee or such designee agrees to be subject to the
terms of this Agreement. If the Servicing Rights Pledgee fails to provide the
Trustee with such letter, the Trustee shall appoint a successor Servicer in
accordance with Section 7.02. Notwithstanding anything to the contrary above,
the Servicer shall continue to perform all of the obligations of Servicer
hereunder until the Trustee appoints a successor Servicer.
Any such successor Servicer shall be required to satisfy the
requirements of a successor Servicer under this Section 7.02.
Section 7.03. Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to the Servicer, the Trustee shall
give prompt written notice thereof to Certificateholders and to each Rating
Agency.
(a) Within 60 days after the occurrence of any Event of
Default, the Trustee shall transmit by mail to all Certificateholders and each
Rating Agency notice of each such Event of Default hereunder known to the
Trustee, unless such Event of Default shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties of the Trustee. The Trustee, before the
occurrence of an Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default has occurred and remains uncured, the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own bad faith or willful misfeasance.
Unless an Event of Default known to the Trustee has occurred
and is continuing,
(a) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the Trustee shall
not be liable except for the performance of the duties and obligations
specifically set forth in this Agreement, no implied covenants or obligations
shall be read into this Agreement against the Trustee, and the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Agreement which it believed
in good faith to be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it is finally proven that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights relating to the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Agreement.
Section 8.02. Certain Matters Affecting the Custodian and the
Trustee. Except as otherwise provided in Section 8.01:
(a) the Custodian and the Trustee may request and rely upon
and shall be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties and neither the
Custodian nor the Trustee shall have any responsibility to ascertain or confirm
the genuineness of any signature of any such party or parties;
(b) the Custodian and the Trustee may consult with counsel,
financial advisers or accountants and the advice of any such counsel, financial
advisers or accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion of
Counsel;
(c) neither the Custodian nor the Trustee shall 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, nor shall either the Trustee or the Custodian be liable for acts
or omissions of the other;
(d) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates;
(e) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, accountants or attorneys and the 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; provided that the Trustee shall not be
responsible for any act or omission of the Custodian;
(f) neither the Custodian nor the Trustee shall be required to
risk or expend its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not assured to it;
(g) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement (other than as issuer of the
investment security and except with respect to the investment of funds in the
Distribution Account);
(h) the Trustee shall not be deemed to have knowledge of an
Event of Default until a Responsible Officer of the Trustee shall have received
written notice thereof except as otherwise provided in Section 7.01; and
(i) the Trustee shall be under no obligation to exercise any
of the trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby.
Section 8.03. Trustee Not Liable for Certificates or Mortgage
Loans. The recitals contained herein and in the Certificates shall be taken as
the statements of the Depositor and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document other than with respect to the Trustee's execution and
authentication of the Certificates. The Trustee shall not be accountable for the
use or application by the Depositor or the Servicer of any funds paid to the
Depositor or the Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or the Servicer.
The Trustee shall have no responsibility for filing or
recording any financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection of any security interest
or lien granted to it hereunder (unless the Trustee shall have become the
successor Servicer).
The Trustee executes the Certificates not in its individual
capacity but solely as Trustee of the Trust Fund created by this Agreement, in
the exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust Fund in the Certificates is made and intended not
as a personal undertaking or agreement by the Trustee but is made and intended
for the purpose of binding only the Trust Fund.
Section 8.04. Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
Section 8.05. Trustee's Fees and Expenses. As compensation for
its activities under this Agreement, the Trustee may withdraw from the
Distribution Account on each Distribution Date the Trustee Fee for the
Distribution Date and any interest or investment income earned on funds
deposited in the Distribution Account. The Trustee shall be responsible to pay
the Custodian Fee in accordance with a separate fee agreement. The Trustee and
the Custodian and any director, officer, employee, or agent of the Trustee and
the Custodian shall be indemnified by the Trust Fund and held harmless against
any loss, liability, or expense (including reasonable attorneys' fees) incurred
in connection with any claim or legal action relating to:
(a) this Agreement,
(b) the Certificates, or
(c) the performance of any of the Trustee's or 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 this Agreement for which the Servicer
has performed its obligation to indemnify the Trustee pursuant to Section 6.05,
(ii) resulting from any breach of the Purchaser's or WMC's obligations in
connection with the Underlying Agreements for which such Person has performed
its obligation to indemnify the Trustee, or (iii) incurred because of willful
misfeasance, bad faith, or negligence in the performance of any of the Trustee's
or the Custodian'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 or a separate
letter agreement between the Trustee and the Depositor, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
paying agent under this Agreement or for any other expenses incurred by the
Trustee; provided, however, no expense shall be reimbursed by the Trust Fund
hereunder if it would not constitute an "unanticipated expense incurred by the
REMIC" within the meaning of the REMIC Provisions.
Section 8.06. Eligibility Requirements for the Trustee. The
Trustee hereunder shall at all times be a corporation or association organized
and doing business under the laws of a state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause any of the Rating Agencies to reduce their respective then current
ratings of the Certificates (or having provided such security from time to time
as is sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.06
the combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
entity serving as Trustee may have normal banking and trust relationships with
the Depositor and its Affiliates or the Servicer and 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 8.07. Resignation and Removal of the Trustee. The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice of resignation to the Depositor, the Servicer and each
Rating Agency not less than 60 days before the date specified in such notice,
when, subject to Section 8.08, such resignation is to take effect, and
acceptance by a successor trustee in accordance with Section 8.08 meeting the
qualifications set forth in Section 8.06. If no successor trustee meeting such
qualifications shall have been so appointed and have accepted appointment within
30 days after the giving of such notice or resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee.
If at any time the Trustee shall cease to be eligible in
accordance with Section 8.06 and shall fail to resign after written request
thereto by the Depositor, or if at any time the Trustee shall become incapable
of acting, or shall be adjudged as bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, or a tax is imposed with respect
to the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor or the Servicer may remove the Trustee and
appoint a successor trustee by written instrument, in triplicate, one copy of
which shall be delivered to the Trustee, one copy to the Servicer and one copy
to the successor trustee.
The Holders of Certificates entitled to a majority of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to the Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. The
successor trustee shall notify each Rating Agency of any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.08.
Section 8.08. Successor Trustee. Any successor trustee appointed as provided in
Section 8.07 shall execute, acknowledge and deliver to the Depositor and to its
predecessor trustee and the Servicer an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor, the Servicer and the predecessor trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
the successor trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in
this Section 8.08 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the Depositor shall mail notice of the succession
of such trustee hereunder to all Holders of Certificates. If the Depositor fails
to mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Depositor.
Section 8.09. Merger or Consolidation of the Trustee. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.06
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider appropriate. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by 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 8.06 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this Agreement
to advance funds on behalf of the Servicer, shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or as
successor to the Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the applicable Trust
Fund or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) No trustee hereunder shall be held personally liable
because of any act or omission of any other trustee hereunder and such
appointment shall not, and shall not be deemed to, constitute any such separate
trustee or co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for
the payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the separate trustees and
co-trustees, when and as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article VIII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee and a copy thereof given to the Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 8.11. Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of each Trust REMIC described in the
Preliminary Statement and that in such capacity it shall:
(a) prepare and file in a timely manner, a U.S. Real Estate
Mortgage Investment Conduit (REMIC) Income Tax Return (Form 1066 or any
successor form adopted by the Internal Revenue Service) and prepare and file
with the Internal Revenue Service and applicable state or local tax authorities
income tax or information returns for each taxable year with respect to each
Trust REMIC described in the Preliminary Statement containing such information
and at the times and in the manner as may be required by the Code or state or
local tax laws, regulations, or rules, and furnish to Certificateholders the
schedules, statements or information at such times and in such manner as may be
required thereby;
(b) within thirty days of the Closing Date, the Trustee will
apply for an employer identification number from the Internal Revenue Service
via Form SS-4 or any other acceptable method for all tax entities and shall also
furnish to the Internal Revenue Service, on Form 8811 or as otherwise may be
required by the Code, the name, title, address, and telephone number of the
person that the holders of the Certificates may contact for tax information
relating thereto, together with such additional information as may be required
by such Form, and update such information at the time or times in the manner
required by the Code;
(c) make an election that each Trust REMIC be treated as a
REMIC on the federal tax return for its first taxable year (and, if necessary,
under applicable state law);
(d) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any original
issue discount using the prepayment assumption (as described in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax
imposed on the transfer of a Residual Certificate to a Person that is not a
Permitted Transferee (a "Non-Permitted Transferee"), or an agent (including a
broker, nominee or other middleman) of a Non-Permitted Transferee, or a
pass-through entity in which a Non-Permitted Transferee is the record holder of
an interest (the reasonable cost of computing and furnishing such information
may be charged to the Person liable for such tax);
(f) to the extent that they are under its control, conduct
matters relating to such assets at all times that any Certificates are
Outstanding so as to maintain the status of each Trust REMIC as a REMIC under
the REMIC Provisions;
(g) not knowingly or intentionally take any action or omit to
take any action that would cause the termination of the REMIC status of any
Trust REMIC created hereunder;
(h) pay, from the sources specified in the last paragraph of
this Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on any Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings);
(i) cause federal, state or local income tax or information
returns to be signed by the Trustee or such other person as may be required to
sign such returns by the Code or state or local laws, regulations or rules; and
(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.
The Holder of the largest Percentage Interest of the Class R-1
Certificates shall act as Tax Matters Person for REMIC I and REMIC II, and the
holder of the largest Percentage Interest of the Class R-2 Certificates shall
act as the Tax Matters Person for REMIC III, REMIC IV, REMIC V and REMIC VI, in
each case, within the meaning of Treasury Regulations Section 1.860F-4(d), and
the Trustee is hereby designated as agent of such Certificateholders for such
purpose (or if the Trustee is not so permitted, such Holder shall be the Tax
Matters Person in accordance with the REMIC Provisions). In such capacity, the
Trustee shall, as and when necessary and appropriate, represent any 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 any Trust REMIC, enter into settlement agreements with
any governmental taxing agency, extend any statute of limitations relating to
any tax item of any Trust REMIC, and otherwise act on behalf of each Trust REMIC
in relation to any tax matter or controversy involving it.
The Trustee shall treat the rights of the Class P
Certificateholders to receive Prepayment Premiums as the beneficial ownership of
interests in a grantor trust and not as obligations of any Trust REMIC created
hereunder, for federal income tax purposes. The Trustee 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
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 Trustee to perform its duties under this
Agreement, the Depositor shall provide to the Trustee within ten days after the
Closing Date all information or data that the Trustee requests in writing and
determines to be relevant for tax purposes to the valuations and offering prices
of the Certificates, including the price, yield, prepayment assumption, and
projected cash flows of the Certificates and the Mortgage Loans. Moreover, the
Depositor shall provide information to the Trustee concerning the value, if any,
to each Class of LIBOR Certificates of the right to receive Basis Risk Carry
Forward Amounts from the Excess Reserve Fund Account. Thereafter, the Depositor
shall provide to the Trustee promptly upon written request therefor any
additional information or data that the Trustee may, from time to time,
reasonably request to enable the Trustee to perform its duties under this
Agreement; 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 Trustee pursuant
to this Agreement. The Depositor hereby indemnifies the Trustee for any losses,
liabilities, damages, claims, or expenses of the Trustee arising from any errors
or miscalculations of the Trustee that result from any failure of the Depositor
to provide, pursuant to this paragraph, accurate information or data to the
Trustee on a timely basis.
