EXHIBIT 4
GS MORTGAGE SECURITIES CORP.,
Depositor,
OCWEN LOAN SERVICING, LLC,
Servicer,
XXXXX FARGO BANK, N.A.,
Master Servicer and Securities Administrator and Custodian,
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Custodian,
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
Custodian,
and
LASALLE BANK NATIONAL ASSOCIATION,
Trustee
------------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2005
------------------------------------------------------
GSAMP TRUST 2005-HE6
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HE6
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 Applicable Custodian of the Mortgage
Loans....................................................
Section 2.03 Representations, Warranties and Covenants of the
Servicer and Each Custodian..............................
Section 2.04 [Reserved]..................................................
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
Subservicer..............................................
Section 3.03 Successor Subservicers......................................
Section 3.04 Liability of the Servicer...................................
Section 3.05 No Contractual Relationship between Subservicers, the
Trustee and the Master Servicer..........................
Section 3.06 Assumption or Termination of Subservicing Agreements by
Master Servicer..........................................
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 Securities Administrator
for the Benefit of 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 Master Servicer 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..............
Section 3.29 Back-up Certification.......................................
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 Supplemental Interest Trust.................................
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...................................................
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default...........................................
Section 7.02 Master Servicer to Act; Appointment of Successor
Servicer.................................................
Section 7.03 Notification to Certificateholders..........................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIANS
Section 8.01 Duties of the Trustee.......................................
Section 8.02 Certain Matters Affecting the Custodians and the Trustee....
Section 8.03 Trustee and Custodian Not Liable for Certificates or
Mortgage Loans...........................................
Section 8.04 Trustee May Own Certificates................................
Section 8.05 Trustee's and Custodians' Fees, Indemnification 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 Treatment of Upper-Tier Carry Forward Amounts and
Basis Risk Carry Forward Amounts.........................
Section 8.14 Custodial Responsibilities..................................
Section 8.15 Limitations on Custodial Responsibilities...................
ARTICLE IX
ADMINISTRATION OF THE MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of Servicer's
Obligations..............................................
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance................................................
Section 9.03 Representations and Warranties of the Master Servicer.......
Section 9.04 Master Servicer Events of Default...........................
Section 9.05 Waiver of Default...........................................
Section 9.06 Successor to the Master Servicer............................
Section 9.07 Compensation of the Master Servicer.........................
Section 9.08 Merger or Consolidation.....................................
Section 9.09 Resignation of the Master Servicer..........................
Section 9.10 Assignment or Delegation of Duties by the Master
Servicer.................................................
Section 9.11 Limitation on Liability of the Master Servicer..............
Section 9.12 Indemnification; Third Party Claims.........................
Section 9.13 Annual Statement as to Compliance...........................
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator..........................
Section 10.02 Certain Matters Affecting the Securities Administrator......
Section 10.03 Securities Administrator Not Liable for Certificates or
Mortgage Loans...........................................
Section 10.04 Securities Administrator May Own Certificates...............
Section 10.05 Securities Administrator's Fees and Expenses................
Section 10.06 Eligibility Requirements for Securities Administrator.......
Section 10.07 Resignation and Removal of Securities Administrator.........
Section 10.08 Successor Securities Administrator..........................
Section 10.09 Merger or Consolidation of Securities Administrator.........
Section 10.10 Assignment or Delegation of Duties by the Securities
Administrator............................................
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the Mortgage
Loans....................................................
Section 11.02 Final Distribution on the Certificates......................
Section 11.03 Additional Termination Requirements.........................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment...................................................
Section 12.02 Recordation of Agreement; Counterparts......................
Section 12.03 Governing Law...............................................
Section 12.04 Intention of Parties........................................
Section 12.05 Notices.....................................................
Section 12.06 Severability of Provisions..................................
Section 12.07 Assignment; Sales; Advance Facilities.......................
Section 12.08 Limitation on Rights of Certificateholders..................
Section 12.09 Inspection and Audit Rights.................................
Section 12.10 Certificates Nonassessable and Fully Paid...................
Section 12.11 Waiver of Jury Trial........................................
Section 12.12 Limitation of Damages.......................................
Section 12.13 Rights of the Swap Provider.................................
Section 12.14 No Solicitation.............................................
SCHEDULES
Schedule I Mortgage Loan Schedule
Schedule II Representations and Warranties of Ocwen Loan Servicing, LLC, as
Servicer
Schedule IIII Representations and Warranties of Deutsche Bank National Trust
Company, as Custodian
Schedule IV Representations and Warranties of X.X. Xxxxxx Trust Company,
National Association, as Custodian
Schedule V Representations and Warranties of Xxxxx Fargo Bank, N.A., as
Custodian
EXHIBITS
Exhibit A-1 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 Class R-2 Certificate
Exhibit C-3 Form of Class R-3 Certificate
Exhibit D Form of Class C Certificate
Exhibit E Form of Class X Certificate
Exhibit F Form of Initial Certification of Custodian
Exhibit G Form of Document Certification and Exception Report of Custodian
Exhibit H Form of Residual Transfer Affidavit
Exhibit I Form of Transferor Certificate
Exhibit J Form of Rule 144A Letter
Exhibit K Form of Investment Letter (Non-Rule 144A)
Exhibit L Form of Request for Release
Exhibit M Contents of Each Mortgage File
Exhibit N-1 Servicer Reporting Requirements
Exhibit N-2 Standard File Layout
Exhibit N-3 Standard File Layout for Delinquency Reporting
Exhibit N-4 Form 332
Exhibit O Form of Certification to be provided with Form 10-K
Exhibit P Form of Back-Up Certification
Exhibit Q Fremont Agreements
Exhibit R Representations and Warranties Agreement
THIS POOLING AND SERVICING AGREEMENT, dated as of December 1, 2005,
is among GS MORTGAGE SECURITIES CORP., a Delaware corporation (the "Depositor"),
OCWEN LOAN SERVICING, LLC, a Delaware limited liability company (the
"Servicer"), XXXXX FARGO BANK, N.A., a national banking association, as master
servicer (in such capacity, the "Master Servicer"), as securities administrator
(in such capacity, the "Securities Administrator") and as a custodian (in such
capacity, "Xxxxx Fargo"), DEUTSCHE BANK NATIONAL TRUST COMPANY, a national
banking association, as a custodian ("Deutsche Bank"), X.X. XXXXXX TRUST
COMPANY, NATIONAL ASSOCIATION, a national banking association, as a custodian
(collectively with Xxxxx Fargo and Deutsche Bank, the "Custodians") and LASALLE
BANK NATIONAL ASSOCIATION, a national banking association, as trustee (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 Securities Administrator shall elect that five segregated asset
pools within the Trust Fund (exclusive of (i) the Prepayment Premiums, (ii) the
Interest Rate Swap Agreement, (iii) the Supplemental Interest Trust, (iv) the
Excess Reserve Fund Account, and (v) the right of the LIBOR Certificates to
receive Upper-Tier Carry Forward Amounts and, without duplication, Basis Risk
Carry Forward Amounts and the obligation to pay Class IO Shortfalls) be treated
for federal income tax purposes as comprising five REMICs (each, a "Trust REMIC"
or, in the alternative, Pooling-Tier REMIC-1, Pooling-Tier REMIC-2, the
Lower-Tier REMIC, the Upper-Tier REMIC and the Class X REMIC, respectively). The
Class X Interest and each Class of LIBOR Certificates, other than the right of
each Class of LIBOR Certificates to receive Upper-Tier Carry Forward Amounts
and, without duplication, Basis Risk Carry Forward Amounts and the obligation to
pay Class IO Shortfalls represents ownership of a regular interest in a REMIC
for purposes of the REMIC Provisions.
The Class R-3 Certificates represent ownership of the sole class of
residual interest in the Class X REMIC. The Class R-2 Certificates represent
ownership of the sole class of residual interest in Pooling-Tier REMIC-1 for
purposes of the REMIC Provisions. The Class R-1 Certificates represent ownership
of the sole class of residual interest in each of Pooling-Tier REMIC-2, the
Lower-Tier REMIC and the Upper-Tier REMIC for purposes of the REMIC Provisions.
The Start-up Day for each REMIC described herein is the Closing
Date. The latest possible maturity date for each Certificate is the latest date
referenced in Section 2.06.
The Class X REMIC shall hold as assets the Class UT-X Interest and
the Class UT-IO Interest as set out below. The Upper-Tier REMIC shall hold as
assets the several classes of uncertificated Lower-Tier Regular Interests, set
out below. The Lower-Tier REMIC shall hold as assets the several classes of
uncertificated Pooling-Tier REMIC-2 Regular Interests. Pooling-Tier REMIC-2
shall hold as assets the several classes of uncertificated Pooling-Tier REMIC-1
Regular Interests. Pooling-Tier REMIC-1 shall hold as assets the assets of the
Trust Fund (exclusive of (i) the Prepayment Premiums, (ii) the Interest Rate
Swap Agreement, (iii) the Supplemental Interest Trust, (iv) the Excess Reserve
Fund Account, and (v) the right of the LIBOR Certificates to receive Upper-Tier
Carry Forward Amounts and, without duplication, Basis Risk Carry Forward Amounts
and the obligation to pay Class IO Shortfalls).
For federal income tax purposes, each Class of LIBOR Certificates,
the Class X Certificates and the Class P Certificates represent beneficial
ownership of portions of the Trust Fund which shall be treated as a grantor
trust as more fully described in Section 8.11.
Pooling-Tier REMIC-1
--------------------
Pooling-Tier REMIC-1 shall issue the following interests in
Pooling-Tier REMIC-1, and each such interest is hereby designated as a regular
interest in the Pooling-Tier REMIC-1. Pooling-Tier REMIC-1 Interests with an "I"
in their designation shall relate to Loan Group I and Pooling-Tier REMIC-1
Interests with a "II" in their designation shall relate to Loan Group II.
Pooling-Tier REMIC-1 shall also issue the Class R-2 Certificates. The Class R-2
Certificates are hereby designated as the sole class of residual interest in
Pooling-Tier REMIC-1. The Class R-2 Certificates shall have a $100 Class
Certificate Balance and shall have no interest rate.
Initial
Pooling-Tier
Pooling-Tier REMIC-1 Pooling-Tier REMIC-1 REMIC-1 Principal
Interest Interest Rate Amount
--------------------------------------------------------------------------------
Class PT1-I-1 (1) $ 24,283,845.81
Class PT1-I-2A (2) $ 5,674,905.90
Class PT1-I-2B (3) $ 5,674,905.90
Class PT1-I-3A (2) $ 6,514,076.05
Class PT1-I-3B (3) $ 6,514,076.05
Class PT1-I-4A (2) $ 7,325,557.74
Class PT1-I-4B (3) $ 7,325,557.74
Class PT1-I-5A (2) $ 8,099,441.59
Class PT1-I-5B (3) $ 8,099,441.59
Class PT1-I-6A (2) $ 8,818,173.27
Class PT1-I-6B (3) $ 8,818,173.27
Class PT1-I-7A (2) $ 9,480,907.85
Class PT1-I-7B (3) $ 9,480,907.85
Class PT1-I-8A (2) $ 10,062,108.81
Class PT1-I-8B (3) $ 10,062,108.81
Class PT1-I-9A (2) $ 10,268,732.84
Class PT1-I-9B (3) $ 10,268,732.84
Class PT1-I-10A (2) $ 9,813,580.95
Class PT1-I-10B (3) $ 9,813,580.95
Class PT1-I-11A (2) $ 9,236,066.38
Class PT1-I-11B (3) $ 9,236,066.38
Class PT1-I-12A (2) $ 8,692,393.65
Class PT1-I-12B (3) $ 8,692,393.65
Class PT1-I-13A (2) $ 8,180,917.89
Class PT1-I-13B (3) $ 8,180,917.89
Class PT1-I-14A (2) $ 7,699,722.11
Class PT1-I-14B (3) $ 7,699,722.11
Class PT1-I-15A (2) $ 7,250,339.55
Class PT1-I-15B (3) $ 7,250,339.55
Class PT1-I-16A (2) $ 6,823,720.74
Class PT1-I-16B (3) $ 6,823,720.74
Class PT1-I-17A (2) $ 6,425,928.77
Class PT1-I-17B (3) $ 6,425,928.77
Class PT1-I-18A (2) $ 6,083,505.30
Class PT1-I-18B (3) $ 6,083,505.30
Class PT1-I-19A (2) $ 5,722,324.32
Class PT1-I-19B (3) $ 5,722,324.32
Class PT1-I-20A (2) $ 5,431,452.45
Class PT1-I-20B (3) $ 5,431,452.45
Class PT1-I-21A (2) $ 48,614,207.18
Class PT1-I-21B (3) $ 48,614,207.18
Class PT1-I-22A (2) $ 1,241,642.57
Class PT1-I-22B (3) $ 1,241,642.57
Class PT1-I-23A (2) $ 1,175,918.50
Class PT1-I-23B (3) $ 1,175,918.50
Class PT1-I-24A (2) $ 1,113,744.00
Class PT1-I-24B (3) $ 1,113,744.00
Class PT1-I-25A (2) $ 1,054,924.65
Class PT1-I-25B (3) $ 1,054,924.65
Class PT1-I-26A (2) $ 999,274.70
Class PT1-I-26B (3) $ 999,274.70
Class PT1-I-27A (2) $ 946,621.03
Class PT1-I-27B (3) $ 946,621.03
Class PT1-I-28A (2) $ 896,798.62
Class PT1-I-28B (3) $ 896,798.62
Class PT1-I-29A (2) $ 849,652.33
Class PT1-I-29B (3) $ 849,652.33
Class PT1-I-30A (2) $ 812,230.32
Class PT1-I-30B (3) $ 812,230.32
Class PT1-I-31A (2) $ 771,875.93
Class PT1-I-31B (3) $ 771,875.93
Class PT1-I-32A (2) $ 748,617.99
Class PT1-I-32B (3) $ 748,617.99
Class PT1-I-33A (2) $ 5,333,070.53
Class PT1-I-33B (3) $ 5,333,070.53
Class PT1-I-34A (2) $ 375,905.25
Class PT1-I-34B (3) $ 375,905.25
Class PT1-I-35A (2) $ 362,089.23
Class PT1-I-35B (3) $ 362,089.23
Class PT1-I-36A (2) $ 341,207.37
Class PT1-I-36B (3) $ 341,207.37
Class PT1-I-37A (2) $ 319,770.72
Class PT1-I-37B (3) $ 319,770.72
Class PT1-I-38A (2) $ 301,854.84
Class PT1-I-38B (3) $ 301,854.84
Class PT1-I-39A (2) $ 287,959.01
Class PT1-I-39B (3) $ 287,959.01
Class PT1-I-40A (2) $ 274,709.78
Class PT1-I-40B (3) $ 274,709.78
Class PT1-I-41A (2) $ 262,076.55
Class PT1-I-41B (3) $ 262,076.55
Class PT1-I-42A (2) $ 250,030.51
Class PT1-I-42B (3) $ 250,030.51
Class PT1-I-43A (2) $ 238,543.46
Class PT1-I-43B (3) $ 238,543.46
Class PT1-I-44A (2) $ 227,589.00
Class PT1-I-44B (3) $ 227,589.00
Class PT1-I-45A (2) $ 217,142.22
Class PT1-I-45B (3) $ 217,142.22
Class PT1-I-46A (2) $ 207,179.12
Class PT1-I-46B (3) $ 207,179.12
Class PT1-I-47A (2) $ 197,676.89
Class PT1-I-47B (3) $ 197,676.89
Class PT1-I-48A (2) $ 188,613.93
Class PT1-I-48B (3) $ 188,613.93
Class PT1-I-49A (2) $ 179,969.84
Class PT1-I-49B (3) $ 179,969.84
Class PT1-I-50A (2) $ 171,738.32
Class PT1-I-50B (3) $ 171,738.32
Class PT1-I-51A (2) $ 163,872.25
Class PT1-I-51B (3) $ 163,872.25
Class PT1-I-52A (2) $ 156,368.95
Class PT1-I-52B (3) $ 156,368.95
Class PT1-I-53A (2) $ 149,211.60
Class PT1-I-53B (3) $ 149,211.60
Class PT1-I-54A (2) $ 142,383.70
Class PT1-I-54B (3) $ 142,383.70
Class PT1-I-55A (2) $ 135,869.95
Class PT1-I-55B (3) $ 135,869.95
Class PT1-I-56A (2) $ 129,689.26
Class PT1-I-56B (3) $ 129,689.26
Class PT1-I-57A (2) $ 147,349.80
Class PT1-I-57B (3) $ 147,349.80
Class PT1-I-58A (2) $ 116,313.40
Class PT1-I-58B (3) $ 116,313.40
Class PT1-I-59A (2) $ 111,338.00
Class PT1-I-59B (3) $ 111,338.00
Class PT1-I-60A (2) $ 249,851.38
Class PT1-I-60B (3) $ 249,851.38
Class PT1-I-61A (2) $ 2,084,774.86
Class PT1-I-61B (3) $ 2,084,774.86
Class PT1-II-1 (4) $ 16,182,788.60
Class PT1-II-2A (5) $ 3,781,749.60
Class PT1-II-2B (6) $ 3,781,749.60
Class PT1-II-3A (5) $ 4,340,971.45
Class PT1-II-3B (6) $ 4,340,971.45
Class PT1-II-4A (5) $ 4,881,741.76
Class PT1-II-4B (6) $ 4,881,741.76
Class PT1-II-5A (5) $ 5,397,456.91
Class PT1-II-5B (6) $ 5,397,456.91
Class PT1-II-6A (5) $ 5,876,418.73
Class PT1-II-6B (6) $ 5,876,418.73
Class PT1-II-7A (5) $ 6,318,064.15
Class PT1-II-7B (6) $ 6,318,064.15
Class PT1-II-8A (5) $ 6,705,375.69
Class PT1-II-8B (6) $ 6,705,375.69
Class PT1-II-9A (5) $ 6,843,069.66
Class PT1-II-9B (6) $ 6,843,069.66
Class PT1-II-10A (5) $ 6,539,757.05
Class PT1-II-10B (6) $ 6,539,757.05
Class PT1-II-11A (5) $ 6,154,902.12
Class PT1-II-11B (6) $ 6,154,902.12
Class PT1-II-12A (5) $ 5,792,599.35
Class PT1-II-12B (6) $ 5,792,599.35
Class PT1-II-13A (5) $ 5,451,752.61
Class PT1-II-13B (6) $ 5,451,752.61
Class PT1-II-14A (5) $ 5,131,084.39
Class PT1-II-14B (6) $ 5,131,084.39
Class PT1-II-15A (5) $ 4,831,616.45
Class PT1-II-15B (6) $ 4,831,616.45
Class PT1-II-16A (5) $ 4,547,318.26
Class PT1-II-16B (6) $ 4,547,318.26
Class PT1-II-17A (5) $ 4,282,230.23
Class PT1-II-17B (6) $ 4,282,230.23
Class PT1-II-18A (5) $ 4,054,039.70
Class PT1-II-18B (6) $ 4,054,039.70
Class PT1-II-19A (5) $ 3,813,349.18
Class PT1-II-19B (6) $ 3,813,349.18
Class PT1-II-20A (5) $ 3,619,512.55
Class PT1-II-20B (6) $ 3,619,512.55
Class PT1-II-21A (5) $ 32,396,441.82
Class PT1-II-21B (6) $ 32,396,441.82
Class PT1-II-22A (5) $ 827,428.93
Class PT1-II-22B (6) $ 827,428.93
Class PT1-II-23A (5) $ 783,630.50
Class PT1-II-23B (6) $ 783,630.50
Class PT1-II-24A (5) $ 742,197.50
Class PT1-II-24B (6) $ 742,197.50
Class PT1-II-25A (5) $ 703,000.35
Class PT1-II-25B (6) $ 703,000.35
Class PT1-II-26A (5) $ 665,915.30
Class PT1-II-26B (6) $ 665,915.30
Class PT1-II-27A (5) $ 630,826.97
Class PT1-II-27B (6) $ 630,826.97
Class PT1-II-28A (5) $ 597,625.38
Class PT1-II-28B (6) $ 597,625.38
Class PT1-II-29A (5) $ 566,207.17
Class PT1-II-29B (6) $ 566,207.17
Class PT1-II-30A (5) $ 541,269.18
Class PT1-II-30B (6) $ 541,269.18
Class PT1-II-31A (5) $ 514,377.07
Class PT1-II-31B (6) $ 514,377.07
Class PT1-II-32A (5) $ 498,878.01
Class PT1-II-32B (6) $ 498,878.01
Class PT1-II-33A (5) $ 3,553,950.97
Class PT1-II-33B (6) $ 3,553,950.97
Class PT1-II-34A (5) $ 250,502.75
Class PT1-II-34B (6) $ 250,502.75
Class PT1-II-35A (5) $ 241,295.77
Class PT1-II-35B (6) $ 241,295.77
Class PT1-II-36A (5) $ 227,380.13
Class PT1-II-36B (6) $ 227,380.13
Class PT1-II-37A (5) $ 213,094.78
Class PT1-II-37B (6) $ 213,094.78
Class PT1-II-38A (5) $ 201,155.66
Class PT1-II-38B (6) $ 201,155.66
Class PT1-II-39A (5) $ 191,895.49
Class PT1-II-39B (6) $ 191,895.49
Class PT1-II-40A (5) $ 183,066.22
Class PT1-II-40B (6) $ 183,066.22
Class PT1-II-41A (5) $ 174,647.45
Class PT1-II-41B (6) $ 174,647.45
Class PT1-II-42A (5) $ 166,619.99
Class PT1-II-42B (6) $ 166,619.99
Class PT1-II-43A (5) $ 158,965.04
Class PT1-II-43B (6) $ 158,965.04
Class PT1-II-44A (5) $ 151,665.00
Class PT1-II-44B (6) $ 151,665.00
Class PT1-II-45A (5) $ 144,703.28
Class PT1-II-45B (6) $ 144,703.28
Class PT1-II-46A (5) $ 138,063.88
Class PT1-II-46B (6) $ 138,063.88
Class PT1-II-47A (5) $ 131,731.61
Class PT1-II-47B (6) $ 131,731.61
Class PT1-II-48A (5) $ 125,692.07
Class PT1-II-48B (6) $ 125,692.07
Class PT1-II-49A (5) $ 119,931.66
Class PT1-II-49B (6) $ 119,931.66
Class PT1-II-50A (5) $ 114,446.18
Class PT1-II-50B (6) $ 114,446.18
Class PT1-II-51A (5) $ 109,204.25
Class PT1-II-51B (6) $ 109,204.25
Class PT1-II-52A (5) $ 104,204.05
Class PT1-II-52B (6) $ 104,204.05
Class PT1-II-53A (5) $ 99,434.40
Class PT1-II-53B (6) $ 99,434.40
Class PT1-II-54A (5) $ 94,884.30
Class PT1-II-54B (6) $ 94,884.30
Class PT1-II-55A (5) $ 90,543.55
Class PT1-II-55B (6) $ 90,543.55
Class PT1-II-56A (5) $ 86,424.74
Class PT1-II-56B (6) $ 86,424.74
Class PT1-II-57A (5) $ 98,193.70
Class PT1-II-57B (6) $ 98,193.70
Class PT1-II-58A (5) $ 77,511.10
Class PT1-II-58B (6) $ 77,511.10
Class PT1-II-59A (5) $ 74,195.50
Class PT1-II-59B (6) $ 74,195.50
Class PT1-II-60A (5) $ 166,500.62
Class PT1-II-60B (6) $ 166,500.62
Class PT1-II-61A (5) $ 1,389,291.14
Class PT1-II-61B (6) $ 1,389,291.14
Class PT1-R (7) $ 100
--------------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group I WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the product of
(i) 2 and (ii) the Pooling-Tier REMIC-1 Loan Group I WAC Rate, subject to
a maximum rate of 9.8930%.
(3) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling-Tier REMIC-1 Loan
Group I WAC Rate over (B) 9.8930%.
(4) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group II WAC Rate.
(5) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the product of
(i) 2 and (ii) the Pooling-Tier REMIC-1 Loan Group II WAC Rate, subject to
a maximum rate of 9.8930%.
(6) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling-Tier REMIC-1 Loan
Group II WAC Rate over (B) 9.8930%.
(7) The Class PT1-R Interest shall not bear interest.
On each Distribution Date, the Securities Administrator shall first
pay from the Trust Fund and charge as an expense of Pooling-Tier REMIC-1 all
expenses of the Trust for such Distribution Date. Such expense, other than the
Servicing Fee and Master Servicing Fee, shall be allocated in the same manner as
Realized Losses.
On each Distribution Date, the interest distributable in respect of
the Mortgage Loans from the related Loan Group for such Distribution Date shall
be deemed to be distributed to the Pooling-Tier REMIC-1 Regular Interests at the
rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group I Mortgage Loans shall be
allocated to the Class R-2 Certificates pursuant to Section 4.02(a)(iii) until
its Class Certificate Balance is reduced to zero, then to the outstanding
Pooling-Tier REMIC-1 Regular Interest relating to Loan Group I with the lowest
numerical denomination (other than the Class PT1-1 Interest) until the
Pooling-Tier REMIC-1 Principal Amount of such interest is reduced to zero,
provided that, with respect to Pooling-Tier REMIC-1 Regular Interests relating
to Loan Group I with the same numerical denomination, such Realized Losses and
payments of principal shall be allocated pro rata between such Pooling-Tier
REMIC-1 Regular Interests, and then to the Class PT1-1 Interest until the
Pooling-Tier REMIC-1 Principal Amount of such interest is reduced to zero.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group II Mortgage Loans shall be
allocated to the outstanding Pooling-Tier REMIC-1 Regular Interest relating to
Loan Group II with the lowest numerical denomination (other than the Class
PT1-II-1 Interest) until the Pooling-Tier REMIC-1 Principal Amount of such
interest is reduced to zero, provided that, with respect to Pooling-Tier REMIC-1
Regular Interests relating to Loan Group II with the same numerical
denomination, such Realized Losses and payments of principal shall be allocated
pro rata between such Pooling-Tier REMIC-1 Regular Interests, and then to the
Class PT1-II-1 Interest until the Pooling-Tier REMIC-1 Principal Amount of such
interest is reduced to zero.
Pooling-Tier REMIC-2
Pooling-Tier REMIC-2 shall issue the following interests in
Pooling-Tier REMIC-2, and each such interest, other than the Class PT2-R
Interest, is hereby designated as a regular interest in Pooling-Tier REMIC-2.
Pooling-Tier REMIC-2 Interests with an "I" in their designation shall relate to
Loan Group I and Pooling Tier REMIC-2 Interests with a "II" in their designation
shall relate to Loan Group II. The Class PT2-R Interest is hereby designated as
the sole class of residual interest in Pooling-Tier REMIC-2 and shall be
represented by the Class R-1 Certificates.
Pooling-Tier Pooling-Tier Pooling-Tier REMIC-2 Corresponding Corresponding Corresponding
REMIC-2 REMIC-2 Initial Principal Pooling-Tier Pooling-Tier REMIC-1 Scheduled Crossover
Interest Interest Rate Amount REMIC-2 IO Regular Interest Distribution Date
------------------------------------------------------------------------------------------------------------------------------------
Class PT2-I-1 (1) $24,283,795.81 N/A N/A N/A
Class PT2-I-2A (2) $ 5,674,905.90 Class PT2-I-IO-2 N/A N/A
Class PT2-I-2B (3) $ 5,674,905.90 N/A N/A N/A
Class PT2-I-3A (2) $ 6,514,076.05 Class PT2-I-IO-3 N/A N/A
Class PT2-I-3B (3) $ 6,514,076.05 N/A N/A N/A
Class PT2-I-4A (2) $ 7,325,557.74 Class PT2-I-IO-4 N/A N/A
Class PT2-I-4B (3) $ 7,325,557.74 N/A N/A N/A
Class PT2-I-5A (2) $ 8,099,441.59 Class PT2-I-IO-5 N/A N/A
Class PT2-I-5B (3) $ 8,099,441.59 N/A N/A N/A
Class PT2-I-6A (2) $ 8,818,173.27 Class PT2-I-IO-6 N/A N/A
Class PT2-I-6B (3) $ 8,818,173.27 N/A N/A N/A
Class PT2-I-7A (2) $ 9,480,907.85 Class PT2-I-IO-7 N/A N/A
Class PT2-I-7B (3) $ 9,480,907.85 N/A N/A N/A
Class PT2-I-8A (2) $10,062,108.81 Class PT2-I-IO-8 N/A N/A
Class PT2-I-8B (3) $10,062,108.81 N/A N/A N/A
Class PT2-I-9A (2) $10,268,732.84 Class PT2-I-IO-9 N/A N/A
Class PT2-I-9B (3) $10,268,732.84 N/A N/A N/A
Class PT2-I-10A (2) $ 9,813,580.95 Class PT2-I-IO-10 N/A N/A
Class PT2-I-10B (3) $ 9,813,580.95 N/A N/A N/A
Class PT2-I-11A (2) $ 9,236,066.38 Class PT2-I-IO-11 N/A N/A
Class PT2-I-11B (3) $ 9,236,066.38 N/A N/A N/A
Class PT2-I-12A (2) $ 8,692,393.65 Class PT2-I-IO-12 N/A N/A
Class PT2-I-12B (3) $ 8,692,393.65 N/A N/A N/A
Class PT2-I-13A (2) $ 8,180,917.89 Class PT2-I-IO-13 N/A N/A
Class PT2-I-13B (3) $ 8,180,917.89 N/A N/A N/A
Class PT2-I-14A (2) $ 7,699,722.11 Class PT2-I-IO-14 N/A N/A
Class PT2-I-14B (3) $ 7,699,722.11 N/A N/A N/A
Class PT2-I-15A (2) $ 7,250,339.55 Class PT2-I-IO-15 N/A N/A
Class PT2-I-15B (3) $ 7,250,339.55 N/A N/A N/A
Class PT2-I-16A (2) $ 6,823,720.74 Class PT2-I-IO-16 N/A N/A
Class PT2-I-16B (3) $ 6,823,720.74 N/A N/A N/A
Class PT2-I-17A (2) $ 6,425,928.77 Class PT2-I-IO-17 N/A N/A
Class PT2-I-17B (3) $ 6,425,928.77 N/A N/A N/A
Class PT2-I-18A (2) $ 6,083,505.30 Class PT2-I-IO-18 N/A N/A
Class PT2-I-18B (3) $ 6,083,505.30 N/A N/A N/A
Class PT2-I-19A (2) $ 5,722,324.32 Class PT2-I-IO-19 N/A N/A
Class PT2-I-19B (3) $ 5,722,324.32 N/A N/A N/A
Class PT2-I-20A (2) $ 5,431,452.45 Class PT2-I-IO-20 N/A N/A
Class PT2-I-20B (3) $ 5,431,452.45 N/A N/A N/A
Class PT2-I-21A (2) $48,614,207.18 Class PT2-I-IO-21 N/A N/A
Class PT2-I-21B (3) $48,614,207.18 N/A N/A N/A
Class PT2-I-22A (2) $ 1,241,642.57 Class PT2-I-IO-22 N/A N/A
Class PT2-I-22B (3) $ 1,241,642.57 N/A N/A N/A
Class PT2-I-23A (2) $ 1,175,918.50 Class PT2-I-IO-23 N/A N/A
Class PT2-I-23B (3) $ 1,175,918.50 N/A N/A N/A
Class PT2-I-24A (2) $ 1,113,744.00 Class PT2-I-IO-24 N/A N/A
Class PT2-I-24B (3) $ 1,113,744.00 N/A N/A N/A
Class PT2-I-25A (2) $ 1,054,924.65 Class PT2-I-IO-25 N/A N/A
Class PT2-I-25B (3) $ 1,054,924.65 N/A N/A N/A
Class PT2-I-26A (2) $ 999,274.70 Class PT2-I-IO-26 N/A N/A
Class PT2-I-26B (3) $ 999,274.70 N/A N/A N/A
Class PT2-I-27A (2) $ 946,621.03 Class PT2-I-IO-27 N/A N/A
Class PT2-I-27B (3) $ 946,621.03 N/A N/A N/A
Class PT2-I-28A (2) $ 896,798.62 Class PT2-I-IO-28 N/A N/A
Class PT2-I-28B (3) $ 896,798.62 N/A N/A N/A
Class PT2-I-29A (2) $ 849,652.33 Class PT2-I-IO-29 N/A N/A
Class PT2-I-29B (3) $ 849,652.33 N/A N/A N/A
Class PT2-I-30A (2) $ 812,230.32 Class PT2-I-IO-30 N/A N/A
Class PT2-I-30B (3) $ 812,230.32 N/A N/A N/A
Class PT2-I-31A (2) $ 771,875.93 Class PT2-I-IO-31 N/A N/A
Class PT2-I-31B (3) $ 771,875.93 N/A N/A N/A
Class PT2-I-32A (2) $ 748,617.99 Class PT2-I-IO-32 N/A N/A
Class PT2-I-32B (3) $ 748,617.99 N/A N/A N/A
Class PT2-I-33A (2) $ 5,333,070.53 Class PT2-I-IO-33 N/A N/A
Class PT2-I-33B (3) $ 5,333,070.53 N/A N/A N/A
Class PT2-I-34A (2) $ 375,905.25 Class PT2-I-IO-34 N/A N/A
Class PT2-I-34B (3) $ 375,905.25 N/A N/A N/A
Class PT2-I-35A (2) $ 362,089.23 Class PT2-I-IO-35 N/A N/A
Class PT2-I-35B (3) $ 362,089.23 N/A N/A N/A
Class PT2-I-36A (2) $ 341,207.37 Class PT2-I-IO-36 N/A N/A
Class PT2-I-36B (3) $ 341,207.37 N/A N/A N/A
Class PT2-I-37A (2) $ 319,770.72 Class PT2-I-IO-37 N/A N/A
Class PT2-I-37B (3) $ 319,770.72 N/A N/A N/A
Class PT2-I-38A (2) $ 301,854.84 Class PT2-I-IO-38 N/A N/A
Class PT2-I-38B (3) $ 301,854.84 N/A N/A N/A
Class PT2-I-39A (2) $ 287,959.01 Class PT2-I-IO-39 N/A N/A
Class PT2-I-39B (3) $ 287,959.01 N/A N/A N/A
Class PT2-I-40A (2) $ 274,709.78 Class PT2-I-IO-40 N/A N/A
Class PT2-I-40B (3) $ 274,709.78 N/A N/A N/A
Class PT2-I-41A (2) $ 262,076.55 Class PT2-I-IO-41 N/A N/A
Class PT2-I-41B (3) $ 262,076.55 N/A N/A N/A
Class PT2-I-42A (2) $ 250,030.51 Class PT2-I-IO-42 N/A N/A
Class PT2-I-42B (3) $ 250,030.51 N/A N/A N/A
Class PT2-I-43A (2) $ 238,543.46 Class PT2-I-IO-43 N/A N/A
Class PT2-I-43B (3) $ 238,543.46 N/A N/A N/A
Class PT2-I-44A (2) $ 227,589.00 Class PT2-I-IO-44 N/A N/A
Class PT2-I-44B (3) $ 227,589.00 N/A N/A N/A
Class PT2-I-45A (2) $ 217,142.22 Class PT2-I-IO-45 N/A N/A
Class PT2-I-45B (3) $ 217,142.22 N/A N/A N/A
Class PT2-I-46A (2) $ 207,179.12 Class PT2-I-IO-46 N/A N/A
Class PT2-I-46B (3) $ 207,179.12 N/A N/A N/A
Class PT2-I-47A (2) $ 197,676.89 Class PT2-I-IO-47 N/A N/A
Class PT2-I-47B (3) $ 197,676.89 N/A N/A N/A
Class PT2-I-48A (2) $ 188,613.93 Class PT2-I-IO-48 N/A N/A
Class PT2-I-48B (3) $ 188,613.93 N/A N/A N/A
Class PT2-I-49A (2) $ 179,969.84 Class PT2-I-IO-49 N/A N/A
Class PT2-I-49B (3) $ 179,969.84 N/A N/A N/A
Class PT2-I-50A (2) $ 171,738.32 Class PT2-I-IO-50 N/A N/A
Class PT2-I-50B (3) $ 171,738.32 N/A N/A N/A
Class PT2-I-51A (2) $ 163,872.25 Class PT2-I-IO-51 N/A N/A
Class PT2-I-51B (3) $ 163,872.25 N/A N/A N/A
Class PT2-I-52A (2) $ 156,368.95 Class PT2-I-IO-52 N/A N/A
Class PT2-I-52B (3) $ 156,368.95 N/A N/A N/A
Class PT2-I-53A (2) $ 149,211.60 Class PT2-I-IO-53 N/A N/A
Class PT2-I-53B (3) $ 149,211.60 N/A N/A N/A
Class PT2-I-54A (2) $ 142,383.70 Class PT2-I-IO-54 N/A N/A
Class PT2-I-54B (3) $ 142,383.70 N/A N/A N/A
Class PT2-I-55A (2) $ 135,869.95 Class PT2-I-IO-55 N/A N/A
Class PT2-I-55B (3) $ 135,869.95 N/A N/A N/A
Class PT2-I-56A (2) $ 129,689.26 Class PT2-I-IO-56 N/A N/A
Class PT2-I-56B (3) $ 129,689.26 N/A N/A N/A
Class PT2-I-57A (2) $ 147,349.80 Class PT2-I-IO-57 N/A N/A
Class PT2-I-57B (3) $ 147,349.80 N/A N/A N/A
Class PT2-I-58A (2) $ 116,313.40 Class PT2-I-IO-58 N/A N/A
Class PT2-I-58B (3) $ 116,313.40 N/A N/A N/A
Class PT2-I-59A (2) $ 111,338.00 Class PT2-I-IO-59 N/A N/A
Class PT2-I-59B (3) $ 111,338.00 N/A N/A N/A
Class PT2-I-60A (2) $ 249,851.38 Class PT2-I-IO-60 N/A N/A
Class PT2-I-60B (3) $ 249,851.38 N/A N/A N/A
Class PT2-I-61A (2) $ 2,084,774.86 Class PT2-I-IO-61 N/A N/A
Class PT2-I-61B (3) $ 2,084,774.86 N/A N/A N/A
Class PT2-II-1 (5) $16,182,788.60 N/A N/A N/A
Class PT2-II-2A (6) $ 3,781,749.60 Class PT2-II-IO-2 N/A N/A
Class PT2-II-2B (7) $ 3,781,749.60 N/A N/A N/A
Class PT2-II-3A (6) $ 4,340,971.45 Class PT2-II-IO-3 N/A N/A
Class PT2-II-3B (7) $ 4,340,971.45 N/A N/A N/A
Class PT2-II-4A (6) $ 4,881,741.76 Class PT2-II-IO-4 N/A N/A
Class PT2-II-4B (7) $ 4,881,741.76 N/A N/A N/A
Class PT2-II-5A (6) $ 5,397,456.91 Class PT2-II-IO-5 N/A N/A
Class PT2-II-5B (7) $ 5,397,456.91 N/A N/A N/A
Class PT2-II-6A (6) $ 5,876,418.73 Class PT2-II-IO-6 N/A N/A
Class PT2-II-6B (7) $ 5,876,418.73 N/A N/A N/A
Class PT2-II-7A (6) $ 6,318,064.15 Class PT2-II-IO-7 N/A N/A
Class PT2-II-7B (7) $ 6,318,064.15 N/A N/A N/A
Class PT2-II-8A (6) $ 6,705,375.69 Class PT2-II-IO-8 N/A N/A
Class PT2-II-8B (7) $ 6,705,375.69 N/A N/A N/A
Class PT2-II-9A (6) $ 6,843,069.66 Class PT2-II-IO-9 N/A N/A
Class PT2-II-9B (7) $ 6,843,069.66 N/A N/A N/A
Class PT2-II-10A (6) $ 6,539,757.05 Class PT2-II-IO-10 N/A N/A
Class PT2-II-10B (7) $ 6,539,757.05 N/A N/A N/A
Class PT2-II-11A (6) $ 6,154,902.12 Class PT2-II-IO-11 N/A N/A
Class PT2-II-11B (7) $ 6,154,902.12 N/A N/A N/A
Class PT2-II-12A (6) $ 5,792,599.35 Class PT2-II-IO-12 N/A N/A
Class PT2-II-12B (7) $ 5,792,599.35 N/A N/A N/A
Class PT2-II-13A (6) $ 5,451,752.61 Class PT2-II-IO-13 N/A N/A
Class PT2-II-13B (7) $ 5,451,752.61 N/A N/A N/A
Class PT2-II-14A (6) $ 5,131,084.39 Class PT2-II-IO-14 N/A N/A
Class PT2-II-14B (7) $ 5,131,084.39 N/A N/A N/A
Class PT2-II-15A (6) $ 4,831,616.45 Class PT2-II-IO-15 N/A N/A
Class PT2-II-15B (7) $ 4,831,616.45 N/A N/A N/A
Class PT2-II-16A (6) $ 4,547,318.26 Class PT2-II-IO-16 N/A N/A
Class PT2-II-16B (7) $ 4,547,318.26 N/A N/A N/A
Class PT2-II-17A (6) $ 4,282,230.23 Class PT2-II-IO-17 N/A N/A
Class PT2-II-17B (7) $ 4,282,230.23 N/A N/A N/A
Class PT2-II-18A (6) $ 4,054,039.70 Class PT2-II-IO-18 N/A N/A
Class PT2-II-18B (7) $ 4,054,039.70 N/A N/A N/A
Class PT2-II-19A (6) $ 3,813,349.18 Class PT2-II-IO-19 N/A N/A
Class PT2-II-19B (7) $ 3,813,349.18 N/A N/A N/A
Class PT2-II-20A (6) $ 3,619,512.55 Class PT2-II-IO-20 N/A N/A
Class PT2-II-20B (7) $ 3,619,512.55 N/A N/A N/A
Class PT2-II-21A (6) $32,396,441.82 Class PT2-II-IO-21 N/A N/A
Class PT2-II-21B (7) $32,396,441.82 N/A N/A N/A
Class PT2-II-22A (6) $ 827,428.93 Class PT2-II-IO-22 N/A N/A
Class PT2-II-22B (7) $ 827,428.93 N/A N/A N/A
Class PT2-II-23A (6) $ 783,630.50 Class PT2-II-IO-23 N/A N/A
Class PT2-II-23B (7) $ 783,630.50 N/A N/A N/A
Class PT2-II-24A (6) $ 742,197.50 Class PT2-II-IO-24 N/A N/A
Class PT2-II-24B (7) $ 742,197.50 N/A N/A N/A
Class PT2-II-25A (6) $ 703,000.35 Class PT2-II-IO-25 N/A N/A
Class PT2-II-25B (7) $ 703,000.35 N/A N/A N/A
Class PT2-II-26A (6) $ 665,915.30 Class PT2-II-IO-26 N/A N/A
Class PT2-II-26B (7) $ 665,915.30 N/A N/A N/A
Class PT2-II-27A (6) $ 630,826.97 Class PT2-II-IO-27 N/A N/A
Class PT2-II-27B (7) $ 630,826.97 N/A N/A N/A
Class PT2-II-28A (6) $ 597,625.38 Class PT2-II-IO-28 N/A N/A
Class PT2-II-28B (7) $ 597,625.38 N/A N/A N/A
Class PT2-II-29A (6) $ 566,207.17 Class PT2-II-IO-29 N/A N/A
Class PT2-II-29B (7) $ 566,207.17 N/A N/A N/A
Class PT2-II-30A (6) $ 541,269.18 Class PT2-II-IO-30 N/A N/A
Class PT2-II-30B (7) $ 541,269.18 N/A N/A N/A
Class PT2-II-31A (6) $ 514,377.07 Class PT2-II-IO-31 N/A N/A
Class PT2-II-31B (7) $ 514,377.07 N/A N/A N/A
Class PT2-II-32A (6) $ 498,878.01 Class PT2-II-IO-32 N/A N/A
Class PT2-II-32B (7) $ 498,878.01 N/A N/A N/A
Class PT2-II-33A (6) $ 3,553,950.97 Class PT2-II-IO-33 N/A N/A
Class PT2-II-33B (7) $ 3,553,950.97 N/A N/A N/A
Class PT2-II-34A (6) $ 250,502.75 Class PT2-II-IO-34 N/A N/A
Class PT2-II-34B (7) $ 250,502.75 N/A N/A N/A
Class PT2-II-35A (6) $ 241,295.77 Class PT2-II-IO-35 N/A N/A
Class PT2-II-35B (7) $ 241,295.77 N/A N/A N/A
Class PT2-II-36A (6) $ 227,380.13 Class PT2-II-IO-36 N/A N/A
Class PT2-II-36B (7) $ 227,380.13 N/A N/A N/A
Class PT2-II-37A (6) $ 213,094.78 Class PT2-II-IO-37 N/A N/A
Class PT2-II-37B (7) $ 213,094.78 N/A N/A N/A
Class PT2-II-38A (6) $ 201,155.66 Class PT2-II-IO-38 N/A N/A
Class PT2-II-38B (7) $ 201,155.66 N/A N/A N/A
Class PT2-II-39A (6) $ 191,895.49 Class PT2-II-IO-39 N/A N/A
Class PT2-II-39B (7) $ 191,895.49 N/A N/A N/A
Class PT2-II-40A (6) $ 183,066.22 Class PT2-II-IO-40 N/A N/A
Class PT2-II-40B (7) $ 183,066.22 N/A N/A N/A
Class PT2-II-41A (6) $ 174,647.45 Class PT2-II-IO-41 N/A N/A
Class PT2-II-41B (7) $ 174,647.45 N/A N/A N/A
Class PT2-II-42A (6) $ 166,619.99 Class PT2-II-IO-42 N/A N/A
Class PT2-II-42B (7) $ 166,619.99 N/A N/A N/A
Class PT2-II-43A (6) $ 158,965.04 Class PT2-II-IO-43 N/A N/A
Class PT2-II-43B (7) $ 158,965.04 N/A N/A N/A
Class PT2-II-44A (6) $ 151,665.00 Class PT2-II-IO-44 N/A N/A
Class PT2-II-44B (7) $ 151,665.00 N/A N/A N/A
Class PT2-II-45A (6) $ 144,703.28 Class PT2-II-IO-45 N/A N/A
Class PT2-II-45B (7) $ 144,703.28 N/A N/A N/A
Class PT2-II-46A (6) $ 138,063.88 Class PT2-II-IO-46 N/A N/A
Class PT2-II-46B (7) $ 138,063.88 N/A N/A N/A
Class PT2-II-47A (6) $ 131,731.61 Class PT2-II-IO-47 N/A N/A
Class PT2-II-47B (7) $ 131,731.61 N/A N/A N/A
Class PT2-II-48A (6) $ 125,692.07 Class PT2-II-IO-48 N/A N/A
Class PT2-II-48B (7) $ 125,692.07 N/A N/A N/A
Class PT2-II-49A (6) $ 119,931.66 Class PT2-II-IO-49 N/A N/A
Class PT2-II-49B (7) $ 119,931.66 N/A N/A N/A
Class PT2-II-50A (6) $ 114,446.18 Class PT2-II-IO-50 N/A N/A
Class PT2-II-50B (7) $ 114,446.18 N/A N/A N/A
Class PT2-II-51A (6) $ 109,204.25 Class PT2-II-IO-51 N/A N/A
Class PT2-II-51B (7) $ 109,204.25 N/A N/A N/A
Class PT2-II-52A (6) $ 104,204.05 Class PT2-II-IO-52 N/A N/A
Class PT2-II-52B (7) $ 104,204.05 N/A N/A N/A
Class PT2-II-53A (6) $ 99,434.40 Class PT2-II-IO-53 N/A N/A
Class PT2-II-53B (7) $ 99,434.40 N/A N/A N/A
Class PT2-II-54A (6) $ 94,884.30 Class PT2-II-IO-54 N/A N/A
Class PT2-II-54B (7) $ 94,884.30 N/A N/A N/A
Class PT2-II-55A (6) $ 90,543.55 Class PT2-II-IO-55 N/A N/A
Class PT2-II-55B (7) $ 90,543.55 N/A N/A N/A
Class PT2-II-56A (6) $ 86,424.74 Class PT2-II-IO-56 N/A N/A
Class PT2-II-56B (7) $ 86,424.74 N/A N/A N/A
Class PT2-II-57A (6) $ 98,193.70 Class PT2-II-IO-57 N/A N/A
Class PT2-II-57B (7) $ 98,193.70 N/A N/A N/A
Class PT2-II-58A (6) $ 77,511.10 Class PT2-II-IO-58 N/A N/A
Class PT2-II-58B (7) $ 77,511.10 N/A N/A N/A
Class PT2-II-59A (6) $ 74,195.50 Class PT2-II-IO-59 N/A N/A
Class PT2-II-59B (7) $ 74,195.50 N/A N/A N/A
Class PT2-II-60A (6) $ 166,500.62 Class PT2-II-IO-60 N/A N/A
Class PT2-II-60B (7) $ 166,500.62 N/A N/A N/A
Class PT2-II-61A (6) $ 1,389,291.14 Class PT2-II-IO-61 N/A N/A
Class PT2-II-61B (7) $ 1,389,291.14 N/A N/A N/A
Class PT2-I-IO-2 (4) (4) N/A Class PT1-I-2A January 2006
Class PT2-I-IO-3 (4) (4) N/A Class PT1-I-3A February 2006
Class PT2-I-IO-4 (4) (4) N/A Class PT1-I-4A March 2006
Class PT2-I-IO-5 (4) (4) N/A Class PT1-I-5A April 2006
Class PT2-I-IO-6 (4) (4) N/A Class PT1-I-6A May 2006
Class PT2-I-IO-7 (4) (4) N/A Class PT1-I-7A June 2006
Class PT2-I-IO-8 (4) (4) N/A Class PT1-I-8A July 2006
Class PT2-I-IO-9 (4) (4) N/A Class PT1-I-9A August 2006
Class PT2-I-IO-10 (4) (4) N/A Class PT1-I-10A September 2006
Class PT2-I-IO-11 (4) (4) N/A Class PT1-I-11A October 2006
Class PT2-I-IO-12 (4) (4) N/A Class PT1-I-12A November 2006
Class PT2-I-IO-13 (4) (4) N/A Class PT1-I-13A December 2006
Class PT2-I-IO-14 (4) (4) N/A Class PT1-I-14A January 2007
Class PT2-I-IO-15 (4) (4) N/A Class PT1-I-15A February 2007
Class PT2-I-IO-16 (4) (4) N/A Class PT1-I-16A March 2007
Class PT2-I-IO-17 (4) (4) N/A Class PT1-I-17A April 2007
Class PT2-I-IO-18 (4) (4) N/A Class PT1-I-18A May 2007
Class PT2-I-IO-19 (4) (4) N/A Class PT1-I-19A June 2007
Class PT2-I-IO-20 (4) (4) N/A Class PT1-I-20A July 2007
Class PT2-I-IO-21 (4) (4) N/A Class PT1-I-21A August 2007
Class PT2-I-IO-22 (4) (4) N/A Class PT1-I-22A September 2007
Class PT2-I-IO-23 (4) (4) N/A Class PT1-I-23A October 2007
Class PT2-I-IO-24 (4) (4) N/A Class PT1-I-24A November 2007
Class PT2-I-IO-25 (4) (4) N/A Class PT1-I-25A December 2007
Class PT2-I-IO-26 (4) (4) N/A Class PT1-I-26A January 2008
Class PT2-I-IO-27 (4) (4) N/A Class PT1-I-27A February 2008
Class PT2-I-IO-28 (4) (4) N/A Class PT1-I-28A March 2008
Class PT2-I-IO-29 (4) (4) N/A Class PT1-I-29A April 2008
Class PT2-I-IO-30 (4) (4) N/A Class PT1-I-30A May 2008
Class PT2-I-IO-31 (4) (4) N/A Class PT1-I-31A June 2008
Class PT2-I-IO-32 (4) (4) N/A Class PT1-I-32A July 2008
Class PT2-I-IO-33 (4) (4) N/A Class PT1-I-33A August 2008
Class PT2-I-IO-34 (4) (4) N/A Class PT1-I-34A September 2008
Class PT2-I-IO-35 (4) (4) N/A Class PT1-I-35A October 2008
Class PT2-I-IO-36 (4) (4) N/A Class PT1-I-36A November 2008
Class PT2-I-IO-37 (4) (4) N/A Class PT1-I-37A December 2008
Class PT2-I-IO-38 (4) (4) N/A Class PT1-I-38A January 2009
Class PT2-I-IO-39 (4) (4) N/A Class PT1-I-39A February 2009
Class PT2-I-IO-40 (4) (4) N/A Class PT1-I-40A March 2009
Class PT2-I-IO-41 (4) (4) N/A Class PT1-I-41A April 2009
Class PT2-I-IO-42 (4) (4) N/A Class PT1-I-42A May 2009
Class PT2-I-IO-43 (4) (4) N/A Class PT1-I-43A June 2009
Class PT2-I-IO-44 (4) (4) N/A Class PT1-I-44A July 2009
Class PT2-I-IO-45 (4) (4) N/A Class PT1-I-45A August 2009
Class PT2-I-IO-46 (4) (4) N/A Class PT1-I-46A September 2009
Class PT2-I-IO-47 (4) (4) N/A Class PT1-I-47A October 2009
Class PT2-I-IO-48 (4) (4) N/A Class PT1-I-48A November 2009
Class PT2-I-IO-49 (4) (4) N/A Class PT1-I-49A December 2009
Class PT2-I-IO-50 (4) (4) N/A Class PT1-I-50A January 2010
Class PT2-I-IO-51 (4) (4) N/A Class PT1-I-51A February 2010
Class PT2-I-IO-52 (4) (4) N/A Class PT1-I-52A March 2010
Class PT2-I-IO-53 (4) (4) N/A Class PT1-I-53A April 2010
Class PT2-I-IO-54 (4) (4) N/A Class PT1-I-54A May 2010
Class PT2-I-IO-55 (4) (4) N/A Class PT1-I-55A June 2010
Class PT2-I-IO-56 (4) (4) N/A Class PT1-I-56A July 2010
Class PT2-I-IO-57 (4) (4) N/A Class PT1-I-57A August 2010
Class PT2-I-IO-58 (4) (4) N/A Class PT1-I-58A September 2010
Class PT2-I-IO-59 (4) (4) N/A Class PT1-I-59A October 2010
Class PT2-I-IO-60 (4) (4) N/A Class PT1-I-60A November 2010
Class PT2-I-IO-61 (4) (4) N/A Class PT1-I-61A December 2010
Class PT2-II-IO-2 (4) (4) N/A Class PT1-II-2A January 2006
Class PT2-II-IO-3 (4) (4) N/A Class PT1-II-3A February 2006
Class PT2-II-IO-4 (4) (4) N/A Class PT1-II-4A March 2006
Class PT2-II-IO-5 (4) (4) N/A Class PT1-II-5A April 2006
Class PT2-II-IO-6 (4) (4) N/A Class PT1-II-6A May 2006
Class PT2-II-IO-7 (4) (4) N/A Class PT1-II-7A June 2006
Class PT2-II-IO-8 (4) (4) N/A Class PT1-II-8A July 2006
Class PT2-II-IO-9 (4) (4) N/A Class PT1-II-9A August 2006
Class PT2-II-IO-10 (4) (4) N/A Class PT1-II-10A September 2006
Class PT2-II-IO-11 (4) (4) N/A Class PT1-II-11A October 2006
Class PT2-II-IO-12 (4) (4) N/A Class PT1-II-12A November 2006
Class PT2-II-IO-13 (4) (4) N/A Class PT1-II-13A December 2006
Class PT2-II-IO-14 (4) (4) N/A Class PT1-II-14A January 2007
Class PT2-II-IO-15 (4) (4) N/A Class PT1-II-15A February 2007
Class PT2-II-IO-16 (4) (4) N/A Class PT1-II-16A March 2007
Class PT2-II-IO-17 (4) (4) N/A Class PT1-II-17A April 2007
Class PT2-II-IO-18 (4) (4) N/A Class PT1-II-18A May 2007
Class PT2-II-IO-19 (4) (4) N/A Class PT1-II-19A June 2007
Class PT2-II-IO-20 (4) (4) N/A Class PT1-II-20A July 2007
Class PT2-II-IO-21 (4) (4) N/A Class PT1-II-21A August 2007
Class PT2-II-IO-22 (4) (4) N/A Class PT1-II-22A September 2007
Class PT2-II-IO-23 (4) (4) N/A Class PT1-II-23A October 2007
Class PT2-II-IO-24 (4) (4) N/A Class PT1-II-24A November 2007
Class PT2-II-IO-25 (4) (4) N/A Class PT1-II-25A December 2007
Class PT2-II-IO-26 (4) (4) N/A Class PT1-II-26A January 2008
Class PT2-II-IO-27 (4) (4) N/A Class PT1-II-27A February 2008
Class PT2-II-IO-28 (4) (4) N/A Class PT1-II-28A March 2008
Class PT2-II-IO-29 (4) (4) N/A Class PT1-II-29A April 2008
Class PT2-II-IO-30 (4) (4) N/A Class PT1-II-30A May 2008
Class PT2-II-IO-31 (4) (4) N/A Class PT1-II-31A June 2008
Class PT2-II-IO-32 (4) (4) N/A Class PT1-II-32A July 2008
Class PT2-II-IO-33 (4) (4) N/A Class PT1-II-33A August 2008
Class PT2-II-IO-34 (4) (4) N/A Class PT1-II-34A September 2008
Class PT2-II-IO-35 (4) (4) N/A Class PT1-II-35A October 2008
Class PT2-II-IO-36 (4) (4) N/A Class PT1-II-36A November 2008
Class PT2-II-IO-37 (4) (4) N/A Class PT1-II-37A December 2008
Class PT2-II-IO-38 (4) (4) N/A Class PT1-II-38A January 2009
Class PT2-II-IO-39 (4) (4) N/A Class PT1-II-39A February 2009
Class PT2-II-IO-40 (4) (4) N/A Class PT1-II-40A March 2009
Class PT2-II-IO-41 (4) (4) N/A Class PT1-II-41A April 2009
Class PT2-II-IO-42 (4) (4) N/A Class PT1-II-42A May 2009
Class PT2-II-IO-43 (4) (4) N/A Class PT1-II-43A June 2009
Class PT2-II-IO-44 (4) (4) N/A Class PT1-II-44A July 2009
Class PT2-II-IO-45 (4) (4) N/A Class PT1-II-45A August 2009
Class PT2-II-IO-46 (4) (4) N/A Class PT1-II-46A September 2009
Class PT2-II-IO-47 (4) (4) N/A Class PT1-II-47A October 2009
Class PT2-II-IO-48 (4) (4) N/A Class PT1-II-48A November 2009
Class PT2-II-IO-49 (4) (4) N/A Class PT1-II-49A December 2009
Class PT2-II-IO-50 (4) (4) N/A Class PT1-II-50A January 2010
Class PT2-II-IO-51 (4) (4) N/A Class PT1-II-51A February 2010
Class PT2-II-IO-52 (4) (4) N/A Class PT1-II-52A March 2010
Class PT2-II-IO-53 (4) (4) N/A Class PT1-II-53A April 2010
Class PT2-II-IO-54 (4) (4) N/A Class PT1-II-54A May 2010
Class PT2-II-IO-55 (4) (4) N/A Class PT1-II-55A June 2010
Class PT2-II-IO-56 (4) (4) N/A Class PT1-II-56A July 2010
Class PT2-II-IO-57 (4) (4) N/A Class PT1-II-57A August 2010
Class PT2-II-IO-58 (4) (4) N/A Class PT1-II-58A September 2010
Class PT2-II-IO-59 (4) (4) N/A Class PT1-II-59A October 2010
Class PT2-II-IO-60 (4) (4) N/A Class PT1-II-60A November 2010
Class PT2-II-IO-61 (4) (4) N/A Class PT1-II-61A December 2010
Class PT2-R (8) $50.00 N/A N/A N/A
------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group I WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to Loan Group I and having an "A" in
their class designation, provided that, on each Distribution Date on which
interest is distributable on the Corresponding Pooling-Tier REMIC-2 IO
Interest, this Pooling-Tier REMIC-2 Regular Interest shall bear interest
at a per annum rate equal to Swap LIBOR subject to a maximum rate equal to
the weighted average of the Pooling-Tier REMIC-1 Interest Rates on the
Pooling-Tier REMIC-1 Regular Interests relating to Loan Group I and having
an "A" in their class designation.
(3) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to Loan Group I and having a "B" in
their class designation.
(4) Each Pooling-Tier REMIC-2 IO is an interest-only interest and does not
have a principal balance but has a notional balance ("Pooling-Tier REMIC-2
IO Notional Balance") equal to the Pooling-Tier REMIC-2 Principal Amount
of the Corresponding Pooling-Tier REMIC-1 Regular Interest. From the
Closing Date through and including the Corresponding Actual Crossover
Distribution Date, each Pooling-Tier REMIC-2 IO Interest shall be entitled
to receive interest that accrues on the Corresponding Pooling-Tier REMIC-1
Regular Interest at a rate equal to the excess, if any, of (i) the
Pooling-Tier REMIC-1 Interest Rate for the Corresponding Pooling-Tier
REMIC-1 Regular Interest over (ii) Swap LIBOR. After the Corresponding
Actual Crossover Distribution Date, the Pooling-Tier REMIC-2 IO Interest
shall not accrue interest.
(5) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group II WAC Rate.
(6) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to Loan Group II and having an "A" in
their class designation, provided that, on each Distribution Date on which
interest is distributable on the Corresponding Pooling-Tier REMIC-2 IO
Interest, this Pooling-Tier REMIC-2 Regular Interest shall bear interest
at a per annum rate equal to Swap LIBOR subject to a maximum rate equal to
the weighted average of the Pooling-Tier REMIC-1 Interest Rates on the
Pooling-Tier REMIC-1 Regular Interests relating to Loan Group II and
having an "A" in their class designation.
(7) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to Loan Group II and having a "B" in
their class designation.
(8) The Class PT2-R Interest shall not bear interest.
On each Distribution Date, the interest distributable in respect of
the Mortgage Loans for such Distribution Date shall be distributed to the
Pooling-Tier REMIC-2 Regular Interests at the Pooling-Tier REMIC-2 Interest
Rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group I Mortgage Loans shall be
allocated to the Class R-1 Certificates in respect of the Class PT2-R Interest
pursuant to Section 4.02(a)(ii) until its Class Certificate Balance is reduced
to zero, then to the outstanding Pooling-Tier REMIC-2 Regular Interests (other
than the Pooling-Tier REMIC-2 IO Interests) relating to Loan Group I with the
lowest numerical denomination (other than the Class PT2-I-1 Interest) until the
Pooling-Tier REMIC-2 Principal Amount of such interest is reduced to zero,
provided that, for Pooling-Tier REMIC-2 Regular Interests relating to Loan Group
I with the same numerical denomination, such Realized Losses and payments of
principal shall be allocated pro rata between such Pooling-Tier REMIC-2 Regular
Interests, and then to the Class PT2-I-1 Interest until the Pooling-Tier REMIC-2
Principal Amount of such interest is reduced to zero.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group II Mortgage Loans shall be
allocated to the outstanding Pooling-Tier REMIC-2 Regular Interests (other than
the Pooling-Tier REMIC-2 IO Interests) relating to Loan Group II with the lowest
numerical denomination (other than the Class PT2-II-1 Interest) until the
Pooling-Tier REMIC-2 Principal Amount of such interest is reduced to zero,
provided that, for Pooling-Tier REMIC-2 Regular Interests relating to Loan Group
II with the same numerical denomination, such Realized Losses and payments of
principal shall be allocated pro rata between such Pooling-Tier REMIC-2 Regular
Interests, and then to the Class PT2-II-1 Interest until the Pooling-Tier
REMIC-2 Principal Amount of such interest is reduced to zero.
Lower-Tier REMIC
The Lower-Tier REMIC shall issue the following interests, and each
such interest, other than the Class LT-R Interest, is hereby designated as a
regular interest in the Lower-Tier REMIC. The Class LT-R Interest is hereby
designated as the sole class of residual interest in the Lower-Tier REMIC and
shall be represented by the Class R-1 Certificates.
Lower-Tier Regular Lower-Tier Interest Corresponding Upper-Tier
Interest Rate Initial Lower-Tier Principal Amount REMIC Regular Interest
-----------------------------------------------------------------------------------------------------------------------------------
Class LT-A-1 (1) 1/2 initial Class Certificate Balance of A-1
Corresponding Upper-Tier REMIC Regular Interest
Class LT-A-2A (1) 1/2 initial Class Certificate Balance of A-2A
Corresponding Upper-Tier REMIC Regular Interest
Class LT-A-2B (1) 1/2 initial Class Certificate Balance of A-2B
Corresponding Upper-Tier REMIC Regular Interest
Class LT-A-2C (1) 1/2 initial Class Certificate Balance of A-2C
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-1 (1) 1/2 initial Class Certificate Balance of M-1
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-2 (1) 1/2 initial Class Certificate Balance of M-2
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-3 (1) 1/2 initial Class Certificate Balance of M-3
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-4 (1) 1/2 initial Class Certificate Balance of M-4
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-5 (1) 1/2 initial Class Certificate Balance of M-5
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-6 (1) 1/2 initial Class Certificate Balance of M-6
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-7 (1) 1/2 initial Class Certificate Balance of M-7
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-8 (1) 1/2 initial Class Certificate Balance of M-8
Corresponding Upper-Tier REMIC Regular Interest
Class LT-B-1 (1) 1/2 initial Class Certificate Balance of B-1
Corresponding Upper-Tier REMIC Regular Interest
Class LT-B-2 (1) 1/2 initial Class Certificate Balance of B-2
Corresponding Upper-Tier REMIC Regular Interest
Class LT-Accrual (1) 1/2 Pool Principal Balance plus 1/2
Overcollateralized Amount, less the Initial
Lower-Tier Principal Amounts of the
Class LT-Group I, Class LT-Group II and Class
LT-3 Interests, less $50
Class LT-Group I (2) 0.001% aggregate Stated Principal Balance of N/A
Group I Mortgage Loans(4)
Class LT-Group II (3) 0.001% aggregate Stated Principal Balance of N/A
Group II Mortgage Loans(4)
Class LT-IO (5) (5) N/A
Class LT-3 (6) $50.00
Class LT-R (7) (7) N/A
-----------------------------
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the weighted average of
the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling-Tier REMIC-2 IO Interests).
(2) The interest rate with respect to any Distribution Date for the Class
LT-Group I Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the weighted average
of the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling Tier REMIC-2 IO Interests)
relating to Loan Group I.
(3) The interest rate with respect to any Distribution Date for the Class
LT-Group II Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the weighted average
of the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling Tier REMIC-2 IO Interests)
relating to Loan Group II.
(4) For all Distribution Dates, the Lower-Tier Principal Amount of these
Lower-Tier Regular Interests shall be rounded to eight decimal places.
(5) This Lower-Tier Regular Interest is an interest-only interest and does not
have a Lower-Tier Principal Amount. On each Distribution Date, this
Lower-Tier Regular Interest shall be entitled to receive all interest
distributable on the Pooling-Tier REMIC-2 IO Interests.
(6) This Lower-Tier Regular Interest shall not be entitled to interest and
shall have a Lower-Tier Principal Amount at all times equal to the Class
Certificate Balance of the Class R-3 Certificates.
(7) The Class LT-R Interest does not have a principal amount or an interest
rate.
Each Lower-Tier Regular Interest is hereby designated as a regular
interest in the Lower-Tier REMIC. The Class LT-A-1, Class LT-A-2A, Class
LT-A-2B, Class LT-A-2C, Class LT-M-1, Class LT-M-2, Class LT-M-3, Class LT-M-4,
Class LT-M-5, Class LT-M-6, Class LT-M-7, Class LT-M-8, Class LT-B-1 and Class
LT-B-2 Interests are hereby designated the LT-Accretion Directed Classes (the
"LT-Accretion Directed Classes").