The Trustee shall not (i) cause the creation of any interests
in any Trust REMIC other than the regular and residual interests set forth in
the Preliminary Statement, (ii) receive any amount representing a fee or other
compensation for services (except as otherwise permitted by this Agreement) or
(iii) otherwise knowingly or intentionally take any action, cause the Trust Fund
to take any action or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, could (i) endanger the status of any Trust REMIC as a REMIC or (ii)
result in the imposition of a tax upon any Trust REMIC or the Trust Fund
(including but not limited to the tax on "prohibited transactions" as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth
in Section 860G(d) of the Code, or the tax on "net income from foreclosure
property") unless the Trustee receives an Opinion of Counsel (at the expense of
the party seeking to take such action or, if such party fails to pay such
expense, at the expense of the Trust Fund, but in no event at the expense of the
Trustee) to the effect that the contemplated action will not, with respect to
the Trust Fund, result in the imposition of a tax upon any Trust REMIC created
hereunder or endanger the status of any Trust REMIC.
If any tax is imposed on "prohibited transactions" of any
Trust REMIC as defined in Section 860F(a)(2) of the Code, on the "net income
from foreclosure property" of the Lower Tier REMIC as defined in Section 860G(c)
of the Code, on any contribution to any Trust REMIC after the Start-up Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed, including,
if applicable, any minimum tax imposed on any Trust REMIC pursuant to Sections
23153 and 24874 of the California Revenue and Taxation Code, if not paid as
otherwise provided for herein, the tax shall be paid by (i) the Trustee if such
tax arises out of or results from negligence of the Trustee in the performance
of any of its obligations under this Agreement, (ii) the Servicer if such tax
arises out of or results from a breach by the Servicer of any of its obligations
under this Agreement, (iii) the Purchaser if such tax arises out of or results
from the Purchaser's obligation to repurchase a Mortgage Loan pursuant to
Section 2.03, or (iv) in all other cases, or if the Trustee, the Servicer or the
Purchaser fails to honor its obligations under the preceding clause (i), (ii),
or (iii), any such tax will be paid with amounts otherwise to be distributed to
the Certificateholders, as provided in Section 4.02(a).
For as long as each Trust REMIC shall exist, the Trustee shall
act in accordance with this Agreement and shall comply with any directions of
the Depositor or the Servicer as provided herein so as to assure such continuing
treatment. The Trustee shall not (a) sell or permit the sale of all or any
portion of the Mortgage Loans unless pursuant to a repurchase or substitution in
accordance with this Agreement, or of any investment of deposits in an Account,
and (b) accept any contribution to any Trust REMIC after the Startup Day without
receipt of a REMIC Opinion.
Section 8.12. Periodic Filings. (a) The Trustee and the
Servicer shall reasonably cooperate with the Depositor in connection with the
Trust's satisfying the reporting requirements under the Exchange Act. The
Trustee shall prepare on behalf of the Trust any Forms 8-K and 10-K customary
for similar securities as required by the Exchange Act and the Rules and
Regulations of the Securities and Exchange Commission thereunder, and the
Trustee shall sign and file (via the Securities and Exchange Commission's
Electronic Data Gathering and Retrieval System) such Forms on behalf of the
Depositor, if an officer of the Depositor signs the Certification pursuant to
paragraph (b) of this Section 8.12, or otherwise on behalf of the Trust. In the
event the Trustee is signing on behalf of the Depositor pursuant to the
preceding sentence, the Depositor hereby grants to the Trustee a limited power
of attorney to execute and file each such document on behalf of the Depositor.
Such power of attorney shall continue until the earlier of either (i) receipt by
the Trustee from the Depositor of written termination of such power of attorney
and (ii) the termination of the Trust. Notwithstanding the foregoing, the
Trustee shall prepare such Form 10-K to be signed by the Depositor and the
Depositor shall sign such form unless the Securities and Exchange Commission has
indicated that it will accept a Certification signed by the Depositor where the
related Form 10-K is signed by the Trustee on behalf of the Depositor.
(a) The Depositor shall prepare or cause to be prepared and
file the current Report on Form 8-K attaching this Agreement as an exhibit and,
thereafter, each Form 8-K shall be filed by the Trustee within 15 days after
each Distribution Date, including a copy of the statement to the
Certificateholders for such Distribution Date as an exhibit thereto. On or prior
to March 30th of each year (or such earlier date as may be required by the
Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission), the Trustee shall file a Form 10-K, in substance as required by
applicable law or applicable Securities and Exchange Commission staff's
interpretations. Such Form 10-K shall include as exhibits the Servicer's annual
statement of compliance described under Section 3.22 and the accountant's report
described under Section 3.23, in each case to the extent they have been timely
delivered to the Trustee (and upon which the Trustee may rely in delivering its
certification hereunder). If they are not so timely delivered, the Trustee shall
file an amended Form 10-K including such documents as exhibits reasonably
promptly after they are delivered to the Trustee. The Trustee shall have no
liability with respect to any failure to properly prepare or file such periodic
reports resulting from or relating to the Trustee's inability or failure to
obtain any information not resulting from its own negligence, willful misconduct
or bad faith. The Form 10-K shall also include a certification in the form
attached hereto as Exhibit M (the "Certification"), which shall, except as
described below, be signed by the senior officer of the Depositor in charge of
securitization. Notwithstanding the foregoing, if it is determined by the
Depositor that the Certification may be executed by multiple persons, the
Trustee shall sign the Certification in respect of items 1 through 3 thereof and
the Servicer shall cause the senior officer in charge of servicing at the
Servicer to sign the Certification in respect of items 4 and 5 thereof, and the
Trustee may rely on the Certification signed by the Servicer to the same extent
as provided in subsection (c) below.
(b) In the event the Certification is to be signed by an
officer of the Depositor, the Trustee shall sign a certification (in the form
attached hereto as Exhibit N) for the benefit of the Depositor and its officers,
directors and Affiliates in respect of items 1 through 3 of the Certification
(provided, however, that the Trustee shall not undertake an analysis of the
accountant's report attached as an exhibit to the Form 10-K), and the Servicer
shall sign a certification (in the form attached hereto as Exhibit O) for the
benefit of the Depositor, the Trustee and their officers, directors and
Affiliates in respect of items 4 and 5 of the Certification. Each such
certification shall be delivered to the Depositor and the Trustee by March 20th
of each year (or if not a Business Day, the immediately preceding Business Day).
The Certification attached hereto as Exhibit M shall be delivered to the Trustee
by March 25th for filing on or prior to March 30th of each year (or if not a
Business Day, the immediately preceding Business Day). In addition, (i) the
Trustee shall indemnify and hold harmless the Depositor and its officers,
directors and Affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon a breach of the
Trustee's obligations under this Section 8.12(c) or the Trustee's negligence,
bad faith or willful misconduct in connection therewith, and (ii) the Servicer
shall indemnify and hold harmless the Depositor, the Trustee and their
respective officers, directors and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of the Servicer's obligations under this Section 8.12(c) or the
Servicer's negligence, bad faith or willful misconduct in connection therewith.
If the indemnification provided for herein is unavailable or insufficient to
hold harmless the indemnified party, then (i) the Trustee agrees in connection
with a breach of the Trustee's obligations under this Section 8.12(c) or the
Trustee's negligence, bad faith or willful misconduct in connection therewith
that it shall contribute to the amount paid or payable by the Depositor as a
result of the losses, claims, damages or liabilities of the Depositor in such
proportion as is appropriate to reflect the relative fault of the Depositor on
the one hand and the Trustee on the other and (ii) the Servicer agrees that it
shall contribute to the amount paid or payable by the Depositor and/or the
Trustee as a result of the losses, claims, damages or liabilities of the
Depositor and/or the Trustee in such proportion as is appropriate to reflect the
relative fault of the Depositor or the Trustee, as the case may be, on the one
hand and the Servicer on the other in connection with a breach of the Servicer's
obligations under this Section 8.12(c) or the Servicer's negligence, bad faith
or willful misconduct in connection therewith.
(c) Upon any filing with the Securities and Exchange
Commission, the Trustee shall promptly deliver to the Depositor a copy of any
such executed report, statement or information.
(d) Prior to January 30 of the first year in which the Trustee
is able to do so under applicable law, the Trustee shall file a Form 15
Suspension Notification with respect to the Trust.
Section 8.13. Tax Classification of the Excess Reserve Fund
Account. For federal income tax purposes, the Trustee shall treat the Excess
Reserve Fund Account and the Corridor Agreements as beneficially owned by the
holders of the Class X Certificates. The Trustee shall treat the rights that
each Class of LIBOR Certificates has to receive payments of Basis Risk Carry
Forward Amounts from the Excess Reserve Fund Account as rights to receive
payments under an interest rate cap contract written by the Class X
Certificateholders in favor of each Class. Accordingly, each Class of LIBOR
Certificates will comprise two components - a regular interest in the
Corresponding REMIC and an interest in an interest rate cap contract. The
Trustee shall allocate the issue price for a Class of Certificates among the
respective components for purposes of determining the issue price of the related
regular interest component based on information received from the Depositor.
Section 8.14. Custodial Responsibilities. (a) 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 reasonable prior written request and during normal business hours at the
office of the Custodian. 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 person requesting such access.
(b) The Custodian may resign from its obligations hereunder
upon 60 days' prior written notice to the Trustee, the Depositor and the
Servicer. Such resignation shall take effect upon (i) the appointment of a
successor Custodian reasonably acceptable to the Depositor within such 60 day
period; and (ii) delivery of all Mortgage Loan Files to the successor Custodian.
The Trustee shall have the right, but not the obligation, to become the
successor Custodian. If no successor Custodian is appointed within 60 days after
written notice of the Custodian's resignation is received by the Trustee, the
Custodian may petition a court of competent jurisdiction to appoint a successor
Custodian.
Upon such resignation and appointment of successor Custodian,
the Custodian shall, at the Custodian's expense, promptly transfer to the
successor Custodian, as directed in writing by the Trustee, all applicable
Mortgage Files being administered under this Agreement. Notwithstanding the
foregoing, the Trust Fund, not the Custodian, shall bear the costs relating to
the transfer of Mortgage Files if the Custodian shall resign due to the failure
of the Custodian to be paid all fees due to such Custodian hereunder.
Section 8.15. Limitations on Custodial Responsibilities.
(a) The Custodian shall be under no duty or obligation to
inspect, review or examine the Mortgage Files to determine that the contents
thereof are appropriate for the represented purpose or that they have been
actually recorded or that they are other than what they purport to be on their
face.
(b) The Custodian shall not be responsible for preparing or
filing any reports or returns relating to federal, state or local income taxes
with respect to this Agreement, other than for the Custodian's compensation or
for reimbursement of expenses.
(c) The Custodian shall not be responsible or liable for, and makes no
representation or warranty with respect to, the validity, adequacy or perfection
or any lien upon or security interest in any Mortgage File.
(d) The duties and obligations of the Custodian shall only be
such as are expressly set forth in this Agreement or as set forth in a written
amendment to this Agreement executed by the parties hereto or their successors
and assigns. In the event that any provision of this Agreement implies or
requires that action or forbearance be taken by a party, but is silent as to
which party has the duty to act or refrain from acting, the parties agree that
the Custodian shall not be the party required to take the action or refrain from
acting. In no event shall the Custodian have any responsibility to ascertain or
take action except as expressly provided herein.
(e) The Custodian shall not be liable for any error of
judgment, or for any act done or step taken or omitted by it, in good faith, or
for any mistake of fact or law, or for anything that it may do or refrain from
doing in connection therewith, except in the case of its negligent performance
or omission or its bad faith or willful misfeasance.
(f) The Custodian shall not be responsible to verify (i) the
validity, legality, enforceability, sufficiency, due authorization or
genuineness of any document in the Mortgage File or (ii) the collectability,
insurability, effectiveness including the authority or capacity of any Person to
execute or issue any document in the Mortgage File, unless specified otherwise
in this Agreement.
(g) The Custodian shall have no obligation to verify the
receipt of any such documents the existence of which was not made known to the
Custodian by receipt of the Mortgage File.
(h) The Custodian shall have no obligation to determine
whether the recordation of any document is necessary.
(i) In no event shall the Custodian or its directors,
affiliates, officers, agents, and employees be held liable for any special,
indirect or consequential damages resulting from any action taken or omitted to
be taken by it or them hereunder or in connection herewith even if advised of
the possibility of such damages.
(j) Any Person into which the Custodian may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Custodian shall be a party, or any person succeeding to the business of the
Custodian, shall be the successor of the Custodian 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.
ARTICLE IX
TERMINATION
Section 9.01. Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Sections 9.02 and 9.03, the obligations and
responsibilities of the Depositor, the Servicer and the Trustee created hereby
with respect to the Trust Fund shall terminate upon the earlier of (a) the
purchase, on the Optional Termination Date, by the Servicer of all Mortgage
Loans (and REO Properties) at the price equal to 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 (less the Servicing Fee Rate), and (ii) the lesser of (x) the
appraised value of any REO Property as determined by an appraisal completed by
an independent appraiser selected by the Servicer, at the expense of the
Servicer, plus accrued and unpaid interest on the related Mortgage Loan at the
applicable Mortgage Interest Rates (less the Servicing Fee 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 ("Termination Price"), and (b) the later of (i) the maturity or
other Liquidation Event (or any Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all REO
Property and (ii) the distribution to Certificateholders of all amounts required
to be distributed to them pursuant to this Agreement. In no event shall the
trusts created hereby continue beyond the expiration of 21 years from the death
of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of
the United States to the Court of St. James's, living on the date hereof.
Section 9.02. Final Distribution on the Certificates. If on
any Remittance Date, the Servicer determines that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than the
funds in the Collection Account, the Servicer shall direct the Trustee promptly
in writing to send a Notice of Final Distribution to each Certificateholder, and
if the Servicer elects to terminate the Trust Fund pursuant to clause (a) of
Section 9.01, by the 25th day of the month preceding the month of the final
distribution, the Servicer shall notify the Depositor and the Trustee in writing
of the date the Servicer intends to terminate the Trust Fund and of the
applicable Termination Price of the Mortgage Loans and REO Properties.
A Notice of Final Distribution, specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment of
the final distribution and cancellation, shall be given promptly by the Trustee
by letter to Certificateholders mailed not later than the 15th day of the month
of such final distribution. Any such Notice of Final Distribution shall specify
(a) the Distribution Date upon which final distribution on the Certificates will
be made upon presentation and surrender of Certificates at the office therein
designated, (b) the amount of such final distribution, (c) the location of the
office or agency at which such presentation and surrender must be made, and (d)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Trustee will give such Notice
of Final Distribution to each Rating Agency at the time such Notice of Final
Distribution is given to Certificateholders.
In the event such Notice of Final Distribution is given, the
Servicer shall promptly deposit such funds in the applicable Collection Account.
During the time such funds are held in such Collection Account, such funds shall
be invested, at the direction of the Servicer, in Permitted Investments, and the
Servicer shall be entitled to all income from such investments, and shall be
responsible for all losses from such investments. In connection with any such
termination of the Trust Fund, the Servicer shall cause all funds in the
Collection Account, including the applicable Termination Price for the Mortgage
Loans and REO Properties to be remitted to the Trustee for deposit in the
Distribution Account on the Business Day prior to the applicable Distribution
Date. Upon such final deposit with respect to the Trust Fund and the receipt by
the Custodian of a Request for Release therefor, the Custodian, shall promptly
release to the Servicer, or its designee, the Custodial Files for the Mortgage
Loans.
Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed to the Certificateholders of each Class
(after reimbursement of all amounts due to the Servicer (including all
unreimbursed Advances and any Servicing Fees accrued and unpaid as of the date
the Termination Price is paid), the Depositor and the Trustee hereunder), in
each case on the final Distribution Date and in the order set forth in Section
4.02, in proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount up to an amount equal to (i) as
to each Class of Regular Certificates (except the Class X Certificates), the
Certificate Balance thereof plus for each such Class and the Class X
Certificates accrued interest thereon in the case of an interest bearing
Certificate and all other amounts to which such Classes are entitled pursuant to
Section 4.02, (ii) as to the Residual Certificates, the amount, if any, which
remains on deposit in the Distribution Account (other than the amounts retained
to meet claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for cancellation,
the Class R Certificateholders shall be entitled to all unclaimed funds and
other assets of the Trust Fund which remain subject hereto.
Section 9.03. Additional Termination Requirements. In the
event the Servicer exercises its purchase option with respect to the Mortgage
Loans as described in clause (a) of Section 9.01, the Trust Fund shall be
terminated in accordance with the following additional requirements, unless the
Trustee has been supplied with an Opinion of Counsel, at the expense of the
Servicer, to the effect that the failure to comply with the requirements of this
Section 9.03 will not (i) result in the imposition of taxes on "prohibited
transactions" on any Trust REMIC as defined in Section 860F of the Code, or (ii)
cause any Trust REMIC to fail to qualify as a REMIC at any time that any
Certificates are Outstanding:
(a) The Trustee shall sell all of the assets of the Trust Fund
to the Servicer, or its designee, and, within 90 days of such sale, shall
distribute to the Certificateholders the proceeds of such sale in complete
liquidation of each of the Trust REMICs; and
(b) The Trustee shall attach a statement to the final federal
income tax return for each of the Trust REMICs stating that pursuant to Treasury
Regulations Section 1.860F-1, the first day of the 90 day liquidation period for
each such Trust REMIC was the date on which the Trustee sold the assets of the
Trust Fund to the Servicer pursuant to Section 9.01(a).
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment. This Agreement may be amended from
time to time by the Depositor, the Servicer, the Custodian and the Trustee
without the consent of any of the Certificateholders (i) to cure any ambiguity
or mistake, (ii) to correct any defective provision herein or to supplement any
provision herein which may be inconsistent with any other provision herein,
(iii) to add to the duties of the Depositor, the Custodian or the Servicer, (iv)
to add any other provisions with respect to matters or questions arising
hereunder or (v) to modify, alter, amend, add to or rescind any of the terms or
provisions contained in this Agreement; provided, that any action pursuant to
clause (iv) or (v) above shall not, as evidenced by an Opinion of Counsel (which
Opinion of Counsel shall not be an expense of the Trustee or the Trust Fund),
adversely affect in any material respect the interests of any Certificateholder;
provided, further, that the amendment shall not be deemed to adversely affect in
any material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency stating that
the amendment would not result in the downgrading or withdrawal of the
respective ratings then assigned to the Certificates; it being understood and
agreed that any such letter in and of itself will not represent a determination
as to the materiality of any such amendment and will represent a determination
only as to the credit issues affecting any such rating. The Custodian, the
Trustee, the Depositor and the Servicer also may at any time and from time to
time amend this Agreement, but without the consent of the Certificateholders to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary or helpful to (i) maintain the qualification of each Trust REMIC under
the REMIC Provisions, (ii) avoid or minimize the risk of the imposition of any
tax on any Trust REMIC pursuant to the Code that would be a claim at any time
prior to the final redemption of the Certificates or (iii) comply with any other
requirements of the Code; provided, that the Trustee has been provided an
Opinion of Counsel, which opinion shall be an expense of the party requesting
such opinion but in any case shall not be an expense of the Trustee or the Trust
Fund, to the effect that such action is necessary or helpful to, as applicable,
(i) maintain such qualification, (ii) avoid or minimize the risk of the
imposition of such a tax or (iii) comply with any such requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Servicer, the Custodian and the Trustee with the consent of the
Holders of Certificates evidencing Percentage Interests aggregating not less
than 66(2)/3% of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
clause (i), without the consent of the Holders of Certificates of such Class
evidencing, as to such Class, Percentage Interests aggregating not less than
66(2)/3%, or (iii) reduce the aforesaid percentages of Certificates the Holders
of which are required to consent to any such amendment, without the consent of
the Holders of all such Certificates then Outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless (i) it shall
have first received an Opinion of Counsel, which opinion shall not be an expense
of the Trustee or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on any Trust REMIC or the Certificateholders or
cause any Trust REMIC to fail to qualify as a REMIC or the grantor trust portion
of the Trust Fund as a grantor trust 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
10.01, with respect to any amendment that significantly modifies the permitted
activities of the Trustee or the Servicer, any Certificate beneficially owned by
the Depositor or any of its Affiliates shall be deemed not to be outstanding
(and shall not be considered when determining the percentage of
Certificateholders consenting or when calculating the total number of
Certificates entitled to consent) for purposes of determining if the requisite
consents of Certificateholders under this Section 10.01 have been obtained.
Promptly after the execution of any amendment to this
Agreement requiring the consent of Certificateholders, the Trustee shall furnish
written notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of
Certificateholders under this Section 10.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter
into an amendment which modifies its obligations or liabilities without its
consent and in all cases without receiving an Opinion of Counsel (which Opinion
shall not be an expense of the Trustee or the Trust Fund), satisfactory to the
Trustee that (i) such amendment is permitted and is not prohibited by this
Agreement and that all requirements for amending this Agreement have been
complied with; and (ii) either (A) the amendment does not adversely affect in
any material respect the interests of any Certificateholder or (B) the
conclusion set forth in the immediately preceding clause (A) is not required to
be reached pursuant to this Section 10.01.
Section 10.02. Recordation of Agreement; Counterparts. This
Agreement is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the properties subject to the Mortgages are situated, and in any
other appropriate public recording office or elsewhere, such recordation to be
effected by the Servicer at the expense of the Trust, but only upon receipt of
an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 10.03. Governing Law. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE
OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF
NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.04. Intention of Parties. It is the express intent
of the parties hereto that the conveyance (i) of the Mortgage Loans by the
Depositor and (ii) of the Trust Fund by the Depositor to the Trustee each be,
and be construed as, an absolute sale thereof. It is, further, not the intention
of the parties that such conveyances be deemed a pledge thereof. However, in the
event that, notwithstanding the intent of the parties, such assets are held to
be the property of the Depositor, as the case may be, or if for any other reason
this Agreement is held or deemed to create a security interest in either such
assets, then (i) this Agreement shall be deemed to be a security agreement
within the meaning of the Uniform Commercial Code of the State of New York and
(ii) the conveyances provided for in this Agreement shall be deemed to be an
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.
Section 10.05. Notices.