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount shall be payable as a reduction of the Lower-Tier
Principal Amount of the LT-Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralized
Amount that is attributable to a reduction in the Class Certificate Balance of
its Corresponding Class) and shall be accrued and added to the Lower-Tier
Principal Amount of the Class LT-Accrual Interest. On each Distribution Date,
the increase in the Lower-Tier Principal Amount of the Class LT-Accrual Interest
shall not exceed interest accruals for such Distribution Date for the Class
LT-Accrual Interest. In the event that: (i) 50% of the increase in the
Overcollateralized Amount exceeds (ii) interest accruals on the Class LT-Accrual
Interest for such Distribution Date, the excess for such Distribution Date
(accumulated with all such excesses for all prior Distribution Dates) will be
added to any increase in the Overcollateralized Amount for purposes of
determining the amount of interest accrual on the Class LT-Accrual Interest
payable as principal on the LT-Accretion Directed Classes on the next
Distribution Date pursuant to the first sentence of this paragraph. All payments
of scheduled principal and prepayments of principal generated by the Mortgage
Loans and all Subsequent Recoveries allocable to principal shall be allocated
(i) 50% to the Class LT-Accrual Interest, the Class LT-Group I Interest and
Class LT-Group II Interest (and further allocated among these Lower-Tier Regular
Interests in the manner described below) and (ii) 50% to the LT-Accretion
Directed Classes (such principal payments and Subsequent Recoveries shall be
allocated among such LT-Accretion Directed Classes in an amount equal to 50% of
the principal amounts and Subsequent Recoveries allocated to their respective
Corresponding Classes), until paid in full. Notwithstanding the above, principal
payments allocated to the Class UT-X Interest that result in the reduction in
the Overcollateralized Amount shall be allocated to the Class LT-Accrual
Interest (until paid in full). Realized Losses shall be applied so that after
all distributions have been made on each Distribution Date (i) the Lower-Tier
Principal Amount of each of the LT-Accretion Directed Classes is equal to 50% of
the Class Certificate Balance of their Corresponding Class, and (ii) the Class
LT-Accrual Interest, the Class LT-Group I and the Class LT-Group II Interest
(and further allocated between these Lower-Tier Regular Interests in the manner
described below) is equal to 50% of the aggregate Stated Principal Balance of
the Mortgage Loans plus 50% of the Overcollateralized Amount. Any increase in
the Class Certificate Balance of a Class of LIBOR Certificates as a result of a
Subsequent Recovery shall increase the Lower-Tier Principal Amount of the
Corresponding Lower-Tier Regular Interest by 50% of such increase, and the
remaining 50% of such increase shall increase the Lower-Tier Principal Amount of
the Class LT-Accrual Interest. As among the Class LT-Accrual Interest, the Class
LT-Group I Interest and the Class LT-Group II Interest, all payments of
scheduled principal and prepayments of principal generated by the Mortgage
Loans, all Subsequent Recoveries and all Realized Losses, allocable to such
Lower-Tier Regular Interests shall be allocated (i) to the Class LT-Group I
Interest and the Class LT-Group II Interest, each from the related Loan Group so
that their respective Lower-Tier Principal Amounts (computed to at least eight
decimal places) are equal to 0.001% of the aggregate Stated Principal Balance of
the Mortgage Loans in the related Loan Group and (ii) the remainder to the Class
LT-Accrual Interest.
Upper-Tier REMIC
The Upper-Tier REMIC shall issue the following interests, and each
such interest, other than the Class UT-R Interest, is hereby designated as a
regular interest in the Upper-Tier REMIC. The Class UT-R Interest is hereby
designated as the sole class of residual interests in the Upper-Tier REMIC and
shall be represented by the Class R-1 Certificates.
Corresponding
Upper-Tier REMIC Upper-Tier Initial Principal Class of
Interest Interest Rate Upper-Tier Amount Certificates
--------------------------------------------------------------------------------
Class A-1 (1) $341,242,000 Class A-1
Class A-2A (2) $137,997,000 Class A-2A
Class A-2B (2) $ 71,346,000 Class A-2B
Class A-2C (2) $ 18,060,000 Class A-2C
Class M-1 (3) $ 31,355,000 Class M-1
Class M-2 (3) $ 29,032,000 Class M-2
Class M-3 (3) $ 20,516,000 Class M-3
Class M-4 (3) $ 15,097,000 Class M-4
Class M-5 (3) $ 15,097,000 Class M-5
Class M-6 (3) $ 13,161,000 Class M-6
Class M-7 (3) $ 12,774,000 Class M-7
Class M-8 (3) $ 9,290,000 Class M-8
Class B-1 (3) $ 10,839,000 Class B-1
Class B-2 (3) $ 10,065,000 Class B-2
Class UT-IO (4) (4) N/A
Class UT-X (5) (5) N/A
Class UT-3 (6) $50 N/A
Class UT-R (7) (7) Class R-1
-------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the least of (i) the Pass-Through Rate
(determined without regard to the Loan Group I Cap or WAC Cap) for the
Corresponding Class of Certificates, (ii) the Lower-Tier Interest Rate for
the Class LT-Group I Interest (the "Upper-Tier REMIC Loan Group I Rate")
and (iii) the Upper-Tier REMIC WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the least of (i) the Pass-Through Rate
(determined without regard to the Loan Group II Cap or WAC Cap) for the
Corresponding Class of Certificates, (ii) the Lower-Tier Interest Rate for
the Class LT-Group II Interest (the "Upper-Tier REMIC Loan Group II Rate")
and (iii) the Upper-Tier REMIC WAC Rate.
(3) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the lesser of (i) the Pass-Through Rate
(determined without regard to the applicable WAC Cap) for the
Corresponding Class of Certificates and (ii) the Upper-Tier REMIC WAC
Rate.
(4) This interest is an interest-only interest and does not have a principal
balance. On each Distribution Date, the Class UT-IO Interest shall be
entitled to receive all interest distributable on the Class LT-IO
Interest.
(5) The Class UT-X Interest has an initial principal balance of $32,322,568.41
but will not accrue interest on such balance but will accrue interest on a
notional principal balance. As of any Distribution Date, the Class UT-X
Interest shall have a notional principal balance equal to the aggregate of
the Lower-Tier Principal Amounts of the Lower-Tier Regular Interests
(other than the Class LT-IO and Class LT-3 Interests) as of the first day
of the related Interest Accrual Period. With respect to any Interest
Accrual Period, the Class UT-X Interest shall bear interest at a rate
equal to the excess, if any, of the Upper-Tier REMIC WAC Rate over the
product of (i) 2 and (ii) the weighted average of the Lower-Tier Interest
Rates of the Lower-Tier REMIC Interests (other than the Class LT-IO and
Class LT-3 Interests), where the Lower-Tier Interest Rate on each of the
Class LT-Accrual Interest, Class LT-Group I Interest and Class LT-Group II
Interest is subject to a cap equal to zero and each LT Accretion Directed
Class is subject to a cap equal to the Upper-Tier Interest Rate on its
Corresponding Class of Upper-Tier Regular Interest. With respect to any
Distribution Date, interest that so accrues on the notional principal
balance of the Class UT-X Interest shall be deferred in an amount equal to
any increase in the Overcollateralized Amount on such Distribution Date.
Such deferred interest shall not itself bear interest.
(6) This Upper-Tier Regular Interest shall not be entitled to interest and
shall have a principal balance equal to the Class Certificate Balance of
the Class R-3 Certificates.
(7) The Class UT-R Interest does not have an interest rate or a principal
balance.
On each Distribution Date, interest distributable in respect of the
Lower-Tier Interests for such Distribution Date shall be deemed to be
distributed on the interests in the Upper-Tier REMIC at the rates shown above,
provided that the Class UT-IO Interest shall be entitled to receive interest
before any other interest in the Upper-Tier REMIC.
On each Distribution Date, all Realized Losses, Subsequent
Recoveries and all payments of principal shall be allocated to the Upper-Tier
Interests until the outstanding principal balance of each such interest equals
the outstanding Class Certificate Balance of the Corresponding Class of
Certificates as of such Distribution Date.
Class X REMIC
The Class X REMIC shall issue the following classes of interests.
The Class X Interest and the Class IO Interest shall each represent a regular
interest in the Class X REMIC and the Class R-3 Certificates shall represent
sole class of residual interest in the Class X REMIC.
Class X REMIC
Class X REMIC Designation Interest Rate Principal Amount
--------------------------------------------------------------------------------
Class X Interest (1) (1)
Class IO Interest (2) (2)
Class R-3 Certificates (3) $50.00
------------
(1) The Class X Interest has an initial principal balance equal to the initial
principal balance of the Class UT-X Interest and is entitled to 100% of
the interest and principal on the Class UT-X Interest on each Distribution
Date.
(2) This interest is an interest-only interest and does not have a principal
balance. On each Distribution Date the Class IO Interest shall be entitled
to receive 100% of the interest distributable on the Class UT-IO Interest.
(3) The Class R-3 Certificates do not have an interest rate.
Certificates
Class Class Certificate
Class Designation Pass-Through Rate Balance
-----------------------------------------------------------------------------
Class A-1 (19) (1) $ 341,242,000
Class A-2A(19) (2) $ 137,997,000
Class A-2B(19) (3) $ 71,346,000
Class A-2C(19) (4) $ 18,060,000
Class M-1(19) (5) $ 31,355,000
Class M-2(19) (6) $ 29,032,000
Class M-3(19) (7) $ 20,516,000
Class M-4(19) (8) $ 15,097,000
Class M-5(19) (9) $ 15,097,000
Class M-6(19) (10) $ 13,161,000
Class M-7(19) (11) $ 12,774,000
Class M-8(19) (12) $ 9,290,000
Class B-1(19) (13) $ 10,839,000
Class B-2(19) (14) $ 10,065,000
Class X (15) (15)
Class R-1 (16) $50
Class R-2 (17) $100
Class R-3 (18) $50
------------
(1) The Class A-1 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the least of (1) One-Month LIBOR plus
the applicable Pass-Through Margin, (2) the Loan Group I Cap and (3) the
WAC Cap.
(2) The Class A-2A Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(3) The Class A-2B Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(4) The Class A-2C Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(5) The Class M-1 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the least of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(6) The Class M-2 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(7) The Class M-3 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(8) The Class M-4 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(9) The Class M-5 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(10) The Class M-6 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(11) The Class M-7 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(12) The Class M-8 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(13) The Class B-1 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(14) The Class B-2 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(15) The Class X Certificates will represent beneficial ownership of (i) the
Class X Interest, (ii) the Class IO Interest, (iii) the right to receive
Class IO Shortfalls, (iv) amounts in the Supplemental Interest Trust,
including the Interest Rate Swap Agreement subject to the obligation to
pay Net Swap Payments and Upper-Tier Carry Forward Amounts and, without
duplication, Basis Risk Carry Forward Amounts and (v) amounts in the
Excess Reserve Fund Account, subject to the obligation to make payments
from the Excess Reserve Fund Account in respect of Basis Risk Carry
Forward Amounts. For federal income tax purposes, the Securities
Administrator will treat a Class X Certificateholder's obligation to make
payments of Basis Risk Carry Forward Amounts and, without duplication,
Upper-Tier Carry Forward Amounts to the LIBOR Certificates from the Excess
Reserve Fund Account and the Supplemental Interest Trust as payments made
pursuant to an interest rate cap contract written by the Class X
Certificateholders in favor of each Class of LIBOR Certificates. Such
rights of the Class X Certificateholders and LIBOR Certificateholders
shall be treated as held in a portion of the Trust Fund that is treated as
a grantor trust under subpart E, Part I of subchapter J of the Code.
(16) The Class R-1 Certificates do not have an interest rate. The Class R-1
Certificates represent ownership of the Class PT2-R Interest, the Class
LT-R Lower-Tier Interest and the Class UT-R Interest.
(17) The Class R-2 Certificates do not have an interest rate. The Class R-2
Certificates represent the residual interest in Pooling-Tier REMIC-1.
(18) The Class R-3 Certificates do not have an interest rate. The Class R-3
Certificates represent the residual interest in the Class X REMIC.
(19) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper-Tier Regular Interest but also the right to
receive payments from the Excess Reserve Fund Account and the Supplemental
Interest Trust. Each of these Certificates will also be subject to the
obligation to pay Class IO Shortfalls as described in Section 8.13. For
federal income tax purposes, any amount distributed on the LIBOR
Certificates on any such Distribution Date in excess of the amount
distributable on their Corresponding Class of Upper-Tier Regular Interest
on such Distribution Date shall be treated as having been paid from the
Excess Reserve Fund Account or the Supplemental Interest Trust, as
applicable, and any amount distributable on such Corresponding Class of
Upper-Tier Regular Interest on such Distribution Date in excess of the
amount distributable on LIBOR Certificates on such Distribution Date shall
be treated as having been paid to the Supplemental Interest Trust, all
pursuant to, and as further provided in, Section 8.13. The Securities
Administrator will treat a LIBOR Certificateholder's right to receive
payments from the Excess Reserve Fund Account and the Supplemental
Interest Trust as payments made pursuant to an interest rate cap contract
written by the Class X Certificateholders.
The minimum denomination for the LIBOR 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)
the Class R-1 Certificates will be $50, representing a 100% Percentage Interest
in the related Class, (b) the Class R-2 Certificates will be $100, representing
a 100% Percentage Interest in the related Class, (c) the Class R-3 Certificates
will be $50, representing a 100% Percentage Interest in the related Class, (d)
the Class P Certificates will be a 1% Percentage Interest in such Class, (e) the
Class C Certificates will be a 1% Percentage Interest in such Class, and (f) the
Class X 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-1, Class A-2A, Class A-2B and Class A-2C
Certificates.
Class A-2 Certificates....... Class A-2A, Class A-2B and Class A-2C
Certificates.
Class R Certificates......... Class R-1, Class R-2 and Class R-3 Certificates.
Class B Certificates......... Class B-1 and Class B-2 Certificates.
Class M Certificates......... Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7 and Class M-8
Certificates.
ERISA-Restricted
Certificates............... Class R, Class P, Class C and Class X
Certificates; and any Certificate with a rating
below the lowest applicable permitted rating under
the Underwriter's Exemption.
LIBOR Certificates........... Class A-1, 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 M-7, Class M-8, Class B-1
and Class B-2 Certificates.
Offered Certificates......... All Classes of Certificates other than the
Private Certificates.
Physical Certificates........ Class P, Class X, Class C and Class R
Certificates.
Private Certificates......... Class P, Class C and Class X Certificates.
Rating Agencies.............. Standard & Poor's and Xxxxx'x.
Regular Certificates......... All Classes of Certificates other than the
Class P, Class C and Class R Certificates.
Residual Certificates........ Class R Certificates.
Subordinated Certificates.... Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7, Class M-8, Class
B-1 and Class B-2 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 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 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.
Acoustic: Acoustic Home Loans, LLC, a Delaware limited liability
company, and its successors in interest.
Acoustic Mortgage Loan: Each Mortgage Loan purchased by the
Purchaser pursuant to an Acoustic Purchase Agreement and identified as an
"Acoustic Mortgage Loan" on the Mortgage Loan Schedule.
Acoustic Purchase Agreement: The Flow Mortgage Loan Purchase and
Warranties Agreement, dated as of November 1, 2004, amended by Amendment No. 1,
dated as of May 1, 2005, by and between Acoustic and the Purchaser, solely
insofar as the Acoustic Purchase Agreement relates to the Acoustic Mortgage
Loans purchased on August 29, 2005 and the Flow Restated and Amended Mortgage
Loan Purchase and Warranties Agreement, dated as of September 1, 2005, solely
insofar as the Acoustic Purchase Agreement relates to the Acoustic Mortgage
Loans purchased on September 26, 2005.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan
purchased pursuant to any applicable Purchase Agreement.
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 Adjustable Rate 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 Reimbursement Amounts: As defined in Section 10.07.
Advancing Person: The Person to whom the Servicer's rights under
this Agreement to be reimbursed for any P&I Advances or Servicing Advances have
been assigned pursuant to Section 12.07.
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 sale 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 applicable 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, Assumption and Recognition Agreement: The Assignment,
Assumption and Recognition Agreement, dated as of December 29, 2005, by and
among Fremont Investment & Loan, the Purchaser and the Depositor.
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 Master Servicer (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, Fremont or the Depositor, as
applicable, as of such Distribution Date; (v) any Net Swap Receipts for such
Distribution Date; and (vi) the proceeds received with respect to the
termination of the Trust Fund pursuant to clause (a) of Section 11.01, reduced
by (y) all amounts in reimbursement for P&I Advances and Xxxxxxxxx Advances
previously made with respect to the Mortgage Loans, and other amounts as to
which the Servicer, the Depositor, the Master Servicer, the Securities
Administrator, the Custodians or the Trustee (or co-trustee) are entitled to be
paid or reimbursed pursuant to this Agreement.
Back-up Report Delivery Date: As defined in Section 4.03(f).
Back-up Reports: As defined in Section 4.03(f).
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 a Loan Group 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 Cap or the WAC
Cap, over (ii) the Accrued Certificate Interest Distribution Amount payable on
such Class of Certificates on such Distribution Date taking into account (a)
with respect to the Class A-1 Certificates at the lesser of the WAC Cap and the
Loan Group I Cap, (b) with respect to the Class A-2 Certificates at the lesser
of the WAC Cap and the Loan Group II Cap, and (c) with respect to each other
Class of LIBOR Certificates, the WAC Cap, 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 WAC Cap, Loan Group I Cap or
Loan Group II 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 Class X Distributable Amount (prior to any
reduction for Basis Risk Payments from the Excess Reserve Fund Account or any
Defaulted Swap Termination Payment).
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.
BPO: A broker's price opinion.
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
Florida, California, Maryland, Minnesota, Texas, New York and Delaware, (b) the
State in which the Servicer's servicing operations are located, or (c) any State
in which the Corporate Trust Office's operations are located, are authorized or
obligated by law or executive order to be closed.
Certificate: Any one of the Certificates executed by the Securities
Administrator in substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of LIBOR Certificates
or Residual 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).
The Class X, Class C and Class P Certificates have no Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The Person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any Affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided, however,
that if any such Person (including the Depositor) owns 100% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires the
consent of the Holders of Certificates of a particular Class as a condition to
the taking of any action hereunder. The Securities Administrator is entitled to
rely conclusively on a certification of the Depositor or any Affiliate of the
Depositor in determining which Certificates are registered in the name of an
Affiliate of the Depositor.
Certification: As defined in Section 8.12(b).
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Certificate Group: The Class A-1 Certificate Group or the
Class A-2 Certificate Group, as applicable.
Class A Certificates: As specified in the Preliminary Statement.
Class A Principal Allocation Percentage: For any Distribution Date,
the percentage equivalent of a fraction, determined as follows: (A) with respect
to the Class A-1 Certificate Group, a fraction, the numerator of which is the
portion of the Principal Remittance Amount for such Distribution Date that is
attributable to the principal received or advanced on the Group I Mortgage Loans
and the denominator of which is the Principal Remittance Amount for such
Distribution Date; and (B) with respect to the Class A-2 Certificate Group, a
fraction, the numerator of which is the portion of the Principal Remittance
Amount for such Distribution Date that is attributable to the principal received
or advanced on the Group II Mortgage Loans and the denominator of which is the
Principal Remittance Amount for such Distribution Date.
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) 46.90% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class A-1 Certificate Group: The Class A-1 Certificates.
Class A-1 Certificates: All Certificates bearing the class
designation of "Class A-1."
Class A-2 Certificate Group: The Class A-2 Certificates.
Class A-2 Certificates: As specified in the Preliminary Statement.
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 B Certificates: As specified in the Preliminary Statement.
Class B-1 Certificates: All Certificates bearing the class
designation of "Class B-1."
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A 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 M-7 Certificates (after
taking into account the distribution of the Class M-7 Principal Distribution
Amount on such Distribution Date), (I) the Class Certificate Balance of the
Class M-8 Certificates (after taking into account the distribution of the Class
M-8 Principal Distribution Amount on such Distribution Date) and (J) 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) 87.50% and (y)
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class B-2 Certificates: All Certificates bearing the class
designation of "Class B-2."
Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class 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 M-7 Certificates (after
taking into account the distribution of the Class M-7 Principal Distribution
Amount on such Distribution Date), (I) the Class Certificate Balance of the
Class M-8 Certificates (after taking into account the distribution of the Class
M-8 Principal Distribution Amount on such Distribution Date), (J) 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 (K) 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) 90.10% 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 C Certificates: All Certificates bearing the class designation
of "Class C."
Class Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class IO Interest: As specified in the Preliminary Statement.
Class IO Shortfalls: As defined in Section 8.13. For the avoidance
of doubt, the Class IO Shortfall for any Distribution Date shall equal the
amount payable to the Class X Certificates in respect of amounts due to the Swap
Provider on such Distribution Date (other than Defaulted Swap Termination
Payments) in excess of the amount payable on the Class X Interest on such
Distribution Date, all as further provided in Section 8.13.
Class LT-R Interest: The residual interest in the Lower-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class M Certificates: As specified in the Preliminary Statement.
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) the
product of (x) 55.00% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate 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) the product of (x) 62.50% 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-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) the product of (x) 67.80% and (y)
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class M-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) 71.70% 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-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) 75.60% 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 M-6 Certificates: All Certificates bearing the class
designation of "Class M-6."
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) 79.00% 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-7 Certificates: All Certificates bearing the class
designation of "Class M-7."
Class M-7 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 M-7 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 82.30% 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-8 Certificates: All Certificates bearing the class
designation of "Class M-8."
Class M-8 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), (G) the Class Certificate Balance of the Class M-7 Certificates (after
taking into account the distribution of the Class M-7 Principal Distribution
Amount on such Distribution Date) and (H) the Class Certificate Balance of the
Class M-8 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 84.70% 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 P Certificates: All Certificates bearing the class designation
of "Class P."
Class PT1-R Interest: The residual interest in Pooling-Tier REMIC-1
as described in the Preliminary Statement and the related footnote thereto.
Class PT2-R Interest: The residual interest in Pooling-Tier REMIC-2
as described in the Preliminary Statement and the related footnote thereto.
Class R Certificates: As defined in the Preliminary Statement.
Class R-1 Certificates: All Certificates bearing the class
designation of "Class R-1."
Class R-2 Certificates: All Certificates bearing the class
designation of "Class R-2."
Class R-3 Certificates: All Certificates bearing the class
designation of "Class R-3."
Class UT-IO Interest: A regular interest in the Upper-Tier REMIC as
described in the Preliminary Statement and the related footnote thereto.
Class UT-R Interest: The residual interest in the Upper-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class UT-X Interest: A regular interest in the Upper-Tier REMIC as
described in the Preliminary Statement and the related footnote thereto.
Class X Certificates: All Certificates bearing the class designation
of "Class X."
Class X Distributable Amount: On any Distribution Date, (i) as a
distribution in respect of interest, the amount of interest that has accrued on
the Class UT-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 UT-X Interest which is distributable as an Overcollateralization
Reduction Amount, minus (iii) the sum of (A) any amounts paid from the Excess
Reserve Fund Account to pay Basis Risk Carry Forward Amounts and (B) any Swap
Termination Payment payable to the Swap Provider.
Class X Interest: The regular interest in the Class X REMIC
represented by the Class X Certificates as specified and described in the
Preliminary Statement and the related footnote thereto.
Class X REMIC: As defined in the Preliminary Statement.
Class X REMIC Regular Interest: Each of the Class X Interest and
Class IO Interest issued by the Class X REMIC.
Class X-R Interest: The residual interest in the Class X REMIC as
described in the Preliminary Statement and the related footnote thereto.
Closing Date: December 29, 2005.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: As defined in Section 3.10(a).
Compensating Interest: For any Distribution Date, the lesser of (a)
the Prepayment Interest Shortfall, if any, for such Distribution Date, with
respect to Principal Prepayments during the related Prepayment Period, and (b)
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.
Conduit Mortgage Loan: Each Mortgage Loan purchased by the Purchaser
pursuant to its mortgage conduit program and identified as a "Conduit Mortgage
Loan" on the Mortgage Loan Schedule.
Corporate Trust Office: With respect to the Securities
Administrator: (i) for certificate transfer purposes the office of the
Securities Administrator at Sixth Street and Marquette Avenue, Minneapolis,
Minnesota 55479, Attention: Corporate Trust Services, GSAMP 2005-HE6, (ii) for
all other purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Client Manager GSAMP 05-HE6, or (iii) at such other address as the
Securities Administrator may designate from time to time by notice to the
Depositor and the Certificateholders. With respect to the Trustee, the principal
office of the Trustee at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attention: Global Securities and Trust Services, or at such other address
as the Trustee may designate from time to time by notice to the Depositor and
the Certificateholders.
Corresponding Actual Crossover Distribution Date: For each
Pooling-Tier REMIC-2 IO Interest, the related Corresponding Scheduled Crossover
Distribution Date, unless on such date two times the aggregate Pooling-Tier
REMIC-2 IO Notional Balance of each other Pooling-Tier REMIC-2 IO Interest then
outstanding is less than the scheduled swap notional amount of the Interest Rate
Swap Agreement applicable for such Distribution Date, in which case the
Corresponding Actual Crossover Distribution Date for such Pooling-Tier REMIC-2
IO Interest shall be the first Distribution Date thereafter on which two times
the aggregate Pooling-Tier REMIC-2 IO Notional Balance of each other
Pooling-Tier REMIC-2 IO Interest then outstanding is greater than or equal to
the scheduled swap notional amount of the Interest Rate Swap Agreement.
Corresponding Class: The Class of interests in one Trust REMIC
created under this Agreement that corresponds to the Class of interests in the
other Trust REMIC or to a Class of Certificates in the manner set out below:
Upper-Tier and
Lower-Tier Class X REMIC Corresponding
Class Designation Regular Interest Class of Certificates
----------------- ---------------- ---------------------
Class LT-A-1 Class A-1 Class A-1
Class LT-A-2A Class A-2A Class A-2A
Class LT-A-2B Class A-2B Class A-2B
Class LT-A-2C Class A-2C Class A-2C
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-M-4 Class M-4 Class M-4
Class LT-M-5 Class M-5 Class M-5
Class LT-M-6 Class M-6 Class M-6
Class LT-M-7 Class M-7 Class M-7
Class LT-M-8 Class M-8 Class M-8
Class LT-B-1 Class B-1 Class B-1
Class LT-B-2 Class B-2 Class B-2
N/A Class X Class X
Corresponding Pooling-Tier REMIC-2 IO Interests: As described in the
Preliminary Statement.
Corresponding Scheduled Crossover Distribution Date: The
Distribution Date in the month and year specified in the Preliminary Statement
corresponding to a Pooling-Tier REMIC-2 IO Interest.
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, any Mortgage
Loan Document which is delivered to the applicable Custodian or which at any
time comes into the possession of the applicable Custodian.
Custodians: Deutsche Bank National Trust Company, a national banking
association, and its successors in interest, Xxxxx Fargo Bank, N.A., a national
banking association, and its successors in interest, and X.X. Xxxxxx Trust
Company, National Association, a national banking association, and its
successors in interest.
Cut-off Date: December 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 File: As defined in Section 4.03(e).
Data File Delivery Date: As defined in Section 4.03(e).
Data Tape Information: The information provided by the Original Loan
Sellers or the Servicer as of the Cut-off Date to the Depositor setting forth
the following information with respect to each Mortgage Loan: (1) the applicable
Original Loan Seller'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 and 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)
Mortgage Interest Rate adjustment period; (32) the Mortgage Interest Rate floor;
(33) a code indicating whether the Mortgage Loan has been modified; (34) the
payment history; (35) the Due Date for the first Scheduled Payment; (36) the
original Scheduled Payment due; (37) with respect to the related Mortgagor, the
debt-to-income ratio; (38) the Appraised Value of the Mortgaged Property; (39)
the sales price of the Mortgaged Property if the Mortgage Loan was originated in
connection with the purchase of the Mortgaged Property; (40) the Mortgage
Interest Rate calculation method (i.e., 30/360, simple interest, other); (41) a
code indicating whether the Mortgage Loan is a Section 32 Mortgage Loan; (42) a
code indicating whether the Mortgage Loan is assumable; (43) the date of the
purchase of the Mortgage Loan; (44) whether the Mortgage Loan is covered by PMI
policy and name of insurer; (45) with respect to each MERS Designated Mortgage
Loan, the MERS identification number; (46) a code indicating if the Mortgage
Loan is an Interest Only Mortgage Loan; and (47) a code indicating if a Mortgage
Loan is or has had a 30 Day Delinquency. 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.
Defaulted Swap Termination Payment: Any Swap Termination Payment
required to be paid by the Trust to the Swap Provider pursuant to the Interest
Rate Swap Agreement as a result of an Event of Default (as defined in the
Interest Rate Swap Agreement) with respect to which the Swap Provider is the
defaulting party or a Termination Event (as defined in the Interest Rate Swap
Agreement) (other than Illegality or a Tax Event that is not a Tax Event Upon
Merger (each as defined in the Interest Rate Swap Agreement )) with respect to
which the Swap Provider is the sole Affected Party (as defined in the Interest
Rate Swap Agreement).
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).
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 and the Securities Administrator, that (a) is incorporated
under the laws of the United States of America or any State thereof, (b) is
subject to supervision and examination by federal or state banking authorities
and (c) has outstanding unsecured commercial paper or other short-term unsecured
debt obligations that are rated P-1 by Xxxxx'x, F1+ by Fitch and A-1 by Standard
& Poor's (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 15th
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.
Deutsche Bank: Deutsche Bank National Trust Company, a national
banking association, and its successors.
Distribution Account: The separate Eligible Account created and
maintained by the Master Servicer pursuant to Section 3.27(b) in the name of the
Securities Administrator as paying agent for the benefit of the
Certificateholders and designated "Xxxxx Fargo Bank, N.A., as paying agent, in
trust for registered Holders of GSAMP Trust 2005-HE6 Mortgage Pass-Through
Certificates, Series 2005-HE6." 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 January 2006.
Document Certification and Exception Report: The report attached to
Exhibit G 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
such Distribution Date occurs and ending on the first day of the calendar month
in which such Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a federal or
state-chartered depository institution or trust company 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 11.10(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
Securities Administrator.
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 at least "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 Xxxxx'x and "F1+" by Fitch (or a comparable
rating if another Rating Agency is specified by the Depositor by written notice
to the Master Servicer, the Servicer, the Securities Administrator 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.
XXXXX-Xxxxxxxxxx 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).
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 Securities Administrator pursuant to Sections 3.27(a) in
the name of the Securities Administrator as paying agent for the benefit of the
Certificateholders and designated "Xxxxx Fargo Bank, N.A., as paying agent, in
trust for registered Holders of GSAMP Trust 2005-HE6, Mortgage Pass-Through
Certificates, Series 2005-HE6." Funds in the Excess Reserve Fund Account shall
be held in trust for the Regular Certificateholders for the uses and purposes
set forth in this Agreement. Amounts on deposit in the Excess Reserve Fund
Account shall not be invested.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal
to the sum of the Servicing Fee Rate and the Master Servicing Fee Rate.
Expense Fees: As to each Mortgage Loan, the sum of the Servicing Fee
and the Master Servicing 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 Xxx Guides: The Xxxxxx Xxx Seller's Guide and the Xxxxxx Xxx
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 the Depositor, Fremont 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.
First NLC: First NLC Financial Services, LLC, a Florida limited
liability company.
First NLC Mortgage Loan: Each Mortgage Loan purchased by the
Purchaser pursuant to a First NLC Purchase Agreement and identified as a "First
NLC Mortgage Loan" on the Mortgage Loan Schedule.
First NLC Purchase Agreement: The Mortgage Loan Purchase and
Warranties Agreement, dated as of March 25, 2004, amended by Amendment No. 1,
dated as of July 15, 2004, and that certain letter dated as of March 25, 2004,
by and between First NLC and the Purchaser, solely insofar as the First NLC
Purchase Agreement relates to the Fremont Mortgage Loans.
Fitch: Fitch, Inc., and its successors in interest. If Fitch is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 12.05(f) 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-HE6, or such other address as Fitch may hereafter furnish to the
Depositor, the Servicer, the Custodians, the Securities Administrator and the
Trustee.
Fixed Rate Mortgage Loan: A fixed rate Mortgage Loan.
Forbearance: As defined in Section 3.07(a).
Freddie 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.
Fremont: Fremont Investment & Loan, a California state charted
industrial bank, and its successors in interest.
Fremont Agreements: Collectively, the Fremont Purchase Agreement,
without the mortgage loan schedule exhibits, and the Assignment, Assumption and
Recognition Agreement, copies of which are attached hereto as Exhibit Q.
Fremont Mortgage Loan: Each Mortgage Loan purchased by the Purchaser
pursuant to a Fremont Purchase Agreement and identified as a "Fremont Mortgage
Loan" on the Mortgage Loan Schedule.
Fremont Purchase Agreement: The Mortgage Loan Purchase and
Warranties Agreements, dated as of October 1, 2004, by and between Fremont and
the Purchaser, solely insofar as the Fremont Purchase Agreement relates to the
Fremont Mortgage Loans.
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 Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group I Mortgage Loans.
Group II Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group II Mortgage Loans.
High Cost Mortgage Loan: A Mortgage Loan that is (a) covered by the
Home Ownership and Equity Protection Act of 1994, (b) identified, classified or
characterized as "high cost," "threshold," "covered," or "predatory" under any
other applicable state, federal or local law (or a similarly identified,
classified or characterized loan using different terminology under an applicable
law imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees) or
(c) categorized as "High Cost" or "Covered" pursuant to Appendix E of the
Standard & Poor's Glossary.
Home Loan: A Mortgage Loan categorized as "Home Loan" pursuant to
Appendix E of Standard & Poor's Glossary.
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
applicable Custodian, substantially in the form of Exhibit F.
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, each Corresponding Class of Lower-Tier Regular Interests and each
Corresponding Class of Upper-Tier Regular Interests 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 Corresponding Class
of Lower-Tier Regular Interest and each Corresponding Class of Upper-Tier
Regular Interest, each Interest Accrual Period has the actual number of 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 Swap Agreement: The interest rate swap agreement,
dated as of December 29, 2005, and the related confirmation, dated December 13,
2005, between Xxxxxxx Xxxxx Capital Markets, L.P. and Xxxxxxx Xxxxx Mortgage
Company or any other cap agreement or swap agreement (including any related
schedules) entered into by the Trustee on behalf of the Trust pursuant to
Section 2.01(d) hereof.
Interest Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans in a Loan Group, that portion of Available Funds
allocated to interest relating to the Mortgage Loans in such Loan Group and any
Net Swap Receipts attributable to such Loan Group for such Distribution Date,
net of any Net Swap Payments made from such Loan Group with respect to such
Distribution Date. For purposes of this Agreement, any Net Swap Payments or Net
Swap Receipts shall be allocated by the Securities Administrator between Loan
Groups based on the respective aggregate Stated Principal Balance of the
Mortgage Loans in each Loan Group.
Investment Account: As defined in Section 3.12(a).
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the investor pursuant to the MERS Procedures
Manual.
Investor Based Exemption: Any of Prohibited Transaction Class
Exemption ("PTCE") 84-14 (for transactions by independent "qualified
professional asset managers"), PTCE 91-38 (for transactions by bank collective
investment funds), PTCE 90-1 (for transactions by insurance company pooled
separate accounts), PTCE 95-60 (for transactions by insurance company general
accounts) or PTCE 96-23 (for transactions effected by "in-house asset
managers"), or any comparable exemption available under Similar Law.
X.X. Xxxxxx Trust Company: X.X. Xxxxxx Trust Company, National
Association, a national banking association, and its successors in interest.
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.
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Securities Administrator on the related
LIBOR Determination Date on the basis of the offered rate for one-month U.S.
dollar deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m.
(London time) on such date; provided, that if such rate does not appear on
Telerate Page 3750, the rate for such date will be determined on the basis of
the rates at which one-month U.S. dollar deposits are offered by the Reference
Banks at approximately 11:00 a.m. (London time) on such date to prime banks in
the London interbank market. In such event, the Securities Administrator shall
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations are provided, the rate
for that date will be the arithmetic mean of the quotations (rounded upwards if
necessary to the nearest whole multiple of 1/16%). If fewer than two quotations
are provided as requested, the rate for that date will be the arithmetic mean of
the rates quoted by major banks in New York City, selected by the Securities
Administrator (after consultation with the Depositor), at approximately 11:00
a.m. (New York City time) on such date for one-month U.S. dollar deposits of
leading European banks.
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.
Loan Group: The Group I Mortgage Loans or the Group II Mortgage
Loans, as applicable.
Loan Group Cap: The Loan Group I Cap or the Loan Group II Cap, as
applicable.
Loan Group I Cap: With respect to the Group I Mortgage Loans as of
any Distribution Date, a per annum rate equal to the product of (i) 30 divided
by the actual number of days in the applicable Interest Accrual Period and (ii)
the sum of (A) the weighted average of the Mortgage Interest Rates for each
Group I Mortgage Loan (in each case, less the applicable Expense Fee Rate) then
in effect on the beginning of the related Due Period and (B) Net Swap Receipts,
if any, less Net Swap Payments if any, for that Distribution Date divided by the
Stated Principal Balance of the Mortgage Loans at the beginning of the related
Due Period, multiplied by 12.
Loan Group II Cap: With respect to the Group II Mortgage Loans as of
any Distribution Date, a per annum rate equal to the product of (i) 30 divided
by the actual number of days in the applicable Interest Accrual Period and (ii)
the sum of (A) the weighted average of the Mortgage Interest Rates for each
Group II Mortgage Loan (in each case, less the applicable Expense Fee Rate) then
in effect on the beginning of the related Due Period and (B) Net Swap Receipts,
if any, less Net Swap Payments if any, for that Distribution Date divided by the
Stated Principal Balance of the Mortgage Loans at the beginning of the related
Due Period, multiplied by 12.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, at
any time, the ratio (expressed as a percentage) of the principal balance of the
Mortgage Loan as of the date of determination, to the Appraisal Value of the
related Mortgaged Property.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lower-Tier Interest Rate: As described in the Preliminary Statement.
Lower-Tier Principal Amount: As described in the Preliminary
Statement.
Lower-Tier Regular Interest: Each of the Class LT-A-1, Class
LT-A-2A, Class LT-A-2B, Class LT-A-2C, Class LT-M-1, Class LT-M-2, Class LT-M-3,
Class LT-M-4, Class LT-M-5, Class LT-M-6, Class LT-M-7, Class LT-M-8, Class
LT-B-1, Class LT-B-2, Class LT-IO, Class LT-3, Class LT-Group I, Class LT-Group
II and Class LT-Accrual Interests as described in the Preliminary Statement.
Lower-Tier REMIC: As described in the Preliminary Statement.
Majority Class C Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class C Certificates.
Market Value Change Report: A report setting forth changes in
property value of the Mortgaged Properties in a format agreed upon by the
Servicer and the Depositor.
Master Servicer: Wells Fargo, and if a successor master servicer is
appointed hereunder, such successor.
Master Servicer Event of Default: As defined in Section 9.04.
Master Servicing Fee: With respect to each Mortgage Loan and any
Distribution Date, an amount equal to the product of (i) one-twelfth of the
Master 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.
Master Servicing Fee Rate: With respect to each Mortgage Loan,
0.0115% per annum.
Master Servicing Officer: Any officer of the Master Servicer
involved in, or responsible for, the administration and master servicing of the
Mortgage Loans.
Meritage: Meritage Mortgage Corporation, an Oregon corporation, and
its successors in interest.
Meritage Mortgage Loan: Each Mortgage Loan purchased by the
Purchaser pursuant to the Meritage Purchase Agreement and identified as a
"Meritage Mortgage Loan" on the Mortgage Loan Schedule.
Meritage Purchase Agreement: The Flow Mortgage Loan Purchase
Agreement, dated as of July 1, 2005, by and between Meritage and the Purchaser,
solely insofar as the Meritage Purchase Agreement relates to the Meritage
Mortgage Loans.
MERS: As defined in Section 2.01(b).
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
applicable Original Loan Seller 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 the applicable Original Loan Seller, in
accordance with the MERS Procedures Manual and (b) the applicable Original Loan
Seller 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 12.05(f) 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 Custodians,
the Securities Administrator 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 annexed hereto
as Schedule I, such schedule setting forth the following information with
respect to each Mortgage Loan as of the Cut-off Date: (1) the applicable
Original Loan Seller'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 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 and 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
date of the purchase of the Mortgage Loan, if applicable; (32) the Mortgage
Interest Rate adjustment period; (33) the Mortgage Interest Rate floor; (34) a
code indicating whether the Mortgage Loan has been modified; (35) the 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; (41) the Mortgage
Interest Rate calculation method (i.e., 30/360, simple interest, other); (42) a
code indicating whether the Mortgage Loan is a Section 32 Mortgage Loan; (43) a
code indicating whether the Mortgage Loan is assumable; (44) whether the
Mortgage Loan is covered by PMI policy and name of insurer; (45) with respect to
each MERS Designated Mortgage Loan, the MERS identification number; (46) the
applicable custodian for the related Mortgage File, and; (46) a code indicating
whether the Mortgage Loan is a Group I Mortgage Loan or a Group II Mortgage
Loan; (47) a code indicating if a Mortgage Loan is or has had a 30 Day
Delinquency; (48) with respect to each MERS Designated Mortgage Loan, the MERS
identification number; (49) a code indicating if the Mortgage Loan is an
Interest Only Mortgage Loan; (50) a code indicating whether such Mortgage Loan
is a Home Loan, and (51) the Original Purchase Date. With respect to the
Mortgage Loans in the aggregate: (1) the number of Mortgage Loans; (2) the
current aggregate outstanding principal balance of the Mortgage Loans; (3) the
weighted average Mortgage Interest Rate of the Mortgage Loans; and (4) the
weighted average maturity of the Mortgage Loans.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan, including all riders thereto.
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.
Net Swap Payment: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) made by the Trust to the Swap
Provider on the related Fixed Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement).
Net Swap Receipt: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) made by the Swap Provider to the
Trust on the related Floating Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement), or any amount withdrawn from the reserve account
referred to in the third full paragraph of Section 4.06 that is required under
that paragraph be treated as a Net Swap Receipt for purposes of determining the
distributions from the Supplemental Interest Trust.
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-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, the Master Servicer or any
successor Master Servicer including the Trustee, as applicable, 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, the Master Servicer
or any successor Master Servicer including the Trustee, as applicable, will not
or, in the case of a proposed Servicing Advance, would not, be ultimately
recoverable from related Insurance Proceeds, Condemnation Proceeds, Xxxxxxxxxxx
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 11.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Ocwen: Ocwen Loan Servicing, LLC, a Delaware limited liability
company, and its successors in interest.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by an officer of the
Servicer or the Master Servicer, as applicable, with responsibility for the
servicing of the Mortgage Loans and listed on a list delivered to the Trustee
and the Securities Administrator 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 and the Securities Administrator; 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 (unless otherwise stated in such Opinion of
Counsel) be an opinion of counsel who (i) is in fact independent of the Servicer
or the Master Servicer, (ii) does not have any material direct or indirect
financial interest in the Servicer or the Master Servicer or in an Affiliate of
either and (iii) is not connected with the Servicer or the Master Servicer as an
officer, employee, director or person performing similar functions.
Optional Termination Date: The date determined as follows:
(i) the Servicer (at the direction of the Majority Class C
Certificateholder (as evidenced on the Certificate Register)), pursuant to
Section 11.01, shall cause the Optional Termination Date to occur on any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans, as of the last day of the related Due Period, is equal to
10% or less of the Cut off Date Pool Principal Balance (provided, that if
the Depositor or an Affiliate of the Depositor is one of the Holders
constituting such majority, then there must be at least one other
unaffiliated Holder constituting such majority and the Class C
Certificates held by such Holder, or unaffiliated Holders in the
aggregate, must represent at least a 10% Percentage Interest in the Class
C Certificates); and
(ii) the Master Servicer or the Servicer, pursuant to Section 11.01,
individually, may, at their option, cause the Optional Termination Date to
occur on any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans, as of the last day of the related Due
Period, is equal to 5% or less of the Cut off Date Pool Principal Balance.
Notwithstanding the foregoing, in the event that the Majority Class C
Certificateholder, the Master Servicer or the Servicer may cause the Optional
Termination Date to occur, the first to provide written notice to the Trustee
exercising such right shall be entitled to purchase the Mortgage Loans.
Original Loan Sellers: With respect to each Fremont Mortgage Loan,
Fremont, with respect to each Meritage Mortgage Loan, Meritage, with respect to
each First NLC Mortgage Loan, First NLC, with respect to each Acoustic Mortgage
Loan, Acoustic, and with respect to each Conduit Mortgage Loan, the Person who
sold such Conduit Mortgage Loan to the Purchaser.
Original Purchase Date: With respect to any Mortgage Loan, the date
on which the applicable Original Loan Seller sold such Mortgage Loan to the
Purchaser pursuant to the applicable Purchase Agreement.
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 cancelled by the Securities
Administrator or delivered to the Securities Administrator for
cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Securities
Administrator pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Amount: As of any Distribution Date, the excess,
if any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over (b) the aggregate of the Class Certificate Balances
of the LIBOR Certificates and the Residual 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.
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.
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.
Pass-Through Margin: Except as set forth in the following sentence,
with respect to each Class of LIBOR Certificates, the following percentages:
Class A-1 Certificates, 0.240%; Class A-2A Certificates, 0.080%; Class A-2B
Certificates, 0.190%; Class A-2C Certificates, 0.360%; Class M-1 Certificates,
0.440%; Class M-2 Certificates, 0.450%; Class M-3 Certificates, 0.480%; Class
M-4 Certificates, 0.620%; Class M-5 Certificates, 0.670%; Class M-6
Certificates, 0.750%; Class M-7 Certificates, 1.650%; Class M-8 Certificates,
2.300%; Class B-1 Certificates, 2.500%; and Class B-2 Certificates, 2.500%. On
the first possible Optional Termination Date, the Pass-Through Margins shall
increase to: Class A-1 Certificates, 0.480%; Class A-2A Certificates, 0.160%;
Class A-2B Certificates, 0.380%; Class A-2C Certificates, 0.720%; Class M-1
Certificates, 0.660%; Class M-2 Certificates, 0.675%; Class M-3 Certificates,
0.720%; Class M-4 Certificates, 0.930%; Class M-5 Certificates, 1.005%; Class
M-6 Certificates, 1.125%; Class M-7 Certificates, 2.475%; Class M-8
Certificates, 3.450%; Class B-1 Certificates, 3.750%; and Class B-2
Certificates, 3.750%.
Pass-Through Rate: For each Class of Regular Certificates, each
Pooling-Tier REMIC-1 Regular Interest, each Pooling-Tier REMIC-2 Regular
Interest, each Lower-Tier Regular Interest, each Upper-Tier Regular Interest,
and each Class X REMIC Regular Interest, the per annum rate set forth or
calculated in the manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Periodic Mortgage Interest Rate Cap: With respect to each Adjustable
Rate Mortgage Loan, the provision of each Mortgage Note which provides for an
absolute maximum amount by which the Mortgage Interest Rate therein may 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 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, the Securities Administrator or
any of their respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars and
issued by any Depository Institution and rated "P-1" by Xxxxx'x, "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);
(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, the Securities Administrator or the Trustee or
an Affiliate thereof, that are rated, if rated by Xxxxx'x, at least "Aaa"
by Xxxxx'x, if rated by Standard & Poor's, at least "AAAm" or "AAAm-G" by
Standard & Poor's, and if rated by Fitch, 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 Securities
Administrator, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to the
Rating Agencies as a permitted investment of funds backing "Aaa" or "AAA"
rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
For investments in the Distribution Account (except during the Securities
Administrator Float Period), only the obligations or securities (or instruments
which invest in the obligations or securities) specified in clause (i) above
shall constitute Permitted Investments.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a U.S.
Person or a U.S. Person with respect to whom income from a Residual Certificate
is attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of such Person or any other U.S.
Person, (vi) an "electing large partnership" within the meaning of Section 775
of the Code and (vii) any other Person so designated by the Depositor based upon
an Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to such Person may cause 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 Freddie 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.
Pooling-Tier Interest Rate: As specified in the Preliminary
Statement.
Pooling-Tier REMIC-1: As described in the Preliminary Statement.
Pooling-Tier REMIC-1 Interest Rate: As described in the Preliminary
Statement.
Pooling-Tier REMIC-1 Loan Group I WAC Rate: With respect to the
Group I Mortgage Loans as of any Distribution Date, a per annum rate equal to
(a) the weighted average of the Mortgage Interest Rates for each such Mortgage
Loan (in each case, less than the applicable Expense Fee Rate) then in effect on
the beginning of the related Due Period on such Mortgage Loans, multiplied by
(b) 30 divided by the actual number of days in the related Interest Accrual
Period.
Pooling-Tier REMIC-1 Loan Group II WAC Rate: With respect to the
Group II Mortgage Loans as of any Distribution Date, a per annum rate equal to
(a) the weighted average of the Mortgage Interest Rates for each such Mortgage
Loan (in each case, less than the applicable Expense Fee Rate) then in effect on
the beginning of the related Due Period on such Mortgage Loans, multiplied by
(b) 30 divided by the actual number of days in the related Interest Accrual
Period.
Pooling-Tier REMIC-1 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-1 Regular Interest: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2: As described in the Preliminary Statement.
Pooling-Tier REMIC-2 Interest Rate: As described in the Preliminary
Statement.
Pooling-Tier REMIC-2 IO Interest: Any of the Pooling-Tier REMIC-2
Regular Interests with the designation "IO" in its name.
Pooling-Tier REMIC-2 IO Notional Balance: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2 Regular Interest: As described in the
Preliminary Statement.
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 11.01 (to the extent such proceeds relate
to principal).
Privacy Laws: Title V of the Xxxxx-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 December 22,
2005, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchase Agreement: The Fremont Purchase Agreement, the Acoustic
Purchase Agreement, the Meritage Purchase Agreement, the First NLC Purchase
Agreement or, with respect to any Conduit Mortgage Loans, the Master Loan
Purchase Agreement by and between the related Original Loan Seller and the
Purchaser, as applicable.
Purchaser: Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors in interest, as purchaser of the Mortgage Loans
under each applicable 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 and the
Securities Administrator. For purposes of Section 12.05(f), 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, the
Securities Administrator and the Trustee.
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 the amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the related Interest Accrual Period;
provided, however, that for any Certificate issued in definitive form, the
Record Date shall be the close of business on the last Business Day of the month
preceding the month in which such applicable Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers Civil Relief Act, or any similar state
statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Opinion: As defined in Section 11.03.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, no later
than 12:00 PM, New York 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 12th day of each calendar month or the
immediately following Business Day if the 12th is not a Business Day.
Representations and Warranties Agreement: The Representation and
Warranties Agreement, dated as of December 29, 2005, by and between the
Depositor and the Purchaser, a copy of which is attached hereto as Exhibit R.
Repurchase Price: With respect to any Mortgage Loan, (a) repurchased
by the Purchaser or the Depositor, 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 Securities Administrator to the date of repurchase, (iii) all
unreimbursed Servicing Advances and (iv) all expenses incurred by the Master
Servicer, the Servicer, the Trust or the Trustee, as the case may be, in respect
of a breach or defect, including, without limitation, (A) expenses arising out
of the Master Servicer's, 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 (B) 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, and (b) repurchased by Fremont, the "Repurchase Price"
as defined in the Fremont Purchase Agreement.
Request for Release: The Request for Release submitted by the
Servicer to the applicable Custodian substantially in the form of Exhibit L.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, the
Securities Administrator or the Master Servicer, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer, any
associate assigned, with respect to the Trustee, to the Global Securities and
Trust Services Group (or successor group) or any other officer of the Trustee,
the Securities Administrator or the Master Servicer customarily performing
functions similar to those performed by any of the above designated officers who
at such time shall be officers to whom, with respect to a particular matter,
such matter is referred because of such officer's knowledge of and familiarity
with the particular subject and who shall have direct responsibility for the
administration of this Agreement.
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 Mortgage Property.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: Wells Fargo, and if a successor securities
administrator is appointed hereunder, such successor.
Securities Administrator Float Period: With respect to any
Distribution Date and the related amounts in the Distribution Account, the
period commencing on the Remittance Date and ending on such Distribution Date.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
Senior Specified Enhancement Percentage: As of any date of
determination, 53.10%.
Servicer: Xxxxx and if a successor servicer is appointed hereunder,
such successor.
Servicer Delinquency Trigger: With respect to any Distribution Date,
a Delinquency Trigger 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 45.00% of the Senior Enhancement Percentage as of the last day
of the prior Due Period.
Servicer Cumulative Loss Trigger: With respect to any Distribution
Date, a Servicer Cumulative Loss Trigger exists if the Cumulative Loss
Percentage exceeds the applicable percentages set forth below with respect to
such Distribution Date:
Distribution Date Occurring In Loss Percentage
------------------------------ ---------------
December 2005 through November 2008 1.85% for the first month, plus an
additional 1/12th of 0.55% for each
month thereafter
December 2008 through November 2009 3.50% for the first month, plus an
additional 1/12th of 1.70% for each
month thereafter
December 2009 and thereafter 5.20%
Servicer Remittance Report: As defined in Section 4.03(d).
Servicing Advances: The reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred prior to, on, or after the Cut-off Date
by the Servicer in the performance of its servicing obligations in connection
with a default, delinquency or other unanticipated event, including, but not
limited to, the cost of (i) the preservation, restoration, inspection and
protection of a Mortgaged Property, (ii) any enforcement, administrative 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, 3.07, 3.09, 3.13 and 3.15.
Servicing Advances also include any reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred by the Servicer in connection with
executing and recording instruments of satisfaction, deeds of reconveyance or
Assignments of Mortgage in connection with any satisfaction or foreclosures in
respect of any Mortgage Loan to the extent not recovered from the Mortgagor or
otherwise payable under this Agreement and obtaining or correcting any legal
documentation required to be included in the Mortgage Files and necessary for
the Servicer to perform its obligations under this Agreement, including
correcting any outstanding title issues (i.e., any lien or encumbrance on the
Mortgaged Property that prevents the effective enforcement of the intended lien
position). 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 applicable Custodian in the
Custodial File and copies of the Mortgage Loan Documents set forth in Exhibit M
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 Master Servicer and the Trustee by the Servicer on the Closing Date pursuant
to this Agreement, as such list may from time to time be amended.
Servicing Transfer Costs: All reasonable out-of-pocket costs and
expenses incurred by the Master Servicer or Trustee in connection with the
transfer of servicing from a terminated Servicer, including, without limitation,
any such costs or expenses associated with the complete transfer of all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the Master Servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the Master Servicer
(or any successor Servicer appointed pursuant to Section 7.02) to service the
Mortgage Loans properly and effectively.
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 4.95% of the Cut-off Date Pool Principal Balance. On and after
the Stepdown Date, an amount equal to 9.90% 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; provided, further, that when the Class Certificate Balance of each
Class of LIBOR Certificates has been reduced to zero, the Specified
Overcollateralized Amount will thereafter equal zero.
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 12.05(f) 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-HE6, or such other
address as Standard & Poor's may hereafter furnish to the Depositor, the
Servicer, the Custodians, the Securities Administrator and the Trustee.
Standard & Poor's Glossary: Version 5.6(c) 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 Securities Administrator
with respect to the related Mortgage Loan representing payments or recoveries of
principal including advances in respect of Scheduled Payments of principal. For
purposes of any Distribution Date, the Stated Principal Balance of any Mortgage
Loan will give effect to any Scheduled Payments of principal received 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
January 2009, 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 Assignment, Assumption
and Recognition Agreement or the Representations and Warranties Agreement.
Substitution Adjustment Amount: Any amount required to be paid in
connection with a Substitute Mortgage Loan pursuant to the Assignment,
Assumption and Recognition Agreement or the Representations and Warranties
Agreement, as applicable.
Supplemental Interest Trust: The corpus of a trust created pursuant
to Section 4.06 of this Agreement, consisting of the Interest Rate Swap
Agreement, the Class IO Interest and the right to receive Class IO Shortfalls,
subject to the obligation to pay amounts specified in Section 4.06.
Swap LIBOR: With respect to any Distribution Date (and the related
Interest Accrual Period), the product of (i) USD-LIBOR-BBA (as used in the
Interest Rate Swap Agreement), (ii) two, and (iii) the quotient of (a) the
actual number of days in the Interest Accrual Period for the LIBOR Certificates
divided by (b) 30.
Swap Provider: Xxxxxxx Xxxxx Mitsui Marine Derivative Products,
L.P., a Delaware limited partnership, and its successors in interest, and any
successor swap provider under any replacement Interest Rate Swap Agreement.
Swap Termination Payment: Any payment payable by the Trust or the
Swap Provider upon termination of the Interest Rate Swap Agreement as a result
of an Event of Default (as defined in the Interest Rate Swap Agreement) or a
Termination Event (as defined in the Interest Rate Swap Agreement).
Tax Matters Person: The Holder of the (i) Class R-2, (ii) Class R-1
and (iii) Class R-3 Certificates designated as "tax matters person" of (i)
Pooling-Tier REMIC-1, (ii) Pooling-Tier REMIC-2, the Lower-Tier REMIC and the
Upper-Tier REMIC, and (iii) the Class X REMIC, respectively, in the manner
provided under Treasury Regulations Section 1.860F-4(d) and Treasury Regulations
Section 301.6231(a)(7)-1.
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 11.01.
30 Day Delinquency: The failure of the Mortgagor to make any
Scheduled Payment due under the Mortgage Note on a Due Date, which failure
continues unremedied for a period of one month after the following Due Date.
Total Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess if any, of (i) the interest collected on the Mortgage Loans
received by the Servicer on or prior to the related Determination Date or
advanced by the Servicer for the related Remittance Date (net of Expense Fees)
and plus any Net Swap Receipts and less any Net Swap Payments for such
Distribution Date, over (ii) the sum of the interest payable to the 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 30.00% of the Senior Enhancement Percentage as of the last day of the
prior Due Period or (ii) the quotient (expressed as a percentage) of (x) the
aggregate amount of Realized Losses incurred since the Cut-off Date through the
last day of the related 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
------------------------------ ---------------
January 2008 through December 2008 1.80% for the first month, plus an
additional 1/12th of 2.20% for each
month thereafter
January 2009 through December 2009 4.00% for the first month, plus an
additional 1/12th of 1.75% for each
month thereafter
January 2010 through December 2010 5.75% for the first month, plus an
additional 1/12th of 1.75% for each
month thereafter
January 2011 through December 2011 7.50% for the first month, plus an
additional 1/12th of 0.75% for each
month thereafter
January 2012 and thereafter 8.25%
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 Interest Rate
Swap Agreement; (v) the Trust's rights under the Assignment, Assumption and
Recognition Agreement and Representations and Warranties Agreement; (vi) the
Supplemental Interest Trust; and (vii) all proceeds of the conversion, voluntary
or involuntary, of any of the foregoing.
Trust REMIC: Any of Pooling-Tier REMIC-1, Pooling-Tier REMIC-2, the
Lower-Tier REMIC, the Upper-Tier REMIC or the Class X REMIC, as applicable.
Trustee: LaSalle Bank National Association, a national banking
association, and its successors in interest and, if a successor trustee is
appointed hereunder, such successor.
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.
Underwriter's 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
applicable Purchase Agreement.
Unpaid Interest Amounts: As of any Distribution Date and any Class
of Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from prior Distribution Dates remaining unpaid immediately
prior to the current Distribution Date and (b) interest on such unpaid amount in
clause (a) at the applicable Pass-Through Rate (to the extent permitted by
applicable law).
Upper Tier 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 Upper Tier Interest Rate for the Class of Corresponding
Upper Tier REMIC Regular Interest is based upon the Upper Tier REMIC Loan Group
I Rate or Upper Tier REMIC Loan Group II Rate, as and if applicable, or the
Upper Tier REMIC WAC Rate, the excess, if any, of (i) the amount of interest
such Class of Upper Tier Regular Interest would otherwise be entitled to receive
on such Distribution Date had such Upper Tier REMIC Regular Interest not been
subject to the Upper Tier REMIC Loan Group I Rate or Upper Tier REMIC Loan Group
II Rate, as and if applicable, or the Upper Tier REMIC WAC Rate, over (ii) the
amount of interest payable on such Class of Certificates on such Distribution
Date taking into account the Upper Tier REMIC Loan Group I Rate or Upper Tier
REMIC Loan Group II Rate, as and if applicable, or the Upper Tier REMIC WAC Rate
and (B) the Upper Tier Carry Forward Amount for such Class of Certificates for
all previous Distribution Dates not previously paid, together with interest
thereon at a rate equal to the applicable Upper Tier Interest Rate for such
Class of Certificates for such Distribution Date, without giving effect to the
Upper Tier REMIC Loan Group I Rate or Upper Tier REMIC Loan Group II Rate, as
and if applicable, or the Upper Tier REMIC WAC Rate.
Upper-Tier Interest Rate: As described in the Preliminary Statement.
Upper-Tier Regular Interest: As described in the Preliminary
Statement.
Upper-Tier REMIC: As described in the Preliminary Statement.
Upper-Tier REMIC Loan Group I Rate: As described in the Preliminary
Statement.
Upper-Tier REMIC Loan Group II Rate: As described in the Preliminary
Statement.
Upper-Tier REMIC WAC Rate: For any Distribution Date, the weighted
average of the Lower-Tier Interest Rates on the Lower-Tier Regular Interests
(other than the Class LT-IO and Class LT-3 Interests), as of the first day of
the related Interest Accrual Period, weighted on the basis of the Lower-Tier
Principal Amounts of such Lower-Tier Regular Interests as of the first day of
the related Interest Accrual Period.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any, and (c) the remaining Voting Rights shall be allocated
among Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date. The Class C
Certificates and the Residual Certificates shall have no Voting Rights.
WAC Cap: With respect to the Mortgage Loans as of any Distribution
Date, a per annum rate equal to the product of (i) 30 divided by the actual
number of days in the applicable Interest Accrual Period and (ii) the sum of (A)
the weighted average of the Adjusted Net Mortgage Interest Rates then in effect
at the beginning of the related Due Period on the Mortgage Loans and (B) Net
Swap Receipts, if any, for that Distribution Date less Net Swap Payments, if
any, for that Distribution Date divided by the Stated Principal Balance of the
Mortgage Loans at the beginning of the related Due Period, multiplied by 12.
Xxxxx Fargo: Xxxxx Fargo Bank, N.A., a national banking association,
and its successors in interest.
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 Deutsche Bank
with respect to the Acoustic Mortgage Loans, the First NLC Mortgage Loans, the
Meritage Mortgage Loans and certain of the Conduit Mortgage Loans, X.X. Xxxxxx
Trust Company, with respect to all other Conduit Mortgage Loans and Xxxxx Fargo
with respect to the Fremont Mortgage Loans for the benefit of the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) the original Mortgage Note (except for up to 0.50% of the
Mortgage Notes for which there is a lost note affidavit and the copy of
the Mortgage Note) bearing all intervening endorsements showing a complete
chain of endorsement from the originator to the last endorsee, 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 any Mortgage Note for an endorsement, the endorsement may be contained
on an allonge unless the Trustee (or applicable Custodian) is advised by
the applicable Original Loan Seller that state law does not so allow. If
the Mortgage Loan was acquired by the applicable Original Loan Seller 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) except with respect to the Conduit Mortgage Loans, the original
of any guarantee executed in connection with the Mortgage Note;
(iii) the original Mortgage with evidence of recording thereon or a
certified true copy of such Mortgage submitted for recording. If in
connection with any Mortgage Loan, the applicable Original Loan Seller
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 applicable Original Loan Seller shall deliver or cause to be
delivered to the applicable 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 (or certified by) the applicable
Original Loan Seller, or evidence of certification on the face of such
photocopy of such Mortgage, (or certified by the title company, escrow
agent, or closing attorney) stating that such Mortgage has been dispatched
to the appropriate public recording office for recordation and that the
original recorded Mortgage or a copy of such Mortgage certified by such
public recording office to be a true and complete copy of the original
recorded Mortgage will be promptly delivered to the applicable Custodian
upon receipt thereof by the applicable Original Loan Seller; 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) except with respect to each MERS Designated Mortgage Loan, the
original Assignment of Mortgage for each Mortgage Loan endorsed in blank
and in recordable form;
(vi) the originals of all intervening Assignments of Mortgage (if
any) evidencing a complete chain of assignment from the applicable
originator to the last endorsee (or to MERS with respect to each MERS
Designated Mortgage Loan) with evidence of recording thereon or a
certified true copy of such intervening Assignment of Mortgage submitted
for recording, 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 applicable Original Loan Seller (to the extent it has not previously
delivered the same to the Purchaser or the applicable Custodian) shall
deliver or cause to be delivered to the applicable 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 (or
certified by) the applicable Original Loan Seller, or evidence of
certification on the face of such photocopy of such intervening
assignment, (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 applicable Custodian upon receipt thereof by the applicable Original
Loan Seller; 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 mortgagee policy of title insurance or, in the
event such original title policy is unavailable, a copy of the related
policy binder, preliminary report or commitment for title; and
(viii) any security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage (if provided).
The Depositor shall use reasonable efforts to assist the Trustee,
the Master Servicer, the applicable Custodian and the Servicer in enforcing the
obligations of the Purchaser under the Assignment, Assumption and Recognition
Agreement and Representations and Warranties Agreement.
Each Mortgage Loan for which a Mortgage Note is missing shall be
evidenced by a lost note affidavit as of the Closing Date. In the event one or
more lost note affidavits are provided to cover multiple missing Mortgage Notes
on the Closing Date, the Depositor shall use reasonable efforts to cause Fremont
or the Purchaser, as applicable, to deliver to the applicable Custodian the
applicable individual lost note affidavits within ten (10) Business Days of the
Closing Date. If Fremont or the Purchaser, as applicable, fails to deliver the
required individual lost note affidavits within the specified period of time,
the Trustee, upon receipt of written notice, shall notify Fremont or the
Purchaser, as applicable, to take such remedial actions, including, without
limitation, the repurchase by Fremont of any Fremont Mortgage Loan within 60
days of the Closing Date, the repurchase by the Purchaser of any Acoustic
Mortgage Loan, First NLC Mortgage Loan or Meritage Mortgage Loan within 60 days
of the Closing Date and the repurchase of any Conduit Mortgage Loan within 180
days of the Closing Date.
The Depositor shall use reasonable efforts to cause the Purchaser
and the applicable Original Loan Seller to deliver to the applicable Custodian
the applicable recorded document promptly upon receipt from the respective
recording office but in no event later than 180 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 the Purchaser
and applicable Original Loan Seller, as applicable, to forward to the applicable
Custodian additional documents evidencing an assumption, modification,
consolidation or extension of a Mortgage Loan approved by the applicable
Original Loan Seller in accordance with the terms of the applicable Purchase
Agreement. All such Mortgage Documents held by the applicable 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 or applicable Original Loan Seller to deliver to
the applicable Custodian Assignments of Mortgages, in blank, for each applicable
Mortgage Loan (except with respect to each MERS Designated Mortgage Loan). The
Depositor shall use reasonable efforts to cause the Purchaser or applicable
Original Loan Seller 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
applicable Original Loan Seller pursuant to the applicable Purchase Agreement,
at no expense to the Trust Fund, the Trustee, the Servicer, the Master Servicer,
the Securities Administrator, the applicable Custodian or the Depositor 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, 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 "LaSalle Bank
National Association, as trustee under the Pooling and Servicing Agreement dated
as of December 1, 2005, GSAMP Trust 2005-HE6." 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
enforce the Purchaser's obligation to repurchase such Mortgage Loan pursuant to
the Assignment, Assumption and Recognition Agreement or the Representation and
Warranties Agreement, as applicable.
On or prior to the Closing Date, the Depositor shall deliver to the
applicable Custodian, the Master Servicer and the Servicer a copy of the Data
Tape Information in electronic, machine readable medium in a form mutually
acceptable to the Depositor, the applicable Custodian, the Master Servicer and
the Trustee. Within ten (10) Business Days of the Closing Date, the Depositor
shall deliver a copy of the complete Mortgage Loan Schedule to the applicable
Custodian, the Servicer and the Trustee.