(a) The Trustee shall 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 or the
Trustee and the appointment of any successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant
to Section 2.03 or 3.28 or the Underlying Agreements; and
(v) The final payment to Certificateholders.
(b) In addition, the Trustee shall promptly furnish to each
Rating Agency copies of the following:
(i) Each report to Certificateholders described in Section
4.03; and
(ii) Any notice of a purchase of a Mortgage Loan pursuant to
Section 2.03 or 3.28 or the Underlying Agreements.
All directions, demands and notices hereunder shall be in
writing (unless otherwise indicated in this Agreement) 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 Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Principal Finance Group/Xxxxxxxxxxx X. Xxxxxxx and
Asset Management Group/Senior Asset Manager (and, in the case of the Officer's
Certificate delivered pursuant to Section 3.22, to PricewaterhouseCoopers LLP,
000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, Attention:
Xxxxxxxx Xxxxxxx), or such other address as may be hereafter furnished to the
Trustee and the Servicer by the Depositor in writing, (b) in the case of Xxxxxx,
Xxxxxx Loan Servicing LP, 0000 Xxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000,
Attention: Xxxxxx XxXxxxx, or such other address as may be hereafter furnished
to the Depositor, the Custodian and the Trustee by Xxxxxx in writing, (c) in the
case of the Custodian, to Xxxxx Fargo Bank, N.A., 0000 00xx Xxxxxx XX,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Client Service Manager GSAMP 2005-WMC2
or such other address as may be hereafter furnished to the Depositor, the
Servicer and the Trustee in writing; (d) in the case of the Trustee to the
Corporate Trust Office, Deutsche Bank National Trust Company, 0000 Xxxx Xx.
Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attention: Trust Administration
- GS05W2, or such other address as the Trustee may hereafter furnish to the
Depositor, the Servicer and the Custodian; and (e) in the case of each of the
Rating Agencies, the address specified therefor in the definition corresponding
to the name of such Rating Agency. Notices to Certificateholders shall be deemed
given when mailed, first class postage prepaid, to their respective addresses
appearing in the Certificate Register.
Section 10.06. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 10.07. Assignment; Sales; Advance Facilities. (a) A
Servicer is hereby authorized to enter into a financing or other facility (any
such arrangement, an "Advance Facility"), the documentation for which complies
with Section 10.07(e) below, under which (1) such Servicer assigns or pledges
its rights under this Agreement to be reimbursed for any or all Advances to (i)
a Person, which may be a special-purpose bankruptcy-remote entity (an "SPV"),
(ii) a Person, which may simultaneously assign or pledge such rights to an SPV
or (iii) a lender (a "Lender"), which, in the case of any Person or SPV of the
type described in either of the preceding clauses (i) or (ii), may directly or
through other assignees and/or pledgees, assign or pledge such rights to a
Person, which may include a trustee acting on behalf of holders of debt
instruments (any such Person or any such Lender, an "Advance Financing Person"),
and/or (2) an Advance Financing Person agrees to fund all the Advances required
to be made by such Servicer pursuant to this Agreement. No consent of the
Trustee, Certificateholders or any other party shall be required before a
Servicer may enter into an Advance Facility nor shall the Trustee or the
Certificateholders be a third party beneficiary of any obligation of an Advance
Financing Person to a Servicer. Notwithstanding the existence of any Advance
Facility under which an Advance Financing Person agrees to fund Advances, (A)
the Servicer (i) shall remain obligated pursuant to this Agreement to make
Advances pursuant to and as required by this Agreement and (ii) shall not be
relieved of such obligations by virtue of such Advance Facility and (B) neither
the Advance Financing Person nor any Servicer's Assignee (as hereinafter
defined) shall have any right to proceed against or otherwise contact any
Mortgagor for the purpose of collecting any payment that may be due with respect
to any related Mortgage Loan or enforcing any covenant of such Mortgagor under
the related Mortgage Loan documents.
(b) If a Servicer enters into an Advance Facility, such
Servicer and the related Advance Financing Person shall deliver to the Trustee
at the address set forth in Section 10.05 hereof a written notice (an "Advance
Facility Notice"), stating (a) the identity of the Advance Financing Person and
(b) the identity of the Person (the "Servicer's Assignee") that will, subject to
Section 10.07(c) hereof, have the right to make withdrawals from the Collection
Account pursuant to Section 3.11 hereof to reimburse previously unreimbursed
Advances ("Advance Reimbursement Amounts"). Advance Reimbursement Amounts (i)
shall consist solely of amounts in respect of Advances for which such Servicer
would be permitted to reimburse itself in accordance with Section 3.11 hereof,
assuming such Servicer had made the related Advance(s) and (ii) shall not
consist of amounts payable to a successor Servicer in accordance with Section
3.11 hereof to the extent permitted under Section 10.07(e) below.
(c) Notwithstanding the existence of an Advance Facility, a
Servicer, on behalf of the Advance Financing Person and the Servicer's Assignee,
shall be entitled to receive reimbursements of Advances in accordance with
Section 3.11 hereof, which entitlement may be terminated by the Advance
Financing Person pursuant to a written notice to the Trustee in the manner set
forth in Section 10.05 hereof. Upon receipt of such written notice, the Servicer
shall no longer be entitled to receive reimbursement for any Advance
Reimbursement Amounts and the Servicer's Assignee shall immediately have the
right to receive from the Collection Account all Advance Reimbursement Amounts.
Notwithstanding the foregoing, and for the avoidance of doubt, (i) a Servicer
and/or the Servicer's Assignee shall only be entitled to reimbursement of
Advance Reimbursement Amounts hereunder from withdrawals from the Collection
Account pursuant to Section 3.11 of this Agreement and shall not otherwise be
entitled to make withdrawals of, or receive, amounts that shall be deposited in
the Distribution Account pursuant to Sections 3.11(a)(i) and 3.27(b) hereof, and
(ii) none of the Trustee or the Certificateholders shall have any right to, or
otherwise be entitled to, receive any Advance Reimbursement Amounts to which the
Servicer or Servicer's Assignee, as applicable, shall be entitled pursuant to
Section 3.11 hereof. An Advance Facility may be terminated by the joint written
direction of the Servicer and the related Advance Financing Person. Written
notice of such termination shall be delivered to the Trustee in the manner set
forth in Section 10.05 hereof. None of the Depositor or the Trustee shall, as a
result of the existence of any Advance Facility, have any additional duty or
liability with respect to the calculation or payment of any Advance
Reimbursement Amount, nor, as a result of the existence of any Advance Facility,
shall the Depositor or the Trustee have any additional responsibility to track
or monitor the administration of the Advance Facility or the payment of Advance
Reimbursement Amounts to the Servicer's Assignee. The Servicer shall indemnify
the Depositor, the Trustee, any successor Servicer and the Trust Fund for any
claim, loss, liability or damage resulting from any claim by the related Advance
Financing Person, except to the extent that such claim, loss, liability or
damage resulted from or arose out of negligence, recklessness or willful
misconduct on the part of the Depositor, the Trustee or any successor Servicer,
as the case may be, or failure by the successor Servicer or the Trustee, as the
case may be, to remit funds as required by this Agreement. The Servicer shall
maintain and provide to any successor Servicer and, upon request, the Trustee a
detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged
or assigned to, and reimbursed to any Advance Financing Person. The successor
Servicer shall be entitled to rely on any such information provided by the
predecessor Servicer, and the successor Servicer shall not be liable for any
errors in such information.
(d) An Advance Financing Person who receives an assignment or
pledge of rights to receive Advance Reimbursement Amounts and/or whose
obligations are limited to the funding of Advances pursuant to an Advance
Facility shall not be required to meet the criteria for qualification as a
Subservicer.
(e) As between a predecessor Servicer and its Advance
Financing Person, on the one hand, and a successor Servicer and its Advance
Financing Person, if any, on the other hand, Advance Reimbursement Amounts on a
loan-by-loan basis with respect to each Mortgage Loan as to which an Advance
shall have been made and be outstanding shall be allocated on a "first-in, first
out" basis. In the event the Servicer's Assignee shall have received some or all
of an Advance Reimbursement Amount related to Advances that were made by a
Person other than such predecessor Servicer or its related Advance Financing
Person in error, then such Servicer's Assignee shall be required to remit any
portion of such Advance Reimbursement Amount to each Person entitled to such
portion of such Advance Reimbursement Amount. Without limiting the generality of
the foregoing, the Servicer shall remain entitled to be reimbursed by the
Advance Financing Person for all Advances funded by the Servicer to the extent
the related Advance Reimbursement Amounts have not been assigned or pledged to
such Advance Financing Person or Servicer's Assignee.
(f) For purposes of any Officer's Certificate of the Servicer
made pursuant to Section 4.01(d), any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance referred to therein may have been made by such
Servicer or any predecessor Servicer. In making its determination that any
Advance or Servicing Advance theretofore made has become a Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance, the Servicer shall apply the same
criteria in making such determination regardless of whether such Advance or
Servicing Advance shall have been made by the Servicer or any predecessor
Servicer.
(g) Any amendment to this Section 10.07 or to any other
provision of this Agreement that may be necessary or appropriate to effect the
terms of an Advance Facility as described generally in this Section 10.07,
including amendments to add provisions relating to a successor Servicer, may be
entered into by the Trustee, the Depositor and the Servicer without the consent
of any Certificateholder, provided such amendment complies with Section 10.01
hereof. All reasonable costs and expenses (including attorneys' fees) of each
party hereto of any such amendment shall be borne solely by the Servicer. The
parties hereto hereby acknowledge and agree that: (a) the Advances financed by
and/or pledged to an Advance Financing Person under any Advance Facility are
obligations owed to the Servicer payable only from the cash flows and proceeds
received under this Agreement for reimbursement of Advances only to the extent
provided herein, and the Trustee and the Trust are not, as a result of the
existence of any Advance Facility, obligated or liable to repay any Advances
financed by the Advance Financing Person; (b) the Servicer will be responsible
for remitting to the Advance Financing Person the applicable amounts collected
by it as reimbursement for Advances funded by the Advance Financing Person,
subject to the provisions of this Agreement; and (c) the Trustee shall not have
any responsibility to track or monitor the administration of the financing
arrangement between the Servicer and any Advance Financing Person.
Section 10.08. Limitation on Rights of Certificateholders. The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as herein
provided, and unless the Holders of Certificates evidencing not less than 25% of
the Voting Rights evidenced by the Certificates shall also have made written
request to the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses, and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 10.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 10.09. Inspection and Audit Rights. The Servicer
agrees that, on reasonable prior notice, it will permit any representative of
the Depositor or the Trustee during the Servicer's normal business hours, to
examine all the books of account, records, reports and other papers of the
Servicer relating to the Mortgage Loans, to make copies and extracts therefrom,
to cause such books to be audited by independent certified public accountants
selected by the Depositor or the Trustee and to discuss its affairs, finances
and accounts relating to the Mortgage Loans with its officers, employees and
independent public accountants (and by this provision the Servicer hereby
authorizes said accountants to discuss with such representative such affairs,
finances and accounts), all at such reasonable times and as often as may be
reasonably requested. Any reasonable out-of-pocket expense of the Servicer
incident to the exercise by the Depositor or the Trustee of any right under this
Section 10.09 shall be borne by the Servicer. The Servicer may impose
commercially reasonable restrictions on the dissemination of information the
Servicer defines as confidential.