In the event, with respect to any Mortgage Loan, that such original
or copy of any document submitted for recordation to the appropriate public
recording office is not so delivered to the applicable Custodian within 90 days
(or with respect to the Fremont Mortgage Loans, 180 days) following the
applicable Original Purchase Date, and in the event that the Purchaser or
Fremont, as applicable, does not cause such failure to be cured within 60 days
(or with respect to the Fremont Mortgage Loans, 30 days) of discovery of receipt
of written notification of such failure from the Depositor, the related Mortgage
Loan shall, upon the request of the Depositor, be repurchased by the Purchaser
pursuant to the Representations and Warranties Agreement or Fremont pursuant to
the Assignment, Assumption and Recognition Agreement. The foregoing repurchase
remedy shall not apply in the event that the Purchaser or Fremont 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 Purchaser or Fremont shall instead deliver a recording receipt of such
recording office or, if such recording receipt is not available, an officer's
certificate of an officer of the Purchaser or Fremont 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 Purchaser or Fremont shall be deemed to have been satisfied upon delivery by
the Purchaser or Fremont to the applicable Custodian prior to the Closing Date
of a copy of such Mortgage or assignment, as the case may be, certified (such
certification to be an original thereof) by the public recording office to be a
true and complete copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "GSAMP Trust 2005-HE6" and
LaSalle Bank National Association is hereby appointed as Trustee in accordance
with the provisions of 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, the Assignment, Assumption
and Recognition Agreement, the Representations and Warranties Agreement and the
Interest Rate Swap Agreement) pursuant to Section 2.01(a). The parties hereby
acknowledge and agree that the execution and delivery of the Interest Rate Swap
Agreement by the Trustee on behalf of the Trust were authorized and are hereby
ratified and confirmed. Except as otherwise expressly stated in this Agreement,
the Trustee shall have no responsibility under or with respect to the Interest
Rate Swap Agreement. The Securities Administrator shall perform those
obligations of the Securities Adminsitrator set forth in the Interest Rate Swap
Agreement.
(e) It is agreed and understood by the Depositor and the Trustee
that it is the policy and intention of the Trust to acquire only Mortgage Loans
meeting the requirements set forth in this Agreement, including without
limitation, including the requirement that no Mortgage Loan be a High Cost or
Covered Loan, as applicable, and no Mortgage Loan originated on or after October
1, 2002 through March 6, 2003 be governed by the Georgia Fair Lending Act.
Section 2.02 Acceptance by the Applicable Custodian of the Mortgage
Loans. Each Custodian acknowledges receipt of the documents identified in the
Initial Certification in the form annexed hereto as Exhibit F, and declares that
it holds and will hold such documents and the other documents delivered to it
pursuant to Section 2.01, and that it holds or will hold such other assets as
are included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders. Each Custodian acknowledges that it
will maintain possession of the related Mortgage Notes in the States of Texas,
Minnesota or California, unless otherwise permitted by the Rating Agencies.
Prior to and as a condition to the closing, the applicable Custodian
shall deliver via facsimile (with original to follow the next Business Day) to
the Depositor, the Trustee, the Master Servicer and the Servicer an Initial
Certification prior to the Closing Date, or as the Depositor agrees to, on the
Closing Date, certifying receipt of a Mortgage Note and Assignment of Mortgage
for each Mortgage Loan with any exceptions thereon. The applicable Custodian
shall not be responsible to verify the validity, sufficiency or genuineness of
any document in any Custodial File.
On the Closing Date, the applicable Custodian shall ascertain that
all documents required to be reviewed by it are in its possession, and shall
deliver to the Depositor, the Trustee, the Master Servicer and the Servicer an
Initial Certification, in the form annexed hereto as Exhibit F, and shall
deliver to the Depositor, the Trustee, the Master Servicer and the Servicer a
Document Certification and Exception Report, in the form annexed hereto as
Exhibit G, within 90 days (or with respect to any Substitute Mortgage Loan
delivered to the applicable Custodian, within 30 days after the receipt of the
Mortgage File by the applicable Custodian) 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 applicable Custodian
shall not be responsible to verify the validity, sufficiency or genuineness of
any document in any Custodial File.
The applicable 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 applicable Custodian,
upon the execution or receipt thereof, the originals of such other documents or
instruments constituting the Custodial File as come into the possession of the
Servicer from time to time.
The Depositor shall use reasonable efforts to cause the Purchaser or
Fremont 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 applicable 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 Fremont to deliver such
documents at the Purchaser's or Fremont's expense (pursuant to the Fremont
Purchase Agreement) 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 and Each Custodian. (a) The Servicer hereby makes the representations
and warranties set forth in Schedule II hereto to the Depositor, the Master
Servicer, the Securities Administrator, the Custodians and the Trustee as of the
Closing Date. The applicable Custodian hereby makes the representations and
warranties set forth in Schedule III, Schedule IV and Schedule V hereto to the
Depositor, the Servicer, the Master Servicer, the Securities Administrator and
the Trustee as of the Closing Date.
(b) It is understood and agreed by the Servicer and the applicable
Custodian 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 parties to whom the
representations and warranties were made 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 Master Servicer, the Securities Administrator, the Trustee,
the applicable 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) [Reserved].
(d) [Reserved].
(e) In connection with any repurchase or substitution of a Mortgage
Loan pursuant to this Section 2.03, Section 2.08, Section 3.28 or the
Assignment, Assumption and Recognition Agreement or the Representation and
Warranties Agreement, the Servicer shall, based on information provided by
Fremont or the Purchaser, 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 applicable
Custodian. Upon any such repurchase or any substitution and the deposit to the
Collection Account of any Substitution Adjustment Amount, the applicable
Custodian shall release the Mortgage File held for the benefit of the
Certificateholders relating to such Deleted Mortgage Loan to the Purchaser, the
Depositor or the applicable Original Loan Seller, as applicable, and shall
execute and deliver at the direction of the Purchaser, the Depositor or the
applicable Original Loan Seller, as applicable, such instruments of transfer or
assignment prepared by the Purchaser, the Depositor or the applicable Original
Loan Seller, as applicable, in each case without recourse, as shall be necessary
to vest title in the Purchaser or its designee, the Depositor or the applicable
Original Loan Seller, as applicable, or their respective designees, the
Trustee's interest in any Deleted Mortgage Loan repurchased or substituted for
as described above in this Section 2.03(e).
(f) [Reserved].
(g) For any month in which the Purchaser, the Depositor or the
applicable Original Loan Seller, as applicable, 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 remit, with
respect to any Mortgage Loans for which the Depositor is making a substitution,
or shall use reasonable efforts to cause the Purchaser, the Depositor or the
applicable Original Loan Seller, as applicable, to remit to the Servicer for
deposit into the Collection Account on or before the next Remittance Date any
Substitution Adjustment Amount.
(h) In the event that a Mortgage Loan shall have been repurchased
pursuant to this Agreement, the Assignment, Assumption and Recognition Agreement
or the Representations and Warranties Agreement, the proceeds from such
repurchase 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 L hereto, the applicable Custodian shall release within five Business
Days the related Custodial File held for the benefit of the Certificateholders
to such Person as directed by the Servicer, and the Trustee, upon receipt of a
copy of the Request for Release from the Servicer, shall execute and deliver at
such Person's direction such instruments of transfer or assignment prepared by
such Person, in each case without recourse, as shall be necessary to transfer
title from the Trustee. It is understood and agreed that the obligation under
this Agreement of any Person to cure, repurchase or replace any Mortgage Loan as
to which a breach has occurred and is continuing, together with any related
indemnification obligations, shall constitute the sole remedy against such
Persons respecting such breach available to Certificateholders, the Depositor,
the Servicer, the Master Servicer, the Securities Administrator, the applicable
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 applicable
Custodian for the benefit of the Certificateholders.
Section 2.04 [Reserved]
Section 2.05 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, the Securities Administrator has
executed and delivered to or upon the order of the Depositor, the Certificates
in authorized Denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and future
Holders of the Certificates.
Section 2.06 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
For the avoidance of doubt, the Class C Certificates shall not represent a
regular or residual interest in any Trust REMIC. The "Start-up Day" for purposes
of the REMIC Provisions shall be the Closing Date. The "latest possible maturity
date" is the Distribution Date in December 2035, which is the Distribution Date
in the month following the month in which the latest maturity date of any
Mortgage Loan occurs. Amounts distributable to the Class X Certificates (prior
to any reduction for any Basis Risk Payment, Net Swap Payment or Swap
Termination Payment), exclusive of any amounts received from the Swap Provider,
shall be deemed paid from the Upper-Tier REMIC to the Class X REMIC in respect
of the Class UT-X Interest and the Class UT-IO Interest and then from the Class
X REMIC in respect of the Class X Interest and the Class IO Interest to the
Holders of the Class X Certificates prior to distribution of any Basis Risk
Payments to the LIBOR Certificates or Swap Termination Payments to the Swap
Provider.
For federal income tax purposes, any amount distributed on the LIBOR
Certificates on any Distribution Date in excess of the amount distributable on
their Corresponding Class of Upper-Tier Regular Interest on such Distribution
Date shall be treated as having been paid from the Excess Reserve Fund Account
or the Supplemental Interest Trust, as applicable, and any amount distributable
on such Corresponding Class of Upper-Tier Regular Interest on such Distribution
Date in excess of the amount distributable on the Corresponding Class of LIBOR
Certificates on such Distribution Date shall be treated as having been paid to
the Supplemental Interest Trust, all pursuant to and as further provided in
Section 8.13.
Section 2.07 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Trustee, the Master
Servicer, the Securities Administrator and the Servicer that as of the Closing
Date 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 12.04.
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 applicable Custodian and shall inure to the
benefit of the Trustee.
Within 30 days of the earlier of either discovery by or notice to
the Depositor of a breach of the representations and warranties set forth in
clause (h) above that materially and adversely affects the value of any Mortgage
Loan or the interest of the Trustee or the Certificateholders therein, the
Depositor shall use its best efforts to promptly cure such breach in all
material respects and if such defect or breach cannot be remedied, the Depositor
shall repurchase such Mortgage Loan at the Repurchase Price or substitute a
Substitute Mortgage Loan for the defective Mortgage Loan. Any such repurchase
shall be conducted in the same manner as set forth in Section 2.03. The
obligations of the Depositor to cure such breach or to repurchase or replace any
Mortgage Loan constitute the sole remedies respecting a material breach of any
such representation or warranty to the Holders of the Certificates and the
Trustee.
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 Fremont pursuant to the Assignment,
Assumption and Recognition Agreement or the Purchaser pursuant to the
Representations and Warranties Agreement, the party discovering such breach
shall give prompt written notice thereof to the other parties to this Agreement,
Fremont or the Purchaser, as applicable. The Trustee shall take such action,
with the Depositor's consent, with respect to such breach under the Assignment,
Assumption and Recognition Agreement or the Representations and Warranties
Agreement, as applicable, as may be necessary or appropriate to enforce the
rights of the Trust with respect thereto. 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 Trustee shall be entitled to be
reimbursed therefor out of the Collection Account.
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, 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
or in the name of a Subservicer is hereby authorized and empowered by the
Trustee when the Servicer believes it appropriate in its best judgment in
accordance with Accepted Servicing Practices, to execute and deliver any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the 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 Trustee shall
execute, at the written request of the Servicer, and furnish to the Servicer and
any Subservicer such documents as are necessary or appropriate to enable the
Servicer or any Subservicer to carry out their servicing and administrative
duties hereunder, and the Trustee hereby grants to the Servicer, and this
Agreement shall constitute, a power of attorney to carry out such duties
including a power of attorney to take title to Mortgaged Properties after
foreclosure on behalf of the Trustee and in the name of the Trust. The Trustee
shall execute any power of attorney furnished to it by the Servicer in favor of
the Servicer for the purposes described herein to the extent necessary or
desirable to enable the Servicer to perform its duties hereunder. The Trustee
shall not be liable for the actions of the Servicer or any Subservicers under
such powers of attorney. Notwithstanding anything contained herein to the
contrary, the Servicer shall not without the Trustee's written consent: (i) hire
or procure counsel to represent the Trustee without indicating its
representative capacity, and (ii) prepare, execute or deliver any government
filings, forms, permits, registrations or other documents which have the effect
of causing the Trustee to be registered to do business in any state.
(b) Subject to Section 3.09(b), in accordance with the standards of
the preceding paragraph, the Servicer shall advance or cause to be advanced
funds as necessary for the purpose of effecting the timely payment of taxes and
assessments on the Mortgaged Properties for First Lien Mortgage Loans, 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 payments resulting
from the application of the Servicemembers Civil Relief Act or any similar state
statutes or (B) as provided in Section 3.07, if the Mortgagor is in default with
respect to the Mortgage Loan or such default is, in the judgment of the
Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or
amendment of any term of any Mortgage Loan that would both (A) effect an
exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or
final, temporary or proposed Treasury regulations promulgated thereunder) and
(B) cause 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
Subservicer. (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 Freddie Mac or Xxxxxx Xxx 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 any party hereto, without the
consent of such party. 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
Master Servicer, the Securities Administrator, 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 Master Servicer
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, the
Trustee and the Master Servicer. 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 neither the Trustee nor the Master
Servicer (nor any successor Servicer) shall 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
Master Servicer. 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 Master Servicer, or its designee, or the successor Servicer if the
successor Servicer is not the Master Servicer, 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 Master
Servicer prior to the Master Servicer assuming such rights and obligations,
unless the Master Servicer elects to terminate any Subservicing Agreement in
accordance with its terms as provided in Section 3.03.
Upon such assumption, the Master Servicer, 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 Master Servicer, 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 Master
Servicer, 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 Servicer's approval of a
modification of a Due Date shall not be considered a modification for purposes
of this sentence; provided, further, that the final maturity date of any
Mortgage Loan may not be extended beyond the Final Scheduled Distribution Date
for the 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 Servicing File or on the Servicer's servicing
records. In addition, notwithstanding the foregoing, the Servicer may also waive
(or permit a Subservicer to waive), in whole or in part, a Prepayment Premium if
such waiver would, in the Servicer's judgment, maximize recoveries on the
related Mortgage Loan or the Prepayment Premium is (i) not permitted to be
collected by applicable law, or the collection of the Prepayment Premium would
be considered "predatory" pursuant to written guidance published by any
applicable federal, state or local regulatory authority having jurisdiction over
such matters, or (ii) the enforceability of such Prepayment Premium is limited
(x) by bankruptcy, insolvency, moratorium, receivership or other similar laws
relating to creditors' rights or (y) due to acceleration in connection with a
foreclosure or other involuntary payment. If a Prepayment Premium is waived
other than as permitted in this Section 3.07(a), then the Servicer is required
to pay the amount of such waived Prepayment Premium, for the benefit of the
Holders of the Class P Certificates, by depositing such amount into the
Collection Account together with and at the time that the amount prepaid on the
related Mortgage Loan is required to be deposited into the Collection Account;
provided, however, that the Servicer shall not have an obligation to pay the
amount of any uncollected Prepayment Premium if the failure to collect such
amount is the direct result of inaccurate or incomplete information on the
Mortgage Loan Schedule in effect at such time.
(b) The Servicer shall give notice to the Master Servicer, the
Securities Administrator, 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"). Each
Tax Service Contract shall be assigned to a successor Servicer 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, fire and hazard insurance premiums,
condominium charges and comparable items; (ii) reimburse the Servicer (or a
Subservicer to the extent provided in the related Subservicing Agreement) out of
related collections for any advances made pursuant to Section 3.01(b) (with
respect to taxes and assessments) and Section 3.13(a) (with respect to hazard
insurance); (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) apply to the restoration or repair of the Mortgaged Property in
accordance with Section 3.13(a); (v) transfer to the Collection Account and
application to reduce the principal balance of the Mortgage Loan in accordance
with the terms of the related Mortgage and Mortgage Note; (vi) pay interest to
the Servicer and, if required and as described below, to Mortgagors on balances
in the Escrow Account; (vii) clear and terminate the Escrow Account at the
termination of the Servicer's obligations and responsibilities in respect of the
Mortgage Loans under this Agreement; or (viii) recover amounts deposited in
error or for which amounts previously deposited are returned due to a "not
sufficient funds" or other denial of payment by the related Mortgagor's banking
institution. As part of its servicing duties, the Servicer or Subservicers shall
pay to the Mortgagors interest on funds in Escrow Accounts, to the extent
required by law 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 First Lien Mortgage
Loan does not provide for Escrow Payments, the Servicer shall use commercially
reasonable efforts consistent with Accepted Servicing Practices to determine
whether any such payments are made by the Mortgagor in a manner and at a time
that avoids the loss of the Mortgaged Property due to a tax sale or the
foreclosure as a result of a tax lien. The Servicer assumes full responsibility
for the payment of all such bills within such time and shall effect payments of
all such bills irrespective of the Mortgagor's faithful performance in the
payment of same or the making of the Escrow Payments and shall make advances
from its own funds to effect such payments; provided, however, that such
advances are deemed to be Servicing Advances.
Section 3.10 Collection Account. (a) On behalf of the Trustee, the
Servicer shall establish and maintain, or cause to be established and
maintained, one or more segregated Eligible Accounts (each such account or
accounts, a "Collection Account"), held in trust for the benefit of the Trustee
for the benefit of the Certificateholders. 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(b) 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 Master Servicer, the Securities Administrator,
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 Master
Servicer (A) the Master Servicing Fee with respect to such Distribution
Date and (B) all Available Funds in respect of the related Distribution
Date together with all amounts representing Prepayment Premiums from the
Mortgage Loans received during the related Prepayment Period;
(ii) to reimburse the Servicer for P&I Advances, but only to the
extent of amounts received which represent Late Collections (net of the
related Servicing Fees) of Scheduled Payments on Mortgage Loans with
respect to which such P&I Advances were made in accordance with the
provisions of Section 4.01;
(iii) to pay the Servicer or any Subservicer (A) any unpaid
Servicing Fees or (B) any unreimbursed Servicing Advances with respect to
each Mortgage Loan, but only to the extent of any Late Collections,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds 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 the Purchaser, the Depositor or Fremont, as applicable,
with respect to each Mortgage Loan that has previously been repurchased or
replaced pursuant to this Agreement all amounts received thereon
subsequent to the date of purchase or substitution, as the case may be;
(vi) to reimburse the Servicer for (A) any P&I Advance or Servicing
Advance previously made which the Servicer has determined to be a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance in
accordance with the provisions of Section 4.01 and (B) any unpaid
Servicing Fees to the extent not recoverable from Liquidation Proceeds,
Insurance Proceeds or other amounts received with respect to the related
Mortgage Loan under Section 3.11(a)(iii);
(vii) to pay to the Servicer any unpaid Servicing Fee upon
termination of the obligations of the Servicer;
(viii) 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;
(ix) to reimburse the Master Servicer, the Servicer, the Depositor,
the Securities Administrator or the Trustee for expenses incurred by or
reimbursable to the Master Servicer, the Servicer, the Depositor, the
Securities Administrator or the Trustee, as the case may be, as permitted
under this Agreement pursuant, but not limited, to Section 6.03, Section
7.02, Section 8.05, Section 9.13 or Section 10.02, as applicable;
(x) to reimburse the Master Servicer, 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;
(xi) to withdraw any amounts deposited in the Collection Account in
error or for which amounts previously deposited are returned due to a "not
sufficient funds" or other denial of payment by the related Mortgagor's
banking institution;
(xii) to withdraw any amounts held in the Collection Account and not
required to be remitted to the Master Servicer on the Remittance Date
occurring in the month in which such amounts are deposited into the
Collection Account, to reimburse the Servicer for unreimbursed P&I
Advances;
(xiii) to invest funds in Permitted Investments in accordance with
Section 3.12;
(xiv) to recover any amounts deposited in error; and
(xv) to clear and terminate the Collection Account upon termination
of this Agreement.
To the extent that the Servicer does not timely make the remittance
referred to in clause (i) above, the Servicer shall pay the Master Servicer for
the account of the Master Servicer interest on any amount not timely remitted at
the prime rate, from and including the applicable Remittance Date to but
excluding the date such remittance is actually made.
(b) The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account, to the extent held by or on behalf of
it, pursuant to subclauses (a)(ii), (iii), (iv), (v), (vi), (vii), (viii) and
(ix) above. The Servicer shall provide written notification to the Master
Servicer, 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 Master Servicer may invest funds in the Distribution Account
during the Securities Administrator Float Period, and shall (except during the
Securities Administrator Float Period), invest such funds in the Distribution
Account at the direction of the Depositor (for purposes of this Section 3.12,
each of the Collection Account and the Distribution Account are referred to as
an "Investment Account"), in one or more Permitted Investments bearing interest
or sold at a discount, and maturing, unless payable on demand, no later than the
Business Day on which such funds are required to be withdrawn from such account
pursuant to this Agreement (except for investments made at the Depositor's
direction, which shall mature no later than the Business Day immediately
preceding the date of required withdrawal). All such Permitted Investments shall
be held to maturity, unless payable on demand. Any investment of funds in an
Investment Account shall be made in the name of the Servicer or the Master
Servicer, as applicable. The Servicer or the Master Servicer, as applicable,
shall be entitled to sole possession (except with respect to investment
direction of funds held in the related Account and any income and gain realized
thereon in any Account other than the Distribution Account during the Securities
Administrator Float Period) over each such investment, and any certificate or
other instrument evidencing any such investment shall be delivered directly to
the Servicer, the Master Servicer or their respective agent, as applicable,
together with any document of transfer necessary to transfer title to such
investment to the Servicer, the Master Servicer or their respective agent, as
applicable. In the event amounts on deposit in an Investment Account are at any
time invested in a Permitted Investment payable on demand, the Servicer or the
Master Servicer, as applicable, 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. Any other benefit derived from the Collection
Account associated with the receipt, disbursement and accumulation of principal,
interest, taxes, hazard insurance, mortgage blanket insurance, and like sources,
shall accrue to the benefit of the Servicer, except that the Servicer shall not
realize any economic benefit from any forced charging of services except as
permitted by applicable law. The Servicer shall deposit in the Collection
Account and Escrow Account the amount of any loss of principal incurred in
respect of any such Permitted Investment made with funds in such accounts
immediately upon realization of such loss.
(c) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Securities Administrator
during the Securities Administrator Float Period shall be for the benefit of the
Master Servicer and shall be subject to the Securities Administrator's
withdrawal in the manner set forth in Section 3.12(a). Notwithstanding anything
in this Section 3.12(c), the Master Servicer shall be liable to the Trust for
any such loss on any funds it has invested under this Section 3.12(c) only
during the Securities Administrator Float Period, and the Master Servicer 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 account
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 Servicer or the Master Servicer, as applicable, shall take such
action as may be appropriate to enforce such payment or performance, including
the institution and prosecution of appropriate proceedings.
(e) The Securities Administrator or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the Securities
Administrator's economic self-interest for (i) serving as investment adviser,
administrator, shareholder or servicing agent with respect to certain of the
Permitted Investments, (ii) using Affiliates to effect transactions in certain
Permitted Investments and (iii) effecting transactions in certain Permitted
Investments. Such compensation shall not be considered an amount that is
reimbursable or payable pursuant to this Agreement.
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 fire insurance with extended coverage 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, (iii) the maximum insurable value
of the improvements which are a part of such Mortgaged Property, and (iv) the
amount determined by applicable federal or state law, in each case in an amount
not less than such amount as is necessary to avoid the application of any
coinsurance clause contained in the related hazard insurance policy. 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. If the Mortgagor fails to provide Mortgage Loan hazard insurance coverage
after thirty (30) days of the Servicer's written notification, the Servicer
shall put in place such hazard insurance coverage on the Mortgagor's behalf. Any
out-of-pocket expense or advance made by the Servicer on such force placed
hazard insurance coverage shall be deemed a Servicing Advance. Any cost incurred
by the Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to the Master Servicer, 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
for a First Lien Mortgage Loan 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 minimum amount required, under the terms of coverage, to compensate for any
damage or loss on a replacement cost basis (or the unpaid principal balance of
the related Mortgage Loan if replacement cost coverage is not available for the
type of building insured) and (ii) the maximum amount of insurance which is
available under the Flood Disaster Protection Act of 1973, as amended. If at any
time during the term of the Mortgage Loan, the Servicer determines in accordance
with applicable law and pursuant to the Federal Emergency Management Agency
Guides that a Mortgaged Property for a First Lien Mortgage Loan is located in a
special flood hazard area and is not covered by flood insurance or is covered in
an amount less than the amount required by the Flood Disaster Protection Act of
1973, as amended, the Servicer shall notify the related Mortgagor to obtain such
flood insurance coverage, and if said Mortgagor fails to obtain the required
flood insurance coverage within forty-five (45) days after such notification,
the Servicer shall immediately force place the required flood insurance on the
Mortgagor's behalf. Any out-of-pocket expense or advance made by the Servicer on
such force placed flood insurance coverage shall be deemed a Servicing Advance.
In the event that the Servicer shall obtain and maintain a blanket
policy with an insurer either (i) acceptable to Xxxxxx Xxx or Freddie Mac, or
(ii) having a General Policy Rating of A:12 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 and the Trustee any 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 Freddie Mac if it were the purchaser of the
Mortgage Loans, unless the Servicer has obtained a waiver of such requirements
from Xxxxxx Xxx or Freddie Mac. The Servicer shall also maintain a fidelity bond
in the form and amount that would meet the requirements of Xxxxxx Xxx or Freddie
Mac, unless the Servicer has obtained a waiver of such requirements from Xxxxxx
Xxx or Freddie Mac. The Servicer shall provide the Master Servicer 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. Any such errors and omissions policy and fidelity bond shall by
its terms not be cancelable without thirty days' prior written notice to the
Master Servicer. 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, and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. The Servicer is also
authorized to enter into a substitution of liability agreement with such person,
pursuant to which the original Mortgagor is released from liability and such
person is substituted as the Mortgagor and becomes liable under the Mortgage
Note; provided, that no such substitution shall be effective unless such person
satisfies the underwriting criteria of the Servicer and such substitution is in
the best interest of the Certificateholders as determined by the Servicer. In
connection with any assumption, modification or substitution, the Servicer shall
apply such underwriting standards and follow such practices and procedures as
shall be normal and usual in its general mortgage servicing activities and as it
applies to other mortgage loans owned solely by it. The Servicer shall not take
or enter into any assumption and modification agreement, however, unless (to the
extent practicable in the circumstances) it shall have received confirmation, in
writing, of the continued effectiveness of any applicable hazard insurance
policy, or a new policy meeting the requirements of this Section is obtained.
Any fee collected by the Servicer in respect of an assumption or substitution of
liability agreement will be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, no material term of the
Mortgage Note (including but not limited to the related Mortgage Interest Rate
and the amount of the Scheduled Payment) may be amended or modified, except as
otherwise required pursuant to the terms thereof. The Servicer shall notify the
applicable Custodian that any such substitution, modification or assumption
agreement has been completed by forwarding to the applicable 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 Securities Administrator, taking into account,
among other things, the timing of foreclosure proceedings; provided, however,
with respect to any Second Lien Mortgage Loan for which the related mortgage
loan that is senior to the Second Lien Mortgage Loan is not included in the
Trust Fund, 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
Securities Administrator, 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.
The Servicer shall have no liability for any losses resulting from a
foreclosure on a Second Lien Mortgage Loan in connection with the foreclosure on
the related mortgage loan that is senior to the Second Lien Mortgae Loan and is
not included in the Trust Fund where the Servicer did not receive notice or
otherwise had no actual knowledge regarding such foreclosure on such senior
mortgage loan; provided, however, if the Servicer is either notified or has
actual knowledge that any holder of such a senior mortgage loan intends to
accelerate such senior mortgage loan, or that any such holder intends to declare
a default under the mortgage or promissory note secured thereby, or has filed or
intends to file an election to have the related Mortgaged Property sold or
foreclosed, the Servicer shall take, on behalf of the Trust, whatever actions
are necessary to protect the interests of the Trust in accordance with Accepted
Servicing Practices and the REMIC Provisions. The Servicer shall not be required
to make a Servicing Advance pursuant to Section 4.01 with respect thereto except
to the extent that it determines in its reasonable good faith judgment that such
advance would be recoverable from Liquidation Proceeds on the Second Lien
Mortgage Loan, that a significant net recovery is possible through foreclosure,
and in no event in an amount that is greater than the then outstanding principal
balance of the Second Lien Mortgage Loan. The Servicer shall thereafter take
such action as is reasonably necessary to recover any amount so advanced and to
otherwise reimburse itself as a Servicing Advance from the Collection Account
pursuant to Section 3.11.
The proceeds of any Liquidation Event 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 reimburse the Servicer
for any unreimbursed P&I Advances, pursuant to Section 3.11; third, 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;
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 Securities Administrator 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 or the Master Servicer 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, the Master Servicer
and the Depositor, with a written report of the environmental inspection.
After reviewing the environmental inspection report, the Servicer
shall determine consistent with Accepted Servicing Practices 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 determines, consistent with
Accepted Servicing Practices, to proceed with foreclosure or acceptance of a
deed in lieu of foreclosure, the Servicer shall be reimbursed for all reasonable
costs associated with such foreclosure or acceptance of a deed in lieu of
foreclosure and any related environmental clean-up costs, as applicable, from
the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse the Servicer, the Servicer shall be entitled to
be reimbursed from amounts in the Collection Account pursuant to Section 3.11.
In the event the Servicer determines not to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, the Servicer shall be reimbursed
from general collections for all Servicing Advances made with respect to the
related Mortgaged Property from the Collection Account pursuant to Section 3.11.
The Trustee shall not be responsible for any determination made by the Servicer
pursuant to this paragraph or otherwise.
Section 3.16 Release of Mortgage Files. (a) Upon the payment in full
of any Mortgage Loan, or the receipt by the Servicer of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Servicer shall, within five (5) Business Days of the payment in full, notify the
applicable 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 to the applicable Custodian. Upon receipt of
such certification and Request for Release, the applicable Custodian shall
promptly release the related Custodial File to the Servicer within five (5)
Business Days. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Collection
Account. Any out-of-pocket expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be reimbursable to the Servicer as
a Servicing Advance.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any insurance policy relating to the Mortgage Loans, the applicable Custodian
shall, upon request of the Servicer and delivery to the applicable 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
provided to it as shall be necessary to the prosecution of any such proceedings
and the Servicer shall retain the Mortgage File in trust for the benefit of the
Trustee. Such Request for Release shall obligate the Servicer to return each and
every document previously requested from the Custodial File to the applicable
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
applicable 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 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 applicable Custodian to
the Servicer or its designee. Upon receipt of a Request for Release under this
Section 3.16, the applicable Custodian shall deliver the related Custodial File
to the Servicer by overnight courier (which 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 Fremont or 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 for the benefit of the Certificateholders and shall not apply to any
REO Property relating to a Mortgage Loan which was purchased or repurchased from
the Trustee pursuant to any provision hereof. In the event that title to any
such REO Property is acquired, the Servicer shall cause the deed or certificate
of sale to be issued in the name of the Trustee, on behalf of the
Certificateholders, or the Trustee's nominee.
(b) The Servicer shall manage, conserve, protect and operate each
REO Property for the Trustee for the benefit of the Certificateholders solely
for the purpose of its prompt disposition and sale. The Servicer, either itself
or through an agent selected by the Servicer, shall manage, conserve, protect
and operate the REO Property in the same manner that it manages, conserves,
protects and operates other foreclosed property for its own account, and in the
same manner that similar property in the same locality as the REO Property is
managed. The Servicer shall attempt to sell the same (and may temporarily rent
the same for a period not greater than one year, except as otherwise provided
below) on such terms and conditions as the Servicer deems to be in the best
interest of the Trustee.
(c) The Servicer shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within three years after title has been taken to such REO Property, unless the
Servicer determines, and gives an appropriate notice to the Trustee and the
Master Servicer to such effect, that a longer period is necessary for the
orderly liquidation of such REO Property, so long as such extended period is
within the time period specified in Section 3.17(h). Subject to Section 3.17(h),
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 and the Master Servicer as to the progress being made in selling
such REO Property. The Trustee has no obligation with respect to REO
Dispositions.
(d) The Servicer shall segregate and hold all funds collected and
received in connection with the operation of any REO Property separate and apart
from its own funds and general assets and shall deposit such funds in the
Collection Account.
(e) The Servicer shall deposit net of reimbursement to the Servicer
for any related outstanding Servicing Advances and unpaid Servicing Fees
provided in Section 3.11, or cause to be deposited, on a daily basis in the
Collection Account all revenues received with respect to the related REO
Property and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of the REO Property.
(f) The Servicer, upon an REO Disposition, shall be entitled to
reimbursement for any related unreimbursed Servicing Advances as well as any
unpaid Servicing Fees from proceeds received in connection with the REO
Disposition, as further provided in Section 3.11.
(g) Any net proceeds from an REO Disposition which are in excess of
the unpaid principal balance of the related Mortgage Loan plus all unpaid REO
Imputed Interest thereon through the date of the REO Disposition shall be
retained by the Servicer as additional servicing compensation.
(h) The Servicer shall use its reasonable best efforts to sell, or
cause the Subservicer to sell, in accordance with Accepted Servicing Practices,
any REO Property as soon as possible, but in no event later than the conclusion
of the third calendar year beginning after the year of its acquisition by the
REMIC unless (i) the Servicer applies for an extension of such period from the
Internal Revenue Service pursuant to the REMIC Provisions and Code Section
856(e)(3), in which event such REO Property shall be sold within the applicable
extension period pursuant to the requirements of Section 3.17(c), 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
Pooling-Tier REMIC-1 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 Pooling-Tier REMIC-1 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 Master Servicer 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 Master Servicer 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. 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 such party
to provide access as provided in this Section as a result of such obligation
shall not constitute a breach of this Section.
Nothing in this Section 3.19 shall require the Servicer to collect,
create, collate or otherwise generate any information that it does not generate
in its usual course of business. The Servicer shall not be required to make
copies of or to ship documents to any Person who is not a party to this
Agreement, and then only if provisions have been made for the reimbursement of
the costs thereof.
Section 3.20 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Securities Administrator for the Benefit of the
Trustee. The Servicer shall account fully to the Securities Administrator on
behalf of 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 Securities Administrator on behalf of 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 and as
otherwise permitted in Section 3.11. The right to receive the Servicing Fee may
not be transferred in whole or in part except as provided in Section 12.07 or in
connection with the transfer of all of the Servicer's responsibilities and
obligations under this Agreement; provided, however, that the Servicer may pay
from the Servicing Fee any amounts due to a Subservicer pursuant to a
Subservicing Agreement entered into under Section 3.02.
(b) Additional servicing compensation in the form of assumption or
modification fees, late payment charges, NSF fees, reconveyance fees and other
similar fees and charges (other than Prepayment Premiums) shall be retained by
the Servicer only to the extent such fees or charges are received by the
Servicer. The Servicer shall also be entitled pursuant to Section 3.09(b)(vi)
and Section 3.11(a)(iv) to withdraw from the Collection Account, as additional
servicing compensation, interest or other income earned on deposits therein.
(c) 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 Master Servicer, the
Rating Agencies, the Securities Administrator 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 in all material respects under
this Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation in any material respect, 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 the
Servicer that serviced during the applicable period, whether or not such
Servicer is acting as a Servicer at the time such Officer's Certificate is
required to be delivered.
Section 3.23 Annual Independent Public Accountants' Servicing
Statement; Financial Statements. Not later than March 15th of each calendar year
commencing in 2006, the Servicer, at its expense, shall cause a nationally
recognized firm of independent certified public accountants to furnish to the
Depositor, the Master Servicer, the Rating Agencies, the Securities
Administrator 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 the Servicer that serviced during the applicable period, whether or not such
Servicer is acting as a Servicer at the time such report is required to be
delivered.
Section 3.24 Master Servicer 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 Master Servicer (or other
successor Servicer pursuant to Section 7.02) shall thereupon assume all of the
rights and obligations of the Servicer hereunder arising thereafter (except that
the Master Servicer shall not be (i) liable for losses of the predecessor
Servicer pursuant to Section 3.10 or any acts or omissions of the predecessor
Servicer hereunder, (ii) obligated to make Advances if it is prohibited from
doing so by applicable law, (iii) obligated to effectuate repurchases or
substitutions of Mortgage Loans hereunder, including but not limited to
repurchases or substitutions pursuant to Section 2.03, (iv) responsible for
expenses of the Servicer pursuant to Section 2.03 or (v) deemed to have made any
representations and warranties of the Servicer hereunder). Any such assumption
shall be subject to Section 7.02.
(b) Every Subservicing Agreement entered into by the Servicer shall
contain a provision giving the successor Servicer the option to terminate such
agreement in the event a successor Servicer is appointed.
(c) If the Servicer shall for any reason no longer be the Servicer
(including by reason of any Event of Default), the Master Servicer (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 Master Servicer (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 Master Servicer, 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 and held
by it and otherwise use its best efforts to effect the orderly and efficient
transfer of such Subservicing Agreement to the assuming party.
Section 3.25 Compensating Interest. The Servicer shall remit to the
Master Servicer 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.
(b) 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 Securities Administrator shall establish and maintain the Excess Reserve
Fund Account, on behalf of the Class X Certificateholders, to receive that
portion of the distributions on the Class X Interest up to an amount equal to
any Basis Risk Payments and to pay to the LIBOR Certificateholders any Basis
Risk Carry Forward Amounts (prior to using any Net Swap Receipts). For the
avoidance of doubt, any Basis Risk Carry Forward Amounts shall be paid to the
LIBOR Certificates first from the Excess Reserve Fund Account and then from the
Supplemental Interest Trust.
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class of LIBOR Certificates, the Securities Administrator
shall (1) withdraw from the Distribution Account and deposit in the Excess
Reserve Fund Account, as set forth in Section 4.02(a)(iii)(K), the lesser of the
Class X Distributable Amount (to the extent remaining after the distributions
specified in Sections 4.02(a)(iii)(A)-(J) and without regard to the reduction in
clause (iii) of the definition thereof for any Basis Risk Payment or Defaulted
Swap Termination Payment) and the aggregate Basis Risk Carry Forward Amount and
(2) withdraw from the Excess Reserve Fund Account amounts necessary to pay to
such Class or Classes of LIBOR Certificates the applicable Basis Risk Carry
Forward Amounts. Such payments, along with payments from the Supplemental
Interest Trust, shall be allocated to those Classes based upon the amount of
Basis Risk Carry Forward Amount owed to each such Class and shall be paid in the
priority set forth in Section 4.02(a)(iii)(L). In the event that the Class
Certificate Balance of any Class of Certificates is reduced because of Applied
Realized Loss Amounts, the applicable Certificateholders will not be entitled to
receive Basis Risk Carry Forward Amounts on the written down amounts on such
Distribution Date or any future Distribution Dates (except to the extent such
Class Certificate Balance is increased as a result of any Subsequent
Recoveries), even if funds are otherwise available for distribution.
The Securities Administrator shall account for the Excess Reserve
Fund Account as an asset of a grantor trust under subpart E, Part I of
subchapter J of the Code and not as an asset of any Trust REMIC created pursuant
to this Agreement. The beneficial owners of the Excess Reserve Fund Account are
the Class X Certificateholders.
Any Basis Risk Carry Forward Amounts distributed by the Securities
Administrator to the LIBOR Certificateholders from the Excess Reserve Fund
Account shall be accounted for by the Securities Administrator, for federal
income tax purposes, as amounts paid first to the Holders of the Class X
Certificates (in respect of the Class X Interest) and then to the respective
Class or Classes of LIBOR Certificates. In addition, the Securities
Administrator shall account for the rights of Holders of each Class of LIBOR
Certificates to receive payments of Basis Risk Carry Forward Amounts from the
Excess Reserve Fund Account (along with payments of Basis Risk Carry Forward
Amounts and, without duplication, Upper-Tier Carry Forward Amounts from the
Supplemental Interest Trust) as rights in a separate limited recourse interest
rate cap contract written by the Class X Certificateholders in favor of Holders
of each such Class.
Notwithstanding any provision contained in this Agreement, the
Securities Administrator 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 Master Servicer shall establish and maintain the
Distribution Account on behalf of the Certificateholders. The Master Servicer
shall, promptly upon receipt on the Business Day received, deposit in the
Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Master
Servicer 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 Master Servicer 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, the Servicer may at any time direct the Master Servicer 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 Master Servicer, which describes the amounts deposited
in error in the Distribution Account. All funds deposited in the Distribution
Account shall be held by the Securities Administrator in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 4.02.
(c) In order to comply with its duties under the USA Patriot Act of
2001, the Securities Administrator 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. The
Depositor, in its sole discretion, shall have the option, but shall not be
obligated, to purchase any 90+ Day Delinquent Mortgage Loans from the Trust
Fund. The purchase price for any such Mortgage Loan shall be 100% of the unpaid
principal balance of such Mortgage Loan plus accrued and unpaid interest on the
related Mortgage Loan at the applicable Mortgage Interest Rate, plus the amount
of any unreimbursed Servicing Advances made by the Servicer. Upon receipt of
such purchase price, the Servicer shall provide to the applicable Custodian a
Request for Release and the applicable Custodian shall promptly release to the
Depositor, the Mortgage File relating to the Mortgage Loan being repurchased in
accordance with Section 3.16(a).
Section 3.29 Back-up Certification. For so long as a certificate
under the Xxxxxxxx-Xxxxx Act of 2002, as amended ("Xxxxxxxx-Xxxxx"), is required
to be given on behalf of the Trust, by the later of March 15 commencing in 2006
or 30 days prior to the date on which the Form 10-K is required to be filed with
the Securities and Exchange Commission of each year (or if not a Business Day,
the immediately preceding Business Day), or at any other time that the Master
Servicer provides a certificate under Xxxxxxxx-Xxxxx pursuant to Section 8.12,
an officer of the Servicer and each successor Servicer shall execute and deliver
an Officer's Certificate to the Depositor, Master Servicer, the Securities
Administrator and the Trustee for the benefit of the Trust and the Master
Servicer and its officers, directors and affiliates, in the form set forth in
Exhibit P. The Servicer shall indemnify and hold harmless the Master Servicer
and its officers, directors, agents and affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach by
the Servicer or any of its officers, directors, agents or affiliates of its
obligations under this Section 3.29 or the negligence, bad faith or willful
misconduct of the Servicer in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the Master
Servicer, then the Servicer agrees that it shall contribute to the amount paid
or payable by the Master Servicer as a result of the losses, claims, damages or
liabilities of the Master Servicer in such proportion as is appropriate to
reflect the relative fault of the Master Servicer on the one hand and the
Servicer on the other in connection with a breach of the Servicer's obligations
under this Section 3.29 or the Servicer's negligence, bad faith or willful
misconduct in connection therewith.
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances. (a) The amount of P&I Advances to be made by
the Servicer for any Remittance Date shall equal, subject to Section 4.01(c),
the sum of (i) the aggregate amount of Scheduled Payments (with each interest
portion thereof net of the related Servicing Fee), due during the Due Period
immediately preceding such Remittance Date in respect of the Mortgage Loans,
which Scheduled Payments were not received as of the close of business on the
related Determination Date, plus (ii) with respect to each REO Property, which
REO Property was acquired during or prior to the related Prepayment Period and
as to which such REO Property an REO Disposition did not occur during the
related Prepayment Period, an amount equal to the excess, if any, of the
Scheduled Payments (with REO Imputed Interest) that would have been due on the
related Due Date in respect of the related Mortgage Loan, over the net income
from such REO Property transferred to the Collection Account for distribution on
such Remittance Date.
(b) On each Remittance Date, the Servicer shall remit in immediately
available funds to the Master Servicer 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.
(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 Master Servicer. In
addition the Servicer shall not be required to advance any Relief Act Interest
Shortfalls.
(e) Except as otherwise provided herein, the Servicer shall be
entitled to reimbursement pursuant to Section 3.11 for Advances from recoveries
from the related Mortgagor or from all Liquidation Proceeds and other payments
or recoveries (including Insurance Proceeds and Condemnation Proceeds) with
respect to the related Mortgage Loan.
(f) On each Remittance Date, the Master Servicer shall deposit in
the Distribution Account all funds remitted to it by the Servicer pursuant to
Sections 3.11(a)(i)(B) and 3.25 and this Section 4.01. The Securities
Administrator may retain or withdraw from the Distribution Account, (i) the
Master Servicing Fee, (ii) amounts necessary to reimburse the Master Servicer or
the Servicer for any previously unreimbursed Advances and any Advances the
Master Servicer deems to be nonrecoverable from the related Mortgage Loan
proceeds, (iii) an amount to indemnify the Master Servicer or the Servicer for
amounts due in accordance with this Agreement, and (iv) any other amounts that
each of the Master Servicer and the Securities Administrator is entitled to
receive hereunder for reimbursement, indemnification or otherwise.
Section 4.02 Priorities of Distribution. (a) On each Distribution
Date, the Securities Administrator shall make the disbursements and transfers
from amounts then on deposit in the Distribution Account in the following order
of priority and to the extent of the Available Funds remaining:
(i) to the Supplemental Interest Trust and to the holders of each
Class of LIBOR Certificates in the following order of priority:
(A) to the Supplemental Interest Trust, the sum of (x) all Net
Swap Payments and (y) any Swap Termination Payment owed to the Swap
Provider other than a Defaulted Swap Termination Payment;
(B) concurrently, (1) from the Interest Remittance Amount
related to the Group I Mortgage Loans to the Class A-1 Certificates,
the related Accrued Certificate Interest and Unpaid Interest Amount
for the Class A-1 Certificates; and (2) from Interest Remittance
Amount related to the Group II Mortgage Loans, pro rata (based on
the Accrued Certificate Interest Distribution Amounts and Unpaid
Interest Amounts distributable to the Class A-2A, Class A-2B and
Class A-2C Certificates) to the Class A-2A, Class A-2B and Class
A-2C Certificates, the related Accrued Certificate Interest
Distribution Amounts and Unpaid Interest Amounts for the Class A-2A,
Class A-2B and Class A-2C Certificates; provided, that if the
Interest Remittance Amount for either Loan Group is insufficient to
make the related payments set forth 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 Amounts and Unpaid Interest Amounts will be available
to cover that shortfall;
(C) from any remaining Interest Remittance Amounts, to the
Class M-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(D) from any remaining Interest Remittance Amounts, to the
Class M-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(E) from any remaining Interest Remittance Amounts, to the
Class M-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(F) from any remaining Interest Remittance Amounts, to the
Class M-4 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(G) from any remaining Interest Remittance Amounts, to the
Class M-5 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(H) from any remaining Interest Remittance Amounts, to the
Class M-6 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(I) from any remaining Interest Remittance Amounts, to the
Class M-7 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(J) from any remaining Interest Remittance Amounts, to the
Class M-8 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(K) from any remaining Interest Remittance Amounts, to the
Class B-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class; and
(L) from any remaining Interest Remittance Amounts, 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) sequentially:
(x) concurrently to the Class R-1, Class R-2 and
Class R-3 Certificates, allocated pro rata, until their
respective Class Certificate Balances have been reduced
to zero; and
(y) 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 M-1, Class M-2, Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8,
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) so long as a Trigger Event is not 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) 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 their respective Class Certificate Balances 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 their Class Certificate Balance 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 and 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 their Class Certificate Balance 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 their Class Certificate Balance 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 M-7
Principal Distribution Amount, to the Class M-7 Certificates
until their Class Certificate Balance has been reduced to
zero;
(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 M-7
Certificates in clause (ii)(B)(h) above, and (y) the Class M-8
Principal Distribution Amount, to the Class M-8 Certificates
until their Class Certificate Balance has been reduced to
zero;
(j) 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, to the Class M-7
Certificates in clause (ii)(B)(h) above and to the Class M-8
Certificates in clause (ii)(B)(i) 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
(k) 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, to the Class M-6
Certificates in clause (ii)(B)(g) above, to the Class M-7
Certificates in clause (ii)(B)(h) above, to the Class M-8
Certificates in clause (ii)(B)(i) above and to the Class B-1
Certificates in clause (ii)(B)(j) 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 clauses
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 M-7 Certificates, any Unpaid Interest Amount
for such Class;
(H) to the Class M-8 Certificates, any Unpaid Interest Amount
for such Class;
(I) to the Class B-1 Certificates, any Unpaid Interest Amount
for such Class;
(J) to the Class B-2 Certificates, any Unpaid Interest Amount
for such Class;
(K) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment (without regard to Net Swap Receipts) for such
Distribution Date;
(L) from funds on deposit in the Excess Reserve Fund Account
with respect to such Distribution Date, 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;
(M) to the Supplemental Interest Trust, the amount of any
Defaulted Swap Termination Payment;
(N) to the Class X Certificates, the remainder of the Class X
Distributable Amount not distributed pursuant to Sections
4.02(a)(iii)(A)-(M);
(O) to the Class R-2 Certificates, any remaining amount, in
respect of Pooling-Tier REMIC-1;
(P) to the Class R-1 Certificates, any remaining amount, in
respect of Pooling-Tier REMIC-2, the Lower-Tier REMIC and the
Upper-Tier REMIC; and
(Q) to the Class R-3 Certificates, any remaining amount, in
respect of the Class X REMIC.
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 by the Securities Administrator to the holders of the Class
P Certificates.
(c) All principal distributions allocated to the Class A
Certificates on any Distribution Date shall be allocated among 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 and the
Class A-2 Certificate Group, as applicable. However, if the Class Certificate
Balances of the Class A Certificates in any Class A Certificate Group is reduced
to zero, then the remaining amount of principal distributions distributable to
the Class A Certificates in that Class A Certificate Group on that Distribution
Date, and the amount of principal distributions distributable on all subsequent
Distribution Dates, shall be distributed to the Class A Certificates of the
other Class A Certificate Group remaining Outstanding, in accordance with the
principal distribution allocations set forth in this Section 4.02(c), until
their respective Class Certificate Balances have been reduced to zero. Any
distributions of principal to the Class A-1 Certificate Group shall be made
first from Available Funds relating to the Group I Mortgage Loans. Any
distributions 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-2 Certificate
Group are required to be distributed sequentially to the Class A-2A
Certificates, until their Class Certificate Balance has been reduced to zero,
then to the Class A-2B Certificates, until their Class Certificate Balance has
been reduced to zero and then to the Class A-2C 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 paragraphs, from and after the
Distribution Date on which the aggregate Class Certificate Balances of the
Subordinated Certificates and the principal balance of the Class X Certificates
have been reduced to zero, any principal distributions allocated to the Class A
Certificates are required to be allocated pro rata to the Class A Certificates
based on their respective Certificate Principal Balances.
(d) On any Distribution Date, any Relief Act Interest Shortfalls and
Net Prepayment Interest Shortfalls for such Distribution Date shall be allocated
by the Securities Administrator, pro rata, as a reduction of the Accrued
Certificate Interest Distribution Amount for the Class A, Class M and Class B
Certificates, based on the amount of interest to which such Classes would
otherwise be entitled on such Distribution Date.
Section 4.03 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Securities Administrator shall make available
to each Certificateholder, the Master Servicer, the Servicer, the Depositor, the
Trustee and each Rating Agency a statement based on information provided by the
Servicer setting forth with respect to the related distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments 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 (in the aggregate and separately
stated) paid to or retained by the Servicer or Subservicer (with respect
to the Subservicers, in the aggregate) and the Master Servicer 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);
(xiv) the amount of any Basis Risk Carry Forward Amounts paid from
the Excess Reserve Fund Account or the Supplemental Interest Trust and the
amount of any Upper-Tier Carry Forward Amounts paid from the Supplemental
Interest Trust;
(xv) in the aggregate and for each Class of Certificates, the
aggregate amount of Applied Realized Loss Amounts incurred during the
preceding calendar month and aggregate Applied Realized Loss Amounts
through such Distribution Date;
(xvi) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the Certificateholders
with respect to Applied Realized Loss Amounts and Unpaid Interest Amounts;
(xvii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xviii) the amount distributed on the Class P Certificates;
(xix) the Cumulative Realized Loss Percentage;
(xx) the amount distributed on the Class X Certificates;
(xxi) the amount of any Subsequent Recoveries for such Distribution
Date;
(xxii) the amount of any Net Swap Payments, Net Swap Receipts, Swap
Termination Payments or Defaulted Swap Termination Payments; and
(xxiii) the calculations of LIBOR and Swap LIBOR.
(b) The Securities Administrator's responsibility for providing the
above statement to the Certificateholders, each Rating Agency, the Master
Servicer, the Servicer, the Securities Administrator, the Trustee and the
Depositor is limited to the availability, timeliness and accuracy of the
information derived from the Master Servicer and the Servicer. The Securities
Administrator will provide the above statement via the Securities
Administrator's internet website. The Securities Administrator's website will
initially be located at xxxxx://xxx.xxxxxxx.xxx and assistance in using the
website can be obtained by calling the Securities Administrator's customer
service desk at (000) 000-0000. The Securities Administrator will also make a
paper copy of the above statement available upon request.
(c) Upon request, within a reasonable period of time after the end
of each calendar year, the Securities Administrator shall cause to be furnished
to each Person who at any time during the calendar year was a Certificateholder,
a statement containing the information set forth in clauses (a)(i) and (a)(ii)
of this Section 4.03 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of the
Securities Administrator shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code as from time to time in
effect.
(d) Not later than the Reporting Date, the Servicer shall furnish to
the Securities Administrator a monthly remittance advice statement (in a format
mutually agreed upon by the Servicer and the Securities Administrator)
containing such information as shall be reasonably requested by the Securities
Administrator 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 Securities Administrator 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 Securities Administrator no
later than the Reporting Date, which report shall contain, among other things,
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) the number and aggregate outstanding principal balances of
Mortgage Loans (a) delinquent (1) 31 to 60 days, (2) 61 to 90 days, or (3)
91 days or more; (b) as to which foreclosure has commenced; and (c) as to
which REO Property has been acquired;
(vii) each Mortgage Loan which has been altered, modified or varied
during such month, and the reason for such modification (i.e., extension
of maturity date, Mortgage Interest Rate);
(viii) with respect to each Liquidated Mortgage Loan, the amount of
any Realized Losses for such Mortgage Loan; and
(ix) any other information reasonably required by the Securities
Administrator to enable it to prepare the Monthly Statement referred to in
Section 4.03(a).
(e) In addition to clause (d) above, the Servicer shall provide the
Depositor with full, continuous access to its online mortgage loan servicing
data system (Datamart) (the "Data System") with respect to the Mortgage Loans.
To the extent that the Data System is not available or otherwise
accessible, or the information in the following documents is not available on
the Data System or the Servicer fails to provide any report set forth in Section
4.03(f) or Exhibit N-1 hereto in a timely manner, the Servicer shall provide the
documentation listed below to the Depositor and the Securities Administrator in
an electronic format acceptable to the Securities Administrator and the
Depositor:
(i) Initiation of foreclosure - The Servicer shall deliver to the
Depositor and the Securities Administrator a copy of the collection
comments and a current BPO;
(ii) Deed-in-lieu of foreclosure - The Servicer shall deliver to the
Depositor and the Securities Administrator a copy of current value and a
copy of a title report showing clean title;
(iii) Bidding instructions at foreclosure sale - The Servicer shall
deliver to the Depositor and the Securities Administrator a statement of
total debt and current BPO;
(iv) Short sale - The Servicer shall deliver to the Depositor and
the Securities Administrator a statement of the Mortgagor's hardship,
current BPO, and statement detailing net proceeds to the Depositor and the
Securities Administrator;
(v) REO Property list price - The Servicer shall deliver to the
Depositor and the Securities Administrator a current BPO done at the time
of taking title to the REO Property and broker's recommendation for list
price;
(vi) REO Property sales price - The Servicer shall deliver to the
Depositor and the Securities Administrator a summary of the REO contract
being proposed; and
(vii) REO Property net proceeds - The Servicer shall deliver to the
Depositor and the Securities Administrator a copy of the HUD-1 statement
prior to closing.
(f) On the 5th Business Day of each month (the "Data File Delivery
Date"), the Servicer shall deliver to the Depositor a Market Value Change Report
and a data file incorporating the fields set forth in the data file layout set
forth on Exhibit N-1 hereto (the "Data File"). In the event that the Servicer is
unable to provide the complete data file on such Data File Delivery Date, the
Servicer shall provide to the Depositor additional reports as set forth on
Exhibit N-1 hereto (the "Back-up Reports") on or prior to the 8th Business Day
of such month (the "Back-up Report Delivery Date") in an electronic format
acceptable to the Depositor.
(g) On the Reporting Date in each calendar month, the Servicer shall
furnish to the Master Servicer (i) a monthly remittance advice in the format set
forth in Exhibit N-2 hereto, a monthly defaulted loan report in the format set
forth in Exhibit N-3 hereto and a realized loss report in the format set forth
in Exhibit N-4 hereto (or in such other format mutually agreed to between the
Servicer and the Master Servicer) relating to the period ending on the last day
of the preceding calendar month and (ii) all such information required pursuant
to clause (i) above on a magnetic tape or other similar media reasonably
acceptable to the Master Servicer.
Such monthly remittance advice shall also be accompanied by a
supplemental report provided to the Master Servicer which includes on an
aggregate basis for the previous calendar month (i) the amount of any insurance
claims filed, (ii) the amount of any claim payments made and (iii) the amount of
claims denied or curtailed. The Master Servicer will convert such data into a
format acceptable to the Securities Administrator and provide monthly reports to
the Securities Administrator pursuant to this Agreement.
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Securities Administrator in accordance with the
definition of "LIBOR." Until all of the LIBOR Certificates are paid in full, the
Securities Administrator will at all times retain at least four Reference Banks
for the purpose of determining LIBOR with respect to each LIBOR Determination
Date. The Securities Administrator initially shall designate the Reference Banks
(after consultation with the Depositor). Each "Reference Bank" shall be a
leading bank engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, shall not control, be controlled by, or be under common
control with, the Securities Administrator and shall have an established place
of business in London. If any such Reference Bank should be unwilling or unable
to act as such or if the Securities Administrator should terminate its
appointment as Reference Bank, the Securities Administrator shall promptly
appoint or cause to be appointed another Reference Bank (after consultation with
the Depositor). The Securities Administrator shall have no liability or
responsibility to any Person for (i) the selection of any Reference Bank for
purposes of determining LIBOR or (ii) any inability to retain at least four
Reference Banks which is caused by circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Securities Administrator on
each LIBOR Determination Date so long as the LIBOR Certificates are Outstanding
on the basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement. The Securities Administrator shall
not have any liability or responsibility to any Person for its inability,
following a good-faith reasonable effort, to obtain quotations from the
Reference Banks or to determine the arithmetic mean referred to in the
definition of LIBOR, all as provided for in this Section 4.04 and the definition
of LIBOR. The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Securities Administrator shall (in the absence of manifest
error) be final, conclusive and binding upon each Holder of a Certificate, the
Trustee and the Securities Administrator.
Section 4.05 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts shall be allocated by the Securities Administrator
to the most junior Class of Subordinated Certificates then Outstanding in
reduction of the Class Certificate Balance thereof. In the event Applied
Realized Loss Amounts are allocated to any Class of LIBOR 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).
Section 4.06 Supplemental Interest Trust. On the Closing Date, the
Securities Administrator shall establish and maintain in its name, a separate
non-interest bearing trust account for the benefit of the holders of the LIBOR
Certificates (the "Supplemental Interest Trust") as a part of the Trust Fund.
The Supplemental Interest Trust shall be an Eligible Account, and funds on
deposit therein shall be held separate and apart from, and shall not be
commingled with, any other moneys, including, without limitation, other moneys
of the Securities Administrator held pursuant to this Agreement.
On any Distribution Date, Swap Termination Payments, Net Swap
Payments owed to the Swap Provider and Net Swap Receipts for that Distribution
Date will be deposited into the Supplemental Interest Trust. Funds in the
Supplemental Interest Trust will be distributed in the following order of
priority:
(i) to the Swap Provider, the sum of (x) all Net Swap Payments and
(y) any Swap Termination Payment, other than a Defaulted Swap Termination
Payment, to the Swap Provider, if any, owed for that Distribution Date;
(ii) to the LIBOR Certificateholders, to pay Accrued Certificate
Interest Distribution Amounts and, if applicable, any Unpaid Interest
Amounts as described in Section 4.02(a)(i) and Section 4.02(a)(iii), to
the extent unpaid from other Available Funds;
(iii) to the LIBOR Certificateholders, to pay principal as described
in Section 4.02(a)(ii), but only to the extent necessary to maintain the
Overcollateralized Amount at the Specified Overcollateralized Amount,
after giving effect to payments and distributions from other Available
Funds;
(iv) to the LIBOR Certificateholders, to pay Unpaid Interest Amounts
and Basis Risk Carry Forward Amounts as described in Section 4.02(a)(iii),
to the extent unpaid from other Available Funds (including Basis Risk
Payments on deposit in the Excess Reserve Fund Account);
(v) to the Swap Provider, any Defaulted Swap Termination Payment
owed to the Swap Provider for that Distribution Date; and
(vi) to the holders of the Class X Certificates, any remaining
amounts.
Notwithstanding the foregoing, in the event that the Trust receives
a Swap Termination Payment and a successor Swap Provider cannot be obtained,
then the Securities Administrator shall deposit the Swap Termination Payment
into the reserve account that is a sub-account of the Supplemental Interest
Trust. On each subsequent Distribution Date (so long as funds are available in
the reserve account), the Securities Administrator shall withdraw from the
reserve account and deposit into the Supplemental Interest Trust an amount equal
to the amount of any Net Swap Receipt due the Trust (calculated in accordance
with the terms of the original Interest Rate Swap Agreement) and treat such
amount as a Net Swap Receipt for purposes of determining the distributions from
the Supplemental Interest Trust.
Upon termination of the Trust, any amounts remaining in the
Supplemental Interest Trust shall be distributed pursuant to the priorities set
forth in this Section 4.06.
The Securities Administrator shall account for the Supplemental
Interest Trust as an asset of a grantor trust under subpart E, Part I of
subchapter J of the Code and not as an asset of any Trust REMIC created pursuant
to this Agreement. The beneficial owners of the Supplemental Interest Trust are
the Class X Certificateholders. For federal income tax purposes, Net Swap
Payments and Swap Termination Payments payable to the Swap Provider shall be
deemed to be paid to the Supplemental Interest Trust first, from the Class X
REMIC, by the Holder of the Class X Certificates (in respect of the Class IO
Interest and, if applicable, Class X Interest) and second, other than any
Defaulted Swap Termination Payment, from the Upper-Tier REMIC, by the Holders of
the applicable Class or Classes of LIBOR Certificates (in respect of Class IO
Shortfalls) as and to the extent provided in Section 8.13.
Any Basis Risk Carry Forward Amounts and, without duplication,
Upper-Tier Carry Forward Amounts distributed by the Securities Administrator to
the LIBOR Certificateholders shall be accounted for by the Securities
Administrator, for federal income tax purposes, as amounts paid first to the
Holders of the Class X Certificates in respect of the Class X Interest and (to
the extent remaining after payments to the Swap Provider) the Class IO Interest
and then to the respective Class or Classes of LIBOR Certificates. In addition,
the Securities Administrator shall account for the rights of Holders of each
Class of LIBOR Certificates to receive payments of Basis Risk Carry Forward
Amounts and, without duplication, Upper-Tier Carry Forward Amounts from the
Supplemental Interest Trust (along with Basis Risk Carry Forward Amounts payable
from the Excess Reserve Fund Account) as rights in a separate limited recourse
interest rate cap contract written by the Class X Certificateholders in favor of
Holders of each such Class.
The Supplemental Interest Trust shall be an "outside reserve fund"
for federal income tax purposes and not an asset of any Trust REMIC.
Furthermore, the Holders of the Class X Certificates shall be the beneficial
owners of the Supplemental Interest Trust for all federal income tax purposes,
and shall be taxable on all income earned thereon.
With respect to the failure of the Swap Provider to perform any of
its obligations under the Interest Rate Swap Agreement, the breach by the Swap
Provider of any of its representations and warranties made pursuant to the
Interest Rate Swap Agreement, or the termination of the Interest Rate Swap
Agreement, the Securities Administrator shall send any notices and make any
demands, on behalf of the Trust, as are required under the Interest Rate Swap
Agreement.
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 Securities Administrator to
register the Class X, Class C and Class P Certificates in the name of the
Depositor or its designee. On a date as to which the Depositor notifies the
Securities Administrator, the Depositor hereby directs the Securities
Administrator to transfer the Class X and Class P Certificates in the name of
the NIM Trustee, or such other name or names as the Depositor shall request, and
to deliver the Class X and Class P Certificates to the NIM Trustee or to such
other Person or Persons as the Depositor shall request.
Subject to Section 11.02 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator shall make
distributions to each Certificateholder of record on the preceding Record Date
either (x) by wire transfer in immediately available funds to the account of
such Holder at a bank or other entity having appropriate facilities therefor as
directed by that Certificateholder by written wire instructions provided to the
Securities Administrator or (y), in the event that no wire instructions are
provided to the Securities Administrator, by check mailed by first class mail to
such Certificateholder at the address of such Holder appearing in the
Certificate Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Securities Administrator by an authorized officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
such signatures were affixed, authorized to sign on behalf of the Securities
Administrator shall bind the Securities Administrator, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of any such Certificates or did not hold such
offices at the date of such Certificate. No Certificate shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless authenticated
by the Securities Administrator by manual signature, and such authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly executed and delivered hereunder. All
Certificates shall be dated the date of their authentication. On the Closing
Date, the Securities Administrator shall authenticate the Certificates to be
issued at the direction of the Depositor or any Affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Securities Administrator shall maintain, or
cause to be maintained in accordance with the provisions of Section 5.06, a
Certificate Register for the Trust Fund in which, subject to the provisions of
subsections (b) and (c) below and to such reasonable regulations as it may
prescribe, the Securities Administrator shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate, the Securities
Administrator shall execute and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class and
aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator shall execute, authenticate, and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator duly executed by the Holder thereof
or his attorney duly authorized in writing. In the event, the Depositor or an
Affiliate of the Depositor transfers the Class X Certificates, or a portion
thereof, to another Affiliate, it shall notify the Securities Administrator in
writing of the affiliated status of the transferee. The Trustee and the
Securities Administrator shall have no liability regarding the lack of notice
with respect thereto.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Securities
Administrator in accordance with the Securities Administrator's customary
procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. Except
with respect to (i) the transfer of the Class X, Class C, Class P or Class R
Certificates to the Depositor or an Affiliate of the Depositor, (ii) the
transfer of the Class X or Class P Certificates to the NIM Issuer or the NIM
Trustee, or (iii) a transfer of the Class X or Class P Certificates from the NIM
Issuer or the NIM Trustee to the Depositor or an Affiliate of the Depositor, in
the event that a transfer of a Private Certificate which is a Physical
Certificate is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer shall certify to
the Securities Administrator in writing the facts surrounding the transfer in
substantially the form set forth in Exhibit I (the "Transferor Certificate") and
either (i) there shall be delivered to the Securities Administrator a letter in
substantially the form of Exhibit J (the "Rule 144A Letter") or Exhibit K (the
"Non-Rule 144A Investment Letter") or (ii) in the case of the Class X
Certificates, there shall be delivered to the Securities Administrator at the
expense of the transferor an Opinion of Counsel that such transfer may be made
without registration under the Securities Act. In the event that a transfer of a
Private Certificate which is a Book-Entry Certificate is to be made in reliance
upon an exemption from the Securities Act and such laws, in order to assure
compliance with the Securities Act and such laws, the Certificateholder desiring
to effect such transfer will be deemed to have made as of the transfer date each
of the certifications set forth in the Transferor Certificate in respect of such
Certificate and the transferee will be deemed to have made as of the transfer
date each of the certifications set forth in the Rule 144A Letter in respect of
such Certificate, in each case as if such Certificate were evidenced by a
Physical Certificate. As directed by the Depositor, the Securities Administrator
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. To
the extent of any information reasonably within the possession of the applicable
party, the Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee shall cooperate with the Securities Administrator
in providing the Rule 144A information referenced in the preceding sentence,
including providing to the Securities Administrator such information regarding
the Certificates, the Mortgage Loans and other matters regarding the Trust Fund
as the Securities Administrator 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 Securities
Administrator, the Master Servicer, the Servicer and the Depositor and the
Servicer against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
Except with respect to (i) the transfer of the Class R, Class X,
Class C or Class P Certificates to the Depositor or an Affiliate of the
Depositor, (ii) the transfer of the Class X or Class P Certificates to the NIM
Issuer or the NIM Trustee, or (iii) a transfer of the Class X or Class P
Certificates from the NIM Issuer or the NIM Trustee to the Depositor or an
Affiliate of the Depositor, no transfer of an ERISA-Restricted Certificate shall
be made unless the Securities Administrator shall have received either (i) a
representation from the transferee of such Certificate acceptable to and in form
and substance satisfactory to the Securities Administrator (in the event such
Certificate is a Private Certificate or a Residual Certificate, such requirement
is satisfied only by the Securities Administrator's receipt of a representation
letter from the transferee substantially in the form of Exhibit I), to the
effect that such transferee is not an employee benefit plan or arrangement
subject to Section 406 of ERISA, a plan subject to Section 4975 of the Code or a
plan subject to any Federal, state or local law ("Similar Law") materially
similar to the foregoing provisions of ERISA or the Code, nor a Person acting on
behalf of any such plan or arrangement nor using the assets of any such plan or
arrangement (collectively, a "Plan") to effect such transfer, (ii) in the case
of an ERISA-Restricted Certificate other than a Residual Certificate, a Class C
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,
a Class C Certificate or a Class P Certificate presented for registration in the
name of a Plan, an Opinion of Counsel satisfactory to the Securities
Administrator, the Trustee and the Depositor, which Opinion of Counsel shall not
be an expense of the Securities Administrator, the Depositor, the Trustee or the
Trust Fund, addressed to the Depositor and the Securities Administrator, 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, the Master Servicer or the Securities
Administrator to any obligation in addition to those expressly undertaken in
this Agreement or to any liability. For purposes of the preceding sentence, with
respect to an ERISA-Restricted Certificate that is not a Private Certificate or
a Residual Certificate, in the event the representation letter referred to in
the preceding sentence is not furnished, such representation shall be deemed to
have been made to the Securities Administrator by the transferee's (including an
initial acquirer's) acceptance of the ERISA-Restricted Certificates.