Section 10.10. Certificates Nonassessable and Fully Paid. It
is the intention of the Depositor that Certificateholders shall not be
personally liable for obligations of the Trust Fund, that the interests in the
Trust Fund represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 10.11. Waiver of Jury Trial. EACH PARTY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY
APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING
UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE
TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
Section 10.12. Limitation of Damages. NOTWITHSTANDING ANYTHING
CONTAINED HEREIN TO THE CONTRARY, THE PARTIES AGREE THAT NO PARTY SHALL BE
LIABLE TO ANY OTHER PARTY FOR ANY PUNITIVE DAMAGES WHATSOEVER, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL
OR EQUITABLE PRINCIPLE, PROVIDED, HOWEVER, THAT SUCH LIMITATION SHALL NOT BE
APPLICABLE WITH RESPECT TO THIRD PARTY CLAIMS MADE AGAINST A PARTY.
* * * * * * *
IN WITNESS WHEREOF, the Depositor, the Trustee, the Custodian
and Xxxxxx 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/ Xxxxxxxx Xxxx
----------------------------------------
Name: Xxxxxxxx Xxxx
Title: Managing Director
DEUTSCHE BANK NATIONAL TRUST COMPANY,
solely as Trustee and not in its individual capacity
By: /s/ Hang Xxx
----------------------------------------
Name: Hang Xxx
Title: Authorized Signer
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
XXXXXX LOAN SERVICING LP
By: /s/ Xxxxxx XxXxxxx
----------------------------------------
Name: Xxxxxx XxXxxxx
Title: Senior Vice President
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
[AVAILABLE UPON REQUEST TO THE TRUSTEE]
SCHEDULE II
GSAMP MORTGAGE LOAN TRUST 2005-WMC2,
MORTGAGE PASS-THROUGH CERTIFICATES
Representations and Warranties of Xxxxxx Loan Servicing XX
Xxxxxx Loan Servicing LP ("Xxxxxx") hereby makes the
representations and warranties set forth in this Schedule II to the Depositor
and the Trustee, as of the Closing Date, or if so specified herein, as of the
Cut-off Date. Capitalized terms used but not otherwise defined in this Schedule
II shall have the meanings ascribed thereto in the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series.
(1) Xxxxxx is a Delaware limited partnership, validly existing
and in good standing under the laws of the State of Delaware and is duly
authorized and qualified to transact any and all business contemplated by this
Pooling and Servicing Agreement to be conducted by Xxxxxx in any state in which
a Mortgaged Property is located or is otherwise not required under applicable
law to effect such qualification and, in any event, is in compliance with the
doing business laws of any such State, to the extent necessary to ensure its
ability to enforce each Mortgage Loan and to service the Mortgage Loans in
accordance with the terms of this Pooling and Servicing Agreement;
(2) Xxxxxx has the full power and authority to service each
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by this Pooling and Servicing Agreement
and has duly authorized by all necessary action on the part of Xxxxxx the
execution, delivery and performance of this Pooling and Servicing Agreement; and
this Pooling and Servicing Agreement, assuming the due authorization, execution
and delivery thereof by the Depositor and the Trustee, constitutes a legal,
valid and binding obligation of Xxxxxx, enforceable against Xxxxxx in accordance
with its terms, except to the extent that (a) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(3) The execution and delivery of this Pooling and Servicing
Agreement by Xxxxxx, the servicing of the Mortgage Loans by Xxxxxx hereunder,
the consummation by Xxxxxx of any other of the transactions herein contemplated,
and the fulfillment of or compliance with the terms hereof are in the ordinary
course of business of Xxxxxx and will not (A) result in a breach of any term or
provision of the organizational documents of Xxxxxx or (B) conflict with, result
in a breach, violation or acceleration of, or result in a default under, the
terms of any other material agreement or instrument to which Xxxxxx is a party
or by which it may be bound, or any statute, order or regulation applicable to
Xxxxxx of any court, regulatory body, administrative agency or governmental body
having jurisdiction over Xxxxxx; and Xxxxxx is not a party to, bound by, or in
breach or violation of any indenture or other agreement or instrument, or
subject to or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it, which materially and adversely affects or, to Litton's knowledge, would
in the future materially and adversely affect, (x) the ability of Xxxxxx to
perform its obligations under this Pooling and Servicing Agreement or (y) the
business, operations, financial condition, properties or assets of Xxxxxx taken
as a whole;
(4) Xxxxxx is an approved seller/servicer for Xxxxxx Mae and
an approved servicer for Xxxxxxx Mac in good standing;
(5) No litigation is pending against Xxxxxx that would
materially and adversely affect the execution, delivery or enforceability of
this Pooling and Servicing Agreement or the ability of Xxxxxx to service the
Mortgage Loans or to perform any of its other obligations hereunder in
accordance with the terms hereof;
(6) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by Xxxxxx of, or compliance by Xxxxxx with, this Pooling and
Servicing Agreement or the consummation by Xxxxxx of the transactions
contemplated by this Pooling and Servicing Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained prior to
the Closing Date;
(7) Xxxxxx covenants that its computer and other systems used
in servicing the Mortgage Loans operate in a manner such that Xxxxxx can service
the Mortgage Loans in accordance with the terms of this Pooling and Servicing
Agreement; and
(8) With respect to each Mortgage Loan, to the extent Xxxxxx
serviced such Mortgage Loan and to the extent Xxxxxx provided monthly reports to
the three credit repositories, Xxxxxx has fully furnished, in accordance with
the Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (i.e., favorable and unfavorable) on its borrower credit
files to Equifax, Experian, and Trans Union Credit Information Company (three of
the credit repositories), on a monthly basis.
EXHIBIT A
FORM OF CLASS A, CLASS M AND CLASS B CERTIFICATES
[To be added to the Class M-6, Class B-1 and Class B-2 Certificates while they
remain Private Certificates: IF THIS CERTIFICATE IS A PHYSICAL CERTIFICATE,
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER (THE "TRANSFEROR
LETTER") IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER
(I) THE TRUSTEE RECEIVES A RULE 144A LETTER (THE "144A LETTER") IN THE FORM OF
EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN OR A LETTER (THE "NON-RULE 144A
INVESTMENT LETTER") IN THE FORM OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN
OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF
THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE
DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.
In the event that a transfer of a Private Certificate which is a Book-Entry
Certificate is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer will be deemed to
have made as of the transfer date each of the certifications set forth in the
Transferor Certificate in respect of such Certificate and the transferee will be
deemed to have made as of the transfer date each of the certifications set forth
in the Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate.]
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER
ASSETS.
Certificate No. :
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Initial Certificate Balance of
this Certificate
("Denomination") :
Initial Certificate Balances of all
Certificates of this Class : CLASS PRINCIPAL AMOUNT
[CLASS A-1A] [$ ]
[CLASS A-1B] [$ ]
[CLASS A-2A] [$ ]
[CLASS A-2B] [$ ]
[CLASS A-2C] [$ ]
[CLASS M-1] [$ ]
[CLASS M-2] [$ ]
[CLASS M-3] [$ ]
[CLASS M-4] [$ ]
[CLASS M-5] [$ ]
[CLASS M-6] [$ ]
[CLASS B-1] [$ ]
[CLASS B-2] [$ ]
CUSIP : CLASS CUSIP No.
[CLASS A-1A] 362341 UV 9
[CLASS A-1B] 362341 UW 7
[CLASS A-2A] 362341 UX 5
[CLASS A-2B] 362341 UY 3
[CLASS A-2C] 362341 UZ 0
[CLASS M-1] 362341 VA 4
[CLASS M-2] 362341 VB 2
[CLASS M-3] 362341 VC 0
[CLASS M-4] 362341 VD 8
[CLASS M-5] 362341 VE 6
[CLASS M-6] 362341 VK 2
[CLASS B-1] 362341 VL 0
[CLASS B-2] 362341 VM 8
ISIN : [CLASS A-1A] US362341UV92
[CLASS A-1B] US362341UW75
[CLASS A-2A]
US362341UX58 [CLASS
A-2B] US362341UY32
[CLASS A-2C]
US362341UZ07
[CLASS M-1] US362341VA47
[CLASS M-2] US362341VB20
[CLASS M-3] US362341VC03
[CLASS M-4] US362341VD85
[CLASS M-5] US362341VE68
[CLASS M-6] US362341VK29
[CLASS B-1] US362341VL02
[CLASS B-2] US362341VM84
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-WMC2
Mortgage Pass-Through Certificates, Series 2005-WMC2
[Class A-] [Class M-] [Class B-]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable
monthly as set forth herein. Accordingly, the Certificate Balance at any time
may be less than the Certificate Balance as set forth herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed by
the Depositor, the Servicer, WMC, the Custodian or the Trustee referred to below
or any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that [___________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Pooling and Servicing
Agreement, dated as of November 1, 2005 (the "Agreement"), among GS Mortgage
Securities Corp., as depositor (the "Depositor"), Xxxxxx Loan Servicing LP, as
servicer (the "Servicer"), Xxxxx Fargo Bank, N.A., as custodian (the
"Custodian"), and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
***
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as Trustee
By:____________________________
Authenticated:
By:_______________________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2005-WMC2
MORTGAGE PASS-THROUGH CERTIFICATES
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2005-WMC2 Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (herein collectively
called the "Certificates"), and representing a beneficial ownership interest in
the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the Business Day immediately preceding such Distribution
Date; provided, however, that for any Definitive Certificates, the Record Date
shall be the close of business on the last Business Day of the month preceding
the month in which such applicable Distribution Date occurs.
Distributions on this Certificate shall be made by wire
transfer of immediately available funds to the account of the Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Trustee in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Trustee for such purposes, or such other location specified in the notice to
Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Custodian and the
Trustee with the consent of the Holders of Certificates affected by such
amendment evidencing the requisite Percentage Interest, as provided in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Trustee upon surrender of this Certificate
for registration of transfer at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor
or the Trustee may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated
Principal Balance of the Mortgage Loans is less than or equal to 10% of the
Cut-off Date Pool Principal Balance, the Person specified in Section 9.01 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 as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall
have the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate
of a like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________
_____________________________________
Signature by or on behalf of assignor
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 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. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
WITHOUT THE REPRESENTATION LETTER SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. :
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Percentage Interest of this
Certificate ("Denomination") : [_____]%
CUSIP : 362341 VF 0
XXXX XX000000XX00
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-WMC2
Mortgage Pass-Through Certificates, Series 2005-WMC2
Class P
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Servicer, the
Purchaser, WMC 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 is Certificate
belongs) in certain monthly distributions pursuant to a Pooling and Servicing
Agreement dated as of November 1, 2005 (the "Agreement") among GS Mortgage
Securities Corp., as depositor (the "Depositor"), Xxxxxx Loan Servicing LP, as
servicer (the "Servicer"), Xxxxx Fargo Bank, N.A., as custodian (the
"Custodian"), and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Trustee for such purpose or such location in the
notice to Certificateholders of such final distribution.
Any distribution of the proceeds of any remaining assets of
the Trust will be made only upon presentment and surrender of this Certificate
at the offices designated by the Trustee for such purpose, or the office or
agency maintained by the Trustee.