Notwithstanding anything else to the contrary herein, (a) any purported transfer
of an ERISA Restricted Certificate, other than a Class C Certificate, 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
Securities Administrator of an Opinion of Counsel satisfactory to the Securities
Administrator as described above shall be void and of no effect and (b) any
purported transfer of a Class P Certificate, Class C Certificate or Residual
Certificate to a transferee that does not make the representation in clause (i)
above shall be void and of no effect.
The Class R, Class C 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 Securities Administrator 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 Securities Administrator in accordance with the
foregoing requirements.
As long as the Interest Rate Swap Agreement is in effect, each
beneficial owner of a Certificate, or any interest therein, shall be deemed to
have represented that either (i) it is not a Plan or (ii) the acquisition and
holding of the Certificate are eligible for the exemptive relief available under
at least one of the Investor Based Exemptions.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Securities Administrator shall not register the Transfer of any Residual
Certificate unless, in addition to the certificates required to be
delivered to the Securities Administrator under subparagraph (b) above,
the Securities Administrator shall have been furnished with an affidavit
(a "Transfer Affidavit") of the initial owner or the proposed transferee
in the form attached hereto as Exhibit H;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Securities Administrator shall
not be under any liability to any Person for any registration of Transfer
of a Residual Certificate that is in fact not permitted by Section 5.02(b)
and this Section 5.02(c) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the
Transfer was registered after receipt of the related Transfer Affidavit,
Transferor Certificate and the Rule 144A Letter. The Securities
Administrator shall be entitled but not obligated to recover from any
Holder of a Residual Certificate that was in fact not a Permitted
Transferee at the time it became a Holder or, at such subsequent time as
it became other than a Permitted Transferee, all payments made on such
Residual Certificate at and after either such time. Any such payments so
recovered by the Securities Administrator shall be paid and delivered by
the Securities Administrator to the last preceding Permitted Transferee of
such Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Securities Administrator, all
information necessary to compute any tax imposed under Section 860E(e) of
the Code as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Securities Administrator of an Opinion of
Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund, the
Depositor, the Trustee or the Securities Administrator, 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 Securities Administrator, is reasonably
necessary (a) to ensure that the record ownership of, or any beneficial interest
in, a Residual Certificate is not transferred, directly or indirectly, to a
Person that is not a Permitted Transferee and (b) to provide for a means to
compel the Transfer of a Residual Certificate which is held by a Person that is
not a Permitted Transferee to a Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Securities Administrator except to another Depository; (ii) the Depository shall
maintain book-entry records with respect to the Certificate Owners and with
respect to ownership and transfers of such Book-Entry Certificates; (iii)
ownership and transfers of registration of the Book-Entry Certificates on the
books of the Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Securities
Administrator shall deal with the Depository, Depository Participants and
indirect participating firms as representatives of the Certificate Owners of the
Book-Entry Certificates for purposes of exercising the rights of holders under
this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (vi) the Securities Administrator
may rely and shall be fully protected in relying upon information furnished by
the Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and persons
shown on the books of such indirect participating firms as direct or indirect
Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (ii) the Securities
Administrator or the Depositor is unable to locate a qualified successor, or (y)
the Depositor notifies the Depository of its intent to terminate the book-entry
system through the Depository 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 Securities
Administrator shall notify all Certificate Owners, through the Depository, of
the occurrence of any such event and of the availability of definitive,
fully-registered Certificates (the "Definitive Certificates") to Certificate
Owners requesting the same. Upon surrender to the Securities Administrator of
the related Class of Certificates by the Depository, accompanied by the
instructions from the Depository for registration, the Securities Administrator
shall issue the Definitive Certificates. Neither the Depositor nor the
Securities Administrator shall be liable for any delay in delivery of such
instruction and each may conclusively rely on, and shall be protected in relying
on, such instructions. The Depositor shall provide the Securities Administrator
with an adequate inventory of Certificates to facilitate the issuance and
transfer of Definitive Certificates. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed by
the Securities Administrator, to the extent applicable with respect to such
Definitive Certificates and the Securities Administrator shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Securities Administrator shall not by virtue of its
assumption of such obligations become liable to any party for any act or failure
to act of the Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Securities
Administrator, duly executed by the Certificateholder or his attorney duly
authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Securities Administrator in accordance with its customary
practice. No service charge shall be made for any registration of transfer or
exchange of Private Certificates, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Private Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Securities Administrator, or
the Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to the
Depositor, the Securities Administrator, 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 Securities Administrator that such Certificate has been
acquired by a bona fide purchaser, the Securities Administrator shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.03, the Securities Administrator may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Securities Administrator) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners. The Trustee, the Depositor, the
Securities Administrator and any agent of the Depositor, the Trustee or the
Securities Administrator may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions as provided in this Agreement and for all other purposes
whatsoever, and none of the Trustee, the Depositor, the Securities Administrator
or any agent of the Depositor, the Trustee or the Securities Administrator shall
be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Securities Administrator, (b) state that such
Certificateholders desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates, and (c)
provide a copy of the communication which such Certificateholders propose to
transmit, or if the Depositor or the Servicer shall request such information in
writing from the Securities Administrator, then the Securities Administrator
shall, within ten Business Days after the receipt of such request, provide the
Depositor, the Servicer or such Certificateholders at such recipients' expense
the most recent list of the Certificateholders of such Trust Fund held by the
Securities Administrator, if any. The Depositor and every Certificateholder, by
receiving and holding a Certificate, agree that the Securities Administrator
shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. The Securities
Administrator will maintain or cause to be maintained at its expense an office
or agency or agencies where Certificates may be surrendered for registration of
transfer or exchange. The Securities Administrator initially designates its
office for such purposes, located at Sixth Street and Marquette Avenue,
Minneapolis, Minnesota 55479, Attention: Corporate Trust Services - GSAMP
2005-HE6. The Securities Administrator shall 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 Delaware corporation or a limited
liability company 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
Freddie 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, any of the Depositor's Affiliates, 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 or any other unanticipated or
extraordinary expense, other than any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence (or gross negligence in
the case of the Depositor) in the performance of duties hereunder or by reason
of reckless disregard of obligations and duties hereunder. Neither the Depositor
nor the Servicer shall be under any obligation to appear in, prosecute or defend
any legal action that is not incidental to its respective duties hereunder and
which in its opinion may involve it in any expense or liability; provided,
however, that each of the Depositor and the Servicer may in its discretion
undertake any such action (or direct the Trustee to undertake such actions
pursuant to Section 2.08 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 (and the
Trustee if so directed by the Depositor or the Servicer) shall be entitled to be
reimbursed therefor out of the Collection Account.
Section 6.04 Limitation on Resignation of the Servicer. (a) 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, the Master Servicer and the Securities Administrator with prior
written notice to the Trustee or (ii) upon the determination that its duties
hereunder are no longer permissible under applicable law and such incapacity
cannot be cured by the Servicer. Any such determination permitting the
resignation of the Servicer under clause (ii) above shall be evidenced by an
Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Depositor, the Master Servicer, the Securities Administrator, the Trustee or the
Trust Fund) to such effect delivered to the Depositor, the Trustee, the Master
Servicer and the Securities Administrator which Opinion of Counsel shall be in
form and substance acceptable to the Depositor, the Trustee, the Master Servicer
and the Securities Administrator. No such resignation shall become effective
until a successor shall have assumed the Servicer's responsibilities and
obligations hereunder.
(b) Notwithstanding anything to the contrary herein, the Servicer
may pledge or assign as collateral all its rights, title and interest under this
Agreement to a lender. No such pledge shall reduce or otherwise affect the
Servicer's obligations under this Agreement.
Section 6.05 Additional Indemnification by the Servicer; Third Party
Claims. The Servicer shall indemnify the Depositor, the Master Servicer, the
Securities Administrator, the Trustee, the Custodians and any Affiliate,
director, officer, employee or agent of the Depositor, the Master Servicer, the
Securities Administrator, the Custodians 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 any breach by the Servicer of (i) 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, the Master Servicer, the Securities Administrator, the Custodians 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, the Master Servicer, the Securities Administrator, the Custodians and
the Trustee) the defense of any such claim and pay all expenses in connection
therewith, including reasonable counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or the Depositor,
the Master Servicer, the Securities Administrator, the Custodians or the Trustee
in respect of such claim. This indemnity shall survive the termination of this
Agreement or the earlier resignation or removal of the Servicer.
ARTICLE VII
SERVICER 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 Master Servicer 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 Master Servicer, or to the Servicer,
the Depositor, the Master Servicer, the Securities Administrator and the Trustee
by Certificateholders entitled to at least 25% of the Voting Rights; or
(b) the failure on the part of the Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of the Servicer set forth in this Agreement, which continues unremedied for
a period of thirty days (except that such number of days shall be ten days in
the case of a failure to observe or perform any of the obligations set forth in
Sections 3.22, 3.23 or 3.29) 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 Master Servicer, or to the Servicer,
the Depositor, the Master Servicer, the Securities Administrator 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 in the case of a failure 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
Depositor and the Master Servicer of a certificate to the effect that the
Servicer believes in good faith that the failure can be cured within such
additional time period and the Servicer is diligently pursuing remedial action;
or
(c) (i) the failure by the Servicer in any month, to deliver to the
Securities Administrator and the Depositor the Data File and the Market Value
Change Report on the Data File Delivery Date or (ii) to deliver the Servicer
Remittance Report to the Securities Administrator, and in each case such failure
continues uncured for more than 30 days after written notice of such failure; or
(d) 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
(e) 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
(f) 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
(g) if a Servicer Cumulative Loss Trigger occurs; or
(h) 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
(i) if a Servicer Delinquency Trigger occurs; or
(j) a breach of any representation and warranty of the Servicer
referred to in Section 2.03(a), which materially and adversely affects the
interests of the Certificateholders and which continues unremedied for a period
of thirty days after the date upon which written notice of such breach is given
to the Servicer by the Trustee, the Securities Administrator, the Master
Servicer or by the Depositor, or to the Servicer, the Master Servicer, the
Securities Administrator, the Trustee and the Depositor by Certificateholders
entitled to at least 25% of the Voting Rights; or
(k) Xxxxx'x reduces its servicer rating to "SQ4" or lower or
Standard & Poor's reduces its servicer ratings to "below average" or lower.
If an Event of Default described in clauses (a) through (k) 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 Master Servicer may, or at
the direction of Certificateholders entitled to a majority of the Voting Rights
the Master Servicer shall, by notice in writing to the Servicer (with a copy to
each Rating Agency), terminate all of the rights and obligations of the Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof,
other than its rights as a Certificateholder hereunder; provided, however, that
the Master Servicer shall not be required to give written notice to the Servicer
of the occurrence of an Event of Default described in clauses (b) through (h),
(j) and (k) of this Section 7.01 unless and until a Responsible Officer of the
Master Servicer has actual knowledge of the occurrence of such an Event of
Default. In the event that a Responsible Officer of the Master Servicer has
actual knowledge of the occurrence of an Event of Default described in clause
(a) of this Section 7.01, the Master Servicer shall give written notice to the
Servicer of the occurrence of such an event within one Business Day of the first
day on which such Responsible Officer obtains actual knowledge of such
occurrence; provided that failure to give such notice shall not constitute a
waiver of such Event of Default. The Master Servicer, upon a Responsible Officer
having actual knowledge of such default, shall deliver a written notice to the
Servicer of the default on any Remittance Date on which the Servicer fails to
make any deposit or payment required pursuant to this Agreement (including, but
not limited to Advances, to the extent required by this Agreement); provided,
however, that if an Event of Default occurs due to the failure of the Servicer
to make an Advance to the extent required, the Master Servicer, as successor
Servicer, or another successor Servicer shall, prior to the applicable
Distribution Date, immediately make such Advance. Any such notice to the
Servicer shall also be given to the Trustee, each Rating Agency and the
Depositor. Notwithstanding any other provision of this Agreement, any remedy
with respect to clauses (a) or (h) of this Section 7.01 shall be effective only
if taken no later than 8:00 AM Eastern time on the Business Day immediately
following (i) with respect to clause (a) of this Section 7.01, the date of
written notice to the Servicer, or (ii) with respect to clause (h) of this
Section 7.01, the related Remittance Date. On and after the receipt by the
Servicer of such written notice, all authority and power of the Servicer
hereunder, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the Master Servicer (or other successor Servicer under
Section 7.02). The Master Servicer 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 Master Servicer in effecting the termination of the
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to the Master Servicer 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, including Servicing Advances incurred prior to
but not invoiced until after the date of termination, in accordance with the
terms of this Agreement. In addition, the Servicer shall continue to be entitled
to the benefits of Section 6.03, notwithstanding any termination hereunder, with
respect to events occurring prior to such termination.
Section 7.02 Master Servicer to Act; Appointment of Successor
Servicer. On and after the time the Master Servicer gives, and the Servicer
receives a notice of termination pursuant to Section 7.01, the Master Servicer
shall, subject to and to the extent provided in Sections 3.06 and 7.03, and
subject to the rights of the Servicer and the Master Servicer to appoint a
successor Servicer, be the successor to the Servicer in its capacity as servicer
under this Agreement and the transactions set forth or provided for herein and
shall assume all of the obligations of the Servicer to make P&I Advances and
Xxxxxxxxx Advances as successor Servicer and shall assume and be subject to all
the other responsibilities, duties and liabilities relating thereto placed on
the Servicer by the terms and provisions hereof and applicable law as soon as
practicable but in no event later than 90 days following the notice of
termination or removal of the Servicer pursuant to Section 7.01. As compensation
therefor, the Master Servicer shall be entitled to all funds relating to the
Mortgage Loans that the Servicer would have been entitled to charge to the
Collection Account if the Servicer had continued to act 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 Master Servicer as provided herein). Notwithstanding the foregoing, if the
Master Servicer has become the successor to the Servicer in accordance with this
Section 7.02, the Master Servicer may, if it shall be unwilling to so act, or
shall, if it is prohibited by applicable law from making P&I Advances and
Servicing Advances pursuant to Section 4.01 or if it is otherwise unable to so
act, or, at the written request of Certificateholders entitled to a majority of
the Voting Rights, appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution the appointment of
which does not adversely affect the then current rating of the Certificates by
each Rating Agency, as the successor to the Servicer hereunder in the assumption
of all or any part of the responsibilities, duties or liabilities of the
Servicer hereunder. No such appointment of a successor to the Servicer hereunder
shall be effective until the Depositor shall have consented thereto. Any
successor to the Servicer shall be an institution which is a Xxxxxx Xxx- and
Freddie 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 Master Servicer an agreement
accepting such delegation and assignment, containing an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the terminated Servicer (other than liabilities of the terminated
Servicer under Section 6.03 incurred prior to termination of the Servicer under
Section 7.01), with like effect as if originally named as a party to this
Agreement; provided, that each Rating Agency acknowledges that its rating of the
Certificates in effect immediately prior to such assignment and delegation will
not be qualified or reduced, as a result of such assignment and delegation.
Pending appointment of a successor to the Servicer hereunder, the Master
Servicer, unless the Master Servicer 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 Master Servicer may make
such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it, the Depositor and such successor shall agree; provided,
however, that no such compensation shall be in excess of the Servicing Fee and
amounts paid to the predecessor Servicer from investments. The Master Servicer
and such successor shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession. Neither the Master
Servicer nor any other successor Servicer shall be deemed to be in default
hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof or any failure to perform, or any
delay in performing, any duties or responsibilities hereunder, in either case
caused by the failure of the predecessor Servicer to deliver or provide, or any
delay in delivering or providing, any cash, information, documents or records to
it.
Notwithstanding anything to the contrary herein, for a period of 30
days following the date on which the Servicer receives a notice of termination
or removal as a Servicer pursuant to Section 7.01(other than a termination or
removal based upon the Event of Default listed as clause (a) or (h) in Section
7.01 above), the Servicer or its designee may appoint a successor Servicer that
satisfies the eligibility criteria of a successor Servicer set forth in this
Section 7.02, subject to the consent of the Depositor and the Master Servicer,
which consent shall not be unreasonably withheld or delayed. The successor
Servicer appointed by the Servicer or its designee must agree to act as
successor Servicer no later than such 30-day period, fully effect the servicing
transfer within 90 days following the notice of termination or removal of the
Servicer as a Servicer, make all P&I Advances that are otherwise required to be
made by the Servicer as of the date of such appointment, and reimburse any
expenses that the Master Servicer may have incurred in connection with the
termination or removal of the Servicer and the appointment of a successor
Servicer to the Servicer. This 30-day period shall terminate immediately if the
Servicer fails to make (or cause to be made) any P&I Advances and all payments
under Section 7.01(a).
In the event that the Servicer is terminated pursuant to Section
7.01, the terminated Servicer shall provide notices to the Mortgagors, transfer
the Servicing Files to a successor Servicer and pay all of its own out-of-pocket
costs and expenses related to such obligations. In addition, all Servicing
Transfer Costs incurred by parties other than the terminated Servicer shall be
paid by the terminated Servicer promptly upon presentation of reasonable
documentation of such costs. If such predecessor Servicer defaults in its
obligations to pay such costs, such costs shall be paid by the successor
Servicer (in which case the successor Servicer shall be entitled to
reimbursement therefor from the Trust Fund or if the successor Servicer fails to
pay, the Master Servicer pays such amounts from the Trust Fund.). If the Master
Servicer is the predecessor Servicer (except in the case where the Master
Servicer 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 Master
Servicer 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.
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 Securities
Administrator shall give prompt written notice thereof to Certificateholders and
to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Securities Administrator shall transmit by mail to all Certificateholders and
each Rating Agency notice of each such Event of Default hereunder known to the
Securities Administrator, unless such Event of Default shall have been cured or
waived.
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIANS
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of a Master Servicer Event of Default and after the curing of all
Master Servicer Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case a Master Servicer Event of Default has occurred and remains
uncured, the Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
The Trustee, 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 a Master Servicer Event of Default known to a Responsible
Officer of 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 Custodians and the
Trustee. Except as otherwise provided in Section 8.01 as to the Trustee:
(a) the applicable Custodian and the Trustee may request and
conclusively 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 applicable 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 applicable 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 advice or
Opinion of Counsel;
(c) neither the applicable 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 applicable 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 applicable Custodian;
(f) neither the Custodians 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);
(h) the Trustee shall not be deemed to have knowledge of an Event of
Default or a Master Servicer 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 and Custodian Not Liable for Certificates or
Mortgage Loans. The recitals contained herein and in the Certificates shall be
taken as the statements of the Depositor and the Trustee assumes no
responsibility for their correctness. Neither the Trustee nor any Custodian
makes any representations as to the validity or sufficiency of this Agreement or
of the Certificates or of any Mortgage Loan or related document. Neither the
Trustee nor any Custodian shall be accountable for the use or application by the
Depositor, the Master Servicer, the Servicer or the Securities Administrator of
any funds paid to the Depositor, the Master Servicer, the Servicer or the
Securities Administrator in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account or the Distribution Account by the
Depositor, the Master Servicer, the Servicer or the Securities Administrator.
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
Master Servicer).
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 and Custodians' Fees, Indemnification and
Expenses. As compensation for their respective activities under this Agreement,
the Trustee and the applicable Custodian shall be paid their respective fee by
the Master Servicer from the Master Servicer's own funds pursuant to separate
agreements. Neither the Trustee nor the applicable Custodian shall have any lien
on the Trust Fund for the payment of such fees. The Trustee, any Custodian and
any director, officer, employee, or agent of the Trustee or applicable 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:
(a) any claim or legal action relating to this Agreement,
(b) any claim or legal action relating to the Certificates or the
Mortgage Loans, or
(c) the performance of any of the Trustee's or the applicable
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 and the Custodians, as
applicable, pursuant to Section 6.05, (ii) solely with respect to the Trustee,
resulting from any breach of Fremont's obligations or the Purchaser's
obligations in connection with the Assignment, Assumption and Recognition
Agreement and the Representation and Warranty Agreements, as applicable, for
which Fremont or the Purchaser has performed its obligation to indemnify the
Trustee pursuant to the Assignment, Assumption and Recognition Agreement and the
Representation and Warranty Agreements, as applicable, (iii) resulting from any
breach of the Master Servicer's obligation hereunder for which the Master
Servicer has performed its obligation to indemnify the Trustee and the
Custodians pursuant to Sections' 9.03 and 9.12 or (iv) incurred because of
willful misfeasance, bad faith, or negligence in the performance of any of the
applicable Custodians' or Trustee's duties, as applicable, 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 under this
Agreement or for any other expenses incurred by the Trustee; provided, however,
no expense shall be reimbursed 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 Master 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 Master Servicer, the
Securities Administrator, the Custodians 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 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 corporate trust 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 (as successor Master
Servicer) under this Agreement to advance funds on behalf of the Master
Servicer, shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Master Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the applicable Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Securities Administrator covenants and agrees that it shall act as agent (and
the Securities Administrator is hereby appointed to act as agent) on behalf of
each Trust REMIC described in the Preliminary Statement and that in such
capacity it shall:
(a) prepare (and the Trustee shall sign) 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, apply for an employer
identification number from the Internal Revenue Service via Form SS-4 or any
other acceptable method for all tax entities and shall also furnish to the
Internal Revenue Service, on Form 8811 or as otherwise may be required by the
Code, the name, title, address, and telephone number of the person that the
Holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) make an election that each of Pooling-Tier REMIC-1, Pooling-Tier
REMIC-2, the Lower-Tier REMIC, the Upper-Tier REMIC and the Class X 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 second to last paragraph
of this Section 8.11, the amount of any federal or state tax, including
prohibited transaction taxes as described below, imposed on each Trust REMIC
before its termination when and as the same shall be due and payable (but such
obligation shall not prevent the Securities Administrator or any other
appropriate Person from contesting any such tax in appropriate proceedings and
shall not prevent the Securities Administrator from withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings);
(i) cause federal, state or local income tax or information returns
to be signed by the Securities Administrator or, if required by applicable tax
law, the Trustee or such other Person as may be required to sign such returns by
the Code or state or local laws, regulations or rules; 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-2
Certificates shall act as Tax Matters Person for Pooling-Tier REMIC-1, the
holder of the largest Percentage Interest of the Class R-1 Certificates shall
act as the Tax Matters Person for Pooling-Tier REMIC-2, the Lower-Tier REMIC and
the Upper-Tier REMIC, and the Holder of the largest Percentage Interest of the
Class R-3 Certificates shall act as Tax Matters Person for the Class X REMIC, in
each case, within the meaning of Treasury Regulations Section 1.860F-4(d), and
the Securities Administrator is hereby designated as agent of such
Certificateholders for such purpose (or if the Securities Administrator is not
so permitted, such Holder shall be the Tax Matters Person in accordance with the
REMIC Provisions). In such capacity, the Securities Administrator shall, as and
when necessary and appropriate, represent 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 Securities Administrator shall treat the rights of the Class P
Certificateholders to receive Prepayment Premiums, the rights of the Class X
Certificateholders to receive amounts from the Excess Reserve Fund Account and
the Supplemental Interest Trust (subject to the obligation to pay Basis Risk
Carry Forward Amounts and, without duplication, Upper-Tier Carry Forward
Amounts) and the rights of the LIBOR Certificateholders to receive Basis Risk
Carry Forward Amounts and, without duplication, Upper-Tier Carry Forward Amounts
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 Securities Administrator shall file or cause to be filed with the
Internal Revenue Service Form 1041 or such other form as may be applicable and
shall furnish or cause to be furnished, to the Class P, Class X
Certificateholders and the LIBOR Certificateholders, the respective amounts
described above that are received, in the time or times and in the manner
required by the Code.
To enable the Securities Administrator to perform its duties under
this Agreement, the Depositor shall provide to the Securities Administrator
within ten days after the Closing Date all information or data that the
Securities Administrator requests in writing and determines to be relevant for
tax purposes to the valuations and offering prices of the Certificates,
including the price, yield, prepayment assumption, and projected cash flows of
the Certificates and the Mortgage Loans. Moreover, the Depositor shall provide
information to the Securities Administrator concerning the value, if any, to
each Class of LIBOR Certificates of the right to receive Basis Risk Carry
Forward Amounts from the Excess Reserve Fund Account and Basis Risk Carry
Forward Amounts or Upper-Tier Carry Forward Amounts from the Supplemental
Interest Trust. Thereafter, the Depositor shall provide to the Securities
Administrator promptly upon written request therefor any additional information
or data that the Securities Administrator may, from time to time, reasonably
request to enable the Securities Administrator to perform its duties under this
Agreement; provided, however, that the Depositor shall not be required to
provide any information regarding the Mortgage Loans after the Closing Date or
any information that the Servicer is required to provide to the Securities
Administrator pursuant to this Agreement. The Depositor hereby indemnifies the
Securities Administrator for any losses, liabilities, damages, claims, or
expenses of the Securities Administrator arising from any errors or
miscalculations of the Securities Administrator that result from any failure of
the Depositor to provide, pursuant to this paragraph, accurate information or
data to the Securities Administrator on a timely basis.
None of the Master Servicer, the Securities Administrator or the
Trustee shall (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
Securities Administrator 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
Securities Administrator) 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 Pooling-Tier REMIC-1 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 Master Servicer,
the Trustee or the Securities Administrator, as applicable, if such tax arises
out of or results from negligence of the Master Servicer, the Trustee or the
Securities Administrator, as applicable, in the performance of any of its
obligations under this Agreement, (ii) the Servicer, in the case of any such
minimum tax, and otherwise if such tax arises out of or results from a breach by
the Servicer of any of its obligations under 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 Master Servicer, the Securities Administrator, 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 Securities
Administrator 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 Securities Administrator 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) As part of the Form 10-K required
to be filed pursuant to paragraph (c) of this Section 8.12, the Master Servicer
shall include the Servicer's annual statement of compliance, and each such
accountant's report, as well as a report of any significant deficiencies
relating to the Servicer's performance of its obligations under this Agreement.
(b) The Master Servicer shall reasonably cooperate with the
Depositor to enable the Trust to satisfy its reporting requirements under the
Exchange Act. The Master Servicer shall prepare on behalf of the Trust any Forms
8-K (or other comparable required Form containing the same or comparable
information or other information mutually agreed upon) and 10-K customary for
similar securities as required by the Exchange Act and the rules and regulations
promulgated thereunder, and the Master Servicer shall sign and file (via the
Securities and Exchange Commission's Electronic Data Gathering and Retrieval
System) such forms on behalf of the Trust.
(c) Each Form 8-K shall be filed by the Master Servicer within 15
days after each Distribution Date and shall include 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 beginning in March 2006 (or such earlier date
as may be required by the Exchange Act and the rules and regulations promulgated
thereunder), the Master Servicer 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 annual
statements of compliance, the accountant's reports, any report of significant
deficiencies relating to the Servicer's performance of its obligations under
this Agreement described in paragraph (a) of this Section 8.12 and any other
exhibits that may be required as a result of any new rules adopted by the
Securities and Exchange Commission, in each case to the extent they have been
timely delivered to the Master Servicer. In accordance with the Exchange Act and
the rules and regulations promulgated thereunder, if such exhibits are not so
timely delivered, the Master Servicer shall (i) file the balance of the Form
10-K, indicating on the cover page thereof which of such exhibits are omitted,
and (ii) no later than one Business Day after the due date for Form 10-K, file a
Form 12b-25, notifying the Securities and Exchange Commission of its inability
to timely file all or any required portion of Form 10-K. No later than the
fifteenth calendar day after the due date for Form 10-K, the Master Servicer
shall, to the extent in its possession, file such exhibits with the Securities
and Exchange Commission. If the Master Servicer has not received such exhibits
by the tenth calendar day after such due date, the Master Servicer shall notify
the Depositor. The Master Servicer shall have no liability with respect to any
failure to properly prepare or file such periodic reports resulting from or
relating to the Master Servicer's inability or failure to obtain any information
not resulting from its own negligence, bad faith or willful misconduct. Each
Form 10-K shall also include a certification in the form attached hereto as
Exhibit O or in such other form as may be required by Rules 13a-14 and 15d-14
under the Exchange Act, as applicable, and any existing or future directives or
interpretations thereof or rules subsequently adopted by the Securities and
Exchange Commission (the "Certification"), which Certification shall be signed
by a Master Servicing Officer.
(d) Upon any filing with the Securities and Exchange Commission, the
Securities Administrator shall promptly deliver to the Depositor a copy of any
such executed report, statement or information.
(e) Prior to January 30 of the first year in which the Securities
Administrator is able to do so under applicable law, the Securities
Administrator shall file a Form 15 Suspension Notification with respect to the
Trust unless instructed in writing by the Depositor not to do so.
Section 8.13 Tax Treatment of Upper-Tier Carry Forward Amounts and
Basis Risk Carry Forward Amounts. The Securities Administrator shall treat the
rights that each Class of LIBOR Certificates has to receive payments of
Upper-Tier Carry Forward Amounts and, to the extent not paid from the Excess
Reserve Fund Account, Basis Risk Carry Forward Amounts from the Supplemental
Interest Trust (together with Basis Risk Carry Forward Amounts from the Excess
Reserve Fund Account) as rights to receive payments under a limited recourse
interest rate cap contract written by the Class X Certificateholders in favor of
each such Class. Accordingly, each Class of Certificates (excluding the Class X,
Class P, Class C and Class R Certificates) will be comprised of two components -
an Upper-Tier Regular Interest and an interest in an interest rate cap contract,
and the Class X Certificate will be comprised of four components - two Class X
REMIC Regular Interests (the Class X Interest and the Class IO Interest),
ownership of the Excess Reserve Fund Account, subject to an obligation to pay
Basis Risk Carry Forward Amounts, and ownership of the Supplemental Interest
Trust and the Interest Rate Swap Agreement, subject to the obligation to pay
Upper-Tier Carry Forward Amounts and, without duplication, Basis Risk Carry
Forward Amounts. The Securities Administrator shall allocate the issue price for
a Class of LIBOR Certificates among the respective components for purposes of
determining the issue price of the Upper-Tier Regular Interest component based
on information received from the Depositor. Unless otherwise advised by the
Depositor in writing, for federal income tax purposes, the Securities
Administrator is hereby directed to assign a value of zero to the right of each
Holder of a LIBOR Certificate to receive the related Upper-Tier Carry Forward
Amounts and, without duplication, the related Basis Risk Carry Forward Amount
for purposes of allocating the purchase price of an initial LIBOR
Certificateholder between such right and the related Upper-Tier Regular
Interest.
Holders of LIBOR Certificates shall also be treated as having agreed
to pay, on each Distribution Date, to the Holders of the Class X Certificates an
aggregate amount equal to the excess, if any, of (i) Net Swap Payments and Swap
Termination Payments (other than Defaulted Swap Termination Payments) over (ii)
the sum of amounts payable on the Class X Interest available for such payments
and amounts payable on the Class IO Interest (such excess, a "Class IO
Shortfall"), first from interest and then from principal distributable on the
LIBOR Certificates. A Class IO Shortfall payable from interest collections shall
be allocated pro rata among such LIBOR Certificates based on the amount of
interest otherwise payable to such Class of LIBOR Certificates, and a Class IO
Shortfall payable from principal collections shall be allocated in reverse
sequential order beginning with the most subordinate Class of LIBOR Certificates
then Outstanding.
Any payments of Class IO Shortfalls shall be treated for tax
purposes as having been received by the Holders of such Class of LIBOR
Certificates in respect of the corresponding Upper-Tier Regular Interest and as
having been paid by such Holders to the Holders of the Class X Certificates
through the Supplemental Interest Trust.
Section 8.14 Custodial Responsibilities. (a) Each Custodian shall
provide access to the Mortgage Loan Documents in possession of the applicable
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 applicable Custodian. The applicable 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) Each Custodian may resign from its obligations hereunder upon 60
days' prior written notice to the Trustee, the Depositor, the Securities
Administrator 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 Xxxxxxxxx is appointed within
60 days after written notice of the applicable Custodian's resignation is
received by the Trustee, the applicable Custodian may petition a court of
competent jurisdiction to appoint a successor Xxxxxxxxx.
Upon such resignation and appointment of successor Xxxxxxxxx, the
applicable Custodian shall, at the applicable 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 applicable Custodian,
shall bear the costs relating to the transfer of Mortgage Files if the
applicable Custodian shall resign with cause (including a Custodian's
resignation due to the failure of the applicable Custodian to be paid all fees
due to such Custodian hereunder).
Section 8.15 Limitations on Custodial Responsibilities.
(a) Each 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) Each 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 applicable Custodian's
compensation or for reimbursement of expenses.
(c) Each Custodian shall not be responsible or liable for, and makes
no representation or warranty with respect to, the validity, adequacy,
perfection or priority of any lien upon or security interest in any Mortgage
File.
(d) The duties and obligations of each 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 applicable Custodian shall not be the party required to take the action or
refrain from acting. In no event shall the applicable Custodian have any
responsibility to ascertain or take action except as expressly provided herein.
(e) The applicable Custodian makes no representations and shall have
no responsibilities (except as expressly set forth herein) as to the validity,
sufficiency, value, genuineness, ownership or transferability of any of the
Mortgage Loans, and shall not be required to and shall not make any
representations as to the validity, value or genuineness of the Conduit Mortgage
Loans.
(f) The applicable 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.
(g) The applicable 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 of any Mortgage Loans or
(ii) the collectibility, insurability, effectiveness including the authority or
capacity of any Person to execute or issue any document in the Mortgage File, or
suitability of any Mortgage Loans.
(h) Each Custodian shall have no obligation to verify the receipt of
any such documents the existence of which was not made known to the applicable
Custodian by receipt of the Mortgage File.
(i) Each Custodian shall have no obligation to determine whether the
recordation of any document is necessary.
(j) In no event shall the applicable 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.
(k) In order to comply with its duties under the USA Patriot Act of
2001, the Custodians shall obtain and verify certain information and
documentation from the other parties to this Agreement including, but not
limited to, each such party's name, address and other identifying information.
Any Person into which the applicable Custodian may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the applicable Custodian shall be a party, or any person succeeding to the
business of the applicable Custodian, shall be the successor of the applicable
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
ADMINISTRATION OF THE MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of
Servicer's Obligations. (a) The Master Servicer, on behalf of the Trustee, the
Securities Administrator, the Depositor and the Certificateholders, shall
monitor the performance of the Servicer's obligations under this Agreement, and
(except as set forth below) shall use its reasonable good faith efforts to cause
the Servicer to duly and punctually perform its duties and obligations
hereunder. Upon the occurrence of an Event of Default of which a Responsible
Officer of the Master Servicer has actual knowledge, the Master Servicer shall
promptly notify the Securities Administrator and the Trustee and shall specify
in such notice the action, if any, the Master Servicer plans to take in respect
of such default. So long as an Event of Default shall occur and be continuing,
the Master Servicer shall take the actions specified in Article VII.
If (i) the Servicer reports a delinquency on a monthly report and
(ii) the Servicer, by 11 a.m. (New York Time) on the related Remittance Date,
neither makes an Advance nor provides the Securities Administrator and the
Master Servicer with an Officer's Certificate certifying that such an Advance
would be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, then
the Master Servicer shall deposit in the Distribution Account not later than the
Business Day immediately preceding the related Distribution Date an Advance in
an amount equal to the difference between (x) with respect to each Monthly
Payment due on a Mortgage Loan that is delinquent (other than Relief Act
Interest Shortfalls) and for which the Servicer was required to make an Advance
pursuant to this Agreement and (y) amounts deposited in the Collection Account
to be used for Advances with respect to such Mortgage Loan, except to the extent
the Master Servicer determines any such Advance to be a Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance. Subject to the foregoing and
Section 7.02, the Master Servicer shall continue to make such Advances for so
long as the Servicer is required to do so under this Agreement. If applicable,
on the Business Day immediately preceding the Distribution Date, the Master
Servicer shall deliver an Officer's Certificate to the Trustee stating that the
Master Servicer elects not to make an Advance in a stated amount and detailing
the reason(s) it deems the Advance to be a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance. Any amounts deposited by the Master Servicer
pursuant to this Section 9.01 shall be net of the Servicing Fee for the related
Mortgage Loans.
(b) The Master Servicer shall pay the costs of monitoring the
Servicer as required hereunder (including costs associated with (i) termination
of the Servicer, (ii) the appointment of a successor servicer or (iii) the
transfer to and assumption of, the servicing by the Master Servicer) and shall,
to the extent permitted hereunder, seek reimbursement therefor initially from
the terminated Servicer. In the event the full costs associated with the
transition of servicing responsibilities to the Master Servicer are not paid for
by the predecessor or successor Servicer (provided such successor Servicer is
not the Master Servicer), the Master Servicer may be reimbursed therefor by the
Trust for out-of-pocket costs incurred by the Master Servicer associated with
any such transfer of servicing duties from the Servicer to the Master Servicer
or any other successor servicer.
(c) If the Master Servicer assumes the servicing with respect to any
of the Mortgage Loans, it will not assume liability for the representations and
warranties of the Servicer it replaces or for any errors or omissions of the
Servicer.
(d) Neither the Depositor nor the Securities Administrator shall
consent to the assignment by the Servicer of the Servicer's rights and
obligations under this Agreement without the prior written consent of the Master
Servicer, which consent shall not be unreasonably withheld.
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance. The Master Servicer, at its expense, shall maintain in effect a
blanket fidelity bond and an errors and omissions insurance policy, affording
coverage with respect to all directors, officers, directors, employees and other
Persons acting on such Master Xxxxxxxx's behalf, and covering errors and
omissions in the performance of the Master Servicer's obligations hereunder. The
errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
Section 9.03 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the Depositor, the
Securities Administrator, the Custodians and the Trustee, for the benefit of the
Certificateholders, as of the Closing Date that:
(i) it is a national banking association validly existing and in
good standing under the laws of the United States of America, and as
Master Servicer has full power and authority to transact any and all
business contemplated by this Agreement and to execute, deliver and comply
with its obligations under the terms of this Agreement, the execution,
delivery and performance of which have been duly authorized by all
necessary corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws,
(B) violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it is bound
or to which any of its assets are subject, which violation, default or
breach would materially and adversely affect the Master Servicer's ability
to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights in general, and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any order
or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency to the extent that any such default would
materially and adversely affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any agreement
or instrument or subject to any charter provision, bylaw or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that may materially and adversely affect its ability as
Master Servicer to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations
under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement;
(vii) [Reserved];
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master Servicer
with this Agreement or the consummation of the transactions contemplated
by this Agreement, except for such consents, approvals, authorizations and
orders (if any) as have been obtained; and
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer.
(b) [Reserved]
(c) It is understood and agreed that the representations and
warranties set forth in this Section shall survive the execution and delivery of
this Agreement. The Master Servicer shall indemnify the Depositor, the
Securities Administrator, the Custodians, the Trustee and the Trust and hold
them harmless against any loss, damages, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and other reasonable costs
and expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a material breach of the Master Servicer's
representations and warranties contained in Section 9.03(a) above. It is
understood and agreed that the enforcement of the obligation of the Master
Servicer set forth in this Section 9.03 to indemnify the Depositor, the
Securities Administrator, the Custodians, the Trustee and the Trust constitutes
the sole remedy of the Depositor, the Securities Administrator, the Custodians,
the Trustee and the Trust, respecting a breach of the foregoing representations
and warranties. Such indemnification shall survive any termination of the Master
Servicer as Master Servicer hereunder and any termination of this Agreement.
Any cause of action against the Master Servicer relating to or
arising out of the breach of any representations and warranties made in this
Section shall accrue upon discovery of such breach by either the Depositor, the
Master Servicer, Securities Administrator, the applicable Custodian or the
Trustee or notice thereof by any one of such parties to the other parties.
Section 9.04 Master Servicer Events of Default. Each of the
following shall constitute a "Master Servicer Event of Default":
(a) any failure by the Master Servicer to deposit in the
Distribution Account any payment received by it from the Servicer or required to
be made by the Master Servicer under the terms of this Agreement which continues
unremedied for a period of two (2) Business Days after the date upon which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by any other party hereto;
(b) failure by the Master Servicer to duly observe or perform, in
any material respect, any other covenants, obligations or agreements of the
Master Servicer as set forth in this Agreement which failure continues
unremedied for a period of thirty (30) days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Master Servicer by the Trustee or to the Master Servicer and Trustee by
the holders of Certificates evidencing at least 25% of the Voting Rights;
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master Servicer
and such decree or order shall have remained in force, undischarged or unstayed
for a period of sixty (60) days;
(d) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Master Servicer or relating to all or
substantially all of its property;
(e) the Master Servicer shall admit in writing its inability to pay
its debts as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations for
three (3) Business Days;
(f) except as otherwise set forth herein, the Master Servicer
attempts to assign this Agreement or its responsibilities hereunder or to
delegate its duties hereunder (or any portion thereof) without the consent of
the Securities Administrator, the Trustee and the Depositor; or
(g) the indictment of the Master Servicer for the taking of any
action by the Master Servicer, any Affiliate or any director or employee thereof
that constitutes fraud or criminal activity in the performance of its
obligations under this Agreement, in each case, where such indictment materially
and adversely affects the ability of the Master Servicer to perform its
obligations under this Agreement (subject to the condition that such indictment
is not dismissed within ninety (90) days).
In each and every such case, so long as a Master Servicer Event of
Default shall not have been remedied, in addition to whatever rights the Trustee
may have at law or equity to damages, including injunctive relief and specific
performance, the Trustee, by notice in writing to the Master Servicer, may, and
upon the request of the Holders of Certificates representing at least 51% of the
Voting Rights shall, terminate with cause all the rights and obligations of the
Master Servicer under this Agreement.
Upon receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer under this Agreement, shall pass to
and be vested in any successor master servicer appointed hereunder which accepts
such appointments. Upon written request from the Trustee or the Depositor, the
Master Servicer shall prepare, execute and deliver to the successor entity
designated by the Trustee any and all documents and other instruments related to
the performance of its duties hereunder as the Master Servicer and, place in
such successor's possession all such documents with respect to the master
servicing of the Mortgage Loans and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, at the Master Servicer's sole expense. The Master Servicer shall
cooperate with the Trustee and such successor master servicer in effecting the
termination of the Master Servicer's responsibilities and rights hereunder,
including without limitation, the transfer to such successor master servicer for
administration by it of all cash amounts which shall at the time be credited to
the Distribution Account or are thereafter received with respect to the Mortgage
Loans.
All reasonable out-of-pocket costs and expenses incurred by the
Trustee in connection with the transfer of servicing from a terminated Master
Servicer, including, without limitation, any such costs or expenses associated
with the complete transfer of all servicing data and the completion, correction
or manipulation of such servicing data as may be required by the Trustee to
correct any errors or insufficiencies in the servicing data or otherwise to
enable the Trustee (or any successor Master Servicer appointed pursuant to
Section 9.06) to master service shall be paid by the terminated Master Servicer;
provided, however, that to the extent not previously reimbursed by the
terminated Master Servicer, such fees and expenses shall be payable to the
Trustee pursuant to Section 8.05.
Section 9.05 Waiver of Default. By a written notice, the Trustee may
with the consent of a Holders of Certificates evidencing at least 51% of the
Voting Rights waive any default by the Master Servicer in the performance of its
obligations hereunder and its consequences. Upon any waiver of a past default,
such default shall cease to exist, and any Master Servicer Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so waived.
Section 9.06 Successor to the Master Servicer. Upon termination of
the Master Servicer's responsibilities and duties under this Agreement, the
Trustee shall appoint or may petition any court of competent jurisdiction for
the appointment of a successor, which shall succeed to all rights and assume all
of the responsibilities, duties and liabilities of the Master Servicer under
this Agreement prior to the termination of the Master Servicer. Any successor
shall be a Xxxxxx Xxx and Freddie Mac approved servicer in good standing and
acceptable to the Depositor and the Rating Agencies. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that in no event shall the Master
Servicing Fee paid to such successor master servicer exceed that paid to the
Master Servicer hereunder. In the event that the Master Servicer's duties,
responsibilities and liabilities under this Agreement are terminated, the Master
Servicer shall continue to discharge its duties and responsibilities hereunder
until the effective date of such termination with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement and shall
take no action whatsoever that might impair or prejudice the rights of its
successor. The termination of the Master Servicer shall not become effective
until a successor shall be appointed pursuant hereto and shall in no event (i)
relieve the Master Servicer of responsibility for the representations and
warranties made pursuant to Section 9.03(a) hereof and the remedies available to
the Trustee under Section 9.03(b) hereof, it being understood and agreed that
the provisions of Section 9.03 hereof shall be applicable to the Master Servicer
notwithstanding any such sale, assignment, resignation or termination of the
Master Servicer or the termination of this Agreement; or (ii) affect the right
of the Master Servicer to receive payment and/or reimbursement of any amounts
accruing to it hereunder prior to the date of termination (or during any
transition period in which the Master Servicer continues to perform its duties
hereunder prior to the date the successor master servicer fully assumes its
duties).
If no successor Master Servicer has accepted its appointment within
90 days of the time the Trustee receives the resignation of the Master Servicer,
the Trustee shall be the successor Master Servicer in all respects under this
Agreement and shall have all the rights and powers and be subject to all the
responsibilities, duties and liabilities relating thereto, including the
obligation to make Advances; provided, however, that any failure to perform any
duties or responsibilities caused by the Master Servicer's failure to provide
information required by this Agreement shall not be considered a default by the
Trustee hereunder. In the Trustee's capacity as such successor, the Trustee
shall have the same limitations on liability herein granted to the Master
Servicer. As compensation therefor, the Trustee shall be entitled to receive the
compensation, reimbursement and indemnities otherwise payable to the Master
Servicer, including the fees and other amounts payable pursuant to Section 9.07
hereof.
Any successor master servicer appointed as provided herein, shall
execute, acknowledge and deliver to the Master Servicer and to the Trustee an
instrument accepting such appointment, wherein the successor shall make the
representations and warranties set forth in Section 9.03 hereof, and whereupon
such successor shall become fully vested with all of the rights, powers, duties,
responsibilities, obligations and liabilities of the Master Servicer, with like
effect as if originally named as a party to this Agreement. Any termination or
resignation of the Master Servicer or termination of this Agreement shall not
affect any claims that the Trustee may have against the Master Servicer arising
out of the Master Servicer's actions or failure to act prior to any such
termination or resignation or in connection with the Trustee's assumption of
such obligations, duties and responsibilities.
Upon a successor's acceptance of appointment as such, the Master
Servicer shall notify by mail the Trustee of such appointment.
Section 9.07 Compensation of the Master Servicer. As compensation
for its activities under this Agreement, the Master Servicer shall be paid the
Master Servicing Fee and shall be entitled to the investment income earned on
amounts in the Distribution Account during the Securities Administrator Float
Period.
Section 9.08 Merger or Consolidation. Any Person into which the
Master Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor to the Master Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or resulting Person to the Master Servicer
shall (i) be a Person (or have an Affiliate) that is qualified and approved to
service mortgage loans for Xxxxxx Xxx and Freddie Mac (provided further that a
successor Master Servicer that satisfies subclause (i) through an Affiliate
agrees to service the Mortgage Loans in accordance with all applicable Xxxxxx
Xxx and Freddie Mac guidelines) and (ii) have a net worth of not less than
$25,000,000.
Section 9.09 Resignation of the Master Servicer. Except as otherwise
provided in Sections 9.08 and 9.10 hereof, the Master Servicer shall not resign
from the obligations and duties hereby imposed on it unless the Master
Servicer's duties hereunder are no longer permissible under applicable law or
are in material conflict by reason of applicable law with any other activities
carried on by it and cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of Counsel
that shall be independent to such effect delivered to the Trustee. No such
resignation shall become effective until the Trustee shall have assumed, or a
successor master servicer satisfactory to the Trustee and the Depositor shall
have assumed, the Master Servicer's responsibilities and obligations under this
Agreement. Notice of such resignation shall be given promptly by the Master
Servicer to the Depositor and the Trustee.
If at any time, Xxxxx Fargo Bank, N.A., as Master Servicer, resigns
under this Section 9.09, or is removed as Master Servicer pursuant to Section
9.04, then at such time Xxxxx Fargo Bank, N.A. shall also resign (and shall be
entitled to resign) as Securities Administrator under this Agreement.
Section 9.10 Assignment or Delegation of Duties by the Master
Servicer. Except as expressly provided herein, the Master Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer; provided, however, that the Master Servicer
shall have the right with the prior written consent of the Depositor (which
shall not be unreasonably withheld or delayed), and upon delivery to the Trustee
and the Depositor of a letter from each Rating Agency to the effect that such
action shall not result in a downgrade of the ratings assigned to any of the
Certificates, to delegate or assign to or subcontract with or authorize or
appoint any qualified Person to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Master Servicer hereunder.
Notice of such permitted assignment shall be given promptly by the Master
Servicer to the Depositor and the Trustee. If, pursuant to any provision hereof,
the duties of the Master Servicer are transferred to a successor master
servicer, the entire compensation payable to the Master Servicer pursuant hereto
shall thereafter be payable to such successor master servicer but in no event
shall the fee payable to the successor master servicer exceed that payable to
the predecessor master servicer.
Section 9.11 Limitation on Liability of the Master Servicer. Neither
the Master Servicer nor any of the directors, officers, employees or agents of
the Master Servicer shall be under any liability to the Trustee, Securities
Administrator, the Servicer or the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Master Servicer or any such person against any liability
that would otherwise be imposed by reason of willful malfeasance, bad faith or
negligence in the performance of its duties or by reason of reckless disregard
for its obligations and duties under this Agreement. The Master Servicer and any
director, officer, employee or agent of the Master Servicer may rely in good
faith on any document prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Master Servicer shall be under no
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties as Master Servicer with respect to the Mortgage Loans
under this Agreement and that in its opinion may involve it in any expenses or
liability; provided, however, that the Master Servicer may in its sole
discretion undertake any such action that it may deem necessary or desirable in
respect to this Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom, shall
be liabilities of the Trust, and the Master Servicer shall be entitled to be
reimbursed therefor out of the Distribution Account in accordance with the
provisions of Section 9.07 and Section 9.12.
The Master Servicer shall not be liable for any acts or omissions of
the Servicer except to the extent that damages or expenses are incurred as a
result of such act or omissions and such damages and expenses would not have
been incurred but for the negligence, willful malfeasance, bad faith or
recklessness of the Master Servicer in supervising, monitoring and overseeing
the performance of the obligations of the Servicer as required under this
Agreement.
Section 9.12 Indemnification; Third Party Claims. The Master
Servicer agrees to indemnify the Depositor, the Securities Administrator, the
Custodians, the Trustee and the Trust, and hold them harmless against any and
all claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the Depositor,
the Securities Administrator, the Custodians, the Trustee or the Trust may
sustain as a result of the Master Servicer's willful malfeasance, bad faith or
negligence in the performance of its duties hereunder or by reason of its
reckless disregard for its obligations and duties under this Agreement. The
Depositor, Securities Administrator, the applicable Custodian and the Trustee
shall immediately notify the Master Servicer if a claim is made by a third party
with respect to this Agreement or the Mortgage Loans which would entitle the
Depositor, the Securities Administrator, the applicable Custodian, the Trustee
or the Trust to indemnification under this Section 9.12, whereupon the Master
Servicer shall assume the defense of any such claim and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim.
The Master Servicer agrees to indemnify and hold harmless the
Trustee from and against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liability, fees and expenses (including reasonable attorneys' fees) that the
Trustee may sustain as a result of such liability or obligations of the Master
Servicer and in connection with the Trustee's assumption (not including the
Trustee's performance, except to the extent that costs or liability of the
Trustee are created or increased as a result of negligent or wrongful acts or
omissions of the Master Servicer prior to its replacement as Master Servicer) of
the Master Servicer's obligations, duties or responsibilities under this
Agreement.
The Trust will indemnify the Master Servicer and hold it harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that the Master Servicer may incur or sustain in connection with,
arising out of or related to this Agreement or the Certificates, except to the
extent that any such loss, liability or expense is related to (i) a material
breach of the Master Servicer's representations and warranties in this
Agreement, (ii) 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 and the Custodian pursuant to Section 6.05,
(iii) resulting from any breach of the applicable Original Loan Seller's
obligations in connection with the Assignment, Assumption and Recognition
Agreement or the Representations and Warranties Agreements, as applicable, for
which the applicable Original Loan Seller has performed its obligation to
indemnify the Master Servicer pursuant to the Assignment, Assumption and
Recognition Agreement or the Representations and Warranties Agreements, as
applicable, or (iv) the Master Servicer's willful malfeasance, bad faith or
negligence or by reason of its reckless disregard of its duties and obligations
under this Agreement; provided that any such loss, liability or expense
constitutes an "unanticipated expense incurred by the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii). The Master Servicer shall be
entitled to reimbursement for any such indemnified amount from funds on deposit
in the Distribution Account.
Section 9.13 Annual Statement as to Compliance. The Master Servicer
will deliver or cause to be delivered to the Depositor, the Securities
Administrator, the Rating Agencies and the Trustee on or before March 15 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 Master 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 Master 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.
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator. The Securities
Administrator shall undertake to perform such duties and only such duties as are
specifically set forth in this Agreement.
The Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Securities Administrator that are specifically
required to be furnished pursuant to any provision of this Agreement shall
examine them to determine whether they are in the form required by this
Agreement; provided, however, that the Securities Administrator shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Securities Administrator shall notify the
Certificateholders of such non conforming instrument in the event the Securities
Administrator, after so requesting, does not receive a satisfactorily corrected
instrument.
No provision of this Agreement shall be construed to relieve the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) the duties and obligations of the Securities Administrator shall
be determined solely by the express provisions of this Agreement, the
Securities Administrator shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Securities Administrator and the Securities
Administrator may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Securities Administrator and conforming to
the requirements of this Agreement which it believed in good faith to be
genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the Securities Administrator shall not be liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Securities Administrator, unless it shall be conclusively
determined by a court of competent jurisdiction, such determination no
longer subject to appeal, that the Securities Administrator was negligent
in ascertaining the pertinent facts;
(iii) the Securities Administrator shall not be liable with respect
to any action or inaction taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Holders of Certificates
evidencing not less than 25% of the Voting Rights of Certificates relating
to the time, method and place of conducting any proceeding for any remedy
available to the Securities Administrator, or exercising or omitting to
exercise any trust or power conferred upon the Securities Administrator
under this Agreement; and
(iv) the Securities Administrator shall not be accountable, shall
have no liability and makes no representation as to any acts or omissions
hereunder of the Master Servicer or the Trustee.
Section 10.02 Certain Matters Affecting the Securities
Administrator. Except as otherwise provided in Section 10.01:
(i) the Securities Administrator may request and conclusively rely
upon and shall be fully protected in acting or refraining from acting upon
any resolution, Officer's Certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties and the Securities Administrator shall have no
responsibility to ascertain or confirm the genuineness of any signature of
any such party or parties;
(ii) the Securities Administrator may consult with counsel,
financial advisers or accountants and the advice of any such counsel,
financial advisers or accountants and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) the Securities Administrator shall not be liable for any
action or inaction taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(iv) the Securities Administrator shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing not
less than 25% of the Voting Rights allocated to each Class of
Certificates; provided, however, that if the payment within a reasonable
time to the Securities Administrator of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Securities Administrator, not reasonably assured to the
Securities Administrator by the security afforded to it by the terms of
this Agreement, the Securities Administrator may require reasonable
indemnity against such expense or liability as a condition to so
proceeding. Nothing in this clause (iv) shall derogate from the obligation
of the Master Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors, provided that the
Master Servicer shall have no liability for disclosure required by this
Agreement;
(v) the Securities Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian and the Securities
Administrator shall not be responsible for any misconduct or negligence on
the part of any such agent, attorney or custodian appointed by the
Securities Administrator with due care;
(vi) the Securities Administrator shall not be required to risk or
expend its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its rights
or powers hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not assured to it, and none of the provisions contained in
this Agreement shall in any event require the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer under this Agreement;
(vii) the Securities Administrator shall be under no obligation to
exercise any of the trusts, rights or powers vested in it by this
Agreement or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Securities Administrator
reasonable security or indemnity satisfactory to the Securities
Administrator against the costs, expenses and liabilities which may be
incurred therein or thereby; and
(viii) the Securities Administrator shall have no obligation to
appear in, prosecute or defend any legal action that is not incidental to
its duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Securities Administrator
may in its discretion undertake any such action that it may deem necessary
or desirable in respect of this Agreement and the rights and duties of the
parties hereto and the interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and
any liability resulting therefrom shall be expenses, costs and liabilities
of the Trust Fund, and the Securities Administrator shall be entitled to
be reimbursed therefor out of the Collection Account.
The Securities Administrator shall have no duty (A) to see to any
recording, filing, or depositing of this Agreement or any agreement referred to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing thereof, (B) to
see to the provision of any insurance or (C) to see to the payment or discharge
of any tax, assessment, or other governmental charge or any lien or encumbrance
of any kind owing with respect to, assessed or levied against, any part of the
Trust Fund other than from funds available in the Distribution Account.
Section 10.03 Securities Administrator Not Liable for Certificates
or Mortgage Loans. The recitals contained herein and in the Certificates shall
be taken as the statements of the Depositor or the Transferor, as the case may
be, and the Securities Administrator assumes no responsibility for their
correctness. The Securities Administrator makes no representations as to the
validity or sufficiency of this Agreement or of the Certificates or of any
Mortgage Loan or related document other than with respect to the Securities
Administrator's execution and authentication of the Certificates. The Securities
Administrator shall not be accountable for the use or application by the
Depositor or the Master Servicer of any funds paid to the Depositor or the
Master Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Collection Account by the Depositor or the Master Servicer.
Section 10.04 Securities Administrator May Own Certificates. The
Securities Administrator in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact business with the parties
hereto and their Affiliates with the same rights as it would have if it were not
the Securities Administrator.
Section 10.05 Securities Administrator's Fees and Expenses. As
compensation for its activities under this Agreement, the Securities
Administrator shall be paid by the Master Servicer from the Master Servicer's
own funds from compensation received in its capacity as Master Servicer. The
Securities Administrator and any director, officer, employee, agent or "control
person" within the meaning of the Securities Act of 1933, as amended, and the
Securities Exchange of 1934, as amended ("Control Person"), of the Securities
Administrator shall be indemnified by the Trust and held harmless against any
loss, liability or expense (including reasonable attorney's fees) (i) incurred
in connection with any claim or legal action relating to (a) this Agreement, (b)
the Mortgage Loans or (c) the Certificates, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of any of the Securities Administrator's duties hereunder, (ii)
incurred in connection with the performance of any of the Securities
Administrator's duties hereunder, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of any of the Securities Administrator's duties hereunder or (iii)
incurred by reason of any action of the Securities Administrator taken at the
direction of the Certificateholders, provided that any such loss, liability or
expense constitutes an "unanticipated expense incurred by the REMIC" within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii). Such indemnity shall
survive the termination of this Agreement or the resignation or removal of the
Securities Administrator hereunder. Without limiting the foregoing, and except
for any such expense, disbursement or advance as may arise from the Securities
Administrator's negligence, bad faith or willful misconduct, or which would not
be an "unanticipated expense" within the meaning of the second preceding
sentence, the Securities Administrator shall be reimbursed by the Trust for all
reasonable expenses, disbursements and advances incurred or made by the
Securities Administrator in accordance with any of the provisions of this
Agreement with respect to: (A) the reasonable compensation and the expenses and
disbursements of its counsel not associated with the closing of the issuance of
the Certificates, (B) the reasonable compensation, expenses and disbursements of
any accountant, engineer, appraiser or other agent that is not regularly
employed by the Securities Administrator, to the extent that the Securities
Administrator must engage such Persons to perform acts or services hereunder and
(C) printing and engraving expenses in connection with preparing any Definitive
Certificates. The Trust shall fulfill its obligations under this paragraph from
amounts on deposit from time to time in the Distribution Account.
The Securities Administrator shall be required to pay all expenses
incurred by it in connection with its activities hereunder and shall not be
entitled to reimbursement therefor except as provided in this Agreement.
Section 10.06 Eligibility Requirements for Securities Administrator.
The Securities Administrator hereunder shall at all times be a corporation or
association organized and doing business under the laws the United States of
America or any state thereof, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating of at least investment grade. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 10.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 10.06, the Securities
Administrator shall resign immediately in the manner and with the effect
specified in Section 10.07 hereof. The entity serving as Securities
Administrator may have normal banking and trust relationships with the Depositor
and its affiliates or the Trustee and its affiliates.
Any successor Securities Administrator (i) may not be an originator,
the Master Servicer, the Servicer, the Depositor or an affiliate of the
Depositor unless the Securities Administrator functions are operated through an
institutional trust department of the Securities Administrator, (ii) must be
authorized to exercise corporate trust powers under the laws of its jurisdiction
of organization, and (iii) must be rated at least "A/F1" by Fitch, if Fitch is a
Rating Agency, or the equivalent rating by Standard & Poor's or Xxxxx'x. If no
successor Securities Administrator shall have been appointed and shall have
accepted appointment within 60 days after the Securities Administrator ceases to
be the Securities Administrator pursuant to Section 10.07, then the Trustee may
(but shall not be obligated to) become the successor Securities Administrator.
The Depositor shall appoint a successor to the Securities Administrator in
accordance with Section 10.07. The Trustee shall notify the Rating Agencies of
any change of Securities Administrator.
Section 10.07 Resignation and Removal of Securities Administrator.
The Securities Administrator may at any time resign by giving written notice of
resignation to the Depositor and the Trustee and each Rating Agency not less
than 60 days before the date specified in such notice when, subject to Section
10.08, such resignation is to take effect, and acceptance by a successor
Securities Administrator in accordance with Section 10.08 meeting the
qualifications set forth in Section 10.06. If no successor Securities
Administrator meeting such qualifications shall have been so appointed by the
Depositor and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Securities Administrator may petition any
court of competent jurisdiction for the appointment of a successor Securities
Administrator.
If at any time the Securities Administrator shall cease to be
eligible in accordance with the provisions of Section 10.06 hereof and shall
fail to resign after written request thereto by the Depositor, or if at any time
the Securities Administrator shall become incapable of acting, or shall be
adjudged as bankrupt or insolvent, or a receiver of the Securities Administrator
or of its property shall be appointed, or any public officer shall take charge
or control of the Securities Administrator or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or a tax is imposed with
respect to the Trust Fund by any state in which the Securities Administrator or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different Securities Administrator, then the Depositor may
remove the Securities Administrator and appoint a successor Securities
Administrator by written instrument, in triplicate, one copy of which instrument
shall be delivered to the Securities Administrator so removed, one copy of which
shall be delivered to the Master Servicer and one copy to the successor
Securities Administrator.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Securities Administrator and appoint a
successor Securities Administrator by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys in fact duly authorized,
one complete set of which instruments shall be delivered by the successor
Securities Administrator to the Trustee, one complete set to the Securities
Administrator so removed and one complete set to the successor so appointed.
Notice of any removal of the Securities Administrator shall be given to each
Rating Agency by the successor Securities Administrator.
Any resignation or removal of the Securities Administrator and
appointment of a successor Securities Administrator pursuant to any of the
provisions of this Section 10.07 shall become effective upon acceptance by the
successor Securities Administrator of appointment as provided in Section 10.08
hereof.
Notwithstanding the foregoing, if at any time the Securities
Administrator resigns pursuant to Section 10.07, the Trustee shall be authorized
to appoint, with the Depositor's consent, a successor Securities Administrator
concurrently with the appointment of a successor Master Xxxxxxxx.
Section 10.08 Successor Securities Administrator. Any successor
Securities Administrator (which may be the Trustee) appointed as provided in
Section 10.07 hereof shall execute, acknowledge and deliver to the Depositor and
to its predecessor, the Securities Administrator and the Trustee an instrument
accepting such appointment hereunder and thereupon the resignation or removal of
the predecessor Securities Administrator shall become effective and such
successor Securities Administrator, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and obligations of
its predecessor hereunder, with the like effect as if originally named as
Securities Administrator herein. The Depositor, the Trustee, the Master Servicer
and the predecessor Securities Administrator shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Securities
Administrator all such rights, powers, duties, and obligations.
No successor Securities Administrator shall accept appointment as
provided in this Section 10.08 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 10.06 hereof and its appointment shall not adversely affect the then
current rating of the Certificates, as confirmed in writing by each Rating
Agency.
Upon acceptance by a successor Securities Administrator of
appointment as provided in this Section 10.08, the Depositor shall mail notice
of the succession of such Securities Administrator hereunder to all Holders of
Certificates. If the Depositor fails to mail such notice within 10 days after
acceptance by the successor Securities Administrator of appointment, the
successor Securities Administrator shall cause such notice to be mailed at the
expense of the Depositor.
Section 10.09 Merger or Consolidation of Securities Administrator.
Any corporation or other entity into which the Securities Administrator may be
merged or converted or with which it may be consolidated or any corporation or
other entity resulting from any merger, conversion or consolidation to which the
Securities Administrator shall be a party, or any corporation or other entity
succeeding to the business of the Securities Administrator, shall be the
successor of the Securities Administrator hereunder, provided that such
corporation or other entity shall be eligible under the provisions of Section
10.06 hereof, without the execution or filing of any paper or further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 10.10 Assignment or Delegation of Duties by the Securities
Administrator. Except as expressly provided herein, the Securities Administrator
shall not assign or transfer any of its rights, benefits or privileges hereunder
to any other Person, or delegate to or subcontract with, or authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by the Securities Administrator; provided, however, that the
Securities Administrator shall have the right with the prior written consent of
the Depositor (which shall not be unreasonably withheld or delayed), and upon
delivery to the Trustee and the Depositor of a letter from each Rating Agency to
the effect that such action shall not result in a downgrade of the ratings
assigned to any of the Certificates, to delegate or assign to or subcontract
with or authorize or appoint any qualified Person to perform and carry out any
duties, covenants or obligations to be performed and carried out by the
Securities Administrator hereunder. Notice of such permitted assignment shall be
given promptly by the Securities Administrator to the Depositor and the Trustee.
If, pursuant to any provision hereof, the duties of the Securities Administrator
are transferred to a successor securities administrator, the entire compensation
payable to the Securities Administrator pursuant hereto shall thereafter be
payable to such successor securities administrator but in no event shall the fee
payable to the successor securities administrator exceed that payable to the
predecessor securities administrator.