No transfer of a Certificate of this Class shall be made
unless the Trustee shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA, Section 4975 of the Code
or any materially similar provisions of applicable Federal, state or local law
("Similar Law"), or a person acting on behalf of or investing plan assets of any
such plan, which representation letter shall not be an expense of the Trustee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
***
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as Trustee
By:____________________________
Authenticated:
By:_______________________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2005-WMC2
MORTGAGE PASS-THROUGH CERTIFICATES
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2005-WMC2 Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (herein collectively
called the "Certificates"), and representing a beneficial ownership interest in
the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day of the month 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 Trustee in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Trustee for such purposes or such other location specified in the notice to
Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Custodian and the
Trustee with the consent of the Holders of Certificates affected by such
amendment evidencing the requisite Percentage Interest, as provided in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Trustee upon surrender of this Certificate
for registration of transfer at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor
or the Trustee may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated
Principal Balance of the Mortgage Loans is less than or equal to 10% of the
Cut-off Date Pool Principal Balance, the Person specified in Section 9.01 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 as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall
have the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate
of a like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________
_____________________________________
Signature by or on behalf of assignor
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-1
FORM OF CLASS R-1 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN TWO "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN 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. :
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Percentage Interest of this Certificate
("Denomination") : 100%
CUSIP : 362341 VH 9
ISIN : US362341VH99
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2005-WMC2
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-WMC2
CLASS R-1
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-1 Certificate has no Certificate
Balance and is not entitled to distributions in respect of principal or
interest. This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Servicer, the Purchaser, WMC 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 in certain monthly
distributions due to the Class R-1 Certificates pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-off Date specified above (the
"Agreement"), among GS Mortgage Securities Corp., as depositor (the
"Depositor"), Xxxxxx Loan Servicing LP, as servicer (the "Servicer"), Xxxxx
Fargo Bank, N.A., as custodian (the "Custodian"), and Deutsche Bank National
Trust Company, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of
the Trust Fund will be made only upon presentment and surrender of this Class
R-1 Certificate at the offices designated by the Trustee for such purposes or
such other location specified in the notice to Certificateholders.
No transfer of a Class R-1 Certificate shall be made unless
the Trustee shall have received a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan 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 Trustee, the Servicer or the Trust Fund. In the event that such
representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to Section 406 of ERISA 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-1 Certificate shall be deemed by
the acceptance or acquisition an Ownership Interest in this Class R-1
Certificate to have agreed to be bound by the following provisions, and the
rights of each Person acquiring any Ownership Interest in this Class R-1
Certificate are expressly subject to the following provisions: (i) each Person
holding or acquiring any Ownership Interest in this Class R-1 Certificate shall
be a Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee, (ii) no Ownership
Interest in this Class R-1 Certificate may be registered on the Closing Date or
thereafter transferred, and the Trustee shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered to
the Trustee under Section 5.02(b) of the Agreement, the Trustee shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R-1 Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R-1 Certificate,
(B) to obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer of this
Class R-1 Certificate, (C) not to cause income with respect to the Class R-1
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person and (D) not to Transfer the Ownership Interest in this
Class R-1 Certificate or to cause the Transfer of the Ownership Interest in this
Class R-1 Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee and (iv) any attempted or purported
Transfer of the Ownership Interest in this Class R-1 Certificate in violation of
the provisions herein shall be absolutely null and void and shall vest no rights
in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as Trustee
By:____________________________
Authenticated:
By:_______________________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2005-WMC2
MORTGAGE PASS-THROUGH CERTIFICATES
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2005-WMC2 Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (herein collectively
called the "Certificates"), and representing a beneficial ownership interest in
the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee 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 applicable to each
Distribution Date is the last Business Day of the month 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 Trustee in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Trustee for such purposes or such other location specified in the notice to
Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Custodian and the
Trustee with the consent of the Holders of Certificates affected by such
amendment evidencing the requisite Percentage Interest, as provided in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Trustee upon surrender of this Certificate
for registration of transfer at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Trustee and the Depositor and any agent of the Trustee or
the Depositor may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated
Principal Balance of the Mortgage Loans is less than or equal to 10% of the
Cut-off Date Pool Principal Balance, the Person specified in Section 9.01 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 as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall
have the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate
of a like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________
_____________________________________
Signature by or on behalf of assignor
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-2
FORM OF CLASS R-2 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN FOUR "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN 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. :
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Percentage Interest of this Certificate
("Denomination") : 100%
CUSIP : 362341 VJ 5
ISIN : S362341VJ55
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2005-WMC2
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-WMC2
CLASS R-2
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-2 Certificate has no Certificate
Balance and is not entitled to distributions in respect of principal or
interest. This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Servicer, the Purchaser, WMC or
the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [_____________] is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Xxxxxx Loan Servicing LP, as servicer
(the "Servicer"), and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of
the Trust Fund will be made only upon presentment and surrender of this Class
R-2 Certificate at the offices designated by the Trustee for such purposes or
such other location specified in the notice to Certificateholders.
No transfer of a Class R-2 Certificate shall be made unless
the Trustee shall have received a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan 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 Trustee, the Servicer or the Trust Fund. In the event that such
representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to Section 406 of ERISA 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-2 Certificate shall be deemed by
the acceptance or acquisition an Ownership Interest in this Class R-2
Certificate to have agreed to be bound by the following provisions, and the
rights of each Person acquiring any Ownership Interest in this Class R-2
Certificate are expressly subject to the following provisions: (i) each Person
holding or acquiring any Ownership Interest in this Class R-2 Certificate shall
be a Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee, (ii) no Ownership
Interest in this Class R-2 Certificate may be registered on the Closing Date or
thereafter transferred, and the Trustee shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered to
the Trustee under Section 5.02(b) of the Agreement, the Trustee shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R-2 Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R-2 Certificate,
(B) to obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer of this
Class R-2 Certificate, (C) not to cause income with respect to the Class R-2
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person and (D) not to Transfer the Ownership Interest in this
Class R-2 Certificate or to cause the Transfer of the Ownership Interest in this
Class R-2 Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee and (iv) any attempted or purported
Transfer of the Ownership Interest in this Class R-2 Certificate in violation of
the provisions herein shall be absolutely null and void and shall vest no rights
in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as Trustee
By:____________________________
Authenticated:
By:_______________________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2005-WMC2
MORTGAGE PASS-THROUGH CERTIFICATES
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2005-WMC2 Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (herein collectively
called the "Certificates"), and representing a beneficial ownership interest in
the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day of the month 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 Trustee in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Trustee for such purposes or such other location specified in the notice to
Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Custodian and the
Trustee with the consent of the Holders of Certificates affected by such
amendment evidencing the requisite Percentage Interest, as provided in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Trustee upon surrender of this Certificate
for registration of transfer at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor
or the Trustee may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated
Principal Balance of the Mortgage Loans is less than or equal to 10% of the
Cut-off Date Pool Principal Balance, the Person specified in Section 9.01 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 as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall
have the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate
of a like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________
_____________________________________
Signature by or on behalf of assignor
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 A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER ASSETS.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I
AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE
MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT
SUBJECT THE TRUSTEE, THE DEPOSITOR OR THE SERVICERS 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 TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. :
Cut-off Date : November 1, 2005
First Distribution Date : December 27, 2005
Percentage Interest of this Certificate
("Denomination") : [__]%
CUSIP : 362341 VG 1
ISIN: : US362341VG17
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-WMC2
Mortgage Pass-Through Certificates, Series 2005-WMC2
CLASS X
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Servicer, the
Purchaser, WMC or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that [_______________________] is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate of
the denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Pooling and Servicing
Agreement dated as of November 1, 2005 (the "Agreement") among GS Mortgage
Securities Corp., as depositor (the "Depositor"), Xxxxxx Loan Servicing LP, as
servicer (the "Servicer"), Xxxxx Fargo Bank, N.A., as custodian (the
"Custodian"), and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Certificate will be entitled to distributions only to the
extent set forth in the Agreement. In addition, any distribution of the proceeds
of any remaining assets of the Trust will be made only upon presentment and
surrender of this Certificate at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders.
No transfer of a Certificate of this Class shall be made
unless such disposition is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and any applicable state
securities laws or is made in accordance with the 1933 Act and such laws. In the
event of any such transfer, the Trustee shall require the transferor to execute
a transferor certificate (in substantially the form attached to the Pooling and
Servicing Agreement) and deliver either (i) a Rule 144A Letter, substantially in
the form attached to the Agreement, or (ii) a written Opinion of Counsel to the
Trustee that such transfer may be made pursuant to an exemption, describing the
applicable exemption and the basis therefor, from the 1933 Act or is being made
pursuant to the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
***
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as Trustee
By:____________________________
Authenticated:
By:_______________________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2005-WMC2
MORTGAGE PASS-THROUGH CERTIFICATES
This Certificate is one of a duly authorized issue of
Certificates designated as GSAMP Trust 2005-WMC2 Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (herein collectively
called the "Certificates"), and representing a beneficial ownership interest in
the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date applicable to each
Distribution Date is the last Business Day of the month 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 Trustee in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Trustee for such purposes or such other location specified in the notice to
Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Custodian and the
Trustee with the consent of the Holders of Certificates affected by such
amendment evidencing the requisite Percentage Interest, as provided in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Trustee upon surrender of this Certificate
for registration of transfer at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor
or the Trustee may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated
Principal Balance of the Mortgage Loans is less than or equal to 10% of the
Cut-off Date Pool Principal Balance, the Person specified in Section 9.01 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 as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall
have the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_____________________________________________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate
of a like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________
_____________________________________
Signature by or on behalf of assignor
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]
[Xxxxxx Loan Servicing LP]
[Servicer]
[Trustee]
Re: Pooling and Servicing Agreement among GS Mortgage Securities
Corp., as Depositor, Xxxxxx Loan Servicing LP, as servicer,
Xxxxx Fargo Bank, N.A., as Custodian, and Deutsche Bank
National Trust Company, as Trustee, GSAMP Trust, 2005-WMC2
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Custodian for each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan listed in the attached schedule of
exceptions), certifies that it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed Assignment of Mortgage (which may be
included in a blanket assignment or assignments).
Based on its review and examination and only as to the
foregoing documents, such documents appear regular on their face and related to
such Mortgage Loan.
The Custodian has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement. The 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
Certificateholder or assignee thereof, in and to that Mortgage Note or (ii) any
assignment is in recordable form or sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which the assignment
relates.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
XXXXX FARGO BANK, N.A.,
as Custodian
By:_____________________________________
Name:
Title:
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF CUSTODIAN
[DATE]
[Depositor]
[Servicers]
[Trustee]
Re: Pooling and Servicing Agreement among GS Mortgage Securities
Corp., as Depositor, Xxxxxx Loan Servicing LP, as servicer,
Xxxxx Fargo Bank, N.A., as custodian, and Deutsche Bank
National Trust Company, as Trustee, GSAMP Trust, 2005-WMC2
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Custodian, hereby certifies that as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or
listed on the attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided
in Section 2.01 of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator to the
last endorsee.
(ii) The original recorded Mortgage or a certified copy
thereof.
(iii) A duly executed Assignment of Mortgage endorsed in blank
in the form provided in Section 2.01 of the Pooling and Servicing Agreement; or,
if the Custodian otherwise has actual knowledge that the related Mortgage has
not been returned from the applicable recording office, a copy of the Assignment
of Mortgage (excluding information to be provided by the recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from the
originator to the last endorsee.
(v) The original or duplicate original or certified copy of
lender's title policy and all riders thereto or, any one of an original title
binder, an original preliminary title report or an original title commitment, or
a copy thereof certified by the title company.
Based on its review and examination and only as to the
foregoing documents, (a) such documents appear regular on their face and related
to such Mortgage Loan, and (b) the information set forth in items (1), (2) and
(13) of the Mortgage Loan Schedule and the Data Tape Information accurately
reflects information set forth in the Custodial File.
The 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 Pooling and Servicing 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 Pooling and Servicing Agreement.
XXXXX FARGO BANK, N.A.,
as Custodian
By:_______________________________________
Name:
Title:
EXHIBIT G
RESIDUAL TRANSFER AFFIDAVIT
GSAMP TRUST 2005-WMC2,
MORTGAGE PASS-THROUGH CERTIFICATES
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in a Residual Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement dated as
of November 1, 2005 (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Xxxxxx Loan Servicing LP, as servicer, Xxxxx Fargo
Bank, N.A., as custodian (the "Custodian"), and Deutsche Bank National Trust
Company, as trustee (the "Trustee"). Capitalized terms used, but not defined
herein or in Exhibit 1 hereto, shall have the meanings ascribed to such terms in
the Agreement. The Transferee has authorized the undersigned to make this
affidavit on behalf of the Transferee for the benefit of the Depositor and the
Trustee.
2. The Transferee is, as of the date hereof, and will be, as
of the date of the Transfer, a Permitted Transferee. The Transferee is acquiring
its Ownership Interest in the Certificate for its own account. The Transferee
has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that
(i) a tax will be imposed on Transfers of the Certificate to Persons that are
not Permitted Transferees; (ii) such tax will be imposed on the transferor, or,
if such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a
tax will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section
5.02(c) of the Agreement and understands the legal consequences of the
acquisition of an Ownership Interest in the Certificate including, without
limitation, the restrictions on subsequent Transfers and the provisions
regarding voiding the Transfer and mandatory sales. The Transferee expressly
agrees to be bound by and to abide by the provisions of Section 5.02(c) of the
Agreement and the restrictions noted on the face of the Certificate. The
Transferee understands and agrees that any breach of any of the representations
included herein shall render the Transfer to the Transferee contemplated hereby
null and void.
6. The Transferee agrees to require a Transfer Affidavit from
any Person to whom the Transferee attempts to Transfer its Ownership Interest in
the Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit H to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee has historically paid its debts as they have
come due, intends to pay its debts as they come due in the future, and
understands that the taxes payable with respect to the Certificate may exceed
the cash flow with respect thereto in some or all periods and intends to pay
such taxes as they become due. The Transferee does not have the intention to
impede the assessment or collection of any tax legally required to be paid with
respect to the Certificate.
8. The Transferee's taxpayer identification number is
__________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the Certificate
to be attributable to a foreign permanent establishment or fixed base, within
the meaning of an applicable income tax treaty, of the Transferee or any other
U.S. person.
12. Check one of the following:
[_] The present value of the anticipated tax liabilities
associated with holding the Certificate, as applicable, does not exceed the sum
of:
(i) the present value of any consideration given to the
Transferee to acquire such Certificate;
(ii) the present value of the expected future distributions on
such Certificate; and
(iii) the present value of the anticipated tax savings
associated with holding such Certificate as the related REMIC generates losses.
For purposes of this calculation, (i) the Transferee is
assumed to pay tax at the highest rate currently specified in Section 11(b) of
the Code (but the tax rate in Section 55(b)(1)(B) of the Code may be used in
lieu of the highest rate specified in Section 11(b) of the Code if the
Transferee has been subject to the alternative minimum tax under Section 55 of
the Code in the preceding two years and will compute its taxable income in the
current taxable year using the alternative minimum tax rate) and (ii) present
values are computed using a discount rate equal to the short-term Federal rate
prescribed by Section 1274(d) of the Code for the month of the transfer and the
compounding period used by the Transferee.
[_] The transfer of the Certificate complies with U.S.
Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from the
Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer, the Transferee
had gross assets for financial reporting purposes (excluding any obligation of a
person related to the Transferee within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in excess
of $10 million;
(iii) the Transferee will transfer the Certificate only to
another "eligible corporation," as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of Sections
1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5) of the U.S.
Treasury Regulations; and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions (including, but
not limited to, borrowing and investment rates, prepayment and loss assumptions,
expense and reinvestment assumptions, tax rates and other factors specific to
the Transferee) that it has determined in good faith.
[_] None of the above.
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.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Deutsche Bank National Trust Company,
as Trustee,
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Re: GSAMP Trust, 2005-WMC2, Mortgage Pass-Through Certificates,
Class [ ]
Ladies and Gentlemen:
In connection with our disposition of the above Certificates
we certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (C) we have no
reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
Print Name of Transferor
By:_________________________________
Authorized Officer
EXHIBIT I
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Deutsche Bank National Trust Company,
as Trustee,
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Re: GSAMP Trust 2005-WMC2, Mortgage Pass-Through Certificates,
Class [ ]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates
we certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either 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 II 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, we understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Securities Act.
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.
____ Corporation, etc. The Buyer is a corporation (other
than a bank, savings and loan association or similar
institution), Massachusetts or similar business
trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State,
territory or the District of Columbia, the business
of which is substantially confined to banking and is
supervised by the State or territorial banking
commission or similar official or is a foreign bank
or equivalent institution, and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which
is attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association,
cooperative bank, homestead association or similar
institution, which is supervised and examined by a
State or Federal authority having supervision over
any such institutions or is a foreign savings and
loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
____ Broker-dealer. The Buyer is a dealer registered
pursuant to Section 15 of the Securities Exchange Act
of 1934.
----------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
____ 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
which owned in the aggregate $ in securities (other
than the excluded securities referred to below) as of
the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule
144A).
3. The term "Family of Investment Companies" as used herein
means two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreement,
(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 OF INVESTMENT LETTER (NON-RULE 144A)
____________________
Date
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Re: GSAMP Trust 2005-WMC2, Mortgage Pass-Through
Certificates, Series 2005-WMC2, Class [__]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates
we certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
"accredited investor" (within the meaning of Rule 501(a)(1), (2), (3), (5), (6)
or (7) of Regulation D under the Act, and have such knowledge and experience in
financial and business matters that we are capable of evaluating the merits and
risks of investments in the Certificates, (c) we have had the opportunity to ask
questions of and receive answers from the Depositor concerning the purchase of
the Certificates and all matters relating thereto or any additional information
deemed necessary to our decision to purchase the Certificates, (d) either we are
purchasing a ClassM-6, Class B-1 or Class B-2 Certificate or we are not an
employee benefit plan that is subject to 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 are acquiring the Certificates for investment for
our own account and not with a view to any distribution of such Certificates
(but without prejudice to our right at all times to sell or otherwise dispose of
the Certificates in accordance with clause (g) below), (f) we have not offered
or sold any Certificates to, or solicited offers to buy any Certificates from,
any person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action which would result in a violation of Section
5 of the Act, and (g) we will not sell, transfer or otherwise dispose of any
Certificates unless (1) such sale, transfer or other disposition is made
pursuant to an effective registration statement under the Act or is exempt from
such registration requirements, and if requested, we will at our expense provide
an opinion of counsel satisfactory to the addressees of this Certificate that
such sale, transfer or other disposition may be made pursuant to an exemption
from the Act, (2) the purchaser or transferee of such Certificate has executed
and delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with any
conditions for transfer set forth in the Pooling and Servicing Agreement.
Very truly yours,
____________________________________
Print Name of Transferee
By:_________________________________
Authorized Officer
EXHIBIT K
FORM OF REQUEST FOR RELEASE
(FOR TRUSTEE)
To: [Address]
Re:
In connection with the administration of the Mortgage Loans
held by you as the Trustee on behalf of the Certificateholders, we request the
release, and acknowledge receipt, of the (Custodial File/[specify documents])
for the Mortgage Loan described below, for the reason indicated.
Mortgagor's Name, Address & Zip Code:
Mortgage Loan Number:
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 Pooling and Servicing
Agreement.)
____ 2. Mortgage Loan Repurchase Pursuant to Section 2.03
of the Pooling and Servicing Agreement. (The Company
hereby certifies that the repurchase price has been
credited to the Collection Account as provided in the
Pooling and Servicing Agreement.)
____ 3. Mortgage Loan Liquidated by _________________.
(The Company hereby certifies that all proceeds of
foreclosure, insurance, condemnation or other
liquidation have been finally received and credited
to the Collection Account pursuant to the Pooling and
Servicing Agreement.)
____ 4. Mortgage Loan in Foreclosure.
____ 5. Other (explain).
If box 1, 2 or 3 above is checked, and if all or part of the
Custodial File was previously released to us, please release to us our previous
request and receipt on file with you, as well as any additional documents in
your possession relating to the specified Mortgage Loan.
If box 4 or 5 above is checked, upon our return of all of the
above documents to you as the Trustee, please acknowledge your receipt by
signing in the space indicated below, and returning this form.
XXXXXX LOAN SERVICING LP
By:________________________________
Name:
Title:
Date:
EXHIBIT L
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall
include each of the following items, which shall be available for inspection by
the Purchaser and which shall be retained by the Servicer or delivered to and
retained by the Custodian, as applicable :
(a) ______the original Mortgage Note (with all applicable
riders) bearing all intervening endorsements, endorsed "Pay to the order of
_________, without recourse" and signed in the name of the last endorsee. To the
extent that there is no room on the face of the Mortgage Notes for endorsements,
the endorsement may be contained on an allonge unless the Custodian is advised
by the Depositor or the Purchaser that state law does not so allow. If the
Mortgage Loan was acquired by the Purchaser in a merger, the endorsement must be
by "[last endorsee], successor by merger to [name of predecessor]". If the
Mortgage Loan was acquired or originated by the last endorsee while doing
business under another name, the endorsement must be by "[last endorsee],
formerly known as [previous name]";the original of any guarantee executed in
connection with the Mortgage Note;
(b) the original of any guarantee executed in connection with
the Mortgage Note;
(c) the original Mortgage (with all applicable riders) with
evidence of recording thereon or a certified true copy of such Mortgage
submitted for recording. If in connection with any Mortgage Loan, the Depositor
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 Depositor shall
deliver or cause to be delivered to the Custodian, a photocopy of such Mortgage,
together with (A) in the case of a delay caused by the public recording office,
an Officer's Certificate of WMC (or certified by the title company, escrow
agent, or closing attorney) stating that such Mortgage has been dispatched to
the appropriate public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded Mortgage will be
promptly delivered to the Custodian upon receipt thereof by WMC; or (B) in the
case of a Mortgage where a public recording office retains the original recorded
Mortgage or in the case where a Mortgage is lost after recordation in a public
recording office, a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded Mortgage;
(d) the originals of all assumption, modification,
consolidation or extension agreements, if any, with evidence of recording
thereon or a certified true copy of such agreement submitted for recording;
(e) the original Assignment of Mortgage for each Mortgage Loan
endorsed in blank and in recordable form;
(f) the originals of all intervening assignments of mortgage
(if any) evidencing a complete chain of assignment from the originator to the
last endorsee with evidence of recording thereon, or if any such intervening
assignment has not been returned from the applicable recording office or has
been lost or if such public recording office retains the original recorded
assignments of mortgage, the Depositor 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
Certificate of the Purchaser or WMC (or certified by the title company, escrow
agent, or closing attorney) stating that such intervening assignment of mortgage
has been dispatched to the appropriate public recording office for recordation
and that such original recorded intervening assignment of mortgage or a copy of
such intervening assignment of mortgage certified by the appropriate public
recording office to be a true and complete copy of the original recorded
intervening assignment of mortgage will be promptly delivered to the Custodian
upon receipt thereof by the Purchaser or WMC, as applicable; 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;
(g) the original or duplicate original or certified copy of
lender's title policy and all riders thereto or, any one of an original title
binder, an original preliminary title report or an original title commitment, or
a copy thereof certified by the title company; and
(h) a security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage (if provided).