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 11.02 and Section 11.03, the obligations and
responsibilities of the Depositor, the Master Servicer, the Servicer, the
Securities Administrator, the Custodians 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, 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, (ii) the lesser of
(x) the appraised value of any REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the Person
electing to terminate the Trust Fund (or in the case of the Servicer, acting at
the direction of the Majority Class C Certificateholder, selected by the
Majority Class C Certificateholder), at the expense of such Person (or in the
case of the Servicer, acting at the direction of the Majority Class C
Certificateholder, the Majority Class C Certificateholder), plus accrued and
unpaid interest on the related Mortgage Loan at the applicable Mortgage Interest
Rates and (y) the unpaid principal balance of each Mortgage Loan related to any
REO Property, in each case plus accrued and unpaid interest thereon at the
applicable Mortgage Interest Rate, and (iii) any Swap Termination Payment owed
to the Swap Provider (as provided to the Securities Administrator by the Swap
Provider pursuant to the Interest Rate Swap Agreement) ("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 11.02 Final Distribution on the Certificates. If on any
Remittance Date, the Servicer notifies the Securities Administrator that there
are no Outstanding Mortgage Loans and no other funds or assets in the Trust Fund
other than the funds in the Collection Account, the Servicer shall direct the
Securities Administrator promptly to send a Notice of Final Distribution to each
Certificateholder and the Swap Provider. If the Servicer (at the direction of
the Majority Class C Certificateholder), or the Master Servicer or the Servicer,
individually, elects to terminate the Trust Fund pursuant to clause (a) of
Section 11.01, by the 25th day of the month preceding the month of the final
distribution, the Person electing to terminate the Trust Fund shall notify the
Depositor, the Master Servicer, the Servicer, the Trustee, the Custodians and
the Securities Administrator of the date the electing Person intends to
terminate the Trust Fund and of the applicable Termination Price of the Mortgage
Loans and REO Properties. The Servicer, when acting at the direction of the
Majority Class C Certificateholder, shall be entitled to reasonably rely on a
representation from the Majority Class C Certificateholder that it is the
Majority Class C Certificateholder and is entitled under this Agreement to
direct the Servicer to terminate the Trust Fund.
A Notice of Final Distribution, specifying the Distribution Date on
which Certificateholders may surrender their Certificates for payment of the
final distribution and cancellation, shall be given promptly by the Securities
Administrator by letter to Certificateholders mailed not later than the 15th day
of the month of such final distribution. Any such Notice of Final Distribution
shall specify (a) the Distribution Date upon which final distribution on the
Certificates will be made upon presentation and surrender of Certificates at the
office therein designated, (b) the amount of such final distribution, (c) the
location of the office or agency at which such presentation and surrender must
be made, and (d) that the Record Date otherwise applicable to such Distribution
Date is not applicable, distributions being made only upon presentation and
surrender of the Certificates at the office therein specified. The Securities
Administrator will give such Notice of Final Distribution to each Rating Agency
at the time such Notice of Final Distribution is given to Certificateholders.
In the event such Notice of Final Distribution is given and the
Person electing to terminate the Trust Fund is the Servicer (at the direction of
the Majority Class C Certificateholder), the Majority Class C Certificateholder
shall remit the applicable Termination Price in immediately available funds to
the Servicer at least two Business Days prior to the applicable Distribution
Date, and, upon receipt of such funds from the Majority Class C
Certificateholder, the Servicer shall promptly deposit such funds in the
Collection Account. During the time such funds are held in the Collection
Account, such funds shall be invested, at the direction of the Majority Class C
Certificateholder, in Permitted Investments, and the Majority Class C
Certificateholder shall be entitled to all income from such investments, and
shall be responsible for, and shall reimburse the Servicer for all losses from
such investments. The Majority Class C Certificateholder shall be obligated to
reimburse the Servicer for its reasonable out-of-pocket expenses incurred in
connection with its termination of the Trust Fund at the direction of the
Majority Class C Certificateholder and shall indemnify and hold harmless the
Servicer for any losses, liabilities or expenses resulting from any claims
directly resulting from or relating to the Servicer's termination of the Trust
Fund at the direction of the Majority Class C Certificateholder, except to the
extent such losses, liabilities or expenses arise out of or result from the
Servicer's negligence, bad faith or willful misconduct. In the event such Notice
of Final Distribution is given and the Person electing to terminate the Trust
Fund is the Servicer, the Servicer shall deposit the Termination Price in the
Collection Account at least two Business Days prior to the applicable
Distribution Date. During the time such funds are held in the Collection
Account, such funds may be invested by the Servicer in accordance with Section
3.12. 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 Master Servicer for deposit in the Distribution Account on the Business Day
prior to the applicable Distribution Date. In the event such Notice of Final
Distribution is given and the Person electing to terminate the Trust Fund is the
Master Servicer, the Master Servicer shall deposit the Termination Price 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 applicable Custodian of a Request for Release therefor (certifying as to
such deposit), the applicable Custodian shall promptly release to the Person
electing to terminate the Trust Fund, or its designee, the Custodial Files for
the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class (after reimbursement of all amounts due to the Servicer (including all
unreimbursed Advances and any Servicing Fees accrued and unpaid as of the date
the Termination Price is paid), the Master Servicer, the Securities
Administrator, 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, and (ii) as to the Residual Certificates, the amount, if any,
which remains on deposit in the Distribution Account (other than the amounts
retained to meet claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Securities Administrator
shall give a second written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. If within six months after the second notice all the
applicable Certificates shall not have been surrendered for cancellation, the
Securities Administrator may take appropriate steps, or may appoint an agent to
take appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain a part of the Trust Fund. If within one year
after the second notice all Certificates shall not have been surrendered for
cancellation, the Class R Certificateholders shall be entitled to all unclaimed
funds and other assets of the Trust Fund which remain subject hereto.
Section 11.03 Additional Termination Requirements. In the event a
Person elects to terminate the Trust Fund as provided in Section 11.01, the
Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee has been supplied with an Opinion of Counsel,
at the expense of the electing Person, to the effect that the failure to comply
with the requirements of this Section 11.03 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 Securities Administrator shall sell all of the assets of the
Trust Fund to the Person electing to terminate the Trust Fund, or its designee,
and, within 90 days of such sale, shall distribute to the Certificateholders the
proceeds of such sale in complete liquidation of each of the Trust REMICs; and
(b) The Securities Administrator shall attach a statement to the
final federal income tax return for each of the Trust REMICs stating that
pursuant to Treasury Regulations Section 1.860F 1, the first day of the 90 day
liquidation period for each such Trust REMIC was the date on which the
Securities Administrator sold the assets of the Trust Fund to the electing
Person.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Master Servicer, the Servicer, the Securities
Administrator, the Custodians 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 Master Servicer, the Securities Administrator, the Custodians 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
Master Servicer, the Securities Administrator, the Custodians, the Trustee or
the Trust Fund), adversely affect in any material respect the interests of any
Certificateholder; provided, further, that the amendment shall not be deemed to
adversely affect in any material respect the interests of the Certificateholders
if the Person requesting the amendment obtains a letter from each Rating Agency
stating that the amendment would not result in the downgrading or withdrawal of
the respective ratings then assigned to the Certificates; it being understood
and agreed that any such letter in and of itself will not represent a
determination as to the materiality of any such amendment and will represent a
determination only as to the credit issues affecting any such rating. The
Trustee, the Depositor, the Master Servicer, the Securities Administrator, the
Custodians 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 Master Servicer, the Servicer, the Securities Administrator, the
Custodians 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 to fail
to qualify 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 12.01, 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 12.01 have been obtained.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Securities Administrator shall
furnish written notification of the substance or a copy of such amendment to
each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such 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 Securities Administrator may prescribe.
Nothing in this Agreement shall require the Trustee, the Master
Servicer, the Securities Administrator or the Custodians to enter into an
amendment which modifies its obligations or liabilities without its consent and
in all cases without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee, the Custodians, the Master Servicer, the Securities
Administrator or the Trust Fund), satisfactory to the Trustee, the Master
Servicer and the Securities Administrator 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 12.01.
Section 12.02 Recordation of Agreement; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Depositor 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 12.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. It is, further, not the intention of the
parties that such conveyances be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, 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 12.05 Notices. (a) The Securities Administrator shall use
its best efforts to promptly provide notice to each Rating Agency with respect
to each of the following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Servicer, the Master
Servicer, the Securities Administrator or the Trustee and the appointment of any
successor;
4. The repurchase or substitution of Mortgage Loans pursuant to
Sections 2.03, 2.07 or 3.28; and
5. The final payment to Certificateholders.
(b) In addition, the Securities Administrator shall promptly furnish
to each Rating Agency copies of the following:
1. Each report to Certificateholders described in Section 4.03.
2. Any notice of a purchase of a Mortgage Loan pursuant to Section
3.28.
All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to (a) in the case of
the Depositor, to GS Mortgage Securities Corp., 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
other parties hereto by the Depositor in writing; (b) in the case of the
Servicer, to Ocwen Loan Servicing, LLC, 0000 Xxxxxxxxxxx Xxxx Xxxxx 000,
Xxxxxxxxxx Xxxx, Xxxx Xxxx Xxxxx, XX 00000, Attention: Secretary, or such other
address as may be hereafter furnished to the other parties hereto by the
Servicer in writing; (c) in the case of the Trustee or the Securities
Administrator, to the Corporate Trust Office, or such other address as may be
hereafter furnished to the other parties hereto by the Trustee in writing; (d)
in the case of the Master Servicer, to Xxxxx Fargo Bank, N.A., 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: GSAMP 2005-HE6, or such
other address as may be hereafter furnished to the other parties hereto by the
Master Servicer in writing; (e) in the case of the Custodians, to Deutsche Bank
National Trust Company, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx
00000-4934, Attention: Mortgage Custody GS05VC, to Xxxxx Fargo Bank, N.A., 0000
00xx Xxxxxx XX, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Client Services Manager
GSAMP 2005-HE6, or to X.X. Xxxxxx Trust Company, National Association, 0000
Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention Document
Custodian, or such other address as may be hereafter furnished to the other
parties hereto by the applicable Custodian in writing; and (f) in the case of
each of the Rating Agencies, the address specified therefor in the definition
corresponding to the name of such Rating Agency. Notices to Certificateholders
shall be deemed given when mailed, first class postage prepaid, to their
respective addresses appearing in the Certificate Register.
Section 12.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 12.07 Assignment; Sales; Advance Facilities. (a)
Notwithstanding anything to the contrary contained herein, except as provided in
Section 6.04, this Agreement may be assigned by the Servicer with the prior
written consent of the Depositor, the Master Servicer and the Trustee. In
addition, for so long as the Servicer is acting as the Servicer hereunder (i)
the Servicer is hereby authorized to enter into an advance facility ("Advance
Facility") under which (A) the Servicer sells, assigns or pledges to an
Advancing Person the Servicer's rights under this Agreement to be reimbursed for
any P&I Advances or Servicing Advances and/or (B) an Advancing Person agrees to
fund some or all P&I Advances or Servicing Advances required to be made by the
Servicer pursuant to this Agreement and (ii) the Servicer is hereby authorized
to assign its rights to the Servicing Fee; it being understood that neither the
Trust Fund nor any party hereto shall have a right or claim to an Advance
Reimbursement Amount so assigned or to the portion of the Servicing Fee so
assigned; it being further understood that upon resignation or termination of
the Servicer and reimbursement of all amounts due to the Servicer hereunder, the
assignment of further Advance reimbursement rights to such Advance Facility (in
the case of clause (i)) and such assignment (in the case of clause (ii)) shall
be terminated with respect to amounts due related to this Agreement. No consent
of the Trustee, Certificateholders, or any other party is required before the
Servicer may enter into an Advance Facility. Notwithstanding the existence of
any Advance Facility under which an Advancing Person agrees to fund P&I Advances
and/or Servicing Advances on the Servicer's behalf, the Master Servicer shall
have no oversight obligations with respect to such Advance Facility and the
Servicer shall remain obligated pursuant to this Agreement to make P&I Advances
and Servicing Advances pursuant to and as required by this Agreement, and shall
not be relieved of such obligations by virtue of such Advance Facility.
(b) Advance reimbursement amounts ("Advance Reimbursement Amounts")
shall consist solely of amounts in respect of P&I Advances and/or Servicing
Advances made with respect to the Mortgage Loans for which the Servicer would be
permitted to reimburse itself in accordance with this Agreement, assuming the
Servicer had made the related P&I Advance(s) and/or Servicing Advance(s).
(c) The Servicer shall maintain and provide to any successor
Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced
by, pledged or assigned to, and reimbursed to any Advancing Person. The
successor Servicer shall be entitled to rely on any such information provided by
the predecessor Servicer, and the successor Servicer shall not be liable for any
errors in such information.
(d) An Advancing Person who purchases or receives an assignment or
pledge of the rights to be reimbursed for P&I Advances and/or Servicing
Advances, and/or whose obligations hereunder are limited to the funding of P&I
Advances and/or Servicing Advances shall not be required to meet the criteria
for qualification of a Subservicer set forth in this Agreement.
(e) Advance Reimbursement Amounts distributed with respect to each
Mortgage Loan shall be allocated to outstanding unreimbursed P&I Advances or
Servicing Advances (as the case may be) made with respect to that Mortgage Loan
on a "first-in, first out" (FIFO) basis. Such documentation shall also require
the Servicer to provide to the related Advancing Person or its designee
loan-by-loan information with respect to each such Advance Reimbursement Amount
distributed to such Advancing Person or Advance Facility trustee on each
Distribution Date, to enable the Advancing Person or Advance Facility trustee to
make the FIFO allocation of each such Advance Reimbursement Amount with respect
to each Mortgage Loan. The Servicer shall remain entitled to be reimbursed by
the Advancing Person or Advance Facility trustee for all P&I Advances and
Servicing Advances funded by the Servicer to the extent the related rights to be
reimbursed therefor have not been sold, assigned or pledged to an Advancing
Person.
(f) Any amendment to this Section 12.07 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 12.07, including
amendments to add provisions relating to a successor Servicer, may be entered
into by the Custodians, the Trustee, the Depositor, the Master Servicer, the
Servicer and the Securities Administrator without the consent of any
Certificateholder, notwithstanding anything to the contrary in this Agreement,
provided, that the Trustee has been provided an Opinion of Counsel that such
amendment has no material adverse effect on the Certificateholders which opinion
shall be an expense of the Servicer entering into the Advance Facility but in
any case shall not be an expense of the Trustee or the Trust Fund; provided,
further, that the amendment shall not be deemed to adversely affect in any
material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency (instead of
obtaining an Opinion of Counsel) stating that the amendment would not result in
the downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such rating letter in and
of itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. Prior to entering into an Advance Facility, the
Servicer shall notify the lender under such facility in writing that: (a) the
Advances financed by and/or pledged to the lender are obligations owed to the
Servicer on a non-recourse basis payable only from the cash flows and proceeds
received under this Agreement for reimbursement of Advances only to the extent
provided herein, and the Trustee and the Trust are not otherwise obligated or
liable to repay any Advances financed by the lender; (b) the Servicer will be
responsible for remitting to the lender the applicable amounts collected by it
as reimbursement for Advances funded by the lender, subject to the restrictions
and priorities created in this Agreement; and (c) the Trustee shall not have any
responsibility to track or monitor the administration of the financing
arrangement between the Servicer and the lender.
Section 12.08 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 12.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 12.09 Inspection and Audit Rights. The Servicer agrees that
on reasonable prior notice, it will permit any representative of the Depositor,
the Master Servicer or the Trustee during the Servicer's normal business hours,
to examine all the books of account, records, reports and other papers of the
Servicer relating to the Mortgage Loans, to make copies and extracts therefrom,
to cause such books to be audited by independent certified public accountants
selected by the Depositor, the Master Servicer or the Trustee and to discuss its
affairs, finances and accounts relating to the Mortgage Loans with its officers,
employees and independent public accountants (and by this provision the Servicer
hereby authorizes said accountants to discuss with such representative such
affairs, finances and accounts), all at such reasonable times and as often as
may be reasonably requested. Any reasonable out-of-pocket expense of the
Servicer incident to the exercise by the Depositor, the Master Servicer or the
Trustee of any right under this Section 12.09 shall be borne by the party making
the request (except in the case of requests made by the Trustee, such expenses
shall be borne by the Servicer). The Servicer may impose commercially reasonable
restrictions on dissemination of information the Servicer defines as
confidential.
Nothing in this Section 12.09 shall limit the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of the Servicer to provide access as
provided in this Section 12.09 as a result of such obligation shall not
constitute a breach of this Section. Nothing in this Section 12.09 shall require
the Servicer to collect, create, collate or otherwise generate any information
that it does not generate in its usual course of business. The Servicer shall
not be required to make copies of or to ship documents to any Person who is not
a party to this Agreement, and then only if provisions have been made for the
reimbursement of the costs thereof.
Section 12.10 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
Securities Administrator pursuant to this Agreement, are and shall be deemed
fully paid.
Section 12.11 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 12.12 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.
Section 12.13 Rights of the Swap Provider. The Swap Provider shall
be deemed a third-party beneficiary of this Agreement to the same extent as if
it were a party hereto and shall have the right to enforce its rights under this
Agreement.
Section 12.14 No Solicitation. From and after the Closing Date, the
Servicer agrees that it will not take any action or permit or cause any action
to be taken by any of its agents or Affiliates, or by any independent
contractors on the Servicer's behalf, to personally, by telephone or mail,
solicit the borrower or obligor under any Mortgage Loan, including to refinance
a Mortgage Loan, in whole or in part. It is understood and agreed that all
rights and benefits relating to the solicitation of any Mortgagors and the
attendant rights, title and interest in and to the list of such Mortgagors and
data relating to their Mortgages (including insurance renewal dates) are vested
in the Trustee pursuant hereto and the Servicer shall take no action to
undermine these rights and benefits. Notwithstanding the foregoing, it is
understood and agreed that (a) promotions undertaken by the Servicer or any
Affiliate of the Servicer which are directed to the general public at large,
including, without limitation, mass mailing based on commercially acquired
mailing lists, newspaper, radio, internet, company website, and television
advertisements and (b) solicitation of the Mortgagors under the Servicer's
existing programs and programs directed toward equivalent ends (which in no
event shall solicit the refinancing of mortgage loans from the Mortgagors),
shall, in each case, not constitute solicitation under this Section 12.14.
* * * * * * *
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the
Servicer, the Securities Administrator, the Custodians and the Trustee have
caused their names to be signed hereto by their respective officers thereunto
duly authorized as of the day and year first above written.
GS MORTGAGE SECURITIES CORP.,
as Depositor
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
OCWEN LOAN SERVICING, LLC,
as Servicer
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Representative
XXXXX FARGO BANK, N.A.,
as Master Servicer, Securities
Administrator and Custodian
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Vice President
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION, as Custodian
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By: /s/ Xxxxxx Xxxx
------------------------------------
Name: Xxxxxx Xxxx
Title: Associate
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
solely as Trustee and not in its
individual capacity
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
SCHEDULE I
Mortgage Loan Schedule
[Available Upon Request to the Trustee]
SCHEDULE II
GSAMP Mortgage Loan Trust 2005-HE6,
Mortgage Pass-Through Certificates
Representations and Warranties of Ocwen Loan Servicing, LLC, as Servicer
Ocwen Loan Servicing, LLC ("Ocwen") hereby makes the representations
and warranties set forth in this Schedule II to the Depositor, the Master
Servicer, the Securities Administrator, the Custodians and the Trustee, as of
the Closing Date, or if so specified herein, as of the Cut-off Date:
(1) Ocwen is a limited liability company duly organized, 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 Agreement to be conducted by Xxxxx in any state in
which a Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such State, to the extent
necessary to ensure its ability to enforce each Mortgage Loan and to
service each Mortgage Loan in accordance with the terms of this Agreement;
(2) Ocwen 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 Agreement and has duly
authorized by all necessary action on the part of Ocwen the execution,
delivery and performance of this Agreement; and this Agreement, assuming
the due authorization, execution and delivery thereof by the Depositor,
the Master Servicer, the Securities Administrator, each Custodian and the
Trustee, constitutes a legal, valid and binding obligation of Ocwen,
enforceable against Ocwen 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 Agreement by Xxxxx, the
servicing of the Mortgage Loans by Xxxxx hereunder, the consummation by
Xxxxx 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 Ocwen and will not (A) result in a breach of any
term or provision of the organizational documents of Ocwen 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 Ocwen is a party or by which it may be bound, or any statute, order
or regulation applicable to Ocwen of any court, regulatory body,
administrative agency or governmental body having jurisdiction over Ocwen;
and Ocwen 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 Ocwen's knowledge, would in
the future materially and adversely affect, (x) the ability of Ocwen to
perform its obligations under this Agreement or (y) the business,
operations, financial condition, properties or assets of Ocwen taken as a
whole;
(4) Ocwen is an approved seller/servicer for Xxxxxx Xxx and an
approved servicer for Freddie Mac in good standing;
(5) No litigation is pending against Ocwen that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement or the ability of Ocwen 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 Xxxxx of, or compliance by Ocwen with, this Agreement or
the consummation by Xxxxx of the transactions contemplated by this
Agreement, except for such consents, approvals, authorizations or orders,
if any, that have been obtained prior to the Closing Date; and
(7) Ocwen covenants that its computer and other systems used in
servicing the Mortgage Loans operate in a manner such that Ocwen can
service the Mortgage Loans in accordance with the terms of this Agreement.
With respect to each Mortgage Loan, to the extent Ocwen serviced
such Mortgage Loan and to the extent Ocwen provided monthly reports to the three
credit repositories, Ocwen 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.
SCHEDULE III
GSAMP Mortgage Loan Trust 2005-HE6,
Mortgage Pass-Through Certificates
Representations and Warranties of Deutsche Bank National Trust Company,
as Custodian
Deutsche Bank National Trust Company ("Deutsche Bank") hereby makes
the representations and warranties set forth in this Schedule III to the
Depositor, the Master Servicer, the Servicer, the Securities Administrator and
the Trustee, as of the Closing Date, or if so specified herein, as of the
Cut-off Date:
(1) Deutsche Bank is duly organized and is validly existing and in
good standing under the laws of its jurisdiction of incorporation and is
duly authorized and qualified to transact any and all business
contemplated by this Agreement to be conducted by Deutsche Bank or is
otherwise not required under applicable law to effect such qualification
and, in any event, is in compliance with the doing business laws of any
such state, to the extent necessary to perform any of its obligations
under this Agreement in accordance with the terms thereof.
(2) Deutsche Bank has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary
action on the part of Deutsche Bank the execution, delivery and
performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery thereof by the other parties
thereto, constitutes a legal, valid and binding obligation of Deutsche
Bank, enforceable against Deutsche Bank in accordance with its terms,
except that (i) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (ii) the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by Deutsche Bank,
the consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms thereof are
in the ordinary course of business of Deutsche Bank and will not result in
a material breach of any term or provision of the articles of association
or bylaws of Deutsche Bank.
SCHEDULE IV
GSAMP Mortgage Loan Trust 2005-HE6,
Mortgage Pass-Through Certificates
Representations and Warranties of X.X. Xxxxxx Trust Company, National
Association, as Custodian
X.X. Xxxxxx Trust Company, National Association ("X.X. Xxxxxx Trust
Company") hereby makes the representations and warranties set forth in this
Schedule III to the Depositor, the Servicer and the Trustee, as of the Closing
Date, or if so specified herein, as of the Cut-off Date:
(1) X.X. Xxxxxx Trust Company is a national trust company duly
organized, validly existing and in good standing under the federal laws of
the United States of America and is duly authorized and qualified to
transact any and all business contemplated by this Pooling and Servicing
Agreement to be conducted by X.X. Xxxxxx Trust Company;
(2) X.X. Xxxxxx Trust Company has the full power and authority 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 X.X. Xxxxxx Trust
Company the execution, delivery and performance of this Pooling and
Servicing Agreement; and this Pooling and Servicing Agreement, assuming
the due authorization, execution and delivery thereof by the Depositor,
the other Servicers and the Trustee, constitutes a legal, valid and
binding obligation of X.X. Xxxxxx Trust Company, enforceable against X.X.
Xxxxxx Trust Company 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 X.X. Xxxxxx Trust Company, the consummation by X.X. Xxxxxx
Trust Company 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 X.X. Xxxxxx Trust Company and will not (A) result in
a breach of any term or provision of the organizational documents of X.X.
Xxxxxx Trust Company 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 X.X. Xxxxxx Trust Company is a
party or by which it may be bound, or any statute, order or regulation
applicable to X.X. Xxxxxx Trust Company of any court, regulatory body,
administrative agency or governmental body having jurisdiction over X.X.
Xxxxxx Trust Company; and X.X. Xxxxxx Trust Company 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 X.X. Xxxxxx Trust Company's knowledge, would in
the future materially and adversely affect, (x) the ability of X.X. Xxxxxx
Trust Company to perform its obligations under this Pooling and Servicing
Agreement or (y) the business, operations, financial condition, properties
or assets of X.X. Xxxxxx Trust Company taken as a whole;
(4) No litigation is pending against X.X. Xxxxxx Trust Company that
would materially and adversely affect the execution, delivery or
enforceability of this Pooling and Servicing Agreement or the ability of
X.X. Xxxxxx Trust Company to perform any of its obligations hereunder in
accordance with the terms hereof; and
No consent, approval, authorization or order of any court or governmental agency
or body is required for the execution, delivery and performance by X.X. Xxxxxx
Trust Company of, or compliance by X.X. Xxxxxx Trust Company with, this Pooling
and Servicing Agreement or the consummation by X.X. Xxxxxx Trust Company 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.
SCHEDULE V
GSAMP Mortgage Loan Trust 2005-HE6,
Representations and Warranties of Xxxxx Fargo Bank, N.A., as Custodian
Xxxxx Fargo Bank, N.A. ("Xxxxx Fargo") hereby makes the
representations and warranties set forth in this Schedule IV to the Depositor,
the Servicer and the Trustee, as of the Closing Date, or if so specified herein,
as of the Cut-off Date:
(1) Xxxxx Fargo is duly organized and is validly existing and in
good standing under the laws of its jurisdiction of incorporation and is
duly authorized and qualified to transact any and all business
contemplated by this Agreement to be conducted by Xxxxx Fargo 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 perform any of its obligations under this Agreement in
accordance with the terms thereof.
(2) Xxxxx Fargo has the full power and authority to execute, deliver
and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary
action on the part of Xxxxx Fargo the execution, delivery and performance
of this Agreement; and this Agreement, assuming the due authorization,
execution and delivery thereof by the other parties thereto, constitutes a
legal, valid and binding obligation of Xxxxx Fargo, enforceable against
Xxxxx Fargo in accordance with its terms, except that (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
(3) The execution and delivery of this Agreement by Xxxxx Fargo, the
consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms thereof are
in the ordinary course of business of Xxxxx Fargo and will not (i) result
in a material breach of any term or provision of the articles of
incorporation or bylaws of Xxxxx Fargo, (ii) materially conflict with,
result in a material breach, violation or acceleration of, or result in a
material default under, the terms of any other material agreement or
instrument to which Xxxxx Fargo is a party or by which it may be bound, or
(iii) constitute a material violation of any statute, order or regulation
applicable to Xxxxx Fargo of any court, regulatory body, administrative
agency or governmental body having jurisdiction over Xxxxx Fargo; and
Xxxxx Fargo is not in breach or violation of any material indenture or
other material agreement or instrument, or in violation of any statute,
order or regulation of any court, regulatory body, administrative agency
or governmental body having jurisdiction over it which breach or violation
may materially impair Xxxxx Fargo's ability to perform or meet any of its
obligations under this Agreement.
(4) No litigation is pending or threatened against Xxxxx Fargo that
would materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of Xxxxx Fargo to perform
any of its obligations under this Agreement in accordance with the terms
thereof. For purposes of the foregoing, Xxxxx Fargo does not regard any
actions, proceedings or investigations "threatened" unless the potential
litigants or governmental authority has manifested to a member of the
Xxxxx Fargo & Company Law Department having responsibility for litigation
matters involving the corporate trust activities of Xxxxx Fargo its
present intention to initiate such proceedings.
No consent, approval, authorization or order of any court or governmental agency
or body is required for the execution, delivery and performance by Wells Fargo
of, or compliance by Xxxxx Fargo with, this Agreement or the consummation of the
transactions contemplated thereby, or if any such consent, approval,
authorization or order is required, Xxxxx Fargo has obtained the same.
EXHIBIT A-1
FORM OF CLASS A, CLASS M AND CLASS B CERTIFICATES
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER
ASSETS.
AS LONG AS THE INTEREST RATE SWAP AGREEMENT IS IN EFFECT, EACH BENEFICIAL OWNER
OF THIS CERTIFICATE, OR ANY INTEREST THEREIN, SHALL BE DEEMED TO HAVE
REPRESENTED THAT EITHER (I) IT 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 OR (II) THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE ELIGIBLE
FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AT LEAST ONE OF PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 84-14, PTCE 90-1, PTCE 91-8, PTCE 95-60 OR PTCE 96-23
OR A COMPARABLE EXEMPTION AVAILABLE UNDER SIMILAR LAW.
Certificate No. : [1]
Cut-off Date : December 1, 2005
First Distribution Date : January 25, 2006
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate
Balances of all Class Certificate
Certificates of this Class : Class Balance
Class A-1 $341,242,000
Class A-2A $137,997,000
Class A-2B $71,346,000
Class A-2C $18,060,000
Class M-1 $31,355,000
Class M-2 $29,032,000
Class M-3 $20,516,000
Class M-4 $15,097,000
Class M-5 $15,097,000
Class M-6 $13,161,000
Class M-7 $12,774,000
Class M-8 $9,290,000
Class B-1 $10,839,000
Class B-2 $10,065,000
CUSIP : Class CUSIP No.
Class A-1 362341 F8 7
Class A-2A 362341 F9 5
Class A-2B 362341 G2 9
Class A-2C 362341 G3 7
Class M-1 362341 G4 5
Class M-2 362341 G5 2
Class M-3 362341 G6 0
Class M-4 362341 G7 8
Class M-5 362341 G8 6
Class M-6 362341 G9 4
Class M-7 362341 H2 8
Class M-8 362341 H3 6
Class B-1 362341 H4 4
Class B-2 362341 H5 1
ISIN : Class ISIN
Class A-1 US362341 F873
Class A-2A US362341 F956
Class A-2B US362341 G293
Class A-2C US362341 G376
Class M-1 US362341 G459
Class M-2 US362341 G525
Class M-3 US362341 G608
Class M-4 US362341 G780
Class M-5 US362341 G863
Class M-6 US362341 G947
Class M-7 US362341 H283
Class M-8 US362341 H366
Class B-1 US362341 H440
Class B-2 US362341 H515
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-HE6
Mortgage Pass-Through Certificates, Series 2005-HE6
[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 Master Servicer, the Servicer, the Securities Administrator, the
Custodians, the Purchaser, the applicable Original Loan Seller or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer,
(the "Servicer"), Xxxxx Fargo Bank, N.A., as master servicer, (the "Master
Servicer"), as securities administrator (the "Securities Administrator") and as
custodian, Deutsche Bank National Trust Company, as custodian, X.X. Xxxxxx Trust
Company, National Association, as custodian (collectively, the "Custodians") and
LaSalle Bank National Association, 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 Securities Administrator.
* * *
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity, but
solely as Securities Administrator
By:____________________________________
Authenticated:
By:______________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-HE6
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-HE6 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 Securities Administrator 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 Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicer, the
Securities Administrator, the Custodians 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 Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 of the Agreement will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect of
the Mortgage Loans at a purchase price determined as provided in the Agreement.
The obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _____________, or, if mailed by check, to ______________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT B
FORM OF CLASS P CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (i) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM
OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (ii) THE SECURITIES
ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE
TRANSFEROR, STATING THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO 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 SECURITIES ADMINISTRATOR
AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [1]
Cut-off Date : December 1, 2005
First Distribution Date : January 25, 2006
Percentage Interest of
this Certificate
("Denomination") : [__]%
CUSIP : 362341 K8 1
ISIN : US362341K816
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-HE6
Mortgage Pass-Through Certificates, Series 2005-HE6
Class P
evidencing a percentage interest in the distributions allocable
to the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Master
Servicer, the Servicer, the Securities Administrator, the Custodians, the
Purchaser, the applicable Original Loan Seller 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"), Ocwen Loan Servicing, LLC, as servicer,
(the "Servicer"), Xxxxx Fargo Bank, N.A., as master servicer, (the "Master
Servicer"), as securities administrator (the "Securities Administrator") and as
custodian, Deutsche Bank National Trust Company, as custodian, X.X. Xxxxxx Trust
Company, National Association, as custodian (collectively, the "Custodians"),
and LaSalle Bank National Association, 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 Securities Administrator for such purpose.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor.
No transfer of a Certificate of this Class shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan subject to Section 406 of ERISA, Section 4975 of
the Code or any materially similar provisions of applicable Federal, state or
local law ("Similar Law"), or a person acting on behalf of or investing plan
assets of any such plan, which representation letter shall not be an expense of
the Securities Administrator.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By:____________________________________
Authenticated:
By ______________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-HE6
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-HE6 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 Securities Administrator 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 Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicer, the
Securities Administrator, the Custodians, 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 Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 of the Agreement will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect of
the Mortgage Loans at a purchase price determined as provided in the Agreement.
The obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _____________, or, if mailed by check, to ______________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT C-1
FORM OF CLASS R-1 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN THREE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS 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. : [1]
Cut-off Date : December 1, 2005
First Distribution Date : January 25, 2006
Initial Certificate Balance
of this Certificate
("Denomination") : $50
Initial Certificate Balance
of all Certificates of this
Class : $50
CUSIP : 362341 H6 9
ISIN : US362341H697
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-HE6
Mortgage Pass-Through Certificates, Series 2005-HE6
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 are distributable
monthly as set forth herein. This Class R-1 Certificate is not entitled to
distributions in respect of interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Master Servicer, the Servicer, the Securities Administrator, the Custodians, the
Purchaser, the applicable Original Loan Seller 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 pursuant to a Pooling and Servicing Agreements dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer
(the "Servicer"), Xxxxx Fargo Bank, N.A., as master servicer, (the "Master
Servicer"), as securities administrator (the "Securities Administrator") and as
custodian, Deutsche Bank National Trust Company, as custodian, X.X. Xxxxxx Trust
Company, National Association, as custodian (collectively, the "Custodians"),
and LaSalle Bank National Association, 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 Securities Administrator for such
purposes.
No transfer of a Class R-1 Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Depositor, the Master
Servicer, the Securities Administrator, the Servicer, the Trustee 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 Securities Administrator 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 Securities Administrator shall
not register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R-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 Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:______
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By:____________________________________
Authenticated:
By:____________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-HE6
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-HE6 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 Securities Administrator 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 Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicer, the
Securities Administrator, the Custodians 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 Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Securities Administrator and the Depositor and any agent of the
Securities Administrator 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 Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 of the Agreement will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect of
the Mortgage Loans at a purchase price determined as provided in the Agreement.
The obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _____________, or, if mailed by check, to ______________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT C-2
FORM OF CLASS R-2 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS 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. : [1]
Cut-off Date : December 1, 2005
First Distribution Date : January 25, 2006
Initial Certificate Balance
of this Certificate
("Denomination") : $100
Initial Certificate Balances
of all Certificates of this
Class : $100
CUSIP : 362341 H7 7
ISIN : US362341H770
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-HE6
Mortgage Pass-Through Certificates, Series 2005-HE6
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 are distributable
monthly as set forth herein. This Class R-2 Certificate is not entitled to
distributions in respect of interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Master Servicer, the Servicer, the Securities Administrator, the Custodians, the
Purchaser, the applicable Original Loan Seller 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 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"), Ocwen Loan Servicing, LLC, as servicer
(the "Servicer"), Xxxxx Fargo Bank, N.A., as master servicer, (the "Master
Servicer"), as securities administrator (the "Securities Administrator") and as
custodian, Deutsche Bank National Trust Company, as custodian, X.X. Xxxxxx Trust
Company, National Association as custodian (collectively, the "Custodians"), and
LaSalle Bank National Association, 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 Securities Administrator for such
purposes.
No transfer of a Class R-2 Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Depositor, the Master
Servicer, the Securities Administrator, the Servicer, the Trustee 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 Securities Administrator 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 Securities Administrator shall
not register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R-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 Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:______
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By:____________________________________
Authenticated:
By:______________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-HE6
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-HE6 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 Securities Administrator 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 Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicer, the
Securities Administrator, the Custodians 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 Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 of the Agreement will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect of
the Mortgage Loans at a purchase price determined as provided in the Agreement.
The obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _____________, or, if mailed by check, to ______________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT C-3
FORM OF CLASS R-3 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS 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. : [1]
Cut-off Date : December 1, 2005
First Distribution Date : January 25, 2006
Initial Certificate Balance
of this Certificate
("Denomination") : $50
Initial Certificate Balances
of all Certificates of this
Class : $50
CUSIP : 362341 H8 5
ISIN : US362341H853
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-HE6
Mortgage Pass-Through Certificates, Series 2005-HE6
Class R-3
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class R-3 Certificate is not entitled to
distributions in respect of interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Master Servicer, the Servicer, the Securities Administrator, the Custodians, the
Purchaser, the applicable Original Loan Seller 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 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"), Ocwen Loan Servicing, LLC, as servicer
(the "Servicer"), Xxxxx Fargo Bank, N.A., as master servicer, (the "Master
Servicer"), as securities administrator (the "Securities Administrator") and as
custodian, Deutsche Bank National Trust Company, as custodian, X.X. Xxxxxx Trust
Company, National Association, as custodian (collectively, the "Custodians"),
and LaSalle Bank National Association, 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-3
Certificate at the offices designated by the Securities Administrator for such
purposes.
No transfer of a Class R-3 Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Depositor, the Master
Servicer, the Securities Administrator, the Servicer, the Trustee 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-3 Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R-3 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-3 Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R-3 Certificate shall be a
Permitted Transferee and shall promptly notify the Securities Administrator of
any change or impending change in its status as a Permitted Transferee, (ii) no
Ownership Interest in this Class R-3 Certificate may be registered on the
Closing Date or thereafter transferred, and the Securities Administrator shall
not register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit H to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R-3 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-3 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-3 Certificate, (C) not to cause income with respect to the Class R-3
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-3 Certificate or to cause the Transfer of the Ownership Interest in this
Class R-3 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-3 Certificate in violation of
the provisions herein shall be absolutely null and void and shall vest no rights
in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:______
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By:____________________________________
Authenticated:
By:_______________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-HE6
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-HE6 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 Securities Administrator 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 Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicer, the
Securities Administrator, the Custodians 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 Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 of the Agreement will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect of
the Mortgage Loans at a purchase price determined as provided in the Agreement.
The obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _____________, or, if mailed by check, to ______________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT D
FORM OF CLASS C CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM
OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES
ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE
TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR 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 SECURITIES ADMINISTRATOR
AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [1]
Cut-off Date : December 1, 2005
First Distribution Date : January 25, 2006
Percentage Interest of
this Certificate
("Denomination") : [ ]%
CUSIP : 362341 K6 5
ISIN : US362341K659
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-HE6
Mortgage Pass-Through Certificates, Series 2005-HE6
Class C
evidencing a percentage interest in the distributions allocable
to the Certificates of the above-referenced Class.
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Master Servicer, the Servicer,
the Securities Administrator, the Custodians, the Purchaser, the applicable
Original Loan Sellers 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 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"), Ocwen Loan Servicing, LLC, as servicer
(the "Servicer"), Xxxxx Fargo Bank, N.A., as master servicer, (the "Master
Servicer"), as securities administrator (the "Securities Administrator") and as
custodian, Deutsche Bank National Trust Company, as custodian, X.X. Xxxxxx Trust
Company, National Association, as custodian, (collectively, the "Custodians"),
and LaSalle Bank National Association, 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 not be
entitled to any distributions pursuant to the Agreement. The only rights of this
Class under the Agreement is to make a request as set forth in Article XI of the
Agreement.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:______
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By:____________________________________
Authenticated:
By: ___________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-HE6
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-HE6 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 Securities Administrator 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 Securities Administrator and the other parties to
the Agreement.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicer, the
Securities Administrator, the Custodians 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 Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Securities Administrator and the Depositor and any agent of the
Securities Administrator 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 Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 of the Agreement will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect of
the Mortgage Loans at a purchase price determined as provided in the Agreement.
The obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _____________, or, if mailed by check, to ______________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT E
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS TWO
"REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER ASSETS.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (i) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM
OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (ii) THE SECURITIES
ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE
TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN
INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS
GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE
COVERED UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
OR AN OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE
EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR
RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE SECURITIES
ADMINISTRATOR, THE DEPOSITOR, THE MASTER SERVICER OR THE SERVICER TO ANY
OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY
LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE
REPRESENTATION LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES
ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [1]
Cut-off Date : December 1, 2005
First Distribution Date : January 25, 2006
Percentage Interest of this
Certificate ("Denomination") : [__]%
CUSIP : 362341 K8 1
ISIN : US362341K816
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-HE6
Mortgage Pass-Through Certificates, Series 2005-HE6
Class X
evidencing a percentage interest in the distributions allocable
to the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class X Certificate has 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 Master Servicer, the Servicer, the Securities
Administrator, the Custodians, the Purchaser, the applicable Original Loan
Seller or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that _____________ is the registered owner of the
Percentage Interest specified above of any monthly distributions due to the
Class X 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"), Ocwen Loan Servicing, LLC, as servicer
(the "Servicer"), Xxxxx Fargo Bank, N.A., as master servicer, (the "Master
Servicer"), as securities administrator (the "Securities Administrator") and as
custodian, Deutsche Bank National Trust Company, as custodian, X.X. Xxxxxx Trust
Company, National Association, as custodian (collectively, the "Custodians"),
and LaSalle Bank National Association, 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 X
Certificate at the offices designated by the Securities Administrator for such
purposes.
No transfer of a Class X Certificate shall be made unless the
Securities Administrator shall have received either (i) a representation letter
from the transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan 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 Depositor, the Master
Servicer, the Securities Administrator, the Servicer, the Trustee or the Trust
Fund, or (ii) if the Class X Certificate has been the subject of an ERISA
Qualifying Underwriting and the transferee is an insurance company, a
representation letter that it is purchasing such Certificates with the assets of
its general account and that the purchase and holding of such Certificates are
covered under Sections I and III of PTCE 95-60, or (iii) in the case of a Class
X Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or a plan or arrangement subject to Section 4975 of the Code
(or comparable provisions of any subsequent enactments) or a plan subject to
Similar Law, or a trustee of any such plan or any other person acting on behalf
of any such plan or arrangement or using such plan's or arrangement's assets, an
Opinion of Counsel satisfactory to the Securities Administrator, which Opinion
of Counsel shall not be an expense of the Depositor, the Master Servicer, the
Servicer, the Securities Administrator, the Trustee or the Trust Fund, addressed
to the Securities Administrator, to the effect that the purchase or holding of
such Certificate will not constitute or result in a non-exempt prohibited
transaction within the meaning of ERISA, Section 4975 of the Code or any Similar
Law and will not subject the Master Servicer, the Securities Administrator, the
Trustee, the Depositor or the Servicer to any obligation in addition to those
expressly undertaken in this Agreement or to any liability. 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 X Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class X Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class X Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class X Certificate shall be a
Permitted Transferee and shall promptly notify the Securities Administrator of
any change or impending change in its status as a Permitted Transferee, (ii) no
Ownership Interest in this Class X Certificate may be registered on the Closing
Date or thereafter transferred, and the Securities Administrator shall not
register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class X 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 X 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 X
Certificate, (C) not to cause income with respect to the Class X 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 X
Certificate or to cause the Transfer of the Ownership Interest in this Class X
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 X Certificate in violation of the provisions
herein shall be absolutely null and void and shall vest no rights in the
purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:______
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By:____________________________________
Authenticated:
By:_______________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-HE6
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-HE6 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 Securities Administrator 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 Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicer, the
Securities Administrator, the Custodians 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 Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 of the Agreement will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect of
the Mortgage Loans at a purchase price determined as provided in the Agreement.
The obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _____________, or, if mailed by check, to ______________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
[EXHIBIT F]
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
[Master Servicer]
[Servicer]
[Trustee]
------------------------
------------------------
Re: Pooling and Servicing Agreement among GS Mortgage Securities Corp.,
as Depositor, Ocwen Loan Servicing, LLC, as Servicer, Xxxxx Fargo
Bank, N.A., as Master Servicer, Securities Administrator and
Custodian, Deutsche Bank National Trust Company, as a Custodian,
X.X. Xxxxxx Trust Company, National Association, as a Custodian, and
LaSalle Bank National Association, as Trustee, GSAMP Trust 2005-HE6
-------------------------------------------------------------------
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) except with respect to each MERS Designated Mortgage Loan, 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
collectibility, 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.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
XXXXX FARGO BANK, N.A.
as Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION as Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
[EXHIBIT G]
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF CUSTODIAN
[date]
[Depositor]
[Master Servicer]
[Servicer]
[Trustee]
---------------------
---------------------
Re: Pooling and Servicing Agreement among GS Mortgage Securities Corp.,
as Depositor, Ocwen Loan Servicing, LLC, as Servicer, Xxxxx Fargo
Bank, N.A., as Master Servicer, Securities Administrator and
Custodian, Deutsche Bank National Trust Company, as a Custodian,
X.X. Xxxxxx Trust Company, National Association, as a Custodian, and
LaSalle Bank National Association, as Trustee, GSAMP Trust 2005-HE6
-------------------------------------------------------------------
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) Except with respect to each MERS Designated Mortgage Loan, 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 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) Except with respect to each MERS Designated Mortgage Loan, the
original or duplicate original recorded assignment or assignments of the
Mortgage endorsed in blank showing a complete chain of assignment from the
originator to the last endorsee.
(v) The original or duplicate original or certified copy 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 collectibility, 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 holder of the Mortgage Note or assignee thereof, in and to that
Mortgage Note or (ii) any assignment is in recordable form or sufficient to
effect the assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
XXXXX FARGO BANK, N.A.
as Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION as Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT H
FORM OF RESIDUAL TRANSFER AFFIDAVIT
GSAMP Trust 2005-HE6,
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 December 1, 2005 (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer (the
"Servicer"), Xxxxx Fargo Bank, N.A., as master servicer, (the "Master
Servicer"), as securities administrator (the "Securities Administrator") and as
custodian, Deutsche Bank National Trust Company, as custodian, X.X. Xxxxxx Trust
Company, National Association, as custodian (collectively, the "Custodians"),
and LaSalle Bank National Association, 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 Securities Administrator.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Securities Administrator a certificate
substantially in the form set forth as Exhibit I 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.
2. 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 I
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Xxxxx Fargo Bank, N.A.
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
Attention: Corporate Trust Services GSAMP 2005-HE6
Re: GSAMP Trust 2005-HE6, Mortgage Pass-Through Certificates,
Series 2005-HE6, 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 J
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Xxxxx Fargo Bank, N.A.
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
Attention: Corporate Trust Services GSAMP 2005-HE6
Re: GSAMP Trust 2005-HE6, Mortgage Pass-Through Certificates, Series
2005-HE6 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 III
of PTCE 95-60, (e) we have not, nor has anyone acting on our behalf offered,
transferred, pledged, sold or otherwise disposed of the Certificates, any
interest in the Certificates or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute a
distribution of the Certificates under the Securities Act or that would render
the disposition of the Certificates a violation of Section 5 of the Securities
Act or require registration pursuant thereto, nor will act, nor has authorized
or will authorize any person to act, in such manner with respect to the
Certificates, and (f) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act and have completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex 2. We
are aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, 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 J
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $_________________ (1) in securities
(except for the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in accordance with
Rule 144A and (ii) the Buyer satisfies the criteria in the category marked
below.
--------
(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, Xxxxx must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
____ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or
territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is
attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
____ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
_______________________________________
Print Name of Transferee
By:____________________________________
Name:
Title:
Date:__________________________________
ANNEX 2 TO EXHIBIT J
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
____ The Buyer owned $ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
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 K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
---------------------
Date
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Xxxxx Fargo Bank, N.A.
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
Attention: Corporate Trust Services, GSAMP 2005-HE6
Re: GSAMP Trust 2005-HE6, Mortgage Pass-Through Certificates,
Series 2005-HE6, Class [ ]
---------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
institutional "accredited investor" (within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Act, and have such knowledge and experience
in financial and business matters that we are capable of evaluating the merits
and risks of investments in the Certificates, (c) we have had the opportunity to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates, (d)
either 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.
_______________________________________
Print Name of Transferee
By:____________________________________
Name:
Title:
Date:__________________________________
EXHIBIT L
FORM OF REQUEST FOR RELEASE
(for Custodians)
To: [Address]
Re:
In connection with the administration of the Mortgage Loans held by
you as the Custodian on behalf of the Certificateholders we request the release,
and acknowledge receipt, of the (Custodial File/[specify documents]) for the
Mortgage Loan described below, for the reason indicated.
Mortgagor's Name, Address & Zip Code:
------------------------------------
Mortgage Loan Number:
--------------------
Reason for Requesting Documents (check one)
-------------------------------
____1. Mortgage Loan Paid in Full. (The Servicer 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, 2.08 or
3.28 of the Pooling and Servicing Agreement. (The Servicer
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 Servicer
hereby certifies that all proceeds of foreclosure, insurance,
condemnation or other liquidation have been finally received
and credited to the Collection Account pursuant to the
Pooling and Servicing Agreement.)
____4. Mortgage Loan in Foreclosure.
____5. Other (explain).
If box 1, 2 or 3 above is checked, and if all or part of the Custodial File was
previously released to us, please release to us our previous request and receipt
on file with you, as well as any additional documents in your possession
relating to the specified Mortgage Loan.
If Box 4 or 5 above is checked, upon our return of all of the above documents to
you as the Custodian, please acknowledge your receipt by signing in the space
indicated below, and returning this form, if requested.
Address to which Custodian should
deliver the Custodian's Mortgage File: ______________________________________
______________________________________
______________________________________
OCWEN LOAN SERVICING, LLC
By: __________________________
Name:
Title:
Date:
Acknowledged receipt by:
[Deutsche Bank National Trust Company, as Custodian
By:__________________________________________
Name:
Title:
Date:]
[X.X. Xxxxxx Trust Company, National Association, as Custodian
By:___________________________________________
Name:
Title:
Date:]
[Xxxxx Fargo Bank, N.A., as Custodian
By:___________________________________________
Name:
Title:
Date:]
EXHIBIT M
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 applicable Custodian, as applicable:
(a) The documents or instruments set forth as items (i) to (vii) in
Section 2.01(b) of the Agreement.
(b) 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 N-1
SERVICER REPORTING REQUIREMENTS
DATA FILE LAYOUT
--------------------------------------------------------------------------------------------------------------------------------
XXXXXXX XXXXX LOAN SERVICER INFORMATION REQUEST LIST
--------------------------------------------------------------------------------------------------------------------------------
Legend:
A=Available at Inception
T=Tech staff to resolve
B=Best efforts to provide data
N=Not available
--------------------------------------------------------------------------------------------------------------------------------
FIELD NAME FIELD DESCRIPTION FORMAT
--------------------------------------------------------------------------------------------------------------------------------
ONE TIME, STATIC FIELDS Legend
--------------------------------------------------------------------------------------------------------------------------------
Loan Number A Loan Number currently being used to service this loan. Text
Prior Loan Number A Prior Loan Number (if any). If servicing has transferred Text
this should contain the Loan Number used by the previous
servicer.
Trustee File Number T Trustee ID used to file documents. This can be the Text
Trustee's only id or a category used to arrange documents
into proper pools.
Trustee Loan Number T Trustee secondary ID used to file documents. Often this is Text
used in conjunction with Trustee File Number to uniquely
identify loans.
Origination Date A Origination Date shown on loan documents. Date
Original Balance A Original amount of loan granted to borrower. In the case Numeric
of construction loans this should be the full amount
extended on which the monthly payments are based.
First Payment Date A This is the contractual date when the first payment was to be made. If
the loan has been modified this should be the first scheduled payment
date following the modification.
Original Maturity Date A This is the contractual date when the last payment on the Date
loan is scheduled to be made. For balloons it should be
the balloon date. For modified loans it should not be the
modified maturity date.
Original Term A The number of months from First Payment Date to Maturity Number
Date inclusive.
Balloon Flag A Code/literal to identify balloon loans. Example: Y, N. Text
Loan Type A Code/literal to identify the loan type. See Enumerations Text
worksheet.
Amortization Type A Generic category to describe loan type. See Enumerations Text
worksheet.
Original Amortization Term A Original Amortization Term of the loan in number of Number
months. For fully amortizing loans would be the same as
Original Term. For balloon loans this would exceed
Original Term. For IO loans this would have no value.
Interest Calculation Method A The basis on which interest is calculated. See
Enumerations worksheet.
Daily Simple Interest Flag T Flag to identify loans where interest is due is calculated based on the
date that each payment is actually received.
Original Principal and A Original contractual principal and interest payment amount. Number
Interest
Original Interest Rate A Original contractual interest rate for loan.
Negative Amortization Flag A Code/literal to identify loans where negative amortization Text
is allowed. Example: Y=neg am allowed, N=no neg am
allowed.
Negam Percent Cap A Maximum percentage of original balance that a loan may Number
negatively amortize by. Example: 1.25, 1,10.
Servicing Fee A Servicing Fee rate due servicer. Example: 0.25%. Number
Property Type A Code/literal that identifies the type of property securing Text
the loan. See Enumerations worksheet.
Property Address A Property address, not billing address. Text
Property City A Property city. Text
Property State A Property state. Text
Property Zip A Property zip. Number
Borrower Name A Name of borrower. Preferably in a fixed format. Text
Example: XXXXX
XXXX X.
CoBorrower Name A Name of Co borrower. Preferably in a fixed Text
format. Example:
XXXXX XXXX X.
Borrower Social Security Eleven character ID. Example: 000-00-0000. Number
Number/TIN
A
CoBorrower Social Security Eleven character ID. Example: 000-00-0000. Number
Number/TIN
A
Original FICO score A Credit bureau score obtained at application. Number
Original Credit Grade A Internal credit grade assigned at origination. Text
Original Loan To Value Ratio A Ratio representing the Original Loan Balance to the lower of the Original
Appraised Value or Original Purchase Price. Example: 80.00.
Original Appraised Value A Appraised value at time of application. Number
Original Appraisal Date A Date of the original Appraisal Date
Original Appraisal Firm A Name of the Appraisal firm Text
Original Purchase Price A Price paid for home. Number
Purchase BPO A BPO at the time of Purchase by GS. Number
Purchase BPO Date A Date of the Purchase BPO Date
Lien Position A Number used to identify the lien position in effect at the Number
time of application. Example: 1, 2, 3
PMI Provider A Name or code for company providing private mortgage
insurance.
PMI Coverage Percentage A Percentage of insurance provided by PMI agreement.
PMI Certificate ID A Unique ID to identify PMI insurance certificate.
Occupancy Type A Occupancy status at time of application. See Enumerations Text
worksheet.
Purpose of Loan A Code/literal used to identify the original purpose of the Text
loan. See Enumerations worksheet.
Prepayment Flag A Code/Flag to determine if loan was originated with a Text
prepayment penalty.
Prepayment Penalty Type T Code/literal to identify characteristics of penalty. Text
Example: 6 MO INT ON 80% XXXX, 5/4/3/2/1, 3%.
Prepayment Term A Original number of months that penalty was imposed. Number
Front Ratio T Front End Ratio at time of application. Mortgage debt to Number
borrower income.
Back Ratio T Back End Ratio at time of application. Total debt to Number
borrower income.
--------------------------------------------------------------------------------------------------------------------------------
MONTHLY LOAN DATA UPDATES
--------------------------------------------------------------------------------------------------------------------------------
As Of Date A As Of Date for data sent. Date
Loan Number A Loan Number currently being used to service this loan. Number
Investor Number A This is the servicer assigned number for reporting purposes. Number
Investor Category A This is the servicer assigned category for reporting
purposes.
Current Maturity Date A This is the actual date when the last payment on the loan Date
is scheduled to be made. For balloons it should be the
balloon date. For modified loans it should be the modified
maturity date.
Remaining Term A The Remaining Term of the loan Number
Current Principal & Interest A Principal & Interest in effect for currently outstanding Number
Payment payment.
Current Interest Rate A Interest Rate in effect for currently outstanding payment. Number
Next Due Date A Date next payment is due.
Interest Paid To Date A Date interest is paid to. Typically for 30/360 loans it is one month
prior to Next Due Date.
Last Payment Date A Date last payment was made. Date
Current Balance A Actual outstanding balance of loan. Number
Current Balance Net Present T The net present value of the current balance Number
Value
Days Past Due A Number of days loan is past due.
Delinquency Convention Indicates if ABS or MBS method for reporting delinquencies
is used.
Delinquency Status A Indicates delinquency reported. Example: 30, 60, 90. Number
Status of Loan A Code/literal used to identify loan status. See Text
Enumerations worksheet.
12 Month Pay String T 12 character string representing the timing of payments received on a
rolling 12 month basis. String should begin with January and end with
December.
Time 30 Days Delinquent in Past 12 Indicates the number of times a loan payment has been made 30 or more
Months days delinquent in the past 12 months.
A
Time 60 Days Delinquent in Past 12 Indicates the number of times a loan payment has been made 60 or more
Months days delinquent in the past 12 months.
A
Time 90 Days Delinquent in Past 12 Indicates the number of times a loan payment has been made 90 or more
Months days delinquent in the past 12 months.
A
Last Modification Date B Date that loan was last modified.
Last Extension Date B Date loan term was last extended.
Total Extension Months B Number of months loan has been extended in total.
Restructured Interest B Total amount of restructured interest.
Property Sale Date A Date property sold. Date
Debt To Income Ratio A Debt To Income Ratio Number
Senior Xxxx Xxxxxx A Most recently recorded senior lien amount. Number
Recent Property Valuation A Most recent appraised value or BPO value. Number
Recent Property Valuation Date A Date of most recent valuation. Date
Valuation Method A Identify method used to obtain new valuation. See Text
Enumerations worksheet.
Valuation Firm T Name of the Firm who appraised the property Text
Current FICO T Current FICO score. Number
FICO Date T FICO Date. Date
--------------------------------------------------------------------------------------------------------------------------------
MONTHLY SERVICING UPDATES
--------------------------------------------------------------------------------------------------------------------------------
Borrower Payments
Total Monthly Payment A Total cash received from borrower. Number
Total Monthly Payment A Cash applied to principal. Number
Principal
Total Monthly Payment Interest A Cash applied to interest. Number
Total Monthly Payment Cash applied to fees. Text
Penalties / Fee
A
Total Monthly Escrow Payment A Cash applied to escrow account. Number
Total Monthly Prepayment T Total amount borrower prepaid Number
Amount
Payment Date A Date the payment was made. Date
Scheduled P&I A Borrower Scheduled P&I payment for the month Number
REO Rent Collection A Collection of rent on an REO Property
Servicer Payments
Monthly Escrow Advances A Net escrow advances made or recovered by servicer. Number
Positive value denotes payments made by servicer.
Monthly Corporate Advances A Net corporate advances made or recovered by servicer. Number
Positive value denotes payments made by servicer.
Monthly Non Recoverable Corporate Net Non Recoverable Corporate Advances made or recovered by Number
Advances Servicer. Positive value denotes payments made by Servicer.
A
Principal Advances A Total outstanding principal advances made by servicer. Number
Interest Advances A Total outstanding interest advances made by servicer. Number
LPMI Flag A Code/Flag to determine if PMI is paid by owner of loan Text
LPMI Rate A Rate per annum of LPMI premiums Number
Account Balances
Beginning Scheduled Balance A Beginning scheduled loan balance. If the loan is serviced Number
on a scheduled balance basis
Ending Scheduled Balance A Ending scheduled loan balance. If the loan is serviced on
a scheduled balance basis
Escrow Balance A Current balance of escrow account (borrower's positive Number
funds).
Escrow Advance Balance A Total outstanding escrow advance balance. Number
Recoverable Corporate Advance A Total outstanding Recoverable corporate advance balance Number
Balance amount.
Non Recoverable Corporate Total outstanding Non Recoverable corporate advance balance Number
Advance Balance amount.
A
Suspense Account Balance A Total suspense account balance Number
Accrued Interest A Total Accrued Interest on loan. Number
Account Management Statistics
Forced Placed Insurance Flag T Code indicating loan is on forced placed insurance.
Annual Forced Placed Insurance T Amount of forced placed policy.
Stop Advance Flag B Code indicating loan has been placed in a stop advance Text
status. Example: Y=Stop Advance.
Stop Advance Recovered B Amount of principal and interest advances recovered at stop
date.
Stop Advance Start Date B Date loan was initially placed on a stop advance status. Date
Stop Advance Reversal Date B Date stop advance status was reversed. Date
Stop Advance Reversal Amount B Amount of advances reversed. Number
Last Contact Date A Date of Xxxxxxxx's last contact with the borrower. Date
Last Attempt Date A Date of the Servicer's last attempt to contact the borrower. Date
Bankruptcy Flag A Flag indicating loan is in bankruptcy. Text
Bankruptcy Chapter A Chapter of bankruptcy (7, 11, 12, 13). Text
Bankruptcy Start Date A Bankruptcy filing date. Date
Bankruptcy End Date A Dismissal/Discharge date. Date
Bankruptcy Post Petition Due A Payment due date of Bankruptcy payment plan. In essence Date
Date the new due date.
Motion for Relief Request Date A Motion for Relief Request Date. Date
Motion for Relief Filing Date A Date
Motion for Relief Hearing Date A Motion for Relief Hearing Date. Date
Motion for Relief Granted Date A Motion for Relief Granted Date. Date
Motion for Relief Denied Date N Date the motion was Denied (if applicable) Date
In Demand Flag T Code indicating demand letter has been sent. Text
In Demand Start Date T Date demand letter was sent. Date
In Demand End Date T Expiration of demand letter. Date
Foreclosure Start Date A Date foreclosure flag placed on loan. Date
Due Date At Referral T The revised due date on any payment modification. Date
Foreclosure Estimated End Date T On loans that are in Foreclosure the Servicer estimate of when the FCL
will be completed.
Foreclosure Sale Date A Date of actual foreclosure sale. Date
Foreclosure end date T Date of recording of foreclosure deed. Date
First Legal Date A Date of first legal action taken on foreclosure. Date
Foreclosure Resolution Flag B Indicates if the loan has moved out of foreclosure (i.e. Number
Did not go to REO).
Foreclosure Resolution Type B Method used by the servicer to prevent the foreclosed loan from moving
into REO (i.e. Reinstated, Paid Off, Worked out Repayment plan....).
Foreclosure On Hold B Flag indicating that the loan is in foreclosure but on hold.
Foreclosure Hold Start Date B Date indicating when the loan's foreclosure proceedings Date
were put on hold.
Bankruptcy Cash Delays B Number of days an active foreclosure has been in BK subsequent to its
initial foreclosure start date.
Forbearance Cash Delays B Number of days an active foreclosure has been in forbearance subsequent
to its initial foreclosure start date.
Non - Cash Delays B Number of allowable days that a loan's foreclosure proceedings have been
on hold due to a non cash delay (i.e. Title problem...) [again as per
Xxxxxx time line]
Forbearance Start Date A Date forbearance plan was initiated. Date
Forbearance Payment A Amount of payment under Forbearance plan. Number
Forbearance End Date A Date forbearance plan scheduled to be complete. Date
Eviction Start Date A Date eviction flag placed on loan. Date
Eviction End Date A Date property is vacated. Date
REO Start Date A Date REO flag placed on loan (including any redemption Date
periods).
REO End Date A Date property is sold. Date
REO Sub Status A Status while within REO. See Enumerations worksheet.
Not Acquired Date T Date that the REO enters "Not Acquired" sub status Date
Eviction Date A Date that the REO enters "Eviction" sub status Date
Possession Date T Date that the REO enters "Possession" sub status Date
Listed Date A Date that the REO enters "Listed" sub status Date
Under Contract Date T Date that the REO enters "Under Contract" sub status Date
Estimated Sale Date A Servicer estimated closing date on loan Date
Days In REO A Number of Days from the REO becomes marketable to the As of Number
Date
Estimated Sales Price A Servicer estimated REO Sales Price Number
Possession Date A Date when the servicer takes possession of the property. Date we have
full access to the property, eviction completed
Redemption End Date A Legal time period, determined by State, when borrower can redeem their
property. Property not available for sale until redemption completed (no
beginning date, just an end date)
Initial Listing Price A First listing price of property. Number
Initial Listing Date A Date of the first listing price of property Date
Current List Price A Most recent listing price of property. Number
Current List Date A Date of the most recent listing price of property. Date
Reason For Default A Servicer Code representing the Reason for Default. See Enumerations
worksheet.
--------------------------------------------------------------------------------------------------------------------------------
LIQUIDATED LOANS (Liquidated and Paid Off loans)
--------------------------------------------------------------------------------------------------------------------------------
Termination Type A Type of liquidation. See Enumerations worksheet. Text
Balance at Termination A Actual Principal balance at time of termination. Number
Scheduled Sale Date A Dates of planned sales for properties in Foreclosure Date
Property Sales Price A Sales price if liquidation was short sale or REO sale. Number
Liquidation Date A Date property liquidated. Date
Gross Total Proceeds A Gross Total Proceeds. Number
Net Total Proceeds A Gross total proceeds less expenses.
Principal Advanced A Total of principal advanced at time of liquidation. Number
Interest Advanced A Total of interest advanced at time of liquidation. Number
Deferred Interest T Amount of deferred interest on the loan @ liquidation Number
Accrued Servicing Fee Recovered T Servicing fee recovered at time of liquidation. Number
Corporate Advances Recovered at The amount of the Total Corporate Advance balance recovered at Number
Termination A termination
Escrow Advances Recovered at The amount of the Total Escrow Advance balance recovered at Number
Termination A termination
Commission A The broker commission amount on liquidation Number
Seller Concession A The dollar amt of seller concessions upon liquidation. Number
Taxes A Taxes paid on liquidation Number
Repairs A Cost of Repairs to property Number
Water and Sewer A Water & Sewer costs Number
Expenses Recovered at A The amount of the Total Expenses recovered at termination Number
Termination
Corporate Advances at A Corporate advance balance at time of liquidation. Number
Termination
Escrow Advances at Termination T Escrow advance balance at time of liquidation. Number
Days from Acquisition to Close A Days from Acquisition to Close Number
Days from Possession to Close A Days from Possession to Close Number
Charge-off amount A Loss amount. Number
Severity A Severity percentage.
Severity Formula A Formula for calculating Severity percentage. Text
Potential Deficiency Judgment N Flag indicating loan is referred for deficiency collections. Text
Flag
Potential Deficiency Amount N Deficiency balance reported to borrower/IRS. Number
Deficiency Proceeds (this N Deficiency proceeds collected in current month. Number
period)
Deficiency Proceeds Total (to N Deficiency proceeds collected to date. Number
date)
Deficiency Vendor Expense N Deficiency vendor out of pocket expenses. Number
Deficiency Servicer Expense N Deficiency vendor collection fee Number
Hazard Insurance Claim Date B Date hazard claim filed. Date
Hazard Insurance Claim Due Date B Date hazard claim due. Number
Hazard Insurance Claim Amount B Amount of hazard claim. Date
Hazard Insurance Claim Paid Amount of hazard claim paid to investor. Number
Amount B
MI Insurance Claim Date A Date MI claim filed.
MI Insurance Claim Due Date A Date MI claim is due to be paid.
MI Insurance Claim Amount A Expected MI proceeds.
MI Insurance Claim Paid Amount A Actual MI proceeds received.
Servicer Hold Back Amount B Amount servicer withholds for future trailing expenses.
--------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------
Interest
Calculation Method
------------------------------------------------------
3360 30/360
A360 Actual/360
A365 Actual/365
AA Actual/Actual
------------------------------------------------------
------------------------------------------------------
Loan Type
------------------------------------------------------
COMI Conventional, with mi.
Collecting a premium from the
borrower for mortgage insurance
and is FHA and is VA
CONV Conventional, no mi
FHA FHA Mortgage
HEL Home Equity Line of credit
CC Credit Card
A Auto
B Boats
RV RV's
MFG Manufactured Housing
ATV ATV
VA VA Mortgage
OTH Other
------------------------------------------------------
------------------------------------------------------
Occupancy Type
------------------------------------------------------
2ND 2nd Home
NOO Non Owner Occupied
OO Owner Occupied
VA Vacant
------------------------------------------------------
------------------------------------------------------
Property Type
------------------------------------------------------
2F 2 Family
3F 3 Family
4F 4 Family
2-4F 2-4 Family
AUTO Automobile
BOAT Boat
COND Condominium
COOP Cooperative
HR-CONDO High Rise Condo
HVAC HVAC
MF Multi Family
MH Manufactured Housing
MX Mixed Use
OF Office
OTH Other
PUDA PUD - Attached
PUDD PUD - Detached
PWR PowerSports
RT Retail
RV Recreational Vehicle
SF Single Family
TH TownHouse
------------------------------------------------------
------------------------------------------------------
Purpose of Loan
------------------------------------------------------
PUR Purchase
RELO Relocation
REFI Rate/Term Refinance
CASH Cash Out Refinance
DEBT Cash Out Debt Consolidation
IMPR Cash Out Home Improvement
EDUC Cash Out Medical or Educational
Expense
TIT1 Title One Home Improvement
CONST New Construction
REO Facilitate REO
------------------------------------------------------
------------------------------------------------------
Status of Loan
------------------------------------------------------
BU Bankrupt - Unknown Status
C Current
DISP Dispute
F Foreclosure
NE Non Equity (NPV of current
balance < $7,500)
FB Forbearance
ID In Demand
LIT Litigation
NLS No Longer Serviced
PO Paid Off- Borrower paid down
entire balance
REO Real Estate Owned - MUST
Include a REO sub status
RSLD Resolved
LIQ Liquidated - MUST include a
Termination Type
U Unknown
------------------------------------------------------
------------------------------------------------------
Termination Type
------------------------------------------------------
CO Charge Off
COC Charge Off with cash possible
NLPO Negotiated Loan Payoff
NS Negotiated Sale
PO Paid Off
PPOC PPO with More Cash Possible
REOS REO Sale
TPPO Third Party Paid Off
------------------------------------------------------
------------------------------------------------------
Valuation Method
------------------------------------------------------
DB Drive By
WT Walk Through
OTH Other
APPR Appraisal
DD Due Diligence
PRFC Pre Foreclosure
SUPP Supplemental
RR Re-review
------------------------------------------------------
------------------------------------------------------
REO Sub Status
------------------------------------------------------
AC Acquired
PS Possession
EV Eviction
LS Listed
UC Under Contract
------------------------------------------------------
------------------------------------------------------
Reason For Default
------------------------------------------------------
ABP Abandonment of Property
BF Business Failure
CI Curtailment Of Income
D Death
EO Excessive Obligations
ILL Illness
ITR Inability To Rent
MD Marital Difficulties
MS Military Service
MI Mortgagor Incarcerated
N No Reason
PD Payment Dispute
PP Property Problem
SP Servicing Problems
TOP Transfer Of Ownership Pen
UC Unable To Contact
UEMP Unemployment
------------------------------------------------------
EXHIBIT N-2
STANDARD FILE LAYOUT
---------------------------------------------------------------------------------------------------------
Column Name Description Decimal Format Comment
---------------------------------------------------------------------------------------------------------
LOAN_NBR Loan Number assigned by investor Text up to 10 digits
---------------------------------------------------------------------------------------------------------
SERVICER LOAN_NBR Servicer Loan Number Text up to 10 digits
---------------------------------------------------------------------------------------------------------
BORROWER_NAME Mortgagor name assigned to Note Max length of 30
---------------------------------------------------------------------------------------------------------
No commas(,) or dollar
SCHED_PMT_AMT P&I constant 2 signs ($)
---------------------------------------------------------------------------------------------------------
NOTE_INT_RATE Gross Interest Rate 4 Max length of 6
---------------------------------------------------------------------------------------------------------
Gross Interest Rate less the
NET_RATE Service Fee Rate 4 Max length of 6
---------------------------------------------------------------------------------------------------------
SERV_FEE_RATE Service Fee Rate 4 Max length of 6
---------------------------------------------------------------------------------------------------------
No commas(,) or dollar
NEW_PAY_AMT ARM loan's forecasted P&I constant 2 signs ($)
---------------------------------------------------------------------------------------------------------
ARM loan's forecasted Gross
NEW_LOAN_RATE Interest Rate 4 Max length of 6
---------------------------------------------------------------------------------------------------------
ARM_INDEX_RATE ARM loan's index Rate used 4 Max length of 6
---------------------------------------------------------------------------------------------------------
No commas(,) or dollar
ACTL_BEG_BAL Beginning Actual Balance 2 signs ($)
---------------------------------------------------------------------------------------------------------
No commas(,) or dollar
ACTL_END_BAL Ending Actual Balance 2 signs ($)
---------------------------------------------------------------------------------------------------------
NEXT_DUE_DATE Borrower's next due date MM/DD/YYYY
---------------------------------------------------------------------------------------------------------
No commas(,) or dollar
CURT_AMT_1 Curtailment Amount 2 signs ($)
---------------------------------------------------------------------------------------------------------
Due date Curtailment was applied
CURT_DATE_1 to MM/DD/YYYY
---------------------------------------------------------------------------------------------------------
No commas(,) or dollar
CURT_ADJ_ AMT_1 Curtailment Interest if applicable 2 signs ($)
---------------------------------------------------------------------------------------------------------
No commas(,) or dollar
CURT_AMT_2 Curtailment Amount 2 2 signs ($)
---------------------------------------------------------------------------------------------------------
Due date Curtailment was applied
CURT_DATE_2 to MM/DD/YYYY
---------------------------------------------------------------------------------------------------------
No commas(,) or dollar
CURT_ADJ_ AMT2 Curtailment Interest if applicable 2 signs ($)
---------------------------------------------------------------------------------------------------------
No commas(,) or dollar
CURT_AMT_3 Curtailment Amount 3 2 signs ($)
---------------------------------------------------------------------------------------------------------
Due date Curtailment was applied
CURT_DATE_3 to MM/DD/YYYY
---------------------------------------------------------------------------------------------------------
Curtailment Interest, if No commas(,) or dollar
CURT_ADJ_AMT3 applicable 2 signs ($)
---------------------------------------------------------------------------------------------------------
No commas(,) or dollar
SCHED_BEG_BAL Beginning Scheduled Balance 2 signs ($)
---------------------------------------------------------------------------------------------------------
No commas(,) or dollar
SCHED_END_BAL Ending Scheduled Balance 2 signs ($)
---------------------------------------------------------------------------------------------------------
No commas(,) or dollar
SCHED_PRIN_AMT Scheduled Principal portion of P&I 2 signs ($)
---------------------------------------------------------------------------------------------------------
Scheduled Net Interest (less No commas(,) or dollar
SCHED_NET_INT Service Fee) portion of P&I 2 signs ($)
---------------------------------------------------------------------------------------------------------
Liquidation Principal Amt to No commas(,) or dollar
LIQ_AMT bring balance to zero 2 signs ($)
---------------------------------------------------------------------------------------------------------
PIF_DATE Liquidation Date MM/DD/YYYY
---------------------------------------------------------------------------------------------------------
Either 60 for liquidation or 65
ACTION_CODE for Repurchase Max length of 2
---------------------------------------------------------------------------------------------------------
Principal Adjustments made to No commas(,) or dollar
PRIN_ADJ_AMT loan, if applicable 2 signs ($)
---------------------------------------------------------------------------------------------------------
Interest Adjustment made to loan, No commas(,) or dollar
INT_ADJ_AMT if applicable 2 signs ($)
---------------------------------------------------------------------------------------------------------
PREPAYMENT PENALTY Prepayment penalty amount, if No commas(,) or dollar
AMT applicable 2 signs ($)
---------------------------------------------------------------------------------------------------------
SOILDER_SAILOR ADJ Soldier and Sailor Adjustment No commas(,) or dollar
AMT amount, if applicable 2 signs ($)
---------------------------------------------------------------------------------------------------------
Non Recoverable Loan Amount, if No commas(,) or dollar
NON ADV LOAN AMT applicable 2 signs ($)
---------------------------------------------------------------------------------------------------------
EXHIBIT N-3
STANDARD FILE LAYOUT FOR DELINQUENCY REPORTING
----------------------------------------------------------------------------------------------------------
Column/Header Name Description Decimal Format
Comment
----------------------------------------------------------------------------------------------------------
SERVICER_LOAN_NBR A unique number assigned to a loan by
the Servicer. This may be different
than the LOAN_NBR
----------------------------------------------------------------------------------------------------------
LOAN_NBR A unique identifier assigned to each
loan by the originator.
----------------------------------------------------------------------------------------------------------
CLIENT_NBR Servicer Client Number
----------------------------------------------------------------------------------------------------------
SERV_INVESTOR_NBR Contains a unique number as assigned by an
external servicer to identify a group of loans
in their system.
----------------------------------------------------------------------------------------------------------
BORROWER_FIRST_NAME First Name of the Borrower.
----------------------------------------------------------------------------------------------------------
BORROWER_LAST_NAME Last name of the borrower.
----------------------------------------------------------------------------------------------------------
PROP_ADDRESS Street Name and Number of Property
----------------------------------------------------------------------------------------------------------
PROP_STATE The state where the property located.
----------------------------------------------------------------------------------------------------------
PROP_ZIP Zip code where the property is located.
----------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next MM/DD/YYYY
payment is due to the servicer at the end of
processing cycle, as reported by Servicer.
----------------------------------------------------------------------------------------------------------
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
----------------------------------------------------------------------------------------------------------
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim MM/DD/YYYY
was filed.
----------------------------------------------------------------------------------------------------------
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy
was filed.
----------------------------------------------------------------------------------------------------------
BANKRUPTCY_CASE_NBR The case number assigned by the court to
the bankruptcy filing.
----------------------------------------------------------------------------------------------------------
POST_PETITION_DUE_DATE The payment due date once the bankruptcy MM/DD/YYYY
has been approved by the courts
----------------------------------------------------------------------------------------------------------
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From MM/DD/YYYY
Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
----------------------------------------------------------------------------------------------------------
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was MM/DD/YYYY
Approved By The Servicer
----------------------------------------------------------------------------------------------------------
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For
A Loan Such As;
----------------------------------------------------------------------------------------------------------
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is MM/DD/YYYY
Scheduled To End/Close
----------------------------------------------------------------------------------------------------------
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually MM/DD/YYYY
Completed
----------------------------------------------------------------------------------------------------------
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the
MM/DD/YYYY servicer with instructions to begin
foreclosure proceedings.
----------------------------------------------------------------------------------------------------------
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to MM/DD/YYYY
Pursue Foreclosure
----------------------------------------------------------------------------------------------------------
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney MM/DD/YYYY
in a Foreclosure Action
----------------------------------------------------------------------------------------------------------
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is MM/DD/YYYY
expected to occur.
----------------------------------------------------------------------------------------------------------
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
----------------------------------------------------------------------------------------------------------
FRCLSR_SALE_AMT The amount a property sold for at the 2 No
foreclosure sale. commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------------------
EVICTION_START_DATE The date the servicer initiates eviction MM/DD/YYYY
of the borrower.
----------------------------------------------------------------------------------------------------------
EVICTION_COMPLETED_DATE The date the court revokes legal MM/DD/YYYY
possession of the property from the borrower.
----------------------------------------------------------------------------------------------------------
LIST_PRICE The price at which an REO property is 2 No
marketed. commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------------------
LIST_DATE The date an REO property is listed at a MM/DD/YYYY
particular price.
----------------------------------------------------------------------------------------------------------
OFFER_AMT The dollar value of an offer for an REO 2 No
property. commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------------------
OFFER_DATE_TIME The date an offer is received by DA MM/DD/YYYY
Admin or by the Servicer.
----------------------------------------------------------------------------------------------------------
REO_CLOSING_DATE The date the REO sale of the property is MM/DD/YYYY
scheduled to close.
----------------------------------------------------------------------------------------------------------
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
----------------------------------------------------------------------------------------------------------
OCCUPANT_CODE Classification of how the property is
occupied.
----------------------------------------------------------------------------------------------------------
PROP_CONDITION_CODE A code that indicates the condition of
the property.
----------------------------------------------------------------------------------------------------------
PROP_INSPECTION_DATE The date a property inspection is MM/DD/YYYY
performed.
----------------------------------------------------------------------------------------------------------
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
----------------------------------------------------------------------------------------------------------
CURR_PROP_VAL The current "as is" value of the 2
property based on brokers price opinion
or appraisal.
----------------------------------------------------------------------------------------------------------
REPAIRED_PROP_VAL The amount the property would be worth 2
if repairs are completed pursuant to a
broker's price opinion or appraisal.
----------------------------------------------------------------------------------------------------------
If applicable:
----------------------------------------------------------------------------------------------------------
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
----------------------------------------------------------------------------------------------------------
DELINQ_REASON_CODE The circumstances which caused a borrower to
stop paying on a loan. Code indicates the reason
why the loan is in default for this cycle.
----------------------------------------------------------------------------------------------------------
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed MM/DD/YYYY
With Mortgage Insurance Company.
----------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No
commas(,)
or
dollar
signs
($)
----------------------------------------------------------------------------------------------------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company MM/DD/YYYY
Disbursed Claim Payment
----------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid 2 No
On Claim commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------------------
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance MM/DD/YYYY
Company
----------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT Amount of Claim Filed With Pool 2 No
Insurance Company commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was MM/DD/YYYY
Issued By The Pool Insurer
----------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance 2 No
Company commas(,)
or dollar
signs ($)
----------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
----------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No
commas(,)
or
dollar
signs
($)
----------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
----------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No
commas(,)
or
dollar
signs
($)
----------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With MM/DD/YYYY
HUD
----------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No
commas(,)
or
dollar
signs
($)
----------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim MM/DD/YYYY
Payment
----------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No
commas(,)
or
dollar
signs
($)
----------------------------------------------------------------------------------------------------------
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the MM/DD/YYYY
Veterans Admin
----------------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim MM/DD/YYYY
Payment
----------------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No
commas(,)
or
dollar
signs
($)
----------------------------------------------------------------------------------------------------------
------------------------------------------------------
Standard File Codes - Delinquency Reporting
------------------------------------------------------
The Loss Mit Type field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The Occupant Code field should show the current status of the property code as
follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The Property Condition field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
The FNMA Delinquent Reason Code field should show the Reason for Delinquency as
follows:
---------------------------------------------------------------
Delinquency Code Delinquency Description
---------------------------------------------------------------
001 FNMA-Death of principal mortgagor
002 FNMA-Illness of principal mortgagor
003 FNMA-Illness of mortgagor's family member
004 FNMA-Death of mortgagor's family member
005 FNMA-Marital difficulties
006 FNMA-Curtailment of income
007 FNMA-Excessive Obligation
008 FNMA-Abandonment of property
009 FNMA-Distant employee transfer
011 FNMA-Property problem
012 FNMA-Inability to sell property
013 FNMA-Inability to rent property
014 FNMA-Military Service
015 FNMA-Other
016 FNMA-Unemployment
017 FNMA-Business failure
019 FNMA-Casualty loss
022 FNMA-Energy environment costs
023 FNMA-Servicing problems
026 FNMA-Payment adjustment
027 FNMA-Payment dispute
029 FNMA-Transfer of ownership pending
030 FNMA-Fraud
031 FNMA-Unable to contact borrower
INC FNMA-Incarceration
---------------------------------------------------------------
The FNMA Delinquent Status Code field should show the Status of Default as
follows:
-----------------------------------------------------------------------------
Status Code Status Description
-----------------------------------------------------------------------------
09 Forbearance
17 Pre-foreclosure Sale Closing Plan Accepted
24 Government Seizure
26 Refinance
27 Assumption
28 Modification
29 Charge-Off
30 Third Party Sale
31 Probate
32 Military Indulgence
43 Foreclosure Started
44 Deed-in-Lieu Started
49 Assignment Completed
61 Second Lien Considerations
62 Veteran's Affairs-No Bid
63 Veteran's Affairs-Refund
64 Veteran's Affairs-Buydown
65 Chapter 7 Bankruptcy
66 Chapter 11 Bankruptcy
67 Chapter 13 Bankruptcy
-----------------------------------------------------------------------------
EXHIBIT N-4
FORM 332
The numbers on the form correspond with the numbers listed below.
Liquidation and Acquisition Expenses:
-------------------------------------
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced
is required.
2. The Total Interest Due less the aggregate amount of servicing fee that
would have been earned if all delinquent payments had been made as
agreed. For documentation, an Amortization Schedule from date of
default through liquidation breaking out the net interest and servicing
fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance of
the Mortgage Loan as calculated on a monthly basis. For documentation,
an Amortization Schedule from date of default through liquidation
breaking out the net interest and servicing fees advanced is required.
4-12. Complete as applicable. All line entries must be supported by copies of
appropriate statements, vouchers, receipts, bills, canceled checks,
etc., to document the expense. Entries not properly documented will not
be reimbursed to the Servicer.
13. The total of lines 1 through 12.
(a) Credits:
-------
14-21. Complete as applicable. All line entries must be supported by copies of
the appropriate claims forms, EOBs, HUD-1 and/or other proceeds
verification, statements, payment checks, etc. to document the credit.
If the Mortgage Loan is subject to a Bankruptcy Deficiency, the
difference between the Unpaid Principal Balance of the Note prior to
the Bankruptcy Deficiency and the Unpaid Principal Balance as reduced
by the Bankruptcy Deficiency should be input on line 20.
22. The total of lines 14 through 21.
Please note: For HUD/VA loans, use line (15) for Part A/Initial proceeds and
line (16) for Part B/Supplemental proceeds.
(b) Total Realized Loss (or Amount of Any Gain)
-------------------------------------------
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized gain, show the amount in parenthesis ( ).
XXXXX FARGO BANK, N.A.
CALCULATION OF REALIZED LOSS/GAIN
Prepared by: __________________ Date: _______________
Phone: ______________________ Email Address:_____________________
__________________ __________________ ____________________
Servicer Loan No. Servicer Name Servicer Address
__________________ __________________ ____________________
XXXXX FARGO BANK, N.A. Loan No._____________________________
Borrower's Name:________________________________________________________
Property Address:______________________________________________________________
Liquidation and Acquisition Expenses:
(1) Actual Unpaid Principal Balance of Mortgage Loan $________________ (1)
(2) Interest accrued at Net Rate _________________ (2)
(3) Accrued Servicing Fees _________________ (3)
(4) Attorney's Fees _________________ (4)
(5) Taxes _________________ (5)
(6) Property Maintenance _________________ (6)
(7) MI/Hazard Insurance Premiums _________________ (7)
(8) Utility Expenses _________________ (8)
(9) Appraisal/BPO _________________ (9)
(10) Property Inspections _________________(10)
(11) FC Costs/Other Legal Expenses _________________(11)
(12) Other (itemize) $________________(12)
Cash for Keys__________________________ _________________
HOA/Condo Fees_________________________ _________________
_______________________________________ _________________
_______________________________________ _________________
Total Expenses $________________(13)
Credits:
(14) Escrow Balance $________________(14)
(15) HIP Refund ________________ (15)
(16) Rental Receipts ________________ (16)
(17) Hazard Loss Proceeds ________________ (17)
(18) Primary Mortgage Insurance Proceeds ________________ (18)
(19) Pool Insurance Proceeds ________________ (19)
(20) Proceeds from Sale of Acquired Property ________________ (20)
(21) Other (itemize) ________________ (21)
___________________________________________ _________________
___________________________________________ _________________
___________________________________________
Total Credits $________________(22)
Total Realized Loss (or Amount of Gain) $________________(23)
EXHIBIT O
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM-10-K
GSAMP Trust 2005-HE6
Mortgage Pass-Through Certificates
Series 2005-HE6
This Certification is being made pursuant to Section 8.12(c) of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") relating
to the above-referenced Series, among GS Mortgage Securities Corp., as depositor
(the "Depositor"), Ocwen Loan Servicing, LLC, as servicer (the "Servicer"),
Xxxxx Fargo Bank, N.A., as master servicer, (the "Master Servicer"), as
securities administrator (the "Securities Administrator") and as custodian,
Deutsche Bank National Trust Company, as custodian, X.X. Xxxxxx Trust Company,
National Association, as custodian (collectively, the "Custodians") and LaSalle
Bank National Association, as trustee (the "Trustee"). Capitalized terms used
but not defined herein shall have the meanings assigned in the Pooling and
Servicing Agreement.
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K (the "Annual
Report"), and all reports on Form 8-K containing distribution
date reports (collectively with this Annual Report, the
"Reports") filed in respect of periods included in the year
covered by this Annual Report, of the Trust;
2. Based on my knowledge, the information in 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 servicing information required to
be provided to the Securities Administrator by the Master
Servicer under the Pooling and Servicing Agreement for
inclusion in the Reports is included in the Reports;
4. I am responsible for reviewing the activities performed by the
Servicer 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 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 Servicer.
Capitalized terms used but not defined herein have the meanings assigned
in the Pooling and Servicing Agreement among the Depositor, the Master Servicer,
the Servicer, the Securities Administrator, the Custodian and the Trustee.
__________________________________
[Signature]
Name:_______________________
Title:______________________
EXHIBIT P
FORM OF BACK-UP CERTIFICATION
OCWEN LOAN SERVICING, LLC
[Name and address of
depositor, master servicer, securities administrator and trustee]
Re: GSAMP Trust 2005-HE6
--------------------
Ocwen Loan Servicing, LLC, as Servicer hereby certifies to the Depositor,
the Master Servicer, the Trustee and the Securities Administrator, and each of
their officers, directors and affiliates that:
1. Based on my knowledge, the information in the Annual Statement of
Compliance, the Annual Independent Public Accountant's Servicing Report and all
servicing reports, officer's certificates and other information relating to the
servicing of the Mortgage Loans submitted to the Master Servicer taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
date of this certification;
2. Based on my knowledge, the servicing information required to be
provided to the Master Servicer by the Servicer under the Pooling and Servicing
Agreement has been provided to the Master Servicer;
3. I am responsible for reviewing the activities performed by the Servicer
under the Pooling and Servicing Agreement and based upon the review required by
the Pooling and Servicing Agreement, and except as disclosed in the Annual
Statement of Compliance and the Annual Independent Public Accountant's Servicing
Report submitted to the Master Servicer, the Servicer has, as of the date of
this certification fulfilled its obligations under the Pooling and Servicing
Agreement; and
4. I have disclosed to the Master Servicer all significant deficiencies
relating to the Servicer's compliance with the minimum servicing standards in
accordance with a review conducted in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar standard as set forth in the
Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the meanings ascribed
to them in the Pooling Servicing Agreement, dated as of December 1, 2005 (the
"Pooling and Servicing Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer (the
"Servicer"), Xxxxx Fargo Bank, N.A., as master servicer (the "Master Servicer"),
as securities administrator (the "Securities Administrator") and as a custodian,
Deutsche Bank National Trust Company, as custodian, X.X. Xxxxxx Trust Company,
National Association, as custodian (collectively, the "Custodians"), and LaSalle
Bank National Association, as trustee (the "Trustee").
OCWEN LOAN SERVICING, LLC,
as Servicer
By: _______________________________
Name:
Title:
Date:
EXHIBIT Q
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated
December 29, 2005 ("Agreement"), is among Xxxxxxx Xxxxx Mortgage Company
("Assignor"), GS Mortgage Securities Corp. ("Assignee"), and Fremont Investment
& Loan (the "Company").
For and in consideration of good and valuable consideration the
receipt and sufficiency of which hereby are acknowledged, and of the mutual
covenants herein contained, the parties hereto hereby agree as follows:
Assignment, Assumption and Conveyance
1. The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title and interest (other than those rights
specifically retained by the Assignor pursuant to this Agreement) of the
Assignor, as purchaser, in, to and under (a) those certain mortgage loans listed
on the schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans"), (b) solely insofar as it relates to the Mortgage Loans, that
certain Mortgage Loan Purchase and Warranties Agreement, dated as of October 1,
2004 (the "Purchase Agreement"), between the Assignor, as purchaser (in such
capacity, the "Purchaser"), and the Company, as seller. The Assignor hereby
agrees that it will (i) deliver possession of the notes evidencing the Mortgage
Loans to, or at the direction of, the Assignee or its designee and (ii) take in
a timely manner all necessary steps under all applicable laws to convey and to
perfect the conveyance of the Mortgage Loans as required under the Pooling
Agreement (as defined below).
The Assignor specifically reserves and does not assign to the
Assignee hereunder (i) any and all right, title and interest in, to and under
and any obligations of the Assignor with respect to any mortgage loans subject
to the Purchase Agreement that are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement or (ii) the
rights of the Purchaser under Section 13 and Subsection 14.01 of the Purchase
Agreement.
The Assignee hereby assumes all of the Assignor's obligations from
and after the date hereof under the Mortgage Loans and the Purchase Agreement
solely insofar as such obligations relate to the Mortgage Loans. The Assignee
does not assume hereby such obligations of Assignor prior to the date hereof.
Recognition of the Company
2. From and after the date hereof (the "Securitization Closing
Date"), the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Purchase Agreement
(solely to the extent set forth herein) and this Agreement to LaSalle Bank
National Association, as trustee (including its successors in interest and any
successor trustees under the Pooling Agreement, the "Trustee"), of the GSAMP
Trust 2005-HE6 (the "Trust") created pursuant to a Pooling and Servicing
Agreement, dated as of December 29, 2005 (the "Pooling Agreement"), among the
Assignee, the Trustee, Ocwen Loan Servicing, LLC, as servicer of the Mortgage
Loans (including its successors in interest and any successor servicers of the
Mortgage Loans under the Pooling Agreement, the "Servicer"), Deutsche Bank
National Trust Company, as a custodian, U.S. Bank National Association, as a
custodian (collectively, including their successors in interest and any
successor custodians of the Mortgage Loans under the Pooling Agreement, the
"Custodians") and Xxxxx Fargo Bank, N.A., as master servicer (including its
successors in interest and any successor master servicer of the Mortgage Loans
under the Pooling Agreement, the "Master Servicer") and as securities
administrator (including its successors in interest and any successor custodians
of the Mortgage Loans under the Pooling Agreement, the "Securities
Administrator"). The Company hereby acknowledges and agrees that from and after
the date hereof (i) the Trust will be the owner of the Mortgage Loans and the
Servicer will be the servicer of the Mortgage Loans on or after the Transfer
Date pursuant to the terms set forth in the Pooling Agreement, (ii) the Company
shall look solely to the Trust (including the Trustee, the Custodian and the
Servicer acting on the Trust's behalf) for performance of any obligations of the
Assignor under the Mortgage Loans and the Purchase Agreement (solely insofar as
they relate to the Mortgage Loans), (iii) the Trust (including the Trustee, the
Custodian and the Servicer acting on the Trust's behalf) shall have all the
rights and remedies available to the Assignor, insofar as they relate to the
Mortgage Loans, under the Purchase Agreement, including, without limitation, the
enforcement of the document delivery requirements set forth in Subsection 6.03
of the Purchase Agreement, and shall be entitled to enforce all of the
obligations of the Company thereunder insofar as they relate to the Mortgage
Loans, including without limitation, the remedies for breaches of
representations and warranties set forth in Subsection 9.03 of the Purchase
Agreement, (iv) all references to the Purchaser or the Custodian under the
Purchase Agreement as they relate to the Mortgage Loans shall be deemed to refer
to the Trust (including the Trustee, the Custodian and the Servicers acting on
the Trust's behalf) and (v) the Mortgage Loans will be part of a REMIC, and the
Company shall service the Mortgage Loans and any real property acquired upon
default thereof (including, without limitation, making or permitting any
modification, waiver or amendment of any term of any Mortgage Loan) prior to the
applicable Transfer Date in accordance with the Flow Interim Servicing
Agreement, dated as of October 1, 2004 (the "Servicing Agreement"), by and
between the Assignor and the Company but in no event in a manner that would (A)
cause the REMIC to fail to qualify as a REMIC or (B) result in the imposition of
a tax upon the REMIC (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code, the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code, and the tax
on "net income from foreclosure property" as set forth in Section 860G(c) of the
Code). Neither the Company nor the Assignor shall amend or agree to amend,
modify, waive, or otherwise alter any of the terms or provisions of the Purchase
Agreement or the Servicing Agreement which amendment, modification, waiver or
other alteration would in any way affect the Mortgage Loans or the Company's
performance under the Purchase Agreement or the Servicing Agreement with respect
to the Mortgage Loans without the prior written consent of the Trustee.
Representations and Warranties of the Company
3. The Company warrants and represents to and covenants with, the
Assignor, the Assignee and the Trust as of the date hereof that:
(a) The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(b) The Company has full power and authority to execute, deliver and
perform its obligations under this Agreement, and has full power and
authority to perform its obligations under this Agreement, the Purchase
Agreement and the Servicing Agreement. The execution by the Company of
this Agreement is in the ordinary course of the Company's business and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of the Company's charter or bylaws or any legal
restriction, or any material agreement or instrument to which the Company
is now a party or by which it is bound, or result in the violation of any
law, rule, regulation, order, judgment or decree to which the Company or
its property is subject. The execution, delivery and performance by the
Company of this Agreement have been duly authorized by all necessary
corporate actions on the part of the Company. This Agreement has been duly
executed and delivered by the Company, and, upon the due authorization,
execution and delivery by the Assignor and the Assignee, will constitute
the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability
may be limited by bankruptcy, reorganization, insolvency, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be
obtained or made by the Company in connection with the execution, delivery
or performance by the Company of this Agreement or the consummation by it
of the transaction contemplated hereby;
(d) There is no action, suit, proceeding or investigation pending or
threatened against the Company, before any court, administrative agency or
other tribunal, which would draw into question the validity of this
Agreement, the Purchase Agreement or the Servicing Agreement, or which,
either in any one instance or in the aggregate, is likely to result in any
material adverse change in the ability of the Company to perform its
obligations under this Agreement or the Purchase Agreement or the
Servicing Agreement, and the Company is solvent;
(e) None of the Mortgage Loans (a) is covered by the Home Ownership
and Equity Protection Act of 1994 or (b) is classified as a "high cost,"
"threshold," "covered" (excluding home loans defined as "covered home
loans" in the New Jersey Home Ownership Security Act of 2002 that were
originated between November 26, 2003 and July 7, 2004), "predatory" or
similar loan under any other applicable state, federal or local law (or a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or
fees). No predatory or deceptive lending practices, including, without
limitation, the extension of credit without regard to the ability of the
Mortgagor to repay and the extension of credit which has no apparent
benefit to the Mortgagor, were employed in the origination of the Mortgage
Loan. No Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is governed by the Georgia Fair Lending Act. No Mortgage
Loan is a High Cost Loan or Covered Loan, as applicable (as such terms are
defined in the then current Standard & Poor's LEVELS(R) Glossary); and
(f) No Mortgagor was required to purchase any single premium credit
insurance policy (e.g., life, disability, accident, unemployment, property
or health insurance product) or debt cancellation agreement as a condition
of obtaining the extension of credit. No Mortgagor obtained a prepaid
single premium credit insurance policy (e.g., life, disability, accident,
unemployment, property, mortgage, or health insurance) in connection with
the origination of the Mortgage Loan. No proceeds from any Mortgage Loan
were used to purchase single premium credit insurance policies or debt
cancellation agreements as part of the origination of, or as a condition
to closing, such Mortgage Loan.
4. Pursuant to Section 13 of the Purchase Agreement, the Company
hereby represents and warrants, for the benefit of the Assignor, the Assignee
and the Trust, that, except as set forth on Exhibit C hereto, the
representations and warranties set forth in Subsections 9.01 and 9.02 of the
Purchase Agreement are true and correct on the date hereof as if such
representations and warranties were made on the date hereof.
Remedies for Breach of Representations and Warranties of the Company
5. (a) The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the Trustee and
the Servicer acting on the Trust's behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections 3 and 4
hereof shall be as set forth in Subsection 9.03 of the Purchase Agreement as if
they were set forth herein (including without limitation the repurchase and
indemnity obligations set forth therein).
(b) Notwithstanding anything to the contrary contained herein or in
the Purchase Agreement, the first sentence of the third full paragraph of
Subsection 9.03 of the Purchase Agreement is hereby deleted and replaced
in its entirety with the following sentence:
"However, if the breach shall involve a representation or warranty
set forth in Subsection 9.02 (other than the representations and
warranties set forth in clauses (ss), (tt), (uu), (bbb), (ccc), (ddd),
(eee), (fff), (ggg), (mmm), (ppp) and (qqq) of Subsection 9.02) and the
Seller discovers or receives notice of any such breach within 120 days of
the related Closing Date, the Seller shall, at the Purchaser's option and
provided that the Seller has a Qualified Substitute Mortgage Loan, rather
than repurchase the Mortgage Loan as provided above, remove such Mortgage
Loan (a "Deleted Mortgage Loan") and substitute in its place a Qualified
Substitute Mortgage Loan or Loans, provided that any such substitution
shall be effected not later than 120 days after the related Closing Date."
(c) Notwithstanding anything to the contrary contained herein or in
the Purchase Agreement, the following language should be added as the last
sentence in the fourth full paragraph of Subsection 9.03 of the Purchase
Agreement:
"Accordingly, on the date of such substitution, the Seller will
remit to the Purchaser from its own funds an amount equal to the amount of
such shortfall plus one month's interest thereon at the Mortgage Interest
Rate on the Deleted Mortgage Loan."
6. In the event a Mortgage Loan is required to be repurchased
pursuant to Subsection 9.04 of the Purchase Agreement, the Company shall pay to
the Trust the Repurchase Price (as defined in the Purchase Agreement), and the
Company shall pay to the Assignor the amount by which the repurchase price set
forth in Section M of the Purchase Price and Terms Agreement, dated July 21,
2005, between the Company and the Assignor, exceeds such Repurchase Price.
7. Pursuant to Section 13 of the Purchase Agreement, the Company
agrees to deliver a Xxxxxxxx-Xxxxx certification in the form attached hereto as
Exhibit B for the benefit of the Assignee, the Servicer and the Trustee and
their respective officers, directors and affiliates. Such certification shall be
delivered by March 1, 2006 to the Assignee, the Servicer and the Trustee. The
Company shall indemnify and hold harmless the Assignee, the Servicer and 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 Company's obligations under this Section 7, or
the Company's negligence, bad faith, willful misconduct or material
misstatements or omissions in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the
indemnified party, then the Company agrees that it shall contribute to the
amount paid or payable by the Assignee, the Servicer and/or the Trustee (and
their respective officers, directors and affiliates) as a result of the losses,
claims, damage or liabilities of the Assignee, the Servicer and/or the Trustee
in such proportion as is appropriate to reflect the relative fault of the
Assignee, the Servicer or the Trustee, as the case may be, on the one hand, and
the Company on the other in connection with a breach of the Company's obligation
under this Section 7 or the Company's negligence, bad faith, willful misconduct
or material misstatements or omissions in connection therewith.
Representations and Warranties of the Assignor
8. The Assignor warrants and represents to the Assignee and the
Trust as of the date hereof that, with respect to each Mortgage Loan:
(a) The Assignor is the sole owner of record and holder of the
Mortgage Loan and the indebtedness evidenced by each Mortgage Note. The
Mortgage Loan is not assigned or pledged, and the Assignor has good,
indefeasible and marketable title thereto, and has full right to transfer
and sell the Mortgage Loan to the Assignee free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim
or security interest, and has full right and authority subject to no
interest or participation of, or agreement with, any other party, to sell
and assign each Mortgage Loan pursuant to this Agreement and following the
sale of each Mortgage Loan, the Assignee will own such Mortgage Loan free
and clear of any encumbrance, equity, participation interest, lien,
pledge, charge, claim or security interest. The Assignor intends to
relinquish all rights to possess, control and monitor the Mortgage Loan;
(b) The Assignor has not waived the performance by the Mortgagor of
any action, if the Mortgagor's failure to perform such action would cause
the Mortgage Loan to be in default, nor has the Company waived any default
resulting from any action or inaction by the Mortgagor;
(c) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit
opportunity and disclosure laws applicable to the Mortgage Loans have been
complied with, including, but not limited to, all applicable
anti-predatory and abusive lending laws; and
(d) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable. No Mortgage Loan is covered by the Home Ownership and Equity
Protection Act of 1994 and no Mortgage Loan is in violation of any
comparable state or local law. No Mortgage Loan originated on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair
Lending Act.
For the purposes of this Section 8(d) the following definitions shall
apply:
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
Standard & Poor's Glossary: Version 5.6(b) of the Standard & Poor's
LEVELS(R) Glossary, or such version as may be in effect from time to
time.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership
and Equity Protection Act of 1994, (b) a "high cost home,"
"threshold," "covered," (excluding New Jersey "Covered Home Loans"
as that term is defined in clause (1) of the definition of that term
in the New Jersey Home Ownership Security Act of 2002), "high risk
home," "predatory" or similar loan under any other applicable state,
federal or local law (or a similarly classified loan using different
terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having
high interest rates, points and/or fees) or (c) categorized as High
Cost pursuant to Appendix E of Standard & Poor's Glossary. For
avoidance of doubt, the parties agree that this definition shall
apply to any law regardless of whether such law is presently, or in
the future becomes, the subject of judicial review or litigation.
Remedies for Breach of Representations and Warranties of the Assignor
9. The Assignor hereby acknowledges and agrees that in the event of
any breach of the representations and warranties made by the Assignor set forth
in Section 8 hereof that materially and adversely affects the value of the
Mortgage Loans or the interest of the Assignee or the Trust therein within 60
days of the earlier of either discovery by or notice to the Assignor of such
breach of a representation or warranty, it shall cure, purchase or cause the
purchase of the applicable Mortgage Loan at the Repurchase Price set forth in
the Pooling Agreement.
Enforcement of Representations and Warranties of the Company
10. The Assignor hereby agrees to use its best efforts to enforce
the remedies for a breach of the representations and warranties of the Company
set forth in Section 5 herein.
Miscellaneous
11. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
12. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Trustee.
13. This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including the Trustee and
the Servicer acting on the Trust's behalf). Any entity into which the Assignor,
Assignee or Company may be merged or consolidated shall, without the requirement
for any further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
14. Each of this Agreement, the Purchase Agreement and the Servicing
Agreement shall survive the conveyance of the Mortgage Loans and the assignment
of the Purchase Agreement and the Servicing Agreement (to the extent assigned
hereunder) by the Assignor to the Assignee and by the Assignee to the Trust and,
except as expressly set forth herein, nothing contained herein shall supersede
or amend the terms of the Purchase Agreement and the Servicing Agreement.
15. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
16. In the event that any provision of this Agreement conflicts with
any provision of any of the Purchase Agreement or the Servicing Agreement with
respect to the Mortgage Loans, the terms of this Agreement shall control.
17. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Purchase Agreement or the Servicing Agreement, as applicable.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
GS MORTGAGE SECURITIES CORP.
By: ____________________________________
Name:
Title:
XXXXXXX XXXXX MORTGAGE COMPANY,
a New York limited partnership
By: XXXXXXX XXXXX REAL ESTATE FUNDING
CORP., a New York corporation, as
general partner
By: ____________________________________
Name:
Title:
FREMONT INVESTMENT & LOAN
By: ____________________________________
Name:
Title:
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
Mortgage Loan Schedule
EXHIBIT B
FORM OF COMPANY CERTIFICATION TO BE PROVIDED TO ASSIGNEE,
THE SERVICER AND TRUSTEE
I, [identify the certifying individual], certify to GS Mortgage Securities Corp.
(the "Assignee"), Ocwen Loan Servicing, LLC (the "Servicer"), and LaSalle Bank
National Association (the "Trustee"), and their respective officers, directors
and affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. The servicing information required to be provided to the Servicer or the
Trustee by Fremont Investment & Loan (the "Company") under the Interim Servicing
Agreement, dated as of October 1, 2004 (the "Servicing Agreement"), by and
between Xxxxxxx Xxxxx Mortgage Company (the "Assignor") and the Company, for the
period from [_] [_] to the Transfer Date (as defined in the Servicing Agreement)
has been so provided;
2. I am responsible for reviewing the activities performed by the Company under
the Servicing Agreement and based upon my knowledge and the annual compliance
review required under the Servicing Agreement, and except as disclosed in the
annual compliance statement required to be delivered to the Assignee, the
Servicer and Trustee in accordance with the terms of the Servicing Agreement
(which has been so delivered to the Servicer or the Trustee), the Company has
fulfilled its obligations under the Servicing Agreement; and
3. All significant deficiencies relating to the Company'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 Servicing Agreement, have been disclosed to such accountant and
are included in such report.
FREMONT INVESTMENT & LOAN
Date: _________________________
_______________________________
[Signature]
[Title]
EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Exhibit C - GSAMP 2005-HE6 As of 12/29/2005
Investor Code Pool Loan Number ARM Name Note Date Next Maturity Loan Balance
------------- ---- ----------- --- ------------------ --------- ------------- ------------
11 20 8000049951 Y XXXXXXXX XXXXX A 9/1/2005 7/1/2035 $295,007.87 Foreclosure
11 20 6000164533 Y XXXXXXX XXXXX 9/1/2005 7/1/2035 $165,470.81 Delinquency
11 20 1000254172 Y XXXXXXX XXXXXXX 10/1/2005 7/1/2035 $206,630.83 Delinquency
11 20 6000162132 Y XXXXXXXXXXX XXXXXX 10/1/2005 7/1/2035 $118,235.67 Delinquency
11 20 6000163028 Y XXXXXXX XXXXX P 10/1/2005 7/1/2035 $203,657.92 Delinquency
11 20 8000050032 N XXXXXXXX XXXXX A 10/1/2005 7/1/2035 $73,732.65 Delinquency
11 20 1000251873 Y XXXX XXXX X 12/1/2005 6/1/2035 $171,891.63 Bankruptcy
11 20 1000256280 Y XXXXXXXXX XXXXXX 12/1/2005 7/1/2035 $242,204.09 Bankruptcy
11 20 5000158654 Y XXXXXXXXXX XXXXX A 12/1/2005 7/1/2035 $141,601.63 Bankruptcy
11 20 6000162612 Y MAZACCO GRACE Delinquent Insurance
11 20 0000000000 Y XXXXX XXXXXX Delinquent Insurance
11 20 5000158767 Y XXXXX XXXX Delinquent Taxes
11 20 8000047965 Y XXXXXXXX XXXXXX Xxxxxxxxxx Taxes
11 20 8000052521 Y XXXXXXXX XXXX H Delinquent Taxes
11 20 0000000000 N XXXXXX XXXXXX Xxxxxxxxxx Taxes
11 20 1000251783 N XXXXXXX XXXX Delinquent Taxes
11 20 6000159346 Y XXXXXX XXXX X Delinquent Taxes
11 20 7000149397 N XXXXX XXXXXXXX Delinquent Taxes
11 20 6000162411 Y XXXXXXXXXXXX XXXXX Delinquent Taxes
11 20 1000256070 N XXXXXXXXXXXX XXXXX Delinquent Taxes
11 20 7000151998 Y XXXXXX XXXXXX Xxxxxxxxxx Insurance
11 20 5000155111 Y XXXXXX XXX Delinquent Insurance
11 20 1000255489 Y XXXXXXXX XXXXXX A Delinquent Insurance
11 20 5000159548 Y XXXXXXXXXX XXXXX M Delinquent Taxes
11 20 5000159907 Y XXXXX XXXXXXX A Delinquent Taxes
11 20 5000160153 Y XXXXXXXX XXXXXXX Delinquent Taxes
11 20 1000257200 Y XXXXXX XXXXXX Xxxxxxxxxx Insurance
11 20 5000157454 N XXXXXXXX XXXXXXXXX Xxxxxxxxxx Insurance
11 20 1000252653 Y XXXXXX XXXXXXXX Delinquent Insurance
================================================================================
MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
----------
XXXXXXX XXXXX MORTGAGE COMPANY,
Purchaser
and
FREMONT INVESTMENT & LOAN
Seller
Dated as of October 1, 2004
Conventional, Alt-A,
Fixed and Adjustable Rate Residential Mortgage Loans
================================================================================
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS......................................................
SECTION 2. AGREEMENT TO PURCHASE............................................
SECTION 3. MORTGAGE SCHEDULES...............................................
SECTION 4. PURCHASE PRICE...................................................
SECTION 5. EXAMINATION OF MORTGAGE FILES....................................
SECTION 6. CONVEYANCE FROM SELLER TO PURCHASER..............................
Subsection 6.01 Conveyance of Mortgage Loans...............................
Subsection 6.02 Books and Records..........................................
Subsection 6.03 Delivery of Mortgage Loan Documents........................
Subsection 6.04 Quality Control Procedures.................................
SECTION 7. SERVICING OF THE MORTGAGE LOANS..................................
SECTION 8. TRANSFER OF SERVICING............................................
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER;
REMEDIES FOR BREACH..............................................
Subsection 9.01 Representations and Warranties Regarding the Seller........
Subsection 9.02 Representations and Warranties Regarding
Individual Mortgage Loans..................................
Subsection 9.03 Remedies for Breach of Representations and Warranties......
Subsection 9.04 Repurchase of Mortgage Loans With First Payment
Defaults...................................................
Subsection 9.05 Purchaser's Right to Review................................
SECTION 10. CLOSING..........................................................
SECTION 11. CLOSING DOCUMENTS................................................
SECTION 12. COSTS............................................................
SECTION 13. COOPERATION OF SELLER WITH A RECONSTITUTION......................
SECTION 14. THE SELLER.......................................................
Subsection 14.01 Additional Indemnification by the Seller; Third
Party Claims...............................................
Subsection 14.02 Merger or Consolidation of the Seller......................
SECTION 15. FINANCIAL STATEMENTS.............................................
SECTION 16. NOTICES..........................................................
SECTION 17. SEVERABILITY CLAUSE..............................................
SECTION 18. COUNTERPARTS.....................................................
SECTION 19. GOVERNING LAW....................................................
SECTION 20. INTENTION OF THE PARTIES.........................................
SECTION 21. SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT.........
SECTION 22. WAIVERS..........................................................
SECTION 23. EXHIBITS.........................................................
SECTION 24. GENERAL INTERPRETIVE PRINCIPLES..................................
SECTION 25. REPRODUCTION OF DOCUMENTS........................................
SECTION 26. FURTHER AGREEMENTS...............................................
SECTION 27. RECORDATION OF ASSIGNMENTS OF MORTGAGE...........................
SECTION 28. NO SOLICITATION..................................................
SECTION 29. WAIVER OF TRIAL BY JURY..........................................
SECTION 30. SUBMISSION TO JURISDICTION; WAIVERS..............................
SECTION 31. CONFIDENTIAL INFORMATION.........................................
EXHIBITS
EXHIBIT A CONTENTS OF EACH MORTGAGE FILE
EXHIBIT B CONTENTS OF EACH CREDIT FILE
EXHIBIT C MORTGAGE LOAN SCHEDULE FIELDS
EXHIBIT D RESERVED
EXHIBIT E FORM OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT F FORM OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT G FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT H FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT I UNDERWRITING GUIDELINES
EXHIBIT J RESERVED
EXHIBIT K SERVICER ACKNOWLEDGMENT
EXHIBIT L NEW JERSEY MORTGAGE LOAN STIPULATIONS
EXHIBIT M XXXXXX XXX ANTI-PREDATORY LENDING REPRESENTATIONS
MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
This MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT, dated as of
October 1, 2004 ("Agreement"), by and between Xxxxxxx Xxxxx Mortgage Company, a
New York limited partnership, having an office at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Purchaser"), and Fremont Investment & Loan having an office at
000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000 (the "Seller").
W I T N E S S E T H:
WHEREAS, from time to time, the Seller desires to sell to the
Purchaser, and, from time to time, the Purchaser desires to purchase from the
Seller, certain first and second lien fixed and adjustable residential mortgage
loans (the "Mortgage Loans") on a servicing released basis as described herein,
and which shall be delivered as a pool of whole loans on the dates as provided
herein (each, a "Closing Date");
WHEREAS, each Mortgage Loan is secured by a mortgage, deed of trust
or other security instrument creating a first or second lien, as applicable, on
a residential dwelling located in the jurisdiction indicated on the related
Mortgage Loan Schedule;
WHEREAS, the Purchaser and the Seller wish to prescribe the manner
of the conveyance, servicing and control of the Mortgage Loans; and
WHEREAS, following its purchase of the Mortgage Loans from the
Seller, the Purchaser desires to sell some or all of the Mortgage Loans to one
or more purchasers as a whole loan transfer or a public or private, rated or
unrated mortgage pass-through transaction;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Purchaser and the
Seller agree as follows:
SECTION 1. Definitions.
For purposes of this Agreement the following capitalized terms shall
have the respective meanings set forth below.
Accepted Servicing Practices: With respect to any Mortgage Loan
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Act: The National Housing Act, as amended from time to time.
Adjustable Rate Mortgage Loan: A Mortgage Loan purchased pursuant to
this Agreement the Mortgage Interest Rate of which is adjusted from time to time
in accordance with the terms of the related Mortgage Note.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person 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 Mortgage Loan Purchase and Warranties Agreement and
all amendments hereof and supplements hereto.
ALTA: The American Land Title Association, or any successor thereto.
Appraised Value: 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; 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, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
Business Day: Any day other than (i) a Saturday or Sunday or (ii) a
day on which banking and savings and loan institutions in (a) the State of New
York, (b) the state in which the Servicer's servicing operations are located or
(c) the State in which the Custodian's operations are located, are authorized or
obligated by law or executive order to be closed.
Closing Date: The date or dates set forth on the related Purchase
Price and Terms Agreement on which the Purchaser from time to time shall
purchase and the Seller from time to time shall sell, the Mortgage Loans listed
on the related Mortgage Loan Schedule
Code: Internal Revenue Code of 1986, as amended.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage
Loan purchased pursuant to this Agreement which contains a provision whereby the
Mortgagor is permitted to convert the Adjustable Rate Mortgage Loan to a Fixed
Rate Mortgage Loan in accordance with the terms of the related Mortgage Note.
Credit File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit B annexed hereto, and any additional documents required
to be added to the Credit File pursuant to this Agreement.
Custodial Account: The separate account or accounts created and
maintained pursuant to the Interim Servicing Agreement (with respect to each
Mortgage Loan, for an interim period, as specified therein).
Custodial Agreement: That certain Custodial Agreement, by and
between the Purchaser and the Custodian, dated as of the date hereof, governing
the retention of the originals of each Mortgage Note, Mortgage, Assignment of
Mortgage (if required) and other Mortgage Loan Documents.
Custodian: The Custodian designated by the Purchaser or any
successor thereto under the Custodial Agreement.
Cut-off Date: With respect to each Mortgage Loan in a Mortgage Loan
Package, the date set forth on the related Purchase Price and Terms Agreement.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or
replaced or to be replaced with a Qualified Substitute Mortgage Loan by the
Seller in accordance with the terms of this Agreement.
Determination Date: The date specified in the Interim Servicing
Agreement (with respect to each Mortgage Loan, for an interim period, as
specified therein).
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Escrow Account: The separate account or accounts created and
maintained pursuant to the Interim Servicing Agreement (with respect to each
Mortgage Loan, for an interim period, as specified therein).
Escrow Payments: With respect to any Mortgage Loan with an Escrow
Account, the amounts constituting ground rents, taxes, assessments, water rates,
sewer rents, municipal charges, mortgage insurance premiums, fire and hazard
insurance premiums, condominium charges, and any other payments required to be
escrowed by the Mortgagor with the mortgagee pursuant to the Mortgage or any
other document.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Xxxxxx Xxx: Xxxxxx Xxx, or any successor thereto.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased
pursuant to this Agreement.
Freddie Mac: Freddie Mac, or any successor thereto.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which amount
is added to the Index in accordance with the terms of the related Mortgage Note
to determine on each Interest Rate Adjustment Date the Mortgage Interest Rate
for such Mortgage Loan.
High Cost Loan: A Mortgage Loan classified as (a) a "high cost" loan
under the Home Ownership and Equity Protection Act of 1994 or (b) a "high cost,"
"threshold," "covered" (other than New Jersey "covered" loans), "predatory" or
similar loan under any other applicable state, federal or local law (or a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees).
Index: With respect to each Adjustable Rate Mortgage Loan, a rate
per annum set forth on the related Mortgage Loan Schedule.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Insured Depository Institution: As defined in Section 1813(c)(2) of
Title 12 of the United States Code, as amended from time to time.
Interest Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the related
Mortgage Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Interim Funder: With respect to each MERS Designated Mortgage Loan,
the Person named on the MERS(R) System as the interim funder pursuant to the
MERS Procedures Manual.
Interim Servicing Agreement: That certain Interim Servicing
Agreement, dated as of October 1, 2004, by and between the Purchaser and the
Seller.
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS(R) System as the investor pursuant to the MERS
Procedures Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the amount per annum set forth on the related Mortgage Loan Schedule.
Limited Documentation Program: The guidelines under which the Seller
generally originates Mortgage Loans principally on the basis of the
Loan-to-Value Ratio of the related Mortgage Loan and the creditworthiness of the
Mortgagor.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Loan in Breach: Shall have the meaning set forth in Section 9.04
hereof.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio (expressed as a percentage) of the outstanding principal amount of the
Mortgage Loan as of the related date of origination (unless otherwise
indicated), to the Appraised Value of the Mortgaged Property.
MERS: MERSCORP, Inc., its successors and assigns.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller 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 the Seller, in accordance with MERS Procedure Manual and (b) the Seller has
designated or will designate the Custodian as the Investor on the MERS(R)
System.
MERS Procedure Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
MERS(R) System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first or second lien, as applicable, on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien upon a leasehold estate of the
Mortgagor.
Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit A annexed hereto, and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
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 related Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage File, the Credit File, the Servicing
File, the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, Servicing Rights, Prepayment
Penalties, 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 documents required to be delivered to
the Custodian pursuant to Section 6.03 hereof with respect to any Mortgage Loan.
Mortgage Loan Package: A pool of Mortgage Loans sold to the
Purchaser by the Seller on a Closing Date.
Mortgage Loan Schedule: With respect to each Mortgage Loan Package,
the schedule of Mortgage Loans, attached to the related Assignment and
Conveyance as Schedule 1, setting forth the information attached hereto as
Exhibit C.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property (or leasehold estate, if
applicable) securing repayment of the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or a President or a Vice President and
by the Treasurer or the Secretary or one of the Assistant Treasurers or
Assistant Secretaries of the Seller, and delivered to the Purchaser as required
by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Seller, reasonably acceptable to the Purchaser.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may increase or decrease on
an Interest Rate Adjustment Date above or below the Mortgage Interest Rate
previously in effect.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof.
Preliminary Mortgage Schedule: As defined in Section 3.
Prepayment Penalty: With respect to each Mortgage Loan, the fee, if
any, payable upon the prepayment, in whole or in part, of such Mortgage Loan, as
set forth in the related Mortgage Note.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
including any Prepayment Penalty or premium thereon and which is not accompanied
by an amount of interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans in the related
Mortgage Loan Package as calculated in Section 4 of this Agreement.
Purchase Price and Terms Agreement: With respect to each purchase of
a Mortgage Loan Package hereunder, that certain letter agreement setting forth
the general terms and conditions of such transaction consummated herein and
identifying the Mortgage Loans to be purchased hereunder, by and between the
Seller and the Purchaser.
Purchaser: Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors in interest and assigns, and any successor to
the Purchaser under this Agreement as herein provided.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Seller for a Deleted Mortgage Loan which must, on the date of
such substitution, (i) have an outstanding principal balance, after deduction of
all scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the outstanding principal balance
of the Deleted Mortgage Loan (the amount of any shortfall will be deposited in
the Custodial Account by the Seller in the month of substitution); (ii) have a
Mortgage Interest Rate not less than, and not more than 1% greater than, the
Mortgage Interest Rate of the Deleted Mortgage Loan; (iii) have a remaining term
to maturity not greater than, and not more than one year less than, that of the
Deleted Mortgage Loan; (iv) be of the same type as the Deleted Mortgage Loan
(i.e., fixed rate or adjustable rate with same Periodic Rate Cap, and Index);
and (v) comply with each representation and warranty (respecting individual
Mortgage Loans) set forth in Section 9 hereof.
Reconstitution: A Whole Loan Transfer or a Securitization Transfer.
Reconstitution Date: As defined in Section 13.
Remittance Date: The date specified in the Interim Servicing
Agreement (with respect to each Mortgage Loan, as specified therein).
Repurchase Price: With respect to any Mortgage Loan, a price equal
to the then outstanding principal balance of the Mortgage Loan to be
repurchased, plus accrued interest thereon at the Mortgage Interest Rate from
the date on which interest had last been paid through the date of such
repurchase, plus the amount of any outstanding advances owed to any servicer,
plus all costs and expenses incurred by the Purchaser or any servicer arising
out of or based upon such breach, including without limitation costs and
expenses incurred in the enforcement of the Seller's repurchase obligation
hereunder, plus (e) any costs and damages incurred by the related trust with
respect to any securitization of the Mortgage Loan in connection with any
violation by such Mortgage Loan of any predatory- or abusive-lending law.
RESPA: Real Estate Settlement Procedures Act, as amended from time
to time.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transfer: The sale or transfer of some or all of the
Mortgage Loans to a trust or other entity as part of a publicly-issued or
privately-placed, rated or unrated mortgage pass-through or other
mortgage-backed securities transaction.
Seller: Fremont Investment & Loan and its successors in interest.
Servicing Agreement: The agreement to be entered into by the
Purchaser and the Successor Servicer, providing for such successor servicer to
service the Mortgage Loans.
Servicing Fee: With respect to each Mortgage Loan subject to the
Interim Servicing Agreement, a fee payable monthly equal to one-twelfth of the
product of (a) the Servicing Fee Rate and (b) the outstanding principal balance
as of the beginning of the month of such Mortgage Loan. 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 Seller under the Interim Servicing
Agreement. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds, to the extent permitted by this
Agreement) of such Monthly Payment collected by the Seller, or as otherwise
provided under this Agreement.
Servicing Fee Rate: An amount per annum as set forth in the Interim
Servicing Agreement.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Seller consisting of originals of all documents in the Mortgage
File which are not delivered to the Purchaser or the Custodian and copies of the
Mortgage Loan Documents set forth in Section 2 of the Custodial Agreement.
Servicing Rights: Any and all of the following: (a) any and all
rights to service the Mortgage Loans; (b) any payments to or monies received by
the Seller for servicing the Mortgage Loans; (c) any late fees, penalties or
similar payments with respect to the Mortgage Loans but not including any
Prepayment Penalties; (d) all agreements or documents creating, defining or
evidencing any such servicing rights to the extent they relate to such servicing
rights and all rights of the Seller thereunder; (e) Escrow Payments or other
similar payments with respect to the Mortgage Loans and any amounts actually
collected by the Seller with respect thereto; (f) all accounts and other rights
to payment related to any of the property described in this paragraph; and (g)
any and all documents, files, records, servicing files, servicing documents,
servicing records, data tapes, computer records, or other information pertaining
to the Mortgage Loans or pertaining to the past, present or prospective
servicing of the Mortgage Loans.
Stated Principal Balance: As to each Mortgage Loan, the principal
balance of the Mortgage Loan at the related Cut-off Date after giving effect to
payments of principal actually received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal.
Successor Servicer: A servicer designated by the Purchaser pursuant
to Sections 8 and 9.03 which is entitled to the benefits of the indemnifications
set forth in Sections 9.03 and 14.01.
Transaction Agreement: Shall have the meaning set forth in Section
13 hereof.
Transfer Date: (a) the earlier of (i) the date on which a Successor
Servicer assumes the servicing of the Mortgage Loans pursuant to the Servicing
Agreement pursuant to which the Successor Servicer shall service the Mortgage
Loans on behalf of the Purchaser and its assignees and (ii) the 1st Business Day
of the month following the date which is 90 days after the Closing Date or (b)
such other date as mutually agreed by the Seller and the Purchaser.
Underwriting Guidelines: The underwriting guidelines of the Seller,
a copy of which is attached hereto as Exhibit I.
Whole Loan Agreement: Any Transaction Agreement in respect of a
Whole Loan Transfer.
Whole Loan Transfer: The sale or transfer by Purchaser of some or
all of the Mortgage Loans in a whole loan or participation format pursuant to a
Transaction Agreement.
SECTION 2. Agreement to Purchase.
The Seller, on each related Closing Date, agrees to sell, and the
Purchaser agrees to purchase, Mortgage Loans having an aggregate principal
balance on the related Cut-off Date in an amount as set forth in the related
Purchase Price and Terms Agreement, or in such other amount as agreed by the
Purchaser and the Seller as evidenced by the aggregate scheduled principal
balance of the Mortgage Loans accepted by the Purchaser on the related Closing
Date.
SECTION 3. Mortgage Schedules.
The Seller shall provide the Purchaser with certain information
constituting a preliminary listing of the Mortgage Loans in a Mortgage Loan
Package to be purchased on the related Closing Date in accordance with the
related Purchase Price and Terms Agreement and this Agreement (a "Preliminary
Mortgage Schedule").
The Seller shall deliver the related Mortgage Loan Schedule for the
Mortgage Loans in the related Mortgage Loan Package to be purchased on the
related Closing Date to the Purchaser at least one (1) Business Day prior to the
related Closing Date. The Mortgage Loan Schedule shall be the Preliminary
Mortgage Schedule with those Mortgage Loans which have not been funded prior to
the Closing Date deleted. The related Mortgage Loan Schedule shall be attached
to the related Purchase Price and Terms Letter.
SECTION 4. Purchase Price.
The Purchase Price for each Mortgage Loan in a Mortgage Loan Package
shall be the percentage of par as stated in the related Purchase Price and Terms
Agreement (subject to adjustment as provided therein), multiplied by the
aggregate principal balance, as of the related Cut-off Date, of the Mortgage
Loans listed on the related Closing Schedule, after application of payments of
principal actually received on or before the related Cut-off Date.
In addition to the Purchase Price as described above, the Purchaser
shall pay to the Seller, on the related Closing Date accrued interest on the
Stated Principal Balance of the related Mortgage Loans as of the related Cut-off
Date at the weighted average Mortgage Interest Rate of those Mortgage Loans from
the date interest was paid through on the Mortgage Loan through the day prior to
the related Closing Date, inclusive. The Purchase Price plus accrued interest as
set forth in the preceding paragraph shall be paid to the Seller by wire
transfer of immediately available funds to an account designated by the Seller
in writing.
The Purchaser shall be entitled to (1) all principal received after
the related Cut-off Date, (2) all other recoveries of late charges, prepayment
penalties, assumption fees or other charges collected after the related Cut-off
Date, and (3) all payments of interest on the Mortgage Loans at the Mortgage
Interest Rate.
SECTION 5. Examination of Mortgage Files.
Prior to the related Closing Date, the Purchaser shall have the
right to perform on-site due diligence at the premises of the Seller with
respect to the Mortgage Loans. The Seller will provide information and otherwise
cooperate with the due diligence reviews of the Purchaser, its co-investors, its
financial partners, its designees and the rating agencies. The Seller shall make
the legal files and the credit files, together with any payment histories,
collection histories, bankruptcy histories, broker's price opinions, and any
other information with respect to the Mortgage Loans requested by the Purchaser,
available at the Seller's offices for review by Purchaser, its designee or its
agents during normal business hours before the related Closing Date. At the
Purchaser's expense, the Purchaser shall have the right to order additional
broker's price opinions in its sole discretion.
Prior to the related Cut-off Date, the Purchaser shall have the
right to reject any Mortgage Loan (a) for which the documentation listed in
Credit File is missing or defective in whole or in part, (b) for which the
related broker's price opinion varies substantially below the appraisal provided
in connection with the origination of the related Mortgage Loan or poses other
marketing issues, (c) which does not generally conform to the Seller's
underwriting or compliance guidelines, (d) which does not conform to the terms
of this letter agreement or is in breach of the representations and warranties
set forth in Section 9.02, or (e) for which the credit or compliance
characteristics do not comply with federal, state or local requirements.
Purchaser shall notify the Seller of any such rejected Mortgage Loan no later
than three business days prior to the related Closing Date.
Notwithstanding the foregoing, the Purchaser may purchase all or
part of the Mortgage Loans without conducting any partial or complete due
diligence examination. The fact that the Purchaser or its designee has conducted
or failed to conduct any partial or complete examination of the files shall not
affect the Purchaser's (or any of its successor's) rights to demand repurchase
or other relief for breach of Mortgage Loan representations and warranties,
missing or defective documents or as otherwise provided in the Purchase
Agreement.
In the event that the Seller fails to deliver the Credit Files with
respect to any Mortgage Loan, the Seller shall, upon the request of the
Purchaser, repurchase or substitute for such Mortgage Loan at the price and in
the manner specified in Subsection 9.04.
SECTION 6. Conveyance from Seller to Purchaser.
Subsection 6.01 Conveyance of Mortgage Loans.
The Seller, by execution and delivery of the related Assignment and
Conveyance on each related Closing Date, does hereby sell, transfer, assign, set
over and convey to the Purchaser, without recourse, but subject to the terms of
this Agreement, all right, title and interest of the Seller in and to the
Mortgage Loans in the related Mortgage Loan Package and the related Mortgage
Files and all rights and obligations arising under the documents contained
therein. The Seller shall cause the Servicing File retained by the Seller
pursuant to this Agreement to be appropriately identified in the Seller's
computer system and/or books and records, as appropriate, to clearly reflect the
sale of the related Mortgage Loan to the Purchaser. The Seller shall release
from its custody the contents of any Servicing File retained by it only in
accordance with this Agreement or the Interim Servicing Agreement, except when
such release is required in connection with a repurchase of any such Mortgage
Loan pursuant to Subsection 9.04.
Subsection 6.02 Books and Records.
Record title to each Mortgage as of the related Closing Date shall
be in the name of the Seller, an Affiliate of the Seller, the Purchaser or one
or more designees of the Purchaser, as the Purchaser shall select.
Notwithstanding the foregoing, each Mortgage and related Mortgage Note shall be
possessed solely by the Purchaser or the appropriate designee of the Purchaser,
as the case may be. All rights arising out of the Mortgage Loans including, but
not limited to, all funds received by the Seller after the related Cut-off Date
on or in connection with a Mortgage Loan shall be vested in the Purchaser or one
or more designees of the Purchaser; provided, however, that all funds received
on or in connection with a Mortgage Loan shall be received and held by the
Seller in trust for the benefit of the Purchaser or the appropriate designee of
the Purchaser, as the case may be, as the owner of the Mortgage Loans pursuant
to the terms of this Agreement.
The sale of each Mortgage Loan shall be reflected on the Seller's
balance sheet and other financial statements as a sale of assets by the Seller.
The Seller shall be responsible for maintaining, and shall maintain,
a complete set of books and records for each Mortgage Loan which shall be marked
clearly to reflect the ownership of each Mortgage Loan by the Purchaser, which
marking may be evidenced by a designation of electronic files or records
maintained by the Seller in connection with each Mortgage Loan. In particular,
to the extent required by applicable law, the Seller shall maintain in its
possession, available for inspection by the Purchaser, and shall deliver to the
Purchaser upon demand, evidence of compliance with all federal, state and local
laws, rules and regulations. To the extent that original documents are not
required for purposes of realization of Liquidation Proceeds or Insurance
Proceeds, documents maintained by the Seller may be in the form of microfilm or
microfiche.
Subsection 6.03 Delivery of Mortgage Loan Documents.
The Seller shall deliver and release to the Custodian no later than
five (5) Business Days prior to the related Closing Date the documents and
instruments in the Mortgage File for each Mortgage Loan.
The Custodian shall certify its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement for the
related Closing Date, as evidenced by the certification and trust receipt of the
Custodian in the form annexed to the Custodial Agreement. The Seller shall
comply with the terms of the Custodial Agreement and the Purchaser shall pay all
fees and expenses charged by the Custodian associated with the initial inventory
and maintenance of the Mortgage Loan Documents.
The Seller shall forward to the Custodian, or to such other Person
as the Purchaser shall designate in writing, original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two weeks of their
execution, provided, however, that the Seller shall provide the Custodian, or to
such other Person as the Purchaser shall designate in writing, with a certified
true copy of any such document submitted for recordation within two weeks of its
execution, and shall promptly provide the original of any document submitted for
recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within 180 days
of the related Closing Date.