Evidence of payment of taxes and insurance, insurance claim files,
correspondence, current and historical computerized data files (which include
records of tax receipts and payment history from the date of origination), and
all other processing, underwriting and closing papers and records which are
customarily contained in a mortgage loan file and which are required to document
the Mortgage Loan or to service the Mortgage Loan.
EXHIBIT M
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM 10-K
Re: GSAMP Trust 2005-WMC2 (the "Trust") Mortgage Pass-Through
Certificates, Series 2005-WMC2, issued pursuant to the Pooling
and Servicing Agreement, dated as of November 1, 2005 (the
"Pooling and Servicing Agreement"), among GS Mortgage
Securities Corp., Xxxxx Fargo Bank, N.A., as custodian ("Xxxxx
Fargo"), and Deutsche Bank National Trust Company, as trustee
(the "Trustee"), and Xxxxxx Loan Servicing LP, as servicer (
the "Servicer")
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K ("Annual
Report"), and all reports on Form 8-K containing distribution reports
(collectively with this Annual Report, the "Reports") filed in respect of
periods included in the year covered by this Annual Report, of the Trust;
2. Based on my knowledge, the information in the Reports,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as of
the last day of the period covered by this Annual Report;
3. Based on my knowledge, the distribution or servicing
information required to be provided to the Trustee by the Servicer under the
Pooling and Servicing Agreement for inclusion in the Reports is included in the
Reports;
4. Based on my knowledge and upon the annual compliance
statement included in this Annual Report and required to be delivered to the
Trustee in accordance with the terms of the Pooling and Servicing Agreement, and
except as disclosed in the Reports, the Servicer has fulfilled its obligations
under the Pooling and Servicing Agreement; and
5. The Reports disclose all significant deficiencies relating
to the Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
or similar procedure, as set forth in the Pooling and Servicing Agreement, that
is included in the Reports.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: the Trustee and the
Servicer.
Date:_______________________________
____________________________________
[Signature] [Title]
EXHIBIT N
FORM OF TRUSTEE CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAMP Trust 2005-WMC2 (the "Trust") Mortgage Pass-Through,
Certificates Series 2005-WMC2, issued pursuant to the Pooling
and Servicing Agreement, dated as of November 1, 2005 (the
"Pooling and Servicing Agreement"), among GS Mortgage
Securities Corp. (the "Depositor"), Xxxxx Fargo Bank, N.A., as
custodian ("Xxxxx Fargo"), Deutsche Bank National Trust
Company, as trustee (the "Trustee"), and Xxxxxx Loan Servicing
LP, as servicer (the "Servicer")
I, [identify the certifying individual], a [title] of Deutsche
Bank National Trust Company, certify to the Depositor and its officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification, that:
1. I have reviewed the annual report on Form 10-K (the "Annual
Report") for the fiscal year [___], and all reports on Form 8-K containing
distribution reports filed in respect of periods included in the year covered by
the Annual Report (collectively with the Annual Report, the "Reports"), of the
Trust;
2. Based on my knowledge, the information in the Reports,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as of
the last day of the period covered by the Annual Report; and
3. Based on my knowledge, the distribution or servicing
information required to be provided to the Trustee by the Servicer under the
Pooling and Servicing Agreement for inclusion in the Reports is included in the
Reports.
Date:_______________________________
____________________________________
[Signature] [Title]
EXHIBIT O
FORM OF SERVICER CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAMP Trust 2005-WMC2 Mortgage Pass-Through Certificates,
Series 2005-WMC2, issued pursuant to the Pooling and Servicing
Agreement, dated as of November 1, 2005 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Xxxxx Fargo Bank, N.A., as
custodian ("Xxxxx Fargo"), Deutsche Bank National Trust
Company, as trustee (the "Trustee"), and Xxxxxx Loan Servicing
LP, as servicer ("Xxxxxx").
I, [identify the certifying individual], certify to the
Depositor, the Trustee, and their respective officers, directors and affiliates,
and with the knowledge and intent that they will rely upon this certification,
that:
1. I am responsible for reviewing the activities performed by
Xxxxxx Loan Servicing LP under the Pooling and Servicing Agreement and based
upon my knowledge and the annual compliance review required under the Pooling
and Servicing Agreement, and except as disclosed in the annual compliance
statement required to be delivered to the Trustee in accordance with the terms
of the Pooling and Servicing Agreement (which has been so delivered to the
Trustee), Xxxxxx Loan Servicing LP has fulfilled its obligations under the
Pooling and Servicing Agreement; and
2. All significant deficiencies relating to Xxxxxx Loan
Servicing LP's compliance with the minimum servicing standards for purposes of
the report provided by an independent public accountant, after conducting a
review in compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar procedure, as set forth in the Pooling and Servicing
Agreement, have been disclosed to such accountant and are included in such
report.
Date:_______________________________
____________________________________
[Signature] [Title]
EXHIBIT P
FORM OF POWER OF ATTORNEY
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
XXXXXX LOAN SERVICING LP
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: _________________________________
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Deutsche Bank National
Trust Company, having its principal place of business at 0000 Xxxx Xx. Xxxxxx
Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, as Trustee (the "Trustee") pursuant to
that Pooling and Servicing Agreement among GS Mortgage Securities Corp. (the
"Depositor"), Xxxxx Fargo Bank, N.A. (the "Custodian"), Xxxxxx Loan Servicing LP
(the "Servicer"), and the Trustee, dated as of November 1, 2005 (the "Pooling
and Servicing Agreement"), hereby constitutes and appoints the Servicer, by and
through the Servicer's officers, the Trustee's true and lawful Attorney-in-Fact,
in the Trustee's name, place and stead and for the Trustee's benefit, in
connection with all mortgage loans serviced by the Servicer pursuant to the
Pooling and Servicing Agreement for the purpose of performing all acts and
executing all documents in the name of the Trustee as may be customarily and
reasonably necessary and appropriate to effectuate the following enumerated
transactions in respect of any of the mortgages or deeds of trust (the
"Mortgages" and the "Deeds of Trust", respectively) and promissory notes secured
thereby (the "Mortgage Notes") for which the undersigned is acting as Trustee
for various certificateholders (whether the undersigned is named therein as
mortgagee or beneficiary or has become mortgagee by virtue of endorsement of the
Mortgage Note secured by any such Mortgage or Deed of Trust) and for which the
Servicer is acting as servicer, all subject to the terms of the Pooling and
Servicing Agreement.
This appointment shall apply to the following enumerated
transactions only:
1. The modification or re-recording of a Mortgage or Deed of
Trust, where said modification or re-recordings is for the purpose of correcting
the Mortgage or Deed of Trust to conform same to the original intent of the
parties thereto or to correct title errors discovered after such title insurance
was issued and said modification or re-recording, in either instance, does not
adversely affect the lien of the Mortgage or Deed of Trust as insured.
2. The subordination of the lien of a Mortgage or Deed of
Trust to an easement in favor of a public utility company of a government agency
or unit with powers of eminent domain; this section shall include, without
limitation, the execution of partial satisfactions/releases, partial
reconveyances or the execution or requests to trustees to accomplish same.
3. The conveyance of the properties to the mortgage insurer,
or the closing of the title to the property to be acquired as real estate owned,
or conveyance of title to real estate owned.
4. The completion of loan assumption agreements.
5. The full satisfaction/release of a Mortgage or Deed of
Trust or full conveyance upon payment and discharge of all sums secured thereby,
including, without limitation, cancellation of the related Mortgage Note.
6. The assignment of any Mortgage or Deed of Trust and the
related Mortgage Note, in connection with the repurchase of the mortgage loan
secured and evidenced thereby.
7. The full assignment of a Mortgage or Deed of Trust upon
payment and discharge of all sums secured thereby in conjunction with the
refinancing thereof, including, without limitation, the assignment of the
related Mortgage Note.
8. With respect to a Mortgage or Deed of Trust, the
foreclosure, the taking of a deed in lieu of foreclosure, or the completion of
judicial or non-judicial foreclosure or termination, cancellation or rescission
of any such foreclosure, including, without limitation, any and all of the
following acts:
9. the substitution of trustee(s) serving under a Deed of
Trust, in accordance with state law and the Deed of Trust;
(a) the preparation and issuance of statements of breach or
non-performance;
(b) the preparation and filing of notices of default and/or
notices of sale;
(c) the cancellation/rescission of notices of default and/or
notices of sale;
(d) the taking of a deed in lieu of foreclosure; and
(e) the preparation and execution of such other documents and
performance of such other actions as may be necessary under the terms of the
Mortgage, Deed of Trust or state law to expeditiously complete said transactions
in paragraphs 8.a. through 8.e., above.
The undersigned gives said Attorney-in-Fact full power and
authority to execute such instruments and to do and perform all and every act
and thing necessary and proper to carry into effect the power or powers granted
by or under this Limited Power of Attorney as fully as the undersigned might or
could do, and hereby does ratify and confirm to all that said Attorney-in-Fact
shall lawfully do or cause to be done by authority hereof.
Third parties without actual notice may rely upon the exercise
of the power granted under this Limited Power of attorney; and may be satisfied
that this Limited Power of Attorney shall continue in full force and effect and
has not been revoked unless an instrument of revocation has been made in writing
by the undersigned.
IN WITNESS WHEREOF, __________________ as Trustee pursuant to
that Pooling and Servicing Agreement among the Depositor, the Servicer, and the
Trustee, dated as of November 1, 2005 (GSAMP Trust 2005-WMC2 Mortgage
Pass-Through Certificates, Series 2005-WMC2), has caused its corporate seal to
be hereto affixed and these presents to be signed and acknowledged in its name
and behalf by ______________ its duly elected and authorized Vice President this
__ day of ________, 200__.
By:____________________________________________
as Trustee for GSAMP Trust 2005-WMC2 Mortgage
Pass-Through Certificates, Series 2005-WMC2
By:__________________________________________________
Name:________________________________________________
Title:_______________________________________________
STATE OF ________
COUNTY OF ______
On ___________, 200__, before me, the undersigned, a Notary
Public in and for said state, personally appeared _______________, Vice
President of ________________as Trustee for ______________ Mortgage Loan Asset
Backed Certificates, Series 200__-___, personally known to me to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed that same in his/her authorized capacity, and that by his/her
signature on the instrument the entity upon behalf of which the person acted and
executed the instrument.
WITNESS my hand and official seal.
(SEAL)
___________________________________
Notary Public
My Commission Expires _____________