In the event any document required to be delivered to the Custodian
pursuant to the preceding paragraph, including an original or copy of any
document submitted for recordation to the appropriate public recording office,
is not so delivered to the Custodian, or to such other Person as the Purchaser
shall designate in writing, within 180 days following the related Closing Date
(other than with respect to the Assignments of Mortgage which shall be delivered
to the Custodian in blank on or prior to the related Closing Date and recorded
subsequently by the Purchaser or its designee), and in the event that the Seller
does not cure such failure within 30 days of discovery or receipt of written
notification of such failure from the Purchaser, the related Mortgage Loan
shall, upon the request of the Purchaser, be repurchased by the Seller at the
price and in the manner specified in Subsection 9.04. The foregoing repurchase
obligation shall not apply in the event that the Seller 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 (i) the Seller
shall deliver a recording receipt of such recording office or, if such recording
receipt is not available, an Officer's Certificate of a servicing officer of the
Seller, confirming that such documents have been accepted for recording (upon
request of the Purchaser and delivery by the Purchaser to the Seller of a
schedule of the related Mortgage Loans, the Seller shall reissue and deliver to
the Purchaser or its designee said Officer's Certificate relating to the related
Mortgage Loans), and (ii) such document is delivered within twelve (12) months
of the related Closing Date.
The Seller shall pay all initial recording fees, if any, for the
assignments of mortgage and any other fees or costs in transferring all original
documents to the Custodian or, upon written request of the Purchaser, to the
Purchaser or the Purchaser's designee. The Purchaser or the Purchaser's designee
shall be responsible for recording the Assignments of Mortgage and shall be
reimbursed by the Seller for the costs associated therewith pursuant to the
preceding sentence.
Subsection 6.04 Quality Control Procedures.
The Seller shall maintain an internal quality control program that
verifies in a manner consistent with accepted industry procedures, on a regular
basis, the existence and accuracy of the legal documents, credit documents,
property appraisals, and underwriting decisions that the Seller maintain for
other mortgage loans purchased, originated and serviced by the Seller. The
program includes evaluating and monitoring the overall quality of the Seller's
loan production and the servicing activities of the Seller. The program ensures
that the Mortgage Loans are originated and serviced in accordance with Accepted
Servicing Practices and the Underwriting Guidelines, guards against dishonest,
fraudulent, or negligent acts; and guards against errors and omissions by
officers, employees, or other authorized persons.
SECTION 7. Servicing of the Mortgage Loans.
The Mortgage Loans shall be sold by the Seller to the Purchaser on a
servicing released basis. Subject to, and upon the terms and conditions of this
Agreement, with respect to the Mortgage Loans, the Seller hereby sells,
transfers, assigns and delivers to the Purchaser, on the related Closing Date,
the Servicing Rights with respect to the Mortgage Loans in the related Mortgage
Loan Pacakge.
The Purchaser shall retain the Seller as contract servicer of the
Mortgage Loans for an interim period pursuant to and in accordance with the
terms and conditions contained in the Interim Servicing Agreement (with respect
to each Mortgage Loan, for an interim period, as specified therein). Pursuant to
the Interim Servicing Agreement, the Seller shall begin servicing the Mortgage
Loans on behalf of the Purchaser and shall be entitled to the Servicing Fee with
respect to such Mortgage Loans from the related Closing Date until the
termination of the Interim Servicing Agreement as set forth therein, but in no
event shall the Seller receive less than 65 days of such compensation.
SECTION 8. Transfer of Servicing.
On the related Transfer Date, the Seller shall cease all servicing
responsibilities under the Interim Servicing Agreement related to the Mortgage
Loans and the Successor Servicer shall service the Mortgage Loans for the
benefit of the Purchaser pursuant to the Servicing Agreement.
On or prior to the related Transfer Date, the Seller shall, at its
sole cost and expense, take such steps as may be necessary or appropriate to
effectuate and evidence the transfer of the servicing of the related Mortgage
Loans to the Purchaser, or its designee, including but not limited to the
following:
(a) Notice to Mortgagors. The Seller shall mail to the Mortgagor of
each related Mortgage Loan a letter advising such Mortgagor of the transfer of
the servicing of the related Mortgage Loan to the Purchaser, or its designee, in
accordance with the Xxxxxxxx Xxxxxxxx National Affordable Housing Act of 1990 at
least 15 days prior to the related Transfer Date; provided, however, the content
and format of the letter shall have the prior approval of the Purchaser. The
Seller shall provide the Purchaser with copies of all such related notices no
later than the related Transfer Date.
(b) Notice to Taxing Authorities and Insurance Companies. The Seller
shall transmit to the applicable taxing authorities and insurance companies
(including primary mortgage insurance policy insurers, if applicable) and/or
agents, notification of the transfer of the servicing to the Purchaser, or its
designee, and instructions to deliver all notices, tax bills and insurance
statements, as the case may be, to the Purchaser from and after the related
Transfer Date. The Seller shall provide the Purchaser with copies of all such
notices no later than 30 days following the related Transfer Date.
(c) Delivery of Servicing Records. The Seller shall forward to the
Purchaser, or its designee, all servicing records and the Servicing File in the
Seller's possession relating to each related Mortgage Loan including the
information enumerated in the Interim Servicing Agreement (with respect to each
such Mortgage Loan, for an interim period, as specified therein).
(d) Escrow Payments. The Seller shall provide the Purchaser, or its
designee, with immediately available funds by wire transfer in the amount of the
net Escrow Payments and suspense balances and all loss draft balances associated
with the related Mortgage Loans. The Seller shall provide the Purchaser with an
accounting statement of Escrow Payments and suspense balances and loss draft
balances sufficient to enable the Purchaser to reconcile the amount of such
payment with the accounts of the Mortgage Loans. Additionally, the Seller shall
wire transfer to the Purchaser the amount of any agency, trustee or prepaid
Mortgage Loan payments and all other similar amounts held by the Seller.
(e) Payoffs and Assumptions. The Seller shall provide to the
Purchaser, or its designee, copies of all assumption and payoff statements
generated by the Seller on the related Mortgage Loans from the related Cut-off
Date to the related Transfer Date.
(f) Mortgage Payments Received Prior to Transfer Date. Prior to the
related Transfer Date all payments received by the Seller on each related
Mortgage Loan shall be properly applied by the Seller to the account of the
particular Mortgagor.
(g) Mortgage Payments Received After Transfer Date. The amount of
any related Monthly Payments received by the Seller (a) during the first 30 days
after the related Transfer Date shall be forwarded to the Purchaser by overnight
mail on the date of receipt and (b) after the date which is 30 days after the
related Transfer Date shall be forwarded to the Purchaser by overnight mail
twice weekly. The Seller shall notify the Purchaser of the particulars of the
payment, which notification requirement shall be satisfied if the Seller
forwards with their payment sufficient information to permit appropriate
processing of the payment by the Purchaser. The Seller shall assume full
responsibility for the necessary and appropriate legal application of such
Monthly Payments received by the Seller after the related Transfer Date with
respect to related Mortgage Loans then in foreclosure or bankruptcy; provided,
for purposes of this Agreement, necessary and appropriate legal application of
such Monthly Payments shall include, but not be limited to, endorsement of a
Monthly Payment to the Purchaser with the particulars of the payment such as the
account number, dollar amount, date received and any special Mortgagor
application instructions and the Seller shall comply with the foregoing
requirements with respect to all Monthly Payments received by it after the
related Transfer Date.
(h) Misapplied Payments. Misapplied payments shall be processed as
follows:
(1) All parties shall cooperate in correcting misapplication
errors;
(2) The party receiving notice of a misapplied payment
occurring prior to the related Transfer Date and discovered after
the related Transfer Date shall immediately notify the other party;
(3) If a misapplied payment which occurred prior to the
related Transfer Date cannot be identified and said misapplied
payment has resulted in a shortage in a Custodial Account or Escrow
Account, the Seller shall be liable for the amount of such shortage.
The Seller shall reimburse the Purchaser for the amount of such
shortage within thirty (30) days after receipt of written demand
therefor from the Purchaser;
(4) If a misapplied payment which occurred prior to the
related Transfer Date has created an improper Purchase Price as the
result of an inaccurate outstanding principal balance, a check shall
be issued to the party shorted by the improper payment application
within five (5) Business Days after notice thereof by the other
party; and
(5) Any check issued under the provisions of this Section 8(h)
shall be accompanied by a statement indicating the Seller and/or the
Purchaser Mortgage Loan identification number and an explanation of
the allocation of any such payments.
(i) Reconciliation. The Seller shall, on or before the related
Transfer Date, reconcile principal balances and make any monetary adjustments
required by the Purchaser. Any such monetary adjustments will be transferred
between the Seller and the Purchaser as appropriate.
(j) IRS Forms. The Seller shall file all IRS Forms 1099, 1099A, 1098
or 1041 and K-1 which are required to be filed on or before the related Transfer
Date in relation to the servicing and ownership of the related Mortgage Loans.
The Seller shall provide copies of such forms to the Purchaser upon request and
shall reimburse the Purchaser for any costs or penalties incurred by the
Purchaser due to the Seller's failure to comply with this paragraph.
SECTION 9. Representations, Warranties and Covenants of the Seller;
Remedies for Breach.
Subsection 9.01 Representations and Warranties Regarding the Seller.
The Seller represents, warrants and covenants to the Purchaser and
the Successor Servicer that as of the date hereof and as of the related Closing
Date:
(a) Due Organization and Authority. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or formation and has all licenses necessary to
carry on its business as now being conducted and is licensed, qualified and in
good standing in each state wherein it owns or leases any material properties or
where a Mortgaged Property is located, if the laws of such state require
licensing or qualification in order to conduct business of the type conducted by
the Seller, and in any event the Seller is in compliance with the laws of any
such state to the extent necessary to ensure the enforceability of the related
Mortgage Loan in accordance with the terms of this Agreement; the Seller has the
full corporate power, authority and legal right to hold, transfer and convey the
Mortgage Loans and to execute and deliver this Agreement and to perform its
obligations hereunder; the execution, delivery and performance of this Agreement
(including all instruments of transfer to be delivered pursuant to this
Agreement) by the Seller and the consummation of the transactions contemplated
hereby have been duly and validly authorized; this Agreement and all agreements
contemplated hereby have been duly executed and delivered and constitute the
valid, legal, binding and enforceable obligations of the Seller, regardless of
whether such enforcement is sought in a proceeding in equity or at law; and all
requisite corporate action has been taken by the Seller to make this Agreement
and all agreements contemplated hereby valid and binding upon the Seller in
accordance with their terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Seller, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by the Seller,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Seller's charter, by-laws
or other organizational documents or any legal restriction or any agreement or
instrument to which the Seller is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject, or result in the creation or
imposition of any lien, charge or encumbrance that would have an adverse effect
upon any of its properties pursuant to the terms of any mortgage, contract, deed
of trust or other instrument, or impair the ability of the Purchaser to realize
on the Mortgage Loans, impair the value of the Mortgage Loans, or impair the
ability of the Purchaser to realize the full amount of any insurance benefits
accruing pursuant to this Agreement;
(d) Ability to Perform; Solvency. The Seller does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. The Seller is solvent and the sale
of the Mortgage Loans will not cause the Seller to become insolvent. The sale of
the Mortgage Loans is not undertaken with the intent to hinder, delay or defraud
any of Seller's creditors;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to the best of the Seller's knowledge, threatened
against the Seller, before any court, administrative agency or other tribunal
(i) asserting the invalidity of this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement, (iii)
which, either in any one instance or in the aggregate, is likely to result in
any material adverse change in the business, operations, financial condition,
properties or assets of the Seller, or in any material impairment of the right
or ability of the Seller to carry on its business substantially as now
conducted, or in any material liability on the part of the Seller, or which
would draw into question the validity of this Agreement or the Mortgage Loans or
of any action taken or to be taken in connection with the obligations of the
Seller contemplated herein, or which would be likely to impair materially the
ability of the Seller to perform under the terms of this Agreement, (iv)
relating to fraud, or (v) relating to predatory lending, or the Seller's
origination, servicing or closing practices which is likely to result in any
material adverse change in the business, operations, financial condition,
properties or assets of the Seller.
(f) No Consent Required. No consent, approval, authorization or
order of, or registration or filing with, or notice to any court or governmental
agency is required for the execution, delivery and performance by the Seller of
or compliance by the Seller with this Agreement or the Mortgage Loans, the
delivery of a portion of the Mortgage Files to the Custodian or the sale of the
Mortgage Loans or the consummation of the transactions contemplated by this
Agreement, or if required, such approval has been obtained prior to the related
Closing Date;
(g) Selection Process. The Mortgage Loans were not intentionally
selected from among the outstanding one- to four-family mortgage loans in the
Seller's portfolio at the related Closing Date as to which the representations
and warranties set forth in Subsection 9.02 could not be made;
(h) Mortgage Loan Characteristics. The characteristics of the
Mortgage Loans are as set forth on the description of the pool characteristics
for the Mortgage Loans in the form attached as Exhibit J hereto;
(i) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form, or other document
furnished or to be furnished by the Seller pursuant to this Agreement or any
Transaction Agreement or in connection with the transactions contemplated hereby
contains or will contain any material untrue statement of fact;
(j) Financial Statements. The Seller has delivered to the Purchaser
financial statements as to its last three complete fiscal years and any later
quarter ended more than 60 days prior to the execution of this Agreement. All
such financial statements fairly present the pertinent results of operations and
changes in financial position for each of such periods and the financial
position at the end of each such period of the Seller and its subsidiaries and
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set forth in the
notes thereto or as required by the Seller's regulator. There has been no change
in the business, operations, financial condition, properties or assets of the
Seller since the date of the Seller's financial statements that would have a
material adverse effect on its ability to perform its obligations under this
Agreement;
(k) Loan Experience. The Seller has delivered information as to its
loan charge-off or loan loss experience, its loan delinquency experience for the
immediately preceding three-year period, prepayment speed and delinquency
histories for at least the immediately preceding year, and all such information
so delivered shall be true and correct in all material respects;
(l) No Brokers. The Seller has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans;
(m) Sale Treatment. The Seller has been advised by its independent
certified public accountants that under generally accepted accounting principles
the transfer of the Mortgage Loans may be treated as a sale on the books and
records of the Seller and the Seller has determined that the disposition of the
Mortgage Loans pursuant to this Agreement will be afforded sale treatment for
tax and accounting purposes;
(n) Reasonable Purchase Price. The consideration received by the
Seller upon the sale of the Mortgage Loans under this Agreement constitutes fair
consideration and reasonably equivalent value for the Mortgage Loans;
(o) Seller's Purchase or Origination. The Seller's decision to
purchase or originate any mortgage loan or to deny any mortgage loan application
is an independent decision based upon Xxxxxx's underwriting guidelines, and is
in no way made as a result of Purchaser's decision to purchase, or not to
purchase, or the price Purchaser may offer to pay for, any such mortgage loan,
if originated;
(p) Ability to Service. The Seller has the facilities, procedures,
and experienced personnel necessary for the sound servicing of mortgage loans of
the same type as the Mortgage Loans. The Seller is duly qualified, licensed,
registered and otherwise authorized under all applicable federal, state and
local laws, and regulations, and is in good standing to enforce, originate, sell
mortgage loans to, and service mortgage loans in each jurisdiction wherein the
Mortgaged Properties are located;
(q) Insured Depository Institution Representations. The Seller makes
the following additional representations and warranties:
(i) This Agreement conforms to all statutory and regulatory
requirements applicable to the Seller. This Agreement is (a)
executed contemporaneously with the agreement reached by the Seller
and the Purchaser, (b) approved by a specific corporate or banking
association resolution by the board of directors of the Seller,
which approval shall be reflected in the minutes of said board, and
(c) continuously, from the time of its execution, an official record
of the Seller;
(ii) This Agreement has been duly and validly authorized by a
specific corporate or banking association resolution by the board of
directors of the Seller. A copy of such resolution, certified by the
corporate secretary of the Seller or attested to by a vice president
or higher officer of the Seller has been provided to the Purchaser;
and
(iii) The Seller will maintain a copy of this Agreement in its
official books and records.
Subsection 9.02 Representations and Warranties Regarding Individual
Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser, its
assignees and the Successor Servicer that, as to each Mortgage Loan, as of the
related Closing Date for such Mortgage Loan:
(a) Mortgage Loans as Described. The information set forth in the
related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to the
related Closing Date for the Mortgage Loan under the terms of the Mortgage Note,
other than payments not yet one month delinquent, have been made and credited.
No payment required under the Mortgage Loan is one month or more delinquent nor
has any payment under the Mortgage Loan been one month or more delinquent at any
time since the origination of the Mortgage Loan;
(c) No Outstanding Charges. Except for payment defaults of less than
one month, there are no defaults in complying with the terms of the Mortgage,
and all taxes, governmental assessments, insurance premiums, water, sewer and
municipal charges, leasehold payments or ground rents which previously became
due and owing have been paid, or an escrow of funds has been established in an
amount sufficient to pay for every such item which remains unpaid and which has
been assessed but is not yet due and payable. The Seller has not advanced funds,
or induced, solicited or knowingly received any advance of funds by a party
other than the Mortgagor, directly or indirectly, for the payment of any amount
required under the Mortgage Loan, except for interest accruing from the date of
the Mortgage Note or date of disbursement of the Mortgage Loan proceeds,
whichever is earlier, to the date which precedes by one month the Due Date of
the first installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and
Mortgage have not been impaired, waived, altered or modified in any respect,
from the date of origination except by a written instrument which has been
recorded, if necessary to protect the interests of the Purchaser, and which has
been delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing, and the terms of which are reflected in the related
Mortgage Loan Schedule. No Mortgage Loan has been modified so as to restructure
the payment obligations or re-age the Mortgage Loan. The substance of any such
waiver, alteration or modification has been approved by the title insurer, if
any, to the extent required by the policy, and its terms are reflected on the
related Mortgage Loan Schedule, if applicable. No Mortgagor has been released,
in whole or in part, except in connection with an assumption agreement, approved
by the issuer of the title insurer, to the extent required by the policy, and
which assumption agreement is part of the Mortgage Loan File delivered to the
Custodian or to such other Person as the Purchaser shall designate in writing
and the terms of which are reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto, and no Mortgagor
was a debtor in any state or federal bankruptcy or insolvency proceeding at, or
subsequent to, the time the Mortgage Loan was originated;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage,
as well as all additional requirements set forth in the Interim Servicing
Agreement. If required by the National Flood Insurance Act of 1968, as amended,
each Mortgage Loan is covered by a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
as in effect, as well as all additional requirements set forth in the Interim
Servicing Agreement. All individual insurance policies contain a standard
mortgagee clause naming the Seller and its successors and assigns as mortgagee,
and all premiums thereon have been paid and such policies may not be reduced,
terminated or cancelled without 30 days' prior written notice to the mortgagee.
The Mortgage obligates the Mortgagor thereunder to maintain the hazard insurance
policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to obtain and maintain such insurance
at such Xxxxxxxxx's cost and expense, and to seek reimbursement therefor from
the Mortgagor. Where required by state law or regulation, the Mortgagor has been
given an opportunity to choose the carrier of the required hazard insurance,
provided the policy is not a "master" or "blanket" hazard insurance policy
covering a condominium, or any hazard insurance policy covering the common
facilities of a planned unit development. The hazard insurance policy is the
valid and binding obligation of the insurer, is in full force and effect, and
will be in full force and effect and inure to the benefit of the Purchaser upon
the consummation of the transactions contemplated by this Agreement. The Seller
has not engaged in, and has no knowledge of the Mortgagor's or any servicer's
having engaged in, any act or omission which would impair the coverage of any
such policy, the benefits of the endorsement provided for herein, or the
validity and binding effect of such policy, including, without limitation, no
unlawful fee, commission, kickback or other unlawful compensation or value of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Seller;
(g) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity, disclosure or unfair and deceptive practices laws
applicable to the Mortgage Loan, including, without limitation, any provisions
relating to Prepayment Penalties, have been complied with; the consummation of
the transactions contemplated hereby will not involve the violation of any such
laws or regulations. Seller shall maintain in its possession, available for the
Purchaser's inspection, and shall deliver to the Purchaser upon demand, evidence
of compliance with all such requirements;;
(h) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in whole
or in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission. The Seller has not waived
the performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has the
Seller waived any default resulting from any action or inaction by the
Mortgagor;
(i) Location and Type of Mortgaged Property. The Mortgaged Property
is a fee simple property located in the state identified in the related Mortgage
Loan Schedule except that with respect to real property located in jurisdictions
in which the use of leasehold estates for residential properties is a
widely-accepted practice, the Mortgaged Property may be a leasehold estate and
consists of a single parcel of real property with a detached single family
residence erected thereon, or a two- to four-family dwelling, or an individual
residential condominium unit in a low-rise condominium project, or an individual
unit in a planned unit development and that no residence or dwelling is (i) a
mobile home, (ii) a manufactured home, (iii) a modular home, or (iv) a row
house. As of the date of origination, no portion of the Mortgaged Property was
used for commercial purposes, and since the date of origination, no portion of
the Mortgaged Property has been used for commercial purposes; provided, that
Mortgaged Properties which contain a home office shall not be considered as
being used for commercial purposes as long as the Mortgaged Property has not
been altered for commercial purposes and is not storing any chemicals or raw
materials other than those commonly used for homeowner repair, maintenance
and/or household purposes;
(j) Valid First Lien. Each Mortgage is a valid and subsisting first
lien (as applicable) of record on a single parcel of real estate constituting
the Mortgaged Property, including all buildings and improvements on the
Mortgaged Property and all installations and mechanical, electrical, plumbing,
heating and air conditioning systems located in or annexed to such buildings,
and all additions, alterations and replacements made at any time, with respect
to the related Mortgage Loan, which exceptions are generally acceptable to
prudent mortgage lending companies, and such other exceptions to which similar
properties are commonly subject and which do not individually, or in the
aggregate, materially and adversely affect the benefits of the security intended
to be provided by such Mortgage. The lien of the Mortgage is subject only to:
(1) the lien of current real property taxes and assessments
not yet due and payable;
(2) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to prudent mortgage lending institutions
generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan
and (a) specifically referred to or otherwise considered in the
appraisal made for the originator of the Mortgage Loan or (b) which
do not adversely affect the Appraised Value of the Mortgaged
Property set forth in such appraisal; and
(3) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting, enforceable and perfected first lien and first priority security
interest on the property described therein and the Seller has full right to sell
and assign the same to Purchaser;
(k) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its terms
(including, without limitation, any provisions therein relating to Prepayment
Penalties), except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, 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 a proceeding in equity or
a law). All parties to the Mortgage Note, the Mortgage and any other such
related agreement had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note, the Mortgage and any such agreement, and
the Mortgage Note, the Mortgage and any other such related agreement have been
duly and properly executed by other such related parties. The documents,
instruments and agreements submitted for loan underwriting were not falsified
and contain no untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the information and
statements therein not misleading. No fraud, error, omission, misrepresentation,
gross negligence or similar occurrence with respect to a Mortgage Loan has taken
place on the part of any Person, including without limitation, the Mortgagor,
any appraiser, any builder or developer, or any other party involved in the
origination or servicing of the Mortgage Loan. The Seller has reviewed all of
the documents constituting the Servicing File;
(l) Full Disbursement of Proceeds. The Mortgage Loan has been closed
and the proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder, and any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. The Seller is the sole owner of record and holder of
the Mortgage Loan and the indebtedness evidenced by each Mortgage Note and upon
the sale of the Mortgage Loans to the Purchaser, the Seller will retain the
Mortgage Files or any part thereof not delivered to the Custodian, the Purchaser
or the Purchaser's designee, in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan. The Mortgage Loan is not
assigned or pledged, and the Seller has good, indefeasible and marketable title
thereto, and has full right to transfer and sell the Mortgage Loan to the
Purchaser free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest, and has full right and
authority subject to no interest or participation of, or agreement with, any
other party, to sell and assign each Mortgage Loan pursuant to this Agreement
and following the sale of each Mortgage Loan, the Purchaser will own such
Mortgage Loan free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest. The Seller intends to
relinquish all rights to possess, control and monitor the Mortgage Loan. After
the related Closing Date, the Seller will have no right to modify or alter the
terms of the sale of the Mortgage Loan and the Seller will have no obligation or
right to repurchase the Mortgage Loan or substitute another Mortgage Loan,
except as provided in this Agreement;
(n) Doing Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (2) either (i) organized
under the laws of such state, or (ii) qualified to do business in such state, or
(iii) a federal savings and loan association, a savings bank or a national bank
having a principal office in such state, or (3) not doing business in such
state;
(o) LTV. No Mortgage Loan has an LTV greater than 100%;
(p) Title Insurance. The Mortgage Loan is covered by an ALTA
lender's title insurance policy, or with respect to any Mortgage Loan for which
the related Mortgaged Property is located in California a CLTA lender's title
insurance policy, and each such title insurance policy is issued by a title
insurer and qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring the Seller, its successors and assigns, as to the
first priority lien of the Mortgage in the original principal amount of the
Mortgage Loan, subject only to the exceptions contained in clauses (1), (2), (3)
and 4 of paragraph (j) of this Subsection 9.02 and in the case of Adjustable
Rate Mortgage Loans, against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of the Mortgage
providing for adjustment to the Mortgage Interest Rate and Monthly Payment.
Where required by state law or regulation, the Mortgagor has been given the
opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender's title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or any
interest therein. The title policy does not contain any special exceptions
(other than the standard exclusions) for zoning and uses and has been marked to
delete the standard survey exception or to replace the standard survey exception
with a specific survey reading. The Seller, its successor and assigns, are the
sole insureds of such lender's title insurance policy, and such lender's title
insurance policy is valid and remains in full force and effect and will be in
force and effect upon the consummation of the transactions contemplated by this
Agreement. No claims are pending under such lender's title insurance policy, and
no prior holder of the related Mortgage, including the Seller, has done, by act
or omission, anything which would impair the coverage of such lender's title
insurance policy, including without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or will be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
(q) No Defaults. Other than payment delinquencies of less than one
month, there is no default, breach, violation or event which would permit
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event which
would permit acceleration, and neither the Seller nor any of its affiliates nor
any of their respective predecessors, have waived any default, breach, violation
or event which would permit acceleration;
(r) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(s) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(t) Origination; Payment Terms. The Mortgage Loan was originated by
a mortgagee approved by the Secretary of Housing and Urban Development pursuant
to Sections 203 and 211 of the National Housing Act, savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or other similar institution which is supervised and examined by a federal or
state authority. The documents, instruments and agreements submitted for loan
underwriting were not falsified and contain no untrue statement of material fact
or omit to state a material fact required to be stated therein or necessary to
make the information and statements therein not misleading. No Mortgage Loan
contains terms or provisions which would result in negative amortization.
Principal payments on the Mortgage Loan commenced no more than sixty days after
funds were disbursed in connection with the Mortgage Loan. The Mortgage Interest
Rate as well as the Lifetime Rate Cap and the Periodic Cap are as set forth on
the related Mortgage Loan Schedule. Except with respect to interest-only
mortgage loans set forth on the related Mortgage Loan Schedule, the Mortgage
Note is payable in equal monthly installments of principal and interest, which
installments of interest, with respect to Adjustable Rate Mortgage Loans, are
subject to change due to the adjustments to the Mortgage Interest Rate on each
Interest Rate Adjustment Date, with interest calculated and payable in arrears,
sufficient to amortize the Mortgage Loan fully by the stated maturity date, over
an original term of not more than thirty years from commencement of
amortization. There are no Convertible Mortgage Loans which contain a provision
allowing the Mortgagor to convert the Mortgage Note from an adjustable interest
rate Mortgage Note to a fixed interest rate Mortgage Note. No Mortgage Loan is a
simple interest mortgage loan;
(u) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and
foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver good
and merchantable title to the Mortgaged Property. There is no homestead or other
exemption available to a Mortgagor which would interfere with the right to sell
the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage, subject to applicable federal and state laws and judicial precedent
with respect to bankruptcy and right of redemption or similar law;
(v) Conformance with Underwriting Guidelines. The Mortgage Loan was
underwritten in accordance with the Underwriting Guidelines in effect as of the
date of origination of such Mortgage Loan (a copy of which is attached hereto as
Exhibit I). The Mortgage Note and Mortgage are on forms generally acceptable to
Freddie Mac or Xxxxxx Xxx and the Seller has not made any representations to a
Mortgagor that are inconsistent with the mortgage instruments used;
(w) Occupancy of the Mortgaged Property. As of the related Closing
Date the Mortgaged Property is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect to
the use and occupancy of the same, including but not limited to certificates of
occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities;
(x) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral except the lien of the corresponding Mortgage and
the security interest of any applicable security agreement or chattel mortgage
referred to in clause (j) above;
(y) Deeds of Trust. In the event the Mortgage constitutes a deed of
trust, a trustee, authorized and duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a reconveyance of
the deed of trust or a trustee's sale after default by the Mortgagor;
(z) Delivery of Mortgage Documents. The Mortgage Note, the Mortgage,
the Assignment of Mortgage and any other documents required to be delivered
under the Custodial Agreement for each Mortgage Loan have been delivered to the
Custodian. The Seller is in possession of a complete, true and accurate Mortgage
File in compliance with Exhibit A hereto, except for such documents the
originals of which have been delivered to the Custodian;
(aa) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project is acceptable to Seller and underwritten in accordance with the
Underwriting Guidelines;
(bb) Transfer of Mortgage Loans. The Assignment of Mortgage with
respect to each Mortgage Loan is in recordable form and is acceptable for
recording under the laws of the jurisdiction in which the Mortgaged Property is
located. The transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Seller is not subject to the bulk transfer or similar statutory
provisions in effect in any applicable jurisdiction;
(cc) Due-On-Sale. The Mortgage contains an enforceable provision
(except as such enforcement may be effected by bankruptcy and insolvency laws or
by general principals of equity) for the acceleration of the payment of the
unpaid principal balance of the Mortgage Loan in the event that the Mortgaged
Property is sold or transferred without the prior written consent of the
mortgagee thereunder, and to the best of the Seller's knowledge, such provision
is enforceable;
(dd) Assumability. None of the Mortgage Loans are, by their terms,
assumable;
(ee) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any separate
account established by the Seller, the Mortgagor, or anyone on behalf of the
Mortgagor, or paid by any source other than the Mortgagor nor does it contain
any other similar provisions which may constitute a "buydown" provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature;
(ff) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the related Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first lien priority by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated interest or by
other title evidence. The consolidated principal amount does not exceed the
original principal amount of the Mortgage Loan;
(gg) Mortgaged Property Undamaged; No Condemnation Proceedings.
There is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property. As of the related Closing Date, the
Mortgaged Property is undamaged by waste, fire, earthquake or earth movement,
windstorm, flood, tornado or other casualty so as to affect adversely the value
of the Mortgaged Property as security for the Mortgage Loan or the use for which
the premises were intended and each Mortgaged Property is inhabitable under
applicable state and local laws;
(hh) Collection Practices; Escrow Deposits. The origination,
servicing and collection practices used by the Seller with respect to the
Mortgage Loan have been in all respects in compliance with Accepted Servicing
Practices, applicable laws and regulations, and have been in all respects legal
and proper and prudent in the mortgage origination and servicing business. With
respect to escrow deposits and Escrow Payments, all such payments are in the
possession of, or under the control of, the Seller and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. All Escrow Payments have been collected in
full compliance with state and federal law and the provisions of the related
Mortgage Note and Mortgage. An escrow of funds is not prohibited by applicable
law and has been established in an amount sufficient to pay for every item that
remains unpaid and has been assessed but is not yet due and payable. No escrow
deposits or Escrow Payments or other charges or payments due the Seller have
been capitalized under the Mortgage or the Mortgage Note. All Mortgage Interest
Rate adjustments have been made in strict compliance with state and federal law
and the terms of the related Mortgage and Mortgage Note on the related Interest
Rate Adjustment Date. If, pursuant to the terms of the Mortgage Note, another
index was selected for determining the Mortgage Interest Rate, the same index
was used with respect to each Mortgage Note which required a new index to be
selected, and such selection did not conflict with the terms of the related
Mortgage Note. The Seller executed and delivered any and all notices required
under applicable law and the terms of the related Mortgage Note and Mortgage
regarding the Mortgage Interest Rate and the Monthly Payment adjustments. Any
interest required to be paid pursuant to state, federal and local law has been
properly paid and credited;
(ii) No Violation of Environmental Laws. To the best of the Seller's
knowledge, the Mortgaged Property is free from any and all toxic or hazardous
substances and there exists no violation of any local, state or federal
environmental law, rule or regulation. To the best of the Seller's knowledge,
there is no pending action or proceeding directly involving the Mortgaged
Property in which compliance with any environmental law, rule or regulation is
an issue; there is no violation of any environmental law, rule or regulation
with respect to the Mortgage Property; and nothing further remains to be done to
satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(jj) Soldiers' and Sailors' Civil Relief Act. The Mortgagor has not
notified the Seller, and the Seller has no knowledge of any relief requested or
allowed to the Mortgagor under the Servicemembers' Civil Relief Act;
(kk) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by a qualified appraiser, duly appointed by the related originator,
who had no interest, direct or indirect in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and the appraisal and appraiser
both satisfy the requirements of the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989 and the regulations promulgated thereunder, all as
in effect on the date the Mortgage Loan was originated;
(ll) Disclosure Materials. The Mortgagor has received all disclosure
materials required by, and the Seller has complied with, all applicable law with
respect to the making of the Mortgage Loans;
(mm) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction or rehabilitation of
a Mortgaged Property or facilitating the trade-in or exchange of a Mortgaged
Property;
(nn) Value of Mortgaged Property. The Seller has no knowledge of any
circumstances existing that could reasonably be expected to adversely affect the
value or the marketability of any Mortgaged Property or Mortgage Loan or to
cause the Mortgage Loans to prepay during any period materially faster or slower
than similar mortgage loans originated to the same Underwriting Guidelines held
by the Seller generally secured by properties in the same geographic area as the
related Mortgaged Property;
(oo) No Defense to Insurance Coverage. The Seller has caused or will
cause to be performed any and all acts required to preserve the rights and
remedies of the Purchaser in any insurance policies applicable to the Mortgage
Loans including, without limitation, any necessary notifications of insurers,
assignments of policies or interests therein, and establishments of coinsured,
joint loss payee and mortgagee rights in favor of the Purchaser. No action has
been taken or failed to be taken, no event has occurred and no state of facts
exists or has existed on or prior to the related Closing Date (whether or not
known to the Seller on or prior to such date) which has resulted or will result
in an exclusion from, denial of, or defense to coverage under any applicable,
special hazard insurance policy, or bankruptcy bond (including, without
limitation, any exclusions, denials or defenses which would limit or reduce the
availability of the timely payment of the full amount of the loss otherwise due
thereunder to the insured) whether arising out of actions, representations,
errors, omissions, negligence, or fraud of the Seller, the related Mortgagor or
any party involved in the application for such coverage, including the
appraisal, plans and specifications and other exhibits or documents submitted
therewith to the insurer under such insurance policy, or for any other reason
under such coverage, but not including the failure of such insurer to pay by
reason of such insurer's breach of such insurance policy or such insurer's
financial inability to pay;
(pp) Escrow Analysis. With respect to each Mortgage with an Escrow
Account, the Seller has within the last twelve months (unless such Mortgage was
originated within such twelve month period) analyzed the required Escrow
Payments for each Mortgage and adjusted the amount of such payments so that,
assuming all required payments are timely made, any deficiency will be
eliminated on or before the first anniversary of such analysis, or any overage
will be refunded to the Mortgagor, in accordance with RESPA and any other
applicable law;
(qq) Prior Servicing. Each Mortgage Loan has been serviced in all
material respects in strict compliance with Accepted Servicing Practices and the
Seller has reported or caused to be reported, the Mortgagor credit files to each
of the three primary credit repositories monthly in a timely manner;
(rr) Leaseholds. If the Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple interest in
the land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent and
the acquisition by the holder of the Mortgage of the rights of the lessee upon
foreclosure or assignment in lieu of foreclosure or provide the holder of the
Mortgage with substantially similar protections; (3) the terms of such lease do
not (a) allow the termination thereof upon the lessee's default without the
holder of the Mortgage being entitled to receive written notice of, and
opportunity to cure, such default, (b) allow the termination of the lease in the
event of damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving proceeds of
insurance) under the hazard insurance policy or policies relating to the
Mortgaged Property or (d) permit any increase in rent other than pre-established
increases set forth in the lease; (4) the original term of such lease is not
less than 15 years; (5) the term of such lease does not terminate earlier than
five years after the maturity date of the Mortgage Note; and (6) the Mortgaged
Property is located in a jurisdiction in which the use of leasehold estates in
transferring ownership in residential properties is a widely accepted practice;
(ss) Prepayment Penalty. The Mortgage Loan is subject to a
prepayment penalty as provided in the related Mortgage Note except as set forth
on the related Mortgage Loan Schedule. With respect to each Mortgage Loan that
has a prepayment penalty feature, each such prepayment penalty is enforceable
and will be enforced by the Interim Servicer for the benefit of the Purchaser,
and each prepayment penalty is permitted pursuant to federal, state and local
law. Each such prepayment penalty is in an amount equal to the maximum amount
permitted under applicable law and no such prepayment penalty may be imposed for
a term in excess of three (3) years. With respect to any Mortgage Loan that
contains a provision permitting imposition of a premium upon a prepayment prior
to maturity: (i) prior to the loan's origination, the borrower agreed to such
premium in exchange for a monetary benefit, including but not limited to a rate
or fee reduction, (ii) originator has available programs that offered the option
of obtaining a mortgage loan that did not require payment of such a premium and
prior to the Mortgage Loan's origination, the Mortgage Loan was available to the
Mortgagor with and without the prepayment penalty, (iii) the prepayment premium
was disclosed to the borrower in the loan documents pursuant to applicable state
and federal law, and (iv) notwithstanding any state or federal law to the
contrary, the Servicer shall not impose such prepayment premium in any instance
when the mortgage debt is accelerated as the result of the borrower's default in
making the loan payments;
(tt) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan;
(uu) Single-premium Credit Life Insurance Policy. In connection with
the origination of any Mortgage Loan, no proceeds from any Mortgage Loan were
used to finance or acquire a single-premium credit life insurance policy; No
Mortgagor was required to purchase any credit life, disability, accident or
health insurance product as a condition of obtaining the extension of credit. No
Mortgagor obtained a prepaid single-premium credit life, disability, accident or
health insurance policy in connection with the origination of the Mortgage Loan;
(vv) Tax Service Contract; Flood Certification Contract. Each
Mortgage Loan is covered by a paid in full, life of loan, tax service contract
and a paid in full, life of loan, flood certification contract and each of these
contracts is assignable to the Purchaser;
(ww) Qualified Mortgage. The Mortgage Loan is an obligation
(including any participation or certificate of beneficial ownership therein)
which is principally secured by an interest in real property;
(xx) Regarding the Mortgagor. The Mortgagor is one or more natural
persons and/or trustees for an Illinois land trust;
(yy) Recordation. Each original Mortgage was recorded and, except
for those Mortgage Loans subject to the MERS identification system, all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
Seller, or is in the process of being recorded;
(zz) FICO Scores. Unless set forth in the related Purchase Price and
Terms Letter, each Mortgage Loan has a non-zero FICO score. No Mortgage Loan has
a Mortgagor with a FICO score of less than 500 as of the related origination
date;
(aaa) Compliance with Anti-Money Laundering Laws. The Seller has
complied with all applicable anti-money laundering laws and regulations,
including without limitation the USA Patriot Act of 2001 (collectively, the
"Anti-Money Laundering Laws"); to the extent applicable to the Seller as of the
related Closing Date, the Seller has established an anti-money laundering
compliance program as required by the Anti-Money Laundering Laws, has conducted
the requisite due diligence in connection with the origination of each Mortgage
Loan for purposes of the Anti-Money Laundering Laws, including with respect to
the legitimacy of the applicable Mortgagor and the origin of the assets used by
the said Mortgagor to purchase the property in question, and maintains, and will
maintain, sufficient information to identify the applicable Mortgagor for
purposes of the Anti-Money Laundering Laws;
(bbb) Georgia Fair Lending Act. There is no Mortgage Loan that was
originated on or after October 1, 2002 and on or prior to March 7, 2003, which
is secured by property located in the State of Georgia. There is no Mortgage
Loan that was originated on or after March 7, 2003 that is a "high cost home
loan" as defined under the Georgia Fair Lending Act;
(ccc) New York State Banking Law. There is no Mortgage Loan that (a)
is secured by property located in the State of New York; (b) had an original
principal balance of $300,000 or less, and (c) has an application date on or
after April 1, 2003, the terms of which loan equal or exceed either the annual
percentage rate or the points and fees threshold for "high-cost home loans," as
defined in Section 6-L of the New York State Banking Law;
(ddd) New Jersey Mortgage Loans. As of the related Closing Date, all
Mortgage Loans originated in New Jersey are ratable by Standard & Poor's, Fitch
Ratings and Xxxxx'x. All Mortgage Loans originated in New Jersey conform with
the Purchaser's New Jersey Loan Stipulations set forth on Exhibit M;
(eee) Oakland Mortgage Loans. No Mortgage Loan is subject to the
Oakland, California Anti-Predatory Lending Ordinance;
(fff) New Mexico Mortgage Loans. No Mortgage Loan is a home
improvement loan or manufactured home loan subject to the provisions of New
Mexico's Home Loan Protection Act closed on or after January 1, 2004;
(ggg) South Carolina Mortgage Loans. No Mortgage Loan subject to the
South Carolina High Cost and Consumer Home Loan Act is a refinance or
non-purchase money Mortgage Loan;
(hhh) Litigation. As of the related Closing Date, the Mortgage Loan
is not subject to any outstanding litigation for fraud, origination, predatory
lending, servicing or closing practices;
(iii) MERS Designations. With respect to each MERS Designated
Mortgage Loan, the Seller has designated the Custodian as the Investor and no
Person is listed as Interim Funder on the MERS(R) System;
(jjj) Delivery to the Custodian. The Mortgage Note, the Mortgage,
the Assignment of Mortgage and any other documents required to be delivered with
respect to each Mortgage Loan pursuant to the Custodial Agreement, shall be
delivered to the Custodian all in compliance with the specific requirements of
the Custodial Agreement. With respect to each Mortgage Loan, the Seller will be
in possession of a complete Mortgage File in compliance with Exhibit A hereto,
except for such documents as will be delivered to the Custodian;
(kkk) Owner of Record. The Seller is the owner of record of each
Mortgage and the indebtedness evidenced by each Mortgage Note, except for the
Assignments of Mortgage which have been sent for recording, and upon recordation
the Seller will be the owner of record of each Mortgage and the indebtedness
evidenced by each Mortgage Note, and upon the sale of the Mortgage Loans to the
Purchaser, the Seller will retain the Mortgage Files with respect thereto in
trust only for the purpose of servicing and supervising the servicing of each
Mortgage Loan.
(lll) Reports. On or prior to the related Closing Date, the Seller
has provided the Custodian and the Purchaser with a MERS Report listing the
Custodian as the Investor with respect to each MERS Designated Mortgage Loan.
(mmm) Payoffs. No Mortgage Loans prepaid in full prior to the
related Closing Date.
(nnn) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, that Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded by the terms of
the Mortgage Loan Documents from furnishing the same to any subsequent or
prospective purchaser of such Mortgage. The Seller shall hold the Purchaser
harmless from any and all damages, losses, costs and expenses (including
attorney's fees) arising from disclosure of credit information in connection
with the Purchaser's secondary marketing operations and the purchase and sale of
mortgages. The Seller has or has caused the related servicer to, for each
Mortgage Loan, fully furnish, in accordance with the Fair Credit Reporting Act
and its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian and
Trans Union Credit Information Company (three of the credit repositories), on a
monthly basis.
(ooo) Origination Practices. Each Mortgagor was assigned the highest
credit grade available with respect to a mortgage loan product offered by such
Mortgage Loan's originator, taking into account the credit history, debt to
income ratio and loan requirement of such Mortgagor;
(ppp) Underwriting Methodology. The methodology used in underwriting
the extension of credit for each Mortgage Loan employs, in part, objective
mathematical principles which relate the borrower's income, assets and
liabilities to the proposed payment and such underwriting methodology does not
rely on the extent of the borrower's equity in the collateral as the principal
determining factor in approving such credit extension. Such underwriting
methodology confirmed that at the time of origination (application/approval) the
borrower had a reasonable ability to make timely payments on the Mortgage Loan;
and
(qqq) Xxxxxx Xxx Mortgage Loans. With respect to each Mortgage Loan
which the Seller indicates is a Xxxxxx Xxx eligible mortgage loan, the
representations set forth on Exhibit M are true and correct.
(rrr) Arbitration. With respect to any Mortgage Loan originated on
or after August 1, 2004, neither the related Mortgage nor the related Mortgage
Note requires the borrower to submit to arbitration to resolve any dispute
arising out of or relating in any way to the Mortgage Loan transaction
Subsection 9.03 Remedies for Breach of Representations and
Warranties.
It is understood and agreed that the representations and warranties
set forth in Subsections 9.01 and 9.02 shall survive the sale of the Mortgage
Loans to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment of Mortgage or the examination or failure to examine any Mortgage
File. Upon discovery by the Seller or the Purchaser of a breach of any of the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other.
Within 60 days of the earlier of either discovery by or notice to
the Seller of any breach of a representation or warranty which materially and
adversely affects the value of the Mortgage Loans or the interest of the
Purchaser therein (or which materially and adversely affects the value of the
applicable Mortgage Loan or the interest of the Purchaser therein in the case of
a representation and warranty relating to a particular Mortgage Loan);
(provided, with respect to any representations and warranties which are made to
the best of the Seller's knowledge, if it is discovered by the Seller or the
Purchaser that the substance of such representation and warranty is inaccurate
and such inaccuracy materially and adversely affects the value of the related
Mortgage Loan or the interest of the Purchaser or which materially and adversely
affects the value of a Mortgage Loan or the interests of the Purchaser in the
related Mortgage Loan in the case of a representation and warranty relating to a
particular Mortgage Loan), notwithstanding the Seller's lack of knowledge with
respect to the substance of such representation and warranty, such inaccuracy
shall be deemed a breach of the applicable representation and warranty) (a "Loan
In Breach"), the Seller shall use its best efforts promptly to cure such breach
in all material respects and, if such breach cannot be cured, the Seller shall,
at the Purchaser's option, repurchase such Mortgage Loan at the Repurchase
Price, together with all expenses incurred by the Purchaser as a result of such
repurchase. Notwithstanding the above sentence, within 60 days of the earlier of
either discovery by, or notice to, the Seller of any breach of the
representations or warranties set forth in clauses (ss), (tt), (uu), (bbb),
(nnn), and (rrr) of Subsection 9.02, the Seller shall repurchase such Mortgage
Loan at the Repurchase Price, together with all expenses incurred by the
Purchaser as a result of such repurchase. In the event that a Loan in Breach
shall involve any representation or warranty set forth in Subsection 9.01, and
such breach cannot be cured within 60 days of the earlier of either discovery by
or notice to the Seller of such breach, all of the Mortgage Loans shall, at the
Purchaser's option, be repurchased by the Seller at the Repurchase Price.
However, if the breach shall involve a representation or warranty
set forth in Subsections 9.02 or 9.08 (other than the representations and
warranties set forth in clauses (ss), (tt), (uu), (bbb), (nnn) and (rrr) of
Subsection 9.02) and the Seller discovers or receives notice of any such breach
within 120 days of the related Closing Date, the Seller shall, at the
Purchaser's option and provided that the Seller has a Qualified Substitute
Mortgage Loan, rather than repurchase the Mortgage Loan as provided above,
remove such Mortgage Loan (a "Deleted Mortgage Loan") and substitute in its
place a Qualified Substitute Mortgage Loan or Loans, provided that any such
substitution shall be effected not later than 120 days after the related Closing
Date. If the Seller has no Qualified Substitute Mortgage Loan, the Seller shall
repurchase the deficient Mortgage Loan. Any repurchase of a Mortgage Loan or
Loans pursuant to the foregoing provisions of this Subsection 9.04 shall be
accomplished by either (a) if the Interim Servicing Agreement has been entered
into and is in effect, deposit in the Custodial Account of the amount of the
Repurchase Price for distribution to the Purchaser on the next scheduled
Remittance Date, after deducting therefrom any amount received in respect of
such repurchased Mortgage Loan or Loans and being held in the Custodial Account
for future distribution or (b) if the Interim Servicing Agreement is no longer
in effect, by direct remittance of the Repurchase Price to the Purchaser or its
designee in accordance with the Purchaser's instructions.
At the time of repurchase or substitution, the Purchaser and the
Seller shall arrange for the reassignment of the Deleted Mortgage Loan to the
Seller and the delivery to the Seller of any documents held by the Custodian
relating to the Deleted Mortgage Loan. In the event of a repurchase or
substitution, the Seller shall, simultaneously with such reassignment, give
written notice to the Purchaser that such repurchase or substitution has taken
place, amend the related Mortgage Loan Schedule to reflect the withdrawal of the
Deleted Mortgage Loan from this Agreement, and, in the case of substitution,
identify a Qualified Substitute Mortgage Loan and amend the related Mortgage
Loan Schedule to reflect the addition of such Qualified Substitute Mortgage Loan
to this Agreement. In connection with any such substitution, the Seller shall be
deemed to have made as to such Qualified Substitute Mortgage Loan the
representations and warranties set forth in this Agreement except that all such
representations and warranties set forth in this Agreement shall be deemed made
as of the date of such substitution, whether or not such substitution date is
after the related Transfer Date. The Seller shall effect such substitution by
delivering to the Custodian or to such other party as the Purchaser may
designate in writing for such Qualified Substitute Mortgage Loan the documents
required by Subsection 6.03 and the Custodial Agreement, with the Mortgage Note
endorsed as required by Subsection 6.03 and the Custodial Agreement. No
substitution will be made in any calendar month after the initial Determination
Date for such month. The Seller shall remit directly to the Purchaser, or its
designee in accordance with the Purchaser's instructions the Monthly Payment
less the Servicing Fee due, if any, on such Qualified Substitute Mortgage Loan
or Loans in the month following the date of such substitution. Monthly Payments
due with respect to Qualified Substitute Mortgage Loans in the month of
substitution shall be retained by the Seller. For the month of substitution,
distributions to the Purchaser shall include the Monthly Payment due on any
Deleted Mortgage Loan in the month of substitution, and the Seller shall
thereafter be entitled to retain all amounts subsequently received by the Seller
in respect of such Deleted Mortgage Loan.
For any month in which the Seller substitutes a Qualified Substitute
Mortgage Loan for a Deleted Mortgage Loan, the Seller shall determine the amount
(if any) by which the aggregate principal balance of all Qualified Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all Deleted Mortgage Loans (after application of scheduled
principal payments due in the month of substitution). The amount of such
shortfall shall be distributed by the Seller directly to the Purchaser or its
designee in accordance with the Purchaser's instructions within two (2) Business
Days of such substitution.
In addition to such repurchase or substitution obligation, the
Seller shall indemnify the Purchaser and the Successor Servicer and hold it
harmless against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and other reasonable
costs and expenses resulting from any claim, demand, defense or assertion based
on or grounded upon, or resulting from, a breach of the Seller's representations
and warranties contained in this Agreement or any Transaction Agreement. It is
understood and agreed that the obligations of the Seller set forth in this
Subsection 9.03 to cure, substitute for or repurchase a defective Mortgage Loan
and to indemnify the Purchaser as provided in this Subsection 9.03 constitute
the sole remedies of the Purchaser and the Successor Servicer respecting a
breach of the foregoing representations and warranties. For purposes of this
paragraph, "Purchaser" shall mean the Person then acting as the Purchaser under
this Agreement and any and all Persons who previously were "Purchasers" under
this Agreement and "Successor Servicer" shall mean the Person then acting as the
Successor Servicer under this Agreement and any and all Persons who previously
were "Successor Servicers" under this Agreement.
Upon the request of the Purchaser, the Seller hereby agrees to
execute a recognition agreement in the form of Exhibit L hereto recognizing the
servicer designated by the Purchaser therein as the Successor Servicer.
Any cause of action against the Seller relating to or arising out of
the breach of any representations and warranties made in Subsections 9.01, 9.02
or 9.08 shall accrue as to any Mortgage Loan upon (i) discovery of such breach
by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure
by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a
Qualified Substitute Mortgage Loan as specified above, and (iii) demand upon the
Seller by the Purchaser for compliance with this Agreement.
Subsection 9.04 Repurchase of Mortgage Loans With First Payment
Defaults.
With respect to any Mortgage Loan, if the related Mortgagor fails to
make the first Monthly Payment to be made by the Mortgagor after the related
Closing Date before the Due Date immediately following such initial Due Date
(such date, the "First Payment Default Date", such failure to pay, a "First
Payment Default"), the Seller shall, within five Business Days of receipt of
notice from the Purchaser, promptly repurchase such Mortgage Loan (a "First
Payment Default Mortgage Loan") from the Purchaser at the Purchase Price plus
accrued interest thereon at the Mortgage Interest Rate from the date on which
interest had last been paid through the date of such repurchase, plus the amount
of any outstanding advances owed to any servicer, plus all costs and expenses
incurred by the Purchaser or any servicer arising out of or based upon such
breach, including, without limitation, costs and expenses incurred in the
enforcement of the Seller's repurchase obligation hereunder. The Purchaser shall
request repurchase of any Mortgage Loans to be repurchased pursuant to this
Subsection 9.04 on or before the date which is thirty (30) days after the
related First Payment Default Date.
Subsection 9.05 Purchaser's Right to Review.
Prior to the related Closing Date, the Purchaser shall have the
right to perform on-site due diligence at the premises of the Seller with
respect to the Mortgage Loans. The Seller will provide information and otherwise
cooperate with the due diligence reviews of the Purchaser, its co-investor's,
its financial partner's, and the rating agencies. The Seller shall make the
Mortgage Files and the Credit Files, together with any payment histories,
collection histories, bankruptcy histories, broker's price opinions, and any
other information with respect to the Mortgage Loans requested by the Purchaser,
available at the Seller's offices for review by Purchaser or its agents during
normal business hours before the related Closing Date. The Purchaser shall have
the right, at its own expense, to order additional broker's price opinions in
its sole discretion.
The Purchaser shall have the right to reject any Mortgage Loan (a)
for which the Mortgage File documentation is missing or defective in whole or in
part, (b) for which (i) the related broker's price opinion is more than 15%
below the appraisal provided in connection with the origination of the related
Mortgage Loan, (c) which does not conform to the Seller's Underwriting
Guidelines or compliance guidelines, (d) which does not conform to the terms of
the related Purchase Price and Terms Letter or is in breach of the
representations and warranties set forth herein, or (e) for which the credit or
compliance characteristics are unacceptable to the Purchaser.
Notwithstanding the foregoing, the Purchaser may purchase all or
part of the Mortgage Loans without conducting any partial or complete due
diligence examination. The fact that the Purchaser has conducted or failed to
conduct any partial or complete examination of the files shall not affect the
Purchaser's (or any of its successor's) rights to demand repurchase or other
relief for breach of Mortgage Loan representations and warranties, missing or
defective documents or as otherwise provided in this Agreement.
SECTION 10. Closing.
Each closing for the purchase and sale of the Mortgage Loans shall
take place on the related Closing Date. At the Purchaser's option, each closing
shall be either: by telephone, confirmed by letter or wire as the parties shall
agree, or conducted in person, at such place as the parties shall agree.
The closing for the Mortgage Loans to be purchased on each Closing
Date shall be subject to each of the following conditions:
(i) prior to the related Closing Date, the Seller shall deliver to
the Purchaser via electronic medium acceptable to the
Purchaser, a listing on a loan-level basis of the necessary
information to compute the Purchase Price of the Mortgage
Loans delivered on the related Closing Date (including accrued
interest), and prepare a Mortgage Loan Schedule;
(ii) all of the representations and warranties of the Seller under
this Agreement shall be true and correct as of the related
Closing Date and no event shall have occurred which, with
notice or the passage of time, would constitute a default
under this Agreement;
(iii) the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, all closing documents
as specified in Section 10 of this Agreement, in such forms as
are agreed upon and acceptable to the Purchaser, duly executed
by all signatories other than the Purchaser as required
pursuant to the terms hereof;
(iv) the Seller shall have delivered and released to the Custodian
all documents required pursuant to the Custodial Agreement;
and
(v) all other terms and conditions of this Agreement and the
related Purchase Price and Terms Agreement shall have been
complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Seller on the related Closing Date the Purchase Price, plus accrued interest
pursuant to Section 4 of this Agreement, by wire transfer of immediately
available funds to the account designated by the Seller.
SECTION 11. Closing Documents.
The Closing Documents for the Mortgage Loans to be purchased on the
initial Closing Date shall consist of fully executed originals of the following
documents:
1. this Agreement;
2. the Custodial Agreement, dated as of the related Cut-off Date;
3. the related Mortgage Loan Schedule, one copy to be attached hereto, and
one copy to be attached to the Custodian's counterpart of the Custodial
Agreement;
4. an Officer's Certificate, in the form of Exhibit C hereto with respect to
each Seller, including all attachments thereto;
5. an Opinion of Counsel of the Seller (who may be an employee of the
Seller), in form and substance acceptable to the Purchaser ("Opinion of
Counsel of the Seller");
6. an Opinion of Counsel of the Custodian (who may be an employee of the
Custodian), in the form of an exhibit to the Custodial Agreement;
7. a Security Release Certification, in the form of Exhibit E or F, as
applicable, hereto executed by any person, as requested by the Purchaser,
if any of the Mortgage Loans have at any time been subject to any security
interest, pledge or hypothecation for the benefit of such person;
8. a certificate or other evidence of merger or change of name, signed or
stamped by the applicable regulatory authority, if any of the Mortgage
Loans were acquired by the related Seller by merger or acquired or
originated by the Seller while conducting business under a name other than
its present name, if applicable; and
The Closing Documents to be delivered on each Closing Date shall
consist of fully executed originals of the following documents:
1. an Assignment and Conveyance in the form of Exhibit I hereto, including
all exhibits;
2. the related Mortgage Loan Schedule, with one copy to be attached to the
related Assignment and Conveyance;
3. each of the documents required to be delivered by the Seller pursuant to
Section 6.03 hereof;
4. the initial certification of the Custodian with respect to the related
Mortgage Loan Package as required under the Custodial Agreement in the
form of Exhibit 2 thereto;
5. a Security Release Certification, substantially in the form of Exhibit E
or F, hereto executed by any person, as requested by the Purchaser, if any
of the Mortgage Loans have at any time been subject to any security
interest, pledge or hypothecation for the benefit of such person;
6. a certificate or other evidence of merger or change of name, signed or
stamped by the applicable regulatory authority, if any of the Mortgage
Loans were acquired by the Seller by merger or acquired or originated by
the Seller while conducting business under a name other than its present
name, if applicable; and
7. if requested, by the Purchaser in connection with a material change in
Seller's financial condition or corporate structure, an updated Officer's
Certificate, in the form of Exhibit C hereto, including all attachments
thereto and an updated Opinion of Counsel of the Seller, in the form of
Exhibit D hereto.
8. a MERS Report reflecting the Custodian as Investor and no Person as
Interim Funder for each MERS Designated Mortgage Loan.
The Seller shall bear the risk of loss of the closing documents
until such time as they are received by the Purchaser or its attorneys.
SECTION 12. Costs.
The Purchaser shall pay its due diligence fees and the fees and
expenses of its counsel. All servicing fees incurred prior to the related
Closing Date, and all costs and expenses incurred in connection with the
transfer of the Mortgage Loans, fees to transfer files and prepare
assignments/endorsements, all initial recording fees, if any, for the
assignments of mortgage for all Mortgage Loans not recorded in the name of MERS,
all fees, if any, for transferring record ownership on the MERS system of
Mortgage Loans recorded in the name of MERS, custodial fees, including the costs
associated with clearing exceptions, (including costs to record intervening
assignments and any existing assumption and modification agreements), together
with the fees and expenses of Seller's counsel, shall be payable by the Seller.
SECTION 13. Cooperation of Seller with a Reconstitution.
The Seller and the Purchaser agree that with respect to some or all
of the Mortgage Loans, after the related Closing Date, on one or more dates
(each a "Reconstitution Date") at the Purchaser's sole option, the Purchaser may
effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans
then subject to this Agreement, without recourse, to:
(i) one or more third party purchasers in one or more Whole Loan
Transfers; or
(ii) one or more trusts or other entities to be formed as part of
one or more Securitization Transfers;
With respect to each Whole Loan Transfer and each Securitization
Transfer entered into by the Purchaser, the Seller agrees (1) to cooperate fully
with the Purchaser and any prospective purchaser with respect to all reasonable
requests and due diligence procedures; (2) to restate the representations and
warranties set forth in this Agreement and the Interim Servicing Agreement as of
the related Reconstitution Date, provided, that with respect to representations
and warranties for which modifications may be necessary to reflect changes due
to events that may have occurred since the related Closing Date, such
representations and warranties shall be restated as of the related Transfer
Date, modified, if necessary, to reflect changes due to events that may have
occurred from the related Closing Date through the related Transfer Date and (3)
to enter into an assignment and recognition agreement or other agreement in
connection with such Transaction (the "Transaction Agreement") setting forth
such restated representations and warranties as of the related Transfer Date and
the remedies for breach of same (which remedies will be the same as those set
forth in this Agreement). The Seller shall use its reasonable best efforts to
assist the Purchaser, and any prospective purchaser, if the Purchaser or such
prospective purchaser so requests, in connection with each Transaction, which
assistance shall include, but not be limited to, (i) providing any information
relating to the Mortgage Loans necessary to assist in the preparation of any
disclosure documents, (ii) restating as of the related Transfer Date, for the
benefit of the Purchaser, its assignees and the Successor Servicer, the same
representations and warranties as to the Mortgage Loans as set forth in clause
(2) above, and (iii) delivering an opinion of counsel (which may be from
in-house counsel) in form and substance satisfactory to the Purchaser if
requested by the Purchaser, provided that any opinion required of outside
counsel with respect to Rule 10B-5 shall be at the expense of Purchaser which
shall not exceed $2,500. The Seller agrees to enter into (a) an assignment,
assumption and recognition agreement pursuant to which the Seller assigns the
restated representations and warranties and remedies to the Transaction. If a
Transaction occurs during an Interim Period, the Seller agrees to enter into a
sub-servicing agreement with the Purchaser and the related successor servicer
mutually acceptable to the parties. Any such sub-servicing agreement shall
require the Seller to deliver (but not file) all necessary Xxxxxxxx-Xxxxx
certifications with respect to the Mortgage Loans mutually acceptable to the
parties. Moreover, the Seller agrees to cooperate with all reasonable requests
made by the Purchaser to effect such Transaction Agreements and Reconstitutions.
The Seller shall indemnify the Purchaser, each Affiliate designated by the
Purchaser, each Person who controls the Purchaser or such Affiliate, and any
Successor Servicer and hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other reasonable costs, fees and expenses that
each of them may sustain in any way related to any information provided by or on
behalf of the Seller regarding the Seller, the Seller's servicing practices or
performance, the Mortgage Loans or the Underwriting Guidelines set forth in any
offering document prepared in connection with any Reconstitution which contains
or will contain any material untrue statement of fact or omits or will omit to
state a fact necessary to make the statements contained herein or therein not
misleading. For purposes of the previous sentence, "Purchaser" shall mean the
Person then acting as the Purchaser under this Agreement and any and all Persons
who previously were "Purchasers" under this Agreement.
In the event the Purchaser has elected to have the Seller hold
record title to the Mortgages, prior to the Reconstitution Date, the Seller
shall prepare an assignment of mortgage in blank or to the prospective purchaser
or trustee, as applicable, from the Seller, acceptable to the prospective
purchaser or trustee, as applicable, for each Mortgage Loan that is part of the
Reconstitution and shall pay all preparation and recording costs associated
therewith. In connection with the Reconstitution, the Seller shall execute each
Assignment of Mortgage, (except with respect to each MERS Designated Mortgage
Loan), track such Assignments of Mortgage to ensure they have been recorded and
deliver them as required by the prospective purchaser or trustee, as applicable,
upon the Seller's receipt thereof. Additionally, the Seller shall prepare and
execute, at the direction of the Purchaser, any note endorsement in connection
with any and all seller/servicer agreements.
All Mortgage Loans not sold or transferred pursuant to a
Reconstitution shall remain subject to this Agreement and, if the Interim
Servicing Agreement shall remain in effect with respect to the Mortgage Loans,
shall continue to be serviced in accordance with the terms of this Agreement and
the Interim Servicing Agreement and with respect thereto this Agreement shall
remain in full force and effect.
SECTION 14. The Seller.
Subsection 14.01 Additional Indemnification by the Seller; Third
Party Claims.
The Seller shall indemnify the Purchaser and the Successor Servicer
and hold it harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, legal fees (including (without limitation) legal fees
incurred in connection with the enforcement of the Seller's indemnification
obligation under this Subsection 14.01) and related costs, judgments, and any
other reasonable costs, fees and expenses that the Purchaser or the Successor
Servicer have incurred as a result of (a) the failure of the Seller to perform
its duties under this Agreement or (b) any breach of any of Seller's
representations, warranties or covenants set forth in this Agreement, (c) any
failure to service the Mortgage Loans in strict compliance with the terms of the
Interim Servicing Agreement or (d) any breach of any of Seller's
representations, warranties or covenants set forth in Transaction Agreement
entered into pursuant to Section 13. The Seller immediately shall notify the
Purchaser if a claim is made by a third party against the Seller with respect to
this Agreement or any Transaction Agreement or the Mortgage Loans, assume (with
the prior written consent of the Purchaser) the defense (provided, that if the
Purchaser does not consent, the Purchaser shall assume the defense) of any such
claim and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or the Purchaser in respect of such claim.
With respect to any third party claim or defense which Purchaser is
defending which relates to an allegation that Seller failed to originate or
service a Mortgage Loan in accordance with any federal, state or local law, in
the event that the Seller does not possess, and/or fails to deliver to the
Purchaser upon demand, evidence of Seller's compliance with all such
requirements of applicable law, Seller shall (a) repurchase such Mortgage Loan
at the Repurchase Price and (b) indemnify the Purchaser for all expenses in
connection with the Purchaser's defense of such claim, including legal fees, and
(c) assume the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or the Purchaser in respect
of such claim.
The Purchaser promptly shall reimburse the Seller for all reasonable
amounts advanced by it pursuant to the preceding paragraphs, except when the
claim is in any way related to the Servicer's indemnification pursuant to
Section 9.04 or the Interim Servicing Agreement, or is in any way related to the
failure of the Seller to service and administer the Mortgage Loans in strict
compliance with the terms of this Agreement or any Transaction Agreement.
Subsection 14.02 Purchaser Indemnification
The Purchaser shall indemnify and hold harmless Seller and its
directors, officers, partners and each Person, if any, that controls Seller,
within the meaning of either the Securities Act or the Exchange Act, against any
and all losses, claims, damages, penalties, fines, forfeitures or liabilities to
which Seller or any such director, officer, partner or controlling Person may
become subject, under the Securities Act, the Exchange Act or otherwise, to the
extent that such losses, claims, damages, penalties, fines, forfeitures or
liabilities (or actions in respect thereof) arise out of the servicing of the
Mortgage Loans by a successor servicer, out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
offering document prepared in connection with any Reconstitution or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, but only to the extent
that such untrue statement or alleged untrue statement or omission or alleged
omission relates to information set forth in any information provided by the
Purchaser set forth in any offering document prepared in connection with any
Reconstitution, and the Purchaser shall in each case reimburse Seller and each
such director, officer, partner or controlling Person for any legal or other
expenses reasonably incurred by Seller, and each such director, officer or
controlling Person, in connection with investigating or defending any such loss,
claim, damage, liability, penalties, fines, forfeitures or action, as such
expenses are incurred.
Subsection 14.03 Merger or Consolidation of the Seller
The Seller will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any Person into which the Seller may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Seller shall be a party, or any Person succeeding to the business of the
Seller, shall be the successor of the Seller hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or surviving Person shall have a net worth of at least $25,000,000.
SECTION 15. Financial Statements.
Financial information regarding the Seller may be provided to
prospective purchasers for a period of three (3) years following the related
Closing Date; provided, however, that such information will be limited to the
audited financial statements of the Seller for the three (3) years preceding
such disclosure; and such information may only be provided if the prospective
purchaser has executed a written confidentiality agreement, addressed to the
Seller, stating that all non-public information will be used only for the
purposes of evaluating the proposed investment and that the prospective
purchaser has required such information as integral to its decision-making
process. Copies of any such confidentiality agreements must be delivered by the
Purchaser to the Seller within five (5) Business Days of receipt thereof by the
Purchaser.
The Seller also agrees to allow reasonable access to a knowledgeable
financial or accounting officer for the purpose of answering questions asked by
any prospective purchaser regarding recent developments affecting the Seller or
the financial statements of the Seller.
SECTION 16. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, by registered or
certified mail, return receipt requested, or, if by other means, when received
by the other party at the address as follows:
(i) if to a Seller:
Fremont Investment & Loan
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
(ii) if to the Purchaser:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
SECTION 17. Severability Clause.
Any part, provision representation or warranty of this Agreement
which is prohibited or unenforceable or is held to be void or unenforceable in
any jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
SECTION 18. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
SECTION 19. Governing Law.
This Agreement shall be deemed in effect when a fully executed
counterpart thereof is received by the Purchaser in the State of New York and
shall be deemed to have been made in the State of New York. The Agreement shall
be construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with the substantive laws of the State of New York (without regard to
conflicts of laws principles), except to the extent preempted by Federal law.
SECTION 20. Intention of the Parties.
It is the intention of the parties that the Purchaser is purchasing,
and the Seller are selling the Mortgage Loans and not a debt instrument of the
Seller or another security. Accordingly, the parties hereto each intend to treat
the transaction for Federal income tax purposes as a sale by the Seller, and a
purchase by the Purchaser, of the Mortgage Loans. Moreover, the arrangement
under which the Mortgage Loans are held shall be consistent with classification
of such arrangement as a grantor trust in the event it is not found to represent
direct ownership of the Mortgage Loans. The Purchaser shall have the right to
review the Mortgage Loans and the related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect the Federal income tax
consequences of owning the Mortgage Loans and the Seller shall cooperate with
all reasonable requests made by the Purchaser in the course of such review.
SECTION 21. Successors and Assigns; Assignment of Purchase
Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and the respective permitted
successors and assigns of the Seller and the successors and assigns of the
Purchaser. This Agreement shall not be assigned, pledged or hypothecated by the
Seller to a third party without the prior written consent of the Purchaser,
which consent may be withheld by the Purchaser in its sole discretion. This
Agreement may be assigned, pledged or hypothecated by the Purchaser in whole or
in part, and with respect to one or more of the Mortgage Loans, without the
consent of the Seller; provided that Seller shall not be required to recognize
more than (a) three transferees of the Purchaser pursuant to Securitization
Transfers and (b) one transferee of the Purchaser pursuant to a Whole Loan
Transfer. In the event the Purchaser assigns this Agreement, and the assignee
assumes any of the Purchaser's obligations hereunder, the Seller acknowledges
and agrees to look solely to such assignee, and not to the Purchaser, for
performance of the obligations so assumed and the Purchaser shall be relieved
from any liability to the Seller with respect thereto. The Successor Servicer
shall be an intended third party beneficiary of this Agreement to the same
extent as if it were a party hereto, and shall have the right to enforce the
provisions of this Agreement.
SECTION 22. Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
SECTION 23. Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
SECTION 24. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration.
SECTION 25. Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 26. Further Agreements.
The Seller and the Purchaser each agree to execute and deliver to
the other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of this
Agreement.
SECTION 27. Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, each of the Assignments
of Mortgage is subject to recordation in all appropriate public offices for real
property records in all the counties or their comparable jurisdictions in which
any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected at the Seller's expense in the event recordation is either necessary
under applicable law or requested by the Purchaser at its sole option (except
with respect to any MERS Designated Mortgage Loan).
SECTION 28. No Solicitation.
From and after the related Closing Date, the Seller agrees that it
will not take any action or cause any action to be taken by any of its agents or
affiliates, or by any independent contractors on the Seller's behalf, to
personally, by telephone or mail, solicit the borrower or obligor under any
Mortgage Loan to refinance a Mortgage Loan, in whole or in part, without the
prior written consent of the Purchaser. It is understood and agreed that all
rights and benefits relating to the solicitation of any mortgagors to refinance
any Mortgage Loans and the attendant rights, title and interest in and to the
list of such mortgagors and data relating to their mortgages (including
insurance renewal dates) shall be transferred to the Purchaser pursuant to the
Purchase Agreement on the related Closing Date and the Seller shall take no
action to undermine these rights and benefits. Notwithstanding the foregoing, it
is understood and agreed that promotions undertaken by the Seller or any
affiliate of the Seller which are directed to the general public at large,
including, without limitation, mass mailing, internet, and email solicitations
based, in all instances, on commercially acquired mailing lists (which may not
be targeted at the Mortgagors,) and newspaper, radio and television
advertisements shall not constitute solicitation under this Section 28. It is
understood and agreed that responses to payoff inquiries by the Mortgagors or
obligors shall not constitute solicitation for purposes of this Section 28.
SECTION 29. Waiver of Trial by Jury.
THE SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST 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 OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 30. Submission To Jurisdiction; Waivers.
Each party hereto hereby irrevocably and unconditionally:
(A) SUBMITS ITSELF IN ANY LEGAL ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH THE PARTIES HERETO SHALL HAVE
BEEN NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO SUE IN ANY OTHER JURISDICTION.
SECTION 31. Confidential Information
The Seller understands and agrees that this Agreement, the Side
Letter, the related Purchase Price and Terms Letter, the Interim Servicing
Agreement, and any other agreements executed in connection with the sale
contemplated hereunder, any agreements executed in connection with the
securitization of the Mortgage Loans, and any offering circulars or other
disclosure documents produced in connection with such securitization (the
"Agreements") are confidential and proprietary to the Purchaser, and the Seller
agrees to hold such documents confidential and not to divulge such documents to
anyone except (a) to the extent required by law or judicial order or to enforce
its rights or remedies under the related Purchase Price and Terms Agreement or
the Agreements, (b) to the extent such information enters into the public domain
other than through the wrongful act of the Seller, (c) as is necessary in
working with legal counsel, auditors, agents, rating agencies, taxing
authorities or other governmental agencies or (d) the federal income tax
treatment of the transactions hereunder, any fact relevant to understanding the
federal tax treatment of the transactions hereunder, and all materials of any
kind (including opinions or other tax analyses) relating to such federal income
tax treatment; provided that the Seller may not disclose the name of or
identifying information with respect to Purchaser or any pricing terms or other
nonpublic business or financial information that is unrelated to the purported
or claimed federal income tax treatment of the transactions hereunder and is not
relevant to understanding the purported or claimed federal income tax treatment
of the transactions hereunder.
[Signatures Commence on Following Page]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
XXXXXXX XXXXX MORTGAGE COMPANY, a New
York limited partnership
(Purchaser)
By:XXXXXXX XXXXX REAL ESTATE
FUNDING CORP., a New York
corporation, as General Partner
By:_______________________________
Name:_____________________________
Title:____________________________
FREMONT INVESTMENT & LOAN
(Seller)
By:_____________________________________
Name:___________________________________
Title:__________________________________
EXHIBIT A
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 any prospective Purchaser, and which shall be delivered to the
Custodian, or to such other Person as the Purchaser shall designate in writing,
pursuant to Section 6 of the Mortgage Loan Purchase and Warranties Agreement to
which this Exhibit is attached (the "Agreement"):
(a) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _________, without recourse" and signed in the
name of the last endorsee (the "Last Endorsee") by an authorized officer. 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, if state law so allows and the
Custodian is so advised by the Seller that state law so allows. If the Mortgage
Loan was acquired by the Seller in a merger, the endorsement must be by "[Last
Endorsee], successor by merger to [name of predecessor]". If the Mortgage Loan
was acquired or originated by the Last Endorsee while doing business under
another name, the endorsement must be by "[Last Endorsee], formerly known as
[previous name]";
(b) the original of any guarantee executed in connection with the
Mortgage Note;
(c) the original Mortgage with evidence of recording thereon. If in
connection with any Mortgage Loan, the Seller cannot deliver or cause to be
delivered the original Mortgage with evidence of recording thereon on or prior
to the related Closing Date because of a delay caused by the public recording
office where such Mortgage has been delivered for recordation or because such
Mortgage has been lost or because such public recording office retains the
original recorded Mortgage, the Seller shall deliver or cause to be delivered to
the Custodian, a photocopy of such Mortgage, together with (i) in the case of a
delay caused by the public recording office, an Officer's Certificate of the
Seller (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 the Seller; or (ii) in the case of a
Mortgage where a public recording office retains the original recorded Mortgage
or in the case where a Mortgage is lost after recordation in a public recording
office, a copy of such Mortgage certified by such public recording office to be
a true and complete copy of the original recorded Mortgage;
(d) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(e) except with respect to each MERS Designated Mortgage Loan, the
original Assignment of Mortgage for each Mortgage Loan, in form and substance
acceptable for recording. The Assignment of Mortgage must be duly recorded only
if recordation is either necessary under applicable law or commonly required by
private institutional mortgage investors in the area where the Mortgaged
Property is located or on direction of the Purchaser as provided in this
Agreement. If the Assignment of Mortgage is to be recorded, the Mortgage shall
be assigned to the Purchaser. If the Assignment of Mortgage is not to be
recorded, the Assignment of Mortgage shall be delivered in blank. If the
Mortgage Loan was acquired by the Seller in a merger, the Assignment of Mortgage
must be made by "[Seller], successor by merger to [name of predecessor]". If the
Mortgage Loan was acquired or originated by the Seller while doing business
under another name, the Assignment of Mortgage must be by "[Seller], formerly
known as [previous name]";
(f) the originals of all intervening assignments of mortgage (if
any) evidencing a complete chain of assignment from the Seller (or MERS with
respect to each MERS Designated Mortgage Loan) 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 Seller shall deliver or cause to be delivered to the Custodian, a photocopy
of such intervening assignment, together with (i) in the case of a delay caused
by the public recording office, an Officer's Certificate of the Seller (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 Seller; or
(ii) in the case of an intervening assignment where a public recording office
retains the original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording office, a
copy of such intervening assignment certified by such public recording office to
be a true and complete copy of the original recorded intervening assignment;
(g) The original mortgagee policy of title insurance or attorney's
opinion of title accompanied by a title abstract or, in the event such original
title policy is unavailable, a certified true copy of the related policy binder
or commitment for title certified to be true and complete by the title insurance
company; and
(h) security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage;
(i) original powers of attorney, if applicable, with evidence of
recording thereon, if required;
In the event an Officer's Certificate of the Seller is delivered to
the Purchaser because of a delay caused by the public recording office in
returning any recorded document, the Seller shall deliver to the Purchaser,
within 90 days of the related Closing Date, an Officer's Certificate which shall
(i) identify the recorded document, (ii) state that the recorded document has
not been delivered to the Custodian due solely to a delay caused by the public
recording office, (iii) state the amount of time generally required by the
applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will be
delivered to the Custodian.
EXHIBIT B
CONTENTS OF EACH CREDIT FILE
(a) Any security agreement, chattel mortgage or equivalent executed
in connection with the Mortgage.
(b) The original hazard insurance policy and, if required by law,
flood insurance policy.
(c) Residential loan application.
(d) Mortgage Loan closing statement.
(e) Verification of employment and income except for Mortgage Loans
originated under a Limited Documentation Program.
(f) Verification of acceptable evidence of source and amount of
downpayment.
(g) Credit report on the Mortgagor.
(h) Residential appraisal report.
(i) Photograph of the Mortgaged Property.
(j) Survey of the Mortgaged Property, if any.
(k) Copy of each instrument necessary to complete identification of
any exception set forth in the exception schedule in the title policy, i.e., map
or plat, restrictions, easements, sewer agreements, home association
declarations, etc.
(l) All required disclosure statements.
(m) If available, termite report, structural engineer's report,
water potability and septic certification.
(n) Sales contract.
(o) Tax receipts, insurance premium receipts, ledger sheets, payment
history from date of origination, insurance claim files, correspondence, current
and historical computerized data files, and all other processing, underwriting
and closing papers and records which are customarily contained in a mortgage
loan file and which are required to document the Mortgage Loan or to service the
Mortgage Loan.
(p) Amortization schedule.
EXHIBIT C
MORTGAGE LOAN SCHEDULE FIELDS
(1) the Seller's Mortgage Loan identifying number;
(2) the Mortgagor's name;
(3) the street address of the Mortgaged Property including the city,
state and zip code;
(4) a code indicating whether the Mortgaged Property is
owner-occupied, a second home or investment property;
(5) the number and type of residential units constituting the
Mortgaged Property (i.e. a single family residence, a 2-4 family residence, a
unit in a condominium project or a unit in a planned unit development,
manufactured housing);
(6) the original months to maturity or the remaining months to
maturity from the related Cut-off Date, in any case based on the original
amortization schedule and, if different, the maturity expressed in the same
manner but based on the actual amortization schedule;
(7) the LTV at the origination;
(8) the Mortgage Interest Rate as of the related Cut-off Date;
(9) the date on which the Monthly Payment was due on the Mortgage
Loan and, if such date is not consistent with the Due Date currently in effect,
such Due Date;
(10) the stated maturity date;
(11) the amount of the Monthly Payment as of the related Cut-off
Date;
(12) the last payment date on which a payment was actually applied
to 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 related Cut-off Date, after deduction of payments of principal
due and collected on or before the related Cut-off Date;
(15) with respect to Adjustable Rate Mortgage Loans, the Interest
Rate 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
Rate Cap under the terms of the Mortgage Note;
(20) the type of Mortgage Loan (i.e., Fixed Rate, Adjustable Rate,
First 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,
alternative or reduced);
(23) the loan credit classification (as described in the
Underwriting Guidelines);
(24) whether such Mortgage Loan provides for a Prepayment Penalty;
(25) the Prepayment Penalty period of such Mortgage Loan, if
applicable;
(26) a description of the Prepayment Penalty, 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 is a Section 32
Mortgage Loan;
(34) a code indicating whether the Mortgage Loan has been modified;
(35) the Current CLTV;
(36) the one year payment history;
(37) the Due Date for the first Monthly Payment;
(38) the original Monthly Payment due;
(39) with respect to the related Mortgagor, the debt-to-income
ratio;
(40) the Appraised Value of the Mortgaged Property;
(41) the sales price of the Mortgaged Property if the Mortgage Loan
was originated in connection with the purchase of the Mortgaged Property;
(42) the MERS Identification Number
(43) Senior lien balance
(44) Lien position marker
(45) CLTV at origination
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.
EXHIBIT D
MORTGAGE LOAN SCHEDULE
EXHIBIT E
SELLER'S OFFICER'S CERTIFICATE
I, ____________________, hereby certify that I am the duly elected
[Vice] President of Fremont Investment & Loan], a [state] [federally] chartered
institution organized under the laws of the [state of ____________] [United
States] (the "Company") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy
of the charter of the Company which is in full force and effect on the
date hereof and which has been in effect without amendment, waiver,
rescission or modification.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy
of the bylaws of the Company which are in effect on the date hereof and
which have been in effect without amendment, waiver, rescission or
modification.
3. Attached hereto as Exhibit 3 is an original certificate of good
standing of the Company issued within ten days of the date hereof, and no
event has occurred since the date thereof which would impair such
standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete copy
of the corporate resolutions of the Board of Directors of the Company
authorizing the Company to execute and deliver each of the Mortgage Loan
Purchase and Warranties Agreement, dated as of October 1, 2004, by and
between Xxxxxxx Xxxxx Mortgage Company (the "Purchaser") and the Company
(the "Purchase Agreement"), and the Interim Servicing Agreement, dated as
of October 1, 2004, by and between the Company and the Purchaser (the
"Interim Servicing Agreement") and to endorse the Mortgage Notes and
execute the Assignments of Mortgages by original [or facsimile]
signature], and such resolutions are in effect on the date hereof and have
been in effect without amendment, waiver, rescission or modification.
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company
with the Purchase Agreement, the Interim Servicing Agreement, the sale of
the mortgage loans or the consummation of the transactions contemplated by
the agreements; or (ii) any required consent, approval, authorization or
order has been obtained by the Company.
6. Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of the Purchase Agreement and the Interim
Servicing Agreement conflicts or will conflict with or results or will
result in a breach of or constitutes or will constitute a default under
the charter or by-laws of the Company, the terms of any indenture or other
agreement or instrument to which the Company is a party or by which it is
bound or to which it is subject, or any statute or order, rule,
regulations, writ, injunction or decree of any court, governmental
authority or regulatory body to which the Company is subject or by which
it is bound.
7. To the best of my knowledge, there is no action, suit, proceeding
or investigation pending or threatened against the Company which, in my
judgment, either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations, financial
condition, properties or assets of the Company or in any material
impairment of the right or ability of the Company to carry on its business
substantially as now conducted or in any material liability on the part of
the Company or which would draw into question the validity of the Purchase
Agreement and the Interim Servicing Agreement, or the mortgage loans or of
any action taken or to be taken in connection with the transactions
contemplated hereby, or which would be likely to impair materially the
ability of the Company to perform under the terms of the Purchase
Agreement and the Interim Servicing Agreement.
8. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Company, signed (a) the Purchase
Agreement, and (b) the Interim Servicing Agreement, (and (c) any other
document delivered or on the date hereof in connection with any purchase
described in the agreements set forth above was, at the respective times
of such signing and delivery, and is now, a duly elected or appointed,
qualified and acting officer or representative of the Company, who holds
the office set forth opposite his or her name on Exhibit 5, and the
signatures of such persons appearing on such documents are their genuine
signatures.
9. The Company is duly authorized to engage in the transactions
described and contemplated in the Purchase Agreement and the Interim
Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Dated:____________________ By:___________________________
Name:_________________________
[Seal] Title: [Vice] President
I, ________________________, an [Assistant] Secretary of ___________
[COMPANY], hereby certify that ____________ is the duly elected, qualified and
acting [Vice] President of the Company and that the signature appearing above is
[her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:____________________ By:___________________________
Name:_________________________
Title: [Assistant] Secretary
EXHIBIT 5 to
Company's Officer's Certificate
NAME TITLE SIGNATURE
---- ----- ---------
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
________________________ ________________________ ________________________
EXHIBIT F
FORM OF OPINION OF COUNSEL TO THE SELLER
(date)
EXHIBIT G
FORM OF SECURITY RELEASE CERTIFICATION
___________________, 200__
[Federal Home Loan Bank of
______(the "Association")]
__________________________
__________________________
__________________________
Attention: ___________________________
___________________________
Re: Notice of Sale and Release of Collateral
Dear Sirs:
This letter serves as notice that Fremont Investment & Loan a [type
of entity], organized pursuant to the laws of [the state of incorporation] (the
"Company") has committed to sell to Xxxxxxx Xxxxx Mortgage Company under a
Mortgage Loan Purchase and Warranties Agreement, dated as of October 1, 2004,
certain mortgage loans originated by the Association. The Company warrants that
the mortgage loans to be sold to Xxxxxxx Xxxxx Mortgage Company are in addition
to and beyond any collateral required to secure advances made by the Association
to the Company.
The Company acknowledges that the mortgage loans to be sold to
Xxxxxxx Xxxxx Mortgage Company shall not be used as additional or substitute
collateral for advances made by the Association. Xxxxxxx Xxxxx Mortgage Company
understands that the balance of the Company's mortgage loan portfolio may be
used as collateral or additional collateral for advances made by the
Association, and confirms that it has no interest therein.
Execution of this letter by the Association shall constitute a full
and complete release of any security interest, claim, or lien which the
Association may have against the mortgage loans to be sold to Xxxxxxx Xxxxx
Mortgage Company.
Very truly yours,
________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
Date:___________________________________
Acknowledged and approved:
[FEDERAL HOME LOAN BANK OF]
__________________________________
By:_______________________________
Name:_____________________________
Title:____________________________
Date:______________________________
EXHIBIT H
FORM OF SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
The financial institution named below hereby relinquishes any and
all right, title and interest it may have in all Mortgage Loans to be purchased
by to Xxxxxxx Xxxxx Mortgage Company from the Company named below pursuant to
that certain Mortgage Loan Purchase and Warranties Agreement, dated as of
October 1, 2004, and certifies that all notes, mortgages, assignments and other
documents in its possession relating to such Mortgage Loans have been delivered
and released to the Company named below or its designees, as of the date and
time of the sale of such Mortgage Loans to Xxxxxxx Xxxxx Mortgage Company.
Name and Address of Financial Institution
________________________________
(name)
________________________________
(Address)
By:_____________________________
II. Certification of Release
The Company named below hereby certifies Xxxxxxx Xxxxx Mortgage
Company that, as of the date and time of the sale of the above-mentioned
Mortgage Loans to Xxxxxxx Xxxxx Mortgage Company the security interests in the
Mortgage Loans released by the above-named financial institution comprise all
security interests relating to or affecting any and all such Mortgage Loans. The
Company warrants that, as of such time, there are and will be no other security
interests affecting any or all of such Mortgage Loans.
________________________________________
By:_____________________________________
Title:__________________________________
Date:___________________________________
EXHIBIT I
UNDERWRITING GUIDELINES
EXHIBIT J
RESERVED
EXHIBIT K
SERVICER ACKNOWLEDGMENT
As of [_________]
Fremont Investment & Loan
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Re: Letter Agreement in connection with the purchase by Xxxxxxx Xxxxx
Mortgage Company (the "Purchaser") and the sale by Fremont
Investment & Loan (the "Company") of mortgage loans pursuant to that
certain Mortgage Loan Purchase and Warranties Agreement (the
"Agreement"), dated as of October 1, 2004, by and between the
Company and the Purchaser
Ladies and Gentlemen:
In connection with the above-referenced transaction, and in
consideration of the mutual agreements hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Purchaser and the Company hereby agree as follows:
1. Unless otherwise specified in this letter agreement, all capitalized terms
herein shall have the meaning as provided in the Agreement.
2. The Purchaser hereby requests, and the Company hereby acknowledges, that
[SERVICER] shall be the "Successor Servicer" under the agreement.
3. This letter may be executed in any number of counterparts each of which
shall constitute one and the same instrument, and either party hereto may
execute this letter by signing any such counterpart.
[the remainder of this page intentionally left blank]
4. This letter shall be deemed in effect when a fully executed counterpart
thereof is received by the Company in the State of New York and shall be
deemed to have been made in the State of New York. This letter shall be
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder shall be
determined in accordance with the laws of the State of New York except to
the extent preempted by Federal law.
Very truly yours,
XXXXXXX XXXXX MORTGAGE COMPANY
By: ____________________________________
Name: __________________________________
Title: _________________________________
Accepted and Agreed:
FREMONT INVESTMENT & LOAN
(Seller)
By: ____________________________________
Name: __________________________________
Title: _________________________________
EXHIBIT L
NEW JERSEY MORTGAGE LOAN STIPULATIONS
The seven stipulations below apply only to Mortgage Loans originated subject to
the New Jersey Home Ownership Act of 2002 ("Act").
1. No Mortgage Loan is a "high cost home loan," "home improvement,"
"manufactured home," or junior lien "covered" loan as defined under the
Act.
2. No more than 5% of the pool consists of refinance "covered loans" under
the Act.
3. The points and fees threshold calculations under the Act include
yield-spread premiums.
4. All loans originated under the Act will be subject to up to 100% due
diligence.
5. Mortgage Loan files must contain tangible net benefit and high-cost
worksheets.
6. Points and fees must be included on the related Mortgage Loan Schedule.
7. Seller will make the representation that all Mortgage Loans subject to New
Jersey's "flipping" prohibition, as defined under the Act, are in
compliance with the "reasonable, tangible net benefit" standard.
EXHIBIT L
XXXXXX XXX ANTI-PREDATORY LENDING REPRESENTATIONS
(a) Each Mortgage Loan is in compliance with the anti-predatory
lending eligibility for purchase requirements of Fannie Mae's Selling Guide;
(b) No Mortgage Loan is subject to the requirements of the Home
Ownership and Equity Protection Act of 1994 ("HOEPA");
(c) Each Mortgage Loan at the time it was made complied in all
material respects with applicable local, state, and federal laws, including, but
not limited to, all applicable predatory and abusive lending laws;
(d) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
Georgia Fair Lending Act, as amended (the "Georgia Act"). No Mortgage Loan
subject to the Georgia Act and secured by owner occupied real property or an
owner occupied manufactured home located in the State of Georgia was originated
(or modified) on or after October 1, 2002 through and including March 6, 2003.
(e) No Mortgage Loan is a "High-Cost Home Loan" as defined in New
York Banking Law 6-1;
(f) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
Arkansas Home Loan Protection Act effective July 16, 2003 (Act 1340 of 2003);
(g) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
Kentucky high-cost home loan statute effective June 24, 2003 (Ky. Rev. Stat.
Section 360.100);
(h) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et
seq.);
(i) No Mortgage Loan is a "High-Cost Home Loan" as defined in the
New Mexico Home Loan Protection Act effective January 1, 2004 (N.M. Stat. Xxx.
xx.xx. 58-21A-1 et seq.);
(j) No Mortgage Loan is a "High-Risk Home Loan" as defined in the
Illinois High-Risk Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat.
137/1 et seq.);
(k) No Mortgage Loan is a "High-Cost Home Mortgage Loan" as defined
in the Massachusetts Predatory Home Loan Practices Act, effective November 6,
2004 (Mass. Xxx. Laws Ch. 183C);
(l) No borrower was encouraged or required to select a Mortgage Loan
product offered by the Mortgage Loan's originator which is a higher cost product
designed for less creditworthy borrowers, unless at the time of the Mortgage
Loan's origination, such borrower did not qualify taking into account credit
history and debt-to-income ratios for a lower-cost credit product then offered
by the Mortgage Loan's originator or any affiliate of the Mortgage Loan's
originator. If, at the time of loan application, the borrower may have qualified
for a for a lower-cost credit product then offered by any mortgage lending
affiliate of the Mortgage Loan's originator, the Mortgage Loan's originator
referred the borrower's application to such affiliate for underwriting
consideration;
(m) The methodology used in underwriting the extension of credit for
each Mortgage Loan employs objective mathematical principles which relate the
borrower's income, assets and liabilities to the proposed payment and such
underwriting methodology does not rely on the extent of the borrower's equity in
the collateral as the principal determining factor in approving such credit
extension. Such underwriting methodology confirmed that at the time of
origination (application/approval) the borrower had a reasonable ability to make
timely payments on the Mortgage Loan;
(n) With respect to any Mortgage Loan that contains a provision
permitting imposition of a premium upon a prepayment prior to maturity: (i)
prior to the loan's origination, the borrower agreed to such premium in exchange
for a monetary benefit, including but not limited to a rate or fee reduction,
(ii) prior to the loan's origination, the borrower was offered the option of
obtaining a mortgage loan that did not require payment of such a premium, (iii)
the prepayment premium is disclosed to the borrower in the loan documents
pursuant to applicable state and federal law, (iv) for loans originated on or
after September 1, 2004, the duration of the prepayment period shall not exceed
three (3) years from the date of the note, unless the loan was modified to
reduce the prepayment period to no more than three years from the date of the
note and the borrower was notified in writing of such reduction in prepayment
period, and (v) notwithstanding any state or federal law to the contrary, the
Servicer shall not impose such prepayment premium in any instance when the
mortgage debt is accelerated as the result of the borrower's default in making
the loan payments;
(o) No borrower was required to purchase any credit life,
disability, accident or health insurance product as a condition of obtaining the
extension of credit. No borrower obtained a prepaid single-premium credit life,
disability, accident or health insurance policy in connection with the
origination of the Mortgage Loan; No proceeds from any Mortgage Loan were used
to purchase single premium credit insurance policies as part of the origination
of, or as a condition to closing, such Mortgage Loan;
(p) All points and fees related to each Mortgage Loan were disclosed
in writing to the borrower in accordance with applicable state and federal law
and regulation. Except in the case of a Mortgage Loan in an original principal
amount of less than $60,000 which would have resulted in an unprofitable
origination, no borrower was charged "points and fees" (whether or not financed)
in an amount greater than 5% of the principal amount of such loan, such 5%
limitation is calculated in accordance with Fannie Mae's anti-predatory lending
requirements as set forth in the Xxxxxx Xxx Selling Guide.
(q) All fees and charges (including finance charges) and whether or
not financed, assessed, collected or to be collected in connection with the
origination and servicing of each Mortgage Loan has been disclosed in writing to
the borrower in accordance with applicable state and federal law and regulation;
and
(r) The Servicer will transmit full-file credit reporting data for
each Mortgage Loan pursuant to Xxxxxx Xxx Guide Announcement 95-19 and that for
each Mortgage Loan, Servicer agrees it shall report one of the following
statuses each month as follows: new origination, current, delinquent (30-, 60-,
90-days, etc.), foreclosed, or charged-off.
EXHIBIT I
ASSIGNMENT AND CONVEYANCE
On this __ day of _________, 200_, Fremont Investment & Loan, as the
Seller, under that certain Flow Mortgage Loan Purchase and Warranties Agreement,
dated as of October 1, 2004 (the "Agreement") does hereby sell, transfer,
assign, set over and convey to Xxxxxxx Xxxxx Mortgage Company, as Purchaser
under the Agreement all rights, title and interest of the Seller in and to (a)
the Mortgage Loans listed on the related Mortgage Loan Schedule attached as
Exhibit 1 hereto, and (b) the Servicing Rights, together with the related
Mortgage Files and all rights and obligations arising under the documents
contained therein. Pursuant to Section 2 of the Agreement, the Seller has
delivered to the Custodian the documents for each Mortgage Loan to be purchased
as set forth in the Agreement. The ownership of each Mortgage Note, Mortgage,
and the contents of each Mortgage File is vested in the Purchaser and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of the Seller shall immediately
vest in the Purchaser and shall be delivered promptly by the Seller to the
Purchaser.
The Seller confirms to the Purchaser that, unless otherwise agreed
upon in writing by the Seller and the Purchaser, the representations and
warranties set forth in Section 7 of the Agreement with respect to the Mortgage
Loans listed on the Mortgage Loan Schedule attached hereto, and the
representations and warranties in Section 6 of the Agreement with respect to the
Seller are true and correct as of the date hereof.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Agreement.
FREMONT INVESTMENT & LOAN
(Seller)
By: ____________________________________
Name: __________________________________
Title: _________________________________
Schedule 1
MORTGAGE LOAN SCHEDULE
EXHIBIT R
EXECUTION COPY
REPRESENTATIONS AND WARRANTIES AGREEMENT
This REPRESENTATIONS AND WARRANTIES AGREEMENT ("Agreement"), dated
as of December 29, 2005 (the "Closing Date"), is between XXXXXXX XXXXX MORTGAGE
COMPANY ("GSMC" or the "Seller") and GS MORTGAGE SECURITIES CORP. (the
"Depositor" or the "Purchaser").
W I T N E S S E T H:
WHEREAS, GSMC acquired certain mortgage loans (the "Acoustic
Mortgage Loans") set forth on the mortgage loan schedule attached hereto as
Schedule I (the "Acoustic Mortgage Loan Schedule") from Acoustic Home Loans, LLC
("Acoustic") pursuant to that certain Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of November 1, 2004, as amended by Amendment No. 1, dated as
of May 1, 2005 and pursuant to that certain Flow Amended and Restated Mortgage
Loan Purchase and Warranties Agreement, dated as of September 1, 2005 (each, an
"Acoustic Purchase Agreement"), between GSMC, as purchaser, and Acoustic, as
seller;
WHEREAS, GSMC acquired certain mortgage loans (the "Meritage
Mortgage Loans") set forth on the mortgage loan schedule attached hereto as
Schedule II (the "Meritage Mortgage Loan Schedule") from Meritage Mortgage
Corporation ("Meritage") pursuant to that certain Flow Mortgage Loan Purchase
and Warranties Agreement, dated as of July 1, 2005 (the "Meritage Purchase
Agreement"), between GSMC, as purchaser, and Meritage, as seller;
WHEREAS, GSMC acquired certain mortgage loans (the "First NLC
Mortgage Loans") set forth on the mortgage loan schedule attached hereto as
Schedule III (the "First NLC Mortgage Loan Schedule") from First NLC Financial
Services, LLC ("First NLC") pursuant to that certain Flow Mortgage Loan Purchase
and Warranties Agreement, dated as of March 25, 2004, as amended by Amendment
No. 1, dated as of July 15, 2004 and that certain letter dated as of March 25,
2004 (collectively, the "First NLC Purchase Agreement"), between GSMC, as
purchaser, and First NLC, as seller;
WHEREAS, GSMC acquired certain mortgage loans (the "Conduit Mortgage
Loans" and together with the Acoustic Mortgage Loans, the Meritage Mortgage
Loans and the First NLC Mortgage Loans, the "Mortgage Loans"), the Conduit
Mortgage Loans set forth on the mortgage loan schedule attached hereto as
Schedule IV (the "Conduit Mortgage Loan Schedule") from various mortgage loan
sellers pursuant to certain Master Loan Purchase Agreements (the "Conduit
Purchase Agreements" and together with the Acoustic Purchase Agreement, the
First NLC Purchase Agreement and the Meritage Purchase Agreement, the "Purchase
Agreements"), each between GSMC, as purchaser, and the applicable mortgage loan
seller, as seller;
WHEREAS, pursuant to that certain bill of sale, dated as of December
29, 2005, between GSMC and the Depositor, the Mortgage Loans are to be
transferred by GSMC to the Depositor;
WHEREAS, pursuant to that certain Pooling and Servicing Agreement,
dated as of December 1, 2005 (the "Pooling and Servicing Agreement"), among the
Depositor, Ocwen Loan Servicing, LLC, as Servicer (the "Servicer"), Xxxxx Fargo
Bank, N.A., as master servicer and securities administrator (the "Master
Servicer" and "Securities Administrator"), Deutsche Bank National Trust Company,
as a custodian, U.S. Bank, National Association, as a custodian (collectively,
the "Custodians"), and LaSalle Bank National Association, as Trustee (the
"Trustee"), the GSAMP Trust 2005-HE6 (the "Trust") shall issue its Mortgage
Pass-Through Certificates, Series 2005-HE6 (the "Certificates"), representing
beneficial ownership interest in a trust, the assets of which include, but are
not limited to, the Mortgage Loans transferred by the Depositor to the Trust
pursuant to the Pooling and Servicing Agreement;
WHEREAS, in connection with the sale of the Mortgage Loans by GSMC
to the Depositor, GSMC shall make various representations and warranties to the
Depositor regarding the Mortgage Loans;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. Defined Terms.
(a) Unless otherwise defined herein, capitalized terms used herein
shall have the meanings assigned to such terms in the Pooling and Servicing
Agreement. In the event of a conflict between any of the defined terms contained
in this Agreement and the Pooling and Servicing Agreement, the definitions
contained in the Pooling and Servicing Agreement shall control.
(b) The following capitalized terms shall have the meanings assigned
to such terms below:
Accepted Servicing Practices: With respect to any Mortgage Loan
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
ALTA: The American Land Title Association, or any successor thereto.
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or
replaced or to be replaced with a Qualified Substitute Mortgage Loan by GSMC in
accordance with the terms of this Agreement.
High Cost Loan: A Mortgage Loan that is (a) covered by the Home
Ownership and Equity Protection Act of 1994, (b) identified, classified or
characterized as "high cost," "threshold," "covered", or "predatory" under any
other applicable state, federal or local law (or a similarly identified,
classified or characterized loan using different terminology under a law
imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees) or
(c) categorized as "High Cost" or "Covered" pursuant to Appendix E of the
Standard & Poor's Glossary.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio (expressed as a percentage) of the outstanding principal amount of the
such Mortgage Loan as of the Cut-off Date (unless otherwise indicated), to the
lesser of (a) the Appraised Value of the Mortgaged Property at origination and
(b) if such Mortgage Loan was made to finance the acquisition of the related
Mortgaged Property, the purchase price of the Mortgaged Property,
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by GSMC for a Deleted Mortgage Loan which must, on the date of such
substitution, (i) have an outstanding principal balance, after deduction of all
scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the outstanding principal balance
of the Deleted Mortgage Loan (the amount of any shortfall will be paid by GSMC
to the Depositor or its designee in the month of substitution); (ii) have a
Mortgage Interest Rate not less than, and not more than 1% greater than, the
Mortgage Interest Rate of the Deleted Mortgage Loan; (iii) have a remaining term
to maturity not greater than, and not more than one year less than, that of the
Deleted Mortgage Loan (iv) be of the same type as the Deleted Mortgage Loan
(i.e., fixed rate or adjustable rate with same Periodic Rate Cap, and Index);
and (v) comply with each representation and warranty (respecting individual
Mortgage Loans) set forth in Section 2 of this Agreement.
Section 2. Representations and Warranties of GSMC.
(a) As to each Acoustic Mortgage Loan (except as otherwise set forth
on Exhibit V hereto), GSMC hereby makes the representations and warranties set
forth in Exhibit I hereto to the Depositor as of the Closing Date (or such other
date as set forth herein).
(b) As to each Meritage Mortgage Loan (except as otherwise set forth
on Exhibit V hereto), GSMC hereby makes the representations and warranties set
forth in Exhibit II hereto to the Depositor as of the Closing Date (or such
other date as set forth herein).
(c) As to each First NLC Mortgage Loan (except as otherwise set
forth on Exhibit V hereto), GSMC hereby makes the representations and warranties
set forth in Exhibit III hereto to the Depositor as of the Closing Date (or such
other date as set forth herein).
(d) As to each Conduit Mortgage Loan (except as otherwise set forth
on Exhibit V hereto), GSMC hereby makes the representations and warranties set
forth in Exhibit IV hereto to the Depositor as of the Closing Date (or such
other date as set forth herein).
(e) None of the Group I Mortgage Loans has a Prepayment Premium in
excess of three years.
Section 3. Repurchase or Substitution Obligation for Breach of a
Representation or Warranty.
(a) Within sixty (60) days of the earlier of either discovery by or
notice to GSMC of any breach of a representation or warranty which materially
and adversely affects the value of the Mortgage Loans or the interest of the
Depositor therein (or which materially and adversely affects the value of the
applicable Mortgage Loan or the interest of the Depositor therein), GSMC shall
cure such breach in all material respects and, if such breach cannot be cured,
GSMC shall, at the Depositor's option, within sixty (60) calendar days of GSMC's
receipt of request from the Depositor, repurchase such Mortgage Loan at the
Repurchase Price. In the event that such a breach shall involve any
representation or warranty set forth in Section 2 of this Agreement, and such
breach cannot be cured within sixty (60) days of the earlier of either discovery
by or notice to GSMC of such breach, all of the Mortgage Loans materially and
adversely affected thereby shall, at the Depositor's option, be repurchased by
GSMC at the Repurchase Price. Notwithstanding the above sentence, within thirty
(30) days of the earlier of either discovery by, or notice to, the Seller of any
breach of the representations or warranties set forth in (1) clauses (y), (aa),
(bb), (cc), (dd) and (ff) of Exhibit I, (2) clauses (z), (bb), (cc), (dd), (ee)
and (ff) of Exhibit II and (3) clauses (aa), (bb), (cc), (dd), (ff) and (gg) of
Exhibit III, GSMC shall repurchase the affected Mortgage Loan or Mortgage Loans
at the Repurchase Price, together with all expenses incurred by the Depositor as
a result of such repurchase. Any repurchase of a Mortgage Loan or Loans pursuant
to the foregoing provisions of this Section 3 shall be accomplished by direct
remittance of the Repurchase Price to the Depositor or its designee in
accordance with the Depositor's instructions.
However, if the breach shall involve a representation or warranty
set forth in Section 2 of this Agreement relating to any Mortgage Loan (other
than a Meritage Mortgage Loan) and GSMC discovers or receives notice of any such
breach within two years of the Closing Date, GSMC shall, at the Depositor's
option and provided that GSMC has a Qualified Substitute Mortgage Loan, rather
than repurchase such Mortgage Loan as provided above, remove such Mortgage Loan
(a "Deleted Mortgage Loan") and substitute in its place a Qualified Substitute
Mortgage Loan or Mortgage Loans, provided that any such substitution shall be
effected not later than two years after the Closing Date. If GSMC has no
Qualified Substitute Mortgage Loan, GSMC shall repurchase the deficient Mortgage
Loan. Any repurchase of a Mortgage Loan or Mortgage Loans pursuant to the
foregoing provisions of this Section 3 shall be accomplished by direct
remittance of the Repurchase Price to the Depositor or its designee in
accordance with the Depositor's instructions.
At the time of repurchase or substitution, the Depositor and GSMC
shall arrange for the reassignment of the Deleted Mortgage Loan to GSMC and the
delivery to GSMC of any documents held by the Trustee or the Custodian, as the
case may be, relating to the Deleted Mortgage Loan. In the event of a repurchase
or substitution, GSMC shall, simultaneously with such reassignment, give written
notice to the Depositor that such repurchase or substitution has taken place,
amend the applicable Mortgage Loan Schedule to reflect the withdrawal of the
Deleted Mortgage Loan from this Agreement, and, in the case of substitution,
identify a Qualified Substitute Mortgage Loan and amend the applicable Mortgage
Loan Schedule to reflect the addition of such Qualified Substitute Mortgage Loan
to this Agreement. In connection with any such substitution, GSMC shall be
deemed to have made as to such Qualified Substitute Mortgage Loan the
representations and warranties set forth in this Agreement except that all such
representations and warranties set forth in this Agreement shall be deemed made
as of the date of such substitution. GSMC shall effect such substitution by
delivering to the Trustee or the Custodian or to such other party as the
Depositor may designate in writing for such Qualified Substitute Mortgage Loan
the documents required by the Pooling and Servicing Agreement, with the Mortgage
Note endorsed as required by the Pooling and Servicing Agreement. No
substitution will be made in any calendar month after the initial Determination
Date for such month. GSMC shall remit directly to the Depositor, or its designee
in accordance with the Depositor's instructions the monthly payment less the
Servicing Fee due, if any, on such Qualified Substitute Mortgage Loan or
Mortgage Loans in the month following the date of such substitution. Monthly
payments due with respect to Qualified Substitute Mortgage Loans in the month of
substitution shall be retained by GSMC. For the month of substitution,
distributions to the Depositor shall include the monthly payment due on any
Deleted Mortgage Loan in the month of substitution, and GSMC shall thereafter be
entitled to retain all amounts subsequently received by GSMC in respect of such
Deleted Mortgage Loan.
For any month in which GSMC substitutes a Qualified Substitute
Mortgage Loan for a Deleted Mortgage Loan, GSMC shall determine the amount (if
any) by which the aggregate principal balance of all Qualified Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all Deleted Mortgage Loans (after application of scheduled
principal payments due in the month of substitution). The amount of such
shortfall, together with one month's interest at the Mortgage Interest Rate on
the Deleted Mortgage Loan, shall be distributed by GSMC directly to the
Depositor or its designee in accordance with the Depositor's instructions within
two (2) Business Days of such substitution.
Any cause of action against GSMC relating to or arising out of the
breach of any representations and warranties made in Section 2 shall accrue as
to any Mortgage Loan upon (i) discovery of such breach by the Depositor or
notice thereof by GSMC to the Depositor, (ii) failure by GSMC to cure such
breach, repurchase such Mortgage Loan or substitute a Qualified Substitute
Mortgage Loan as specified above, and (iii) demand upon GSMC by the Depositor
for compliance with this Agreement.
(b) It is understood and agreed that the obligation of GSMC set
forth in Section 3(a) to repurchase or substitute for a Mortgage Loan in breach
of a representation or warranty contained in Section 2 constitutes the sole
remedy of the Depositor or any other person or entity with respect to such
breach.
Section 4. Document Delivery Requirements.
GSMC shall deliver to the Depositor all documents and instruments
required under Section 2.01 of the Pooling and Servicing Agreement with respect
to the Conduit Mortgage Loans. In the event any document or instrument required
to be delivered to the Depositor pursuant to Section 2.01 of the Pooling and
Servicing Agreement, including an original or copy of any document submitted for
recordation to the appropriate public recording office, is not so delivered to
the Depositor, and in the event that GSMC does not cure such failure within 60
days of discovery or receipt of written notification of such failure from the
Depositor, GSMC shall, at the Depositor's option, repurchase such Conduit
Mortgage Loan at the Repurchase Price, together with all expenses incurred by
the Depositor as a result of such repurchase.
Section 5. Term of Representation and Warranties.
The representations and warranties of GSMC set forth in Section 2
shall inure to the benefit of the Depositor and its successors and assigns until
all amounts payable to Certificateholders under the Pooling and Servicing
Agreement have been paid in full.
Section 6. Execution in Counterparts.
This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same
Agreement.
Section 7. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARDS TO CONFLICTS OF LAWS
PRINCIPLES.
Section 8. Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
Section 9. Captions.
The captions in this Agreement are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
Section 10. Successors and Assigns.
This Agreement may not be assigned, pledged or hypothecated by any
party hereto, except that the Depositor's rights under this Agreement may be
assigned to the Trustee and are exercisable by the Trustee (and its successors
and assigns) and will be enforceable by the Trustee. Any entity into which GSMC
or the Depositor may be merged or consolidated shall, without the requirement
for any further writing, be deemed GSMC or the Depositor, respectively,
hereunder.
Section 11. Third Party Beneficiary.
The parties agree that the Trust (including the Trustee and the
Servicer acting on the Trust's behalf) is an intended third-party beneficiary of
this Agreement with the right to enforce the provisions hereof and the rights to
obtain the benefit of the enforcement of the obligations and covenants of GSMC
under Section 3 of this Agreement as if the Trustee were a party to this
Agreement.
Section 12. Amendments.
This Agreement may be amended from time to time by the parties
hereto.
[Remainder of this Page Intentionally Left Blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date and year first above written.
XXXXXXX XXXXX MORTGAGE COMPANY
By: Xxxxxxx Xxxxx Real Estate Funding
Corp., its General Partner
By:_____________________________________
Name:
Title:
GS MORTGAGE SECURITIES CORP.
By:_____________________________________
Name:
Title:
EXHIBIT I
Representations and Warranties Regarding the Acoustic Mortgage Loans
(a) Acoustic Mortgage Loans as Described. The information set forth in the
Acoustic Mortgage Loan Schedule with respect to the Acoustic Mortgage Loans is
complete, true and correct;
(b) Payments Current. All payments required to be made up to the Closing
Date for the Acoustic Mortgage Loan under the terms of the Mortgage Note, other
than payments for which the related due date was not thirty or more days prior
to the Closing Date, have been made and credited. No Acoustic Mortgage Loan has
been delinquent for thirty or more days at any time since the origination of the
Acoustic Mortgage Loan. The first Monthly Payment shall be made with respect to
the Acoustic Mortgage Loan on its Due Date or within thirty (30) days of its Due
Date, all in accordance with the terms of the related Mortgage Note;
(c) No Outstanding Charges. There are no defaults in complying with the
terms of the Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid, or an escrow of funds has
been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and payable. The
Seller has not advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor, directly or indirectly,
for the payment of any amount required under the Acoustic Mortgage Loan, except
for interest accruing from the date of the Mortgage Note or date of disbursement
of the Acoustic Mortgage Loan proceeds, whichever is earlier, to the day which
precedes by one month the Due Date of the first installment of principal and
interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and Mortgage
have not been impaired, waived, altered or modified in any respect, from the
date of origination except by a written instrument which has been recorded, if
necessary to protect the interests of the Purchaser, and which has been
delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing, and the terms of which are reflected in the Acoustic
Mortgage Loan Schedule. No Acoustic Mortgage Loan has been modified so as to
restructure the payment obligations or re-age the Acoustic Mortgage Loan. The
substance of any such waiver, alteration or modification has been approved by
the title insurer, if any, to the extent required by the policy, and its terms
are reflected on the Acoustic Mortgage Loan Schedule, if applicable. No
Mortgagor has been released, in whole or in part, except in connection with an
assumption agreement, approved by the issuer of the title insurer, to the extent
required by the policy, and which assumption agreement is part of the Custodial
File delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing and the terms of which are reflected in the Acoustic
Mortgage Loan Schedule;
(e) No Defenses. The Acoustic Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto, and to the best
of the Seller's knowledge, no Mortgagor was a debtor in any state or Federal
bankruptcy or insolvency proceeding at the time the Acoustic Mortgage Loan was
originated;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all buildings
or other improvements upon the Mortgaged Property are insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage and such
other hazards as are provided for in the Xxxxxx Xxx Guides or by Freddie Mac, as
well as all additional requirements set forth in Section 2.10 of the Interim
Servicing Agreement. If required by the National Flood Insurance Act of 1968, as
amended, each Acoustic Mortgage Loan is covered by a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance
Administration is in effect which policy conforms to Xxxxxx Xxx and Freddie Mac,
as well as all additional requirements set forth in Section 2.10 of the Interim
Servicing Agreement, dated as November 1, 2004 between Acoustic and GSMC (the
"Interim Servicing Agreement"). All individual insurance policies contain a
standard mortgagee clause naming Acoustic and its successors and assigns as
mortgagee, and all premiums thereon have been paid. The Mortgage obligates the
Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor's
cost and expense, and on the Mortgagor's failure to do so, authorizes the holder
of the Mortgage to obtain and maintain such insurance at such Xxxxxxxxx's cost
and expense, and to seek reimbursement therefor from the Mortgagor. Where
required by state law or regulation, the Mortgagor has been given an opportunity
to choose the carrier of the required hazard insurance, provided the policy is
not a "master" or "blanket" hazard insurance policy covering a condominium, or
any hazard insurance policy covering the common facilities of a planned unit
development;
(g) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity and disclosure laws or unfair and deceptive practices
laws applicable to the Acoustic Mortgage Loan including, without limitation, any
provisions relating to Prepayment Premiums, have been complied with, the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations. Each Acoustic Mortgage Loan at the
time it was made complied in all material respects with applicable local, state,
and federal laws, including, but not limited to, all applicable predatory and
abusive lending laws;
(h) No Satisfaction of Mortgage. The Mortgage has not been satisfied,
canceled, subordinated or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission. The Seller has not waived the
performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Acoustic Mortgage Loan to be in default, nor
has the Seller waived any default resulting from any action or inaction by the
Mortgagor;
(i) Location and Type of Mortgaged Property. The Mortgaged Property is
located in the state identified in the Acoustic Mortgage Loan Schedule and
consists of real property with a detached single family residence erected
thereon, or a two- to four-family dwelling, or an individual condominium unit in
a low-rise condominium project, or an individual unit in a planned unit
development or a de minimis planned unit development which is in each case four
stories or less, provided, however, that any mobile home (double wide only) or
manufactured dwelling shall conform with the applicable Xxxxxx Xxx and Freddie
Mac requirements regarding such dwellings and that no Acoustic Mortgage Loan is
secured by a single parcel of real property with a cooperative housing
corporation, a log home or a mobile home erected thereon or by a mixed-use
property, a property in excess of 10 acres, or other unique property types;
(j) Valid First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first or second lien (as applicable) on the Mortgaged
Property, including all buildings and improvements on the Mortgaged Property and
all installations and mechanical, electrical, plumbing, heating and air
conditioning systems located in or annexed to such buildings, and all additions,
alterations and replacements made at any time with respect to the foregoing. The
lien of the Mortgage is subject only to:
(1) the lien of current real property taxes and assessments not yet
due and payable;
(2) covenants, conditions and restrictions, rights of way, easements
and other matters of the public record as of the date of recording
acceptable to prudent mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy delivered
to the originator of the Acoustic Mortgage Loan and (a) specifically
referred to or otherwise considered in the appraisal made for the
originator of the Acoustic Mortgage Loan or (b) which do not adversely
affect the Appraised Value of the Mortgaged Property set forth in such
appraisal;
(3) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property; and
(4) with respect to Second Lien Mortgage Loans, the lien of the
first mortgage on the Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Acoustic Mortgage Loan establishes and creates
a valid, subsisting, enforceable and perfected (A) first lien and first priority
security interest with respect to each first lien mortgage loan, or (B) second
lien and second priority security interest with respect to each Second Lien
Mortgage Loan, in either case, on the property described therein and Seller has
full right to sell and assign the same to Purchaser.
(k) Validity of Mortgage Documents. The Mortgage Note and the Mortgage and
any other agreement executed and delivered by a Mortgagor in connection with a
Acoustic Mortgage Loan are genuine, and each is the legal, valid and binding
obligation of the maker thereof enforceable in accordance with its terms
(including, without limitation, any provisions therein relating to Prepayment
Premiums). To the best of the Seller's knowledge, all parties to the Mortgage
Note, the Mortgage and any other such related agreement had legal capacity to
enter into the Acoustic Mortgage Loan and to execute and deliver the Mortgage
Note, the Mortgage and any such agreement, and the Mortgage Note, the Mortgage
and any other such related agreement have been duly and properly executed by
other such related parties;
(l) Full Disbursement of Proceeds. The Acoustic Mortgage Loan has been
closed and the proceeds of the Acoustic Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and any and all
requirements as to completion of any on-site or off-site improvement and as to
disbursements of any escrow funds therefor have been complied with. All costs,
fees and expenses incurred in making or closing the Acoustic Mortgage Loan and
the recording of the Mortgage were paid, and the Mortgagor is not entitled to
any refund of any amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. The Seller is the sole owner of record and holder of the
Acoustic Mortgage Loan and the indebtedness evidenced by each Mortgage Note. The
Acoustic Mortgage Loan is not assigned or pledged, and the Seller has good,
indefeasible and marketable title thereto, and has full right to transfer and
sell the Acoustic Mortgage Loan to the Purchaser free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest, and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Acoustic Mortgage Loan pursuant to this Agreement;
(n) Doing Business. All parties which have had any interest in the
Acoustic Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise,
are (or, during the period in which they held and disposed of such interest,
were) (1) in compliance with any and all applicable licensing requirements of
the laws of the state wherein the Mortgaged Property is located, and (2) either
(i) organized under the laws of such state, or (ii) qualified to do business in
such state, or (iii) a federal savings and loan association, a savings bank or a
national bank having a principal office in such state, or (3) not doing business
in such state;
(o) Title Insurance. The Acoustic Mortgage Loan is covered by an ALTA
lender's title insurance policy, or with respect to any Acoustic Mortgage Loan
for which the related Mortgaged Property is located in California a CLTA
lender's title insurance policy, or other generally acceptable form of policy or
insurance acceptable to Xxxxxx Xxx or Freddie Mac and each such title insurance
policy is issued by a title insurer acceptable to Xxxxxx Xxx or Freddie Mac and
qualified to do business in the jurisdiction where the Mortgaged Property is
located, insuring the Seller, its successors and assigns, as to the first
priority lien (with respect to first lien Acoustic Mortgage Loans) or second
priority lien (with respect to Second Lien Mortgage Loans) of the Mortgage in
the original principal amount of the Acoustic Mortgage Loan, subject only to the
exceptions contained in clauses (1), (2), (3) and (4) of paragraph (j) of this
Exhibit I, and in the case of adjustable rate Acoustic Mortgage Loans, against
any loss by reason of the invalidity or unenforceability of the lien resulting
from the provisions of the Mortgage providing for adjustment to the Mortgage
Interest Rate and Monthly Payment. Where required by state law or regulation,
the Mortgagor has been given the opportunity to choose the carrier of the
required mortgage title insurance. Additionally, such lender's title insurance
policy affirmatively insures ingress and egress, and against encroachments by or
upon the Mortgaged Property or any interest therein. The title policy does not
contain any special exceptions (other than the standard exclusions) for zoning
and uses and has been marked to delete the standard survey exceptions or to
replace the standard survey exception with a specific survey reading. The
Seller, its successor and assigns, are the sole insureds of such lender's title
insurance policy, and such lender's title insurance policy is valid and remains
in full force and effect and will be in force and effect upon the consummation
of the transactions contemplated by this Agreement. No claims have been made
under such lender's title insurance policy, and no prior holder of the related
Mortgage, including the Seller, has done, by act or omission, anything which
would impair the coverage of such lender's title insurance policy;
(p) No Defaults. Other than payments due but not yet 30 days or more
delinquent, to the best of the Seller's knowledge, there is no default, breach,
violation or event which would permit acceleration existing under the Mortgage
or the Mortgage Note and no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a default,
breach, violation or event which would permit acceleration, and neither the
Seller nor any of its affiliates nor any of their respective predecessors, have
waived any default, breach, violation or event which would permit acceleration.
With respect to each Second Lien Mortgage Loan, (i) the prior mortgage is in
full force and effect, (ii) there is no default, breach, violation or event of
acceleration existing under such prior mortgage or the related mortgage note,
(iii) as of the Closing Date, no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration thereunder, and either (A)
the prior mortgage contains a provision which allows or (B) applicable law
requires, the mortgagee under the Second Lien Mortgage Loan to receive notice
of, and affords such mortgagee an opportunity to cure any default by payment in
full or otherwise under the prior mortgage;
(q) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage; provided, however, that this warranty
shall be deemed not to have been made at the time of the initial issuance of the
Certificates if a title policy affording, in substance, the same protection
afforded by this warranty is furnished to the Trustee by the Seller;
(r) Location of Improvements; No Encroachments. All improvements which
were considered in determining the Appraised Value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of the Mortgaged
Property, and no improvements on adjoining properties encroach upon the
Mortgaged Property. To the best of the Seller's knowledge, no improvement
located on or being part of the Mortgaged Property is in violation of any
applicable zoning law or regulation;
(s) Origination; Payment Terms. The Acoustic Mortgage Loan was originated
by a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or other similar institution which is supervised and examined by a federal or
state authority. The documents, instruments and agreements submitted for loan
underwriting were not falsified and contain no untrue statement of material fact
or omit to state a material fact required to be stated therein or necessary to
make the information and statements therein not misleading. No Acoustic Mortgage
Loan contains terms or provisions which would result in negative amortization.
Principal payments on the Acoustic Mortgage Loan commenced no more than sixty
days after funds were disbursed in connection with the Acoustic Mortgage Loan.
The Mortgage Interest Rate as well as the Lifetime Rate Cap and the Periodic
Mortgage Interest Rate Cap, are as set forth on the Acoustic Mortgage Loan
Schedule. Except with respect to Interest Only Mortgage Loans, the Mortgage Note
is payable in equal monthly installments of principal and interest sufficient to
amortize the Acoustic Mortgage Loan fully by the stated maturity date, over an
original term of not more than thirty years from commencement of amortization
with interest calculated and payable in arrears. All installments of interest
with respect to Adjustable Rate Mortgage Loans are subject to change due to the
adjustments to the Mortgage Interest Rate on each Adjustment Date. The Acoustic
Mortgage Loan is payable on the first day of each month. No Acoustic Mortgage
Loan is a balloon mortgage loan that has an original stated maturity of less
than seven (7) years;
(t) Customary Provisions. The Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits of
the security provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by judicial
foreclosure. There is no homestead or other exemption available to a Mortgagor
which would interfere with the right to sell the Mortgaged Property at a
trustee's sale or the right to foreclose the Mortgage, subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption or similar law;
(u) Conformance with Underwriting Guidelines. The Acoustic Mortgage Loan
was underwritten in accordance with the Underwriting Guidelines (a copy of which
is attached as Exhibit H to the Acoustic Purchase Agreement);
(v) Occupancy of the Mortgaged Property. To the best of the Seller's
knowledge, the Mortgaged Property is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect to
the use and occupancy of the same, including but not limited to certificates of
occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities;
(w) Mortgaged Property Undamaged; No Condemnation Proceedings. There is no
proceeding pending or, to the Seller's knowledge, threatened for the total or
partial condemnation of the Mortgaged Property. The Mortgaged Property is
undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
hurricane, tornado or other casualty so as to affect adversely the value of the
Mortgaged Property as security for the Acoustic Mortgage Loan or the use for
which the premises were intended. There have not been any condemnation
proceedings with respect to the Mortgaged Property and the Seller has no
knowledge of any such proceedings in the future;
(x) Prior Servicing. Each Acoustic Mortgage Loan has been serviced in
strict compliance with Accepted Servicing Practices;
(y) Credit Information. As to each consumer report (as defined in the Fair
Credit Reporting Act, Public Law 91-508) or other credit information furnished
by the Seller to the Purchaser, that Seller has full right and authority and is
not precluded by law or contract from furnishing such information to the
Purchaser and the Purchaser is not precluded by the terms of the Mortgage Loan
Documents from furnishing the same to any subsequent or prospective purchaser of
such Mortgage. The Seller has in its capacity as servicer, for each Acoustic
Mortgage Loan, fully furnished, in accordance with the Fair Credit Reporting Act
and its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian and
Trans Union Credit Information Company (three of the credit repositories), on a
monthly basis. The Servicer will transmit full-file credit reporting data for
each Acoustic Mortgage Loan pursuant to Xxxxxx Xxx Guide Announcement 95-19 and
that for each Acoustic Mortgage Loan, Servicer agrees it shall report one of the
following statuses each month as follows: new origination, current, delinquent
(30-, 60-, 90-days, etc.), foreclosed, or charged-off.
(z) Leaseholds. If the Acoustic Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple interest in
the land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent and
the acquisition by the holder of the Mortgage of the rights of the lessee upon
foreclosure or assignment in lieu of foreclosure or provide the holder of the
Mortgage with substantially similar protections; (3) the terms of such lease do
not (a) allow the termination thereof upon the lessee's default without the
holder of the Mortgage being entitled to receive written notice of, and
opportunity to cure, such default, (b) allow the termination of the lease in the
event of damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving proceeds of
insurance) under the hazard insurance policy or policies relating to the
Mortgaged Property or (d) permit any increase in rent other than pre-established
increases set forth in the lease; (4) the original term of such lease is not
less than 15 years; (5) the term of such lease does not terminate earlier than
five years after the maturity date of the Mortgage Note; and (6) the Mortgaged
Property is located in a jurisdiction in which the use of leasehold estates in
transferring ownership in residential properties is a widely accepted practice;
(aa) Prepayment Premium. The Acoustic Mortgage Loan is subject to a
Prepayment Premium as provided in the related Mortgage Note except as set forth
on the Acoustic Mortgage Loan Schedule. With respect to each Acoustic Mortgage
Loan that has a Prepayment Premium feature, each such Prepayment Premium is
enforceable, and each Prepayment Premium is permitted pursuant to federal, state
and local law. Each such Prepayment Premium is in an amount no more than the
maximum amount permitted under applicable law and no such Prepayment Premium may
be imposed for a term in excess of five (5) years with respect to Acoustic
Mortgage Loans originated prior to October, 1, 2002. With respect to Acoustic
Mortgage Loans originated on or after October 1, 2002, the duration of the
prepayment period shall not exceed three (3) years from the date of the Mortgage
Note unless the Acoustic Mortgage Loan was modified to reduce the prepayment
period to no more than three years from the date of the note and the Mortgagor
was notified in writing of such reduction in prepayment period. With respect to
any Acoustic Mortgage Loan that contains a provision permitting imposition of a
premium upon a prepayment prior to maturity: (i) prior to the loan's
origination, the borrower agreed to such premium in exchange for a monetary
benefit, including but not limited to a rate or fee reduction, (ii) prior to the
loan's origination, the borrower was offered the option of obtaining a mortgage
loan that did not require payment of such a premium, (iii) the prepayment
premium is disclosed to the borrower in the loan documents pursuant to
applicable state, local and federal law, and (iv) notwithstanding any state,
local or federal law to the contrary, the Servicer shall not impose such
prepayment premium in any instance when the mortgage debt is accelerated as the
result of the borrower's default in making the loan payments;
(bb) Predatory Lending Regulations. No Acoustic Mortgage Loan is a High
Cost or Covered Loan, as applicable. No Acoustic Mortgage Loan originated on or
after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair
Lending Act.
(cc) Single-premium Credit Life Insurance Policy. In connection with the
origination of any Acoustic Mortgage Loan, no proceeds from any Acoustic
Mortgage Loan were used to finance or acquire a single-premium credit life
insurance policy. No Mortgagor was required to purchase any single premium
credit insurance policy (e.g., life, disability, accident, unemployment, or
health insurance product) or debt cancellation agreement as a condition of
obtaining the extension of credit. No Mortgagor obtained a prepaid single
premium credit insurance policy (e.g., life, disability, accident, unemployment,
mortgage, property or health insurance) in connection with the origination of
the Acoustic Mortgage Loan; No proceeds from any Acoustic Mortgage Loan were
used to purchase single premium credit insurance policies or debt cancellation
agreements as part of the origination of, or as a condition to closing, such
Acoustic Mortgage Loan;
(dd) Qualified Mortgage. The Acoustic Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code;
(ee) LTV. No Acoustic Mortgage Loan has a LTV greater than 100%;
(ff) Arbitration. With respect to any Acoustic Mortgage Loan originated on
or after August 1, 2004, neither the related Mortgage nor the related Mortgage
Note requires the borrower to submit to arbitration to resolve any dispute
arising out of or relating in any way to the Acoustic Mortgage Loan transaction;
and
(gg) Delivery to the Trustee. With respect to each Acoustic Mortgage Loan,
GSMC is in possession of a complete Mortgage File except for the documents which
have been delivered to the Trustee or which have been submitted for recording
and not yet returned.
EXHIBIT II
Representations and Warranties Regarding the Meritage Mortgage Loans
(a) Meritage Mortgage Loans as Described. The information set forth in the
Meritage Mortgage Loan Schedule with respect to the Meritage Mortgage Loans is
complete, true and correct;
(b) Payments Current. All payments required to be made up to the Closing
Date for the Meritage Mortgage Loan under the terms of the Mortgage Note, other
than payments for which the related due date was not thirty or more days prior
to the Closing Date, have been made and credited. No Meritage Mortgage Loan has
been delinquent for thirty or more days at any time since the origination of the
Meritage Mortgage Loan. The first Monthly Payment shall be made with respect to
the Meritage Mortgage Loan on its Due Date or within the grace period, all in
accordance with the terms of the related Mortgage Note;
(c) No Outstanding Charges. There are no defaults in complying with the
terms of the Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid, or an escrow of funds has
been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and payable. The
Seller has not advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor, directly or indirectly,
for the payment of any amount required under the Meritage Mortgage Loan, except
for interest accruing from the date of the Mortgage Note or date of disbursement
of the Mortgage Loan proceeds, whichever is earlier, to the day which precedes
by one month the Due Date of the first installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and Mortgage
have not been impaired, waived, altered or modified in any respect, from the
date of origination except by a written instrument which has been recorded, if
necessary to protect the interests of the Purchaser, and which has been
delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing, and the terms of which are reflected in the Meritage
Mortgage Loan Schedule. No Meritage Mortgage Loan has been modified so as to
restructure the payment obligations or re-age the Meritage Mortgage Loan. The
substance of any such waiver, alteration or modification has been approved by
the title insurer, if any, to the extent required by the policy, and its terms
are reflected on the Meritage Mortgage Loan Schedule, if applicable. No
Mortgagor has been released, in whole or in part, except in connection with an
assumption agreement, approved by the issuer of the title insurer, to the extent
required by the policy, and which assumption agreement is part of the Meritage
Custodial File delivered to the Custodian or to such other Person as the
Purchaser shall designate in writing and the terms of which are reflected in the
Meritage Mortgage Loan Schedule;
(e) No Defenses. The Meritage Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto, and to the best
of Seller's knowledge, no Mortgagor was a debtor in any state or Federal
bankruptcy or insolvency proceeding at the time the Meritage Mortgage Loan was
originated;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all buildings
or other improvements upon the Mortgaged Property are insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage and such
other hazards as are provided for in the Xxxxxx Xxx Guides or by Freddie Mac, as
well as all additional requirements set forth in Section 2.10 of the Interim
Servicing Agreement dated as of July 1, 2005 between Meritage and GSMC (the
"Meritage Interim Servicing Agreement"). If required by the National Flood
Insurance Act of 1968, as amended, each Mortgage Loan is covered by a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration is in effect which policy conforms to Xxxxxx
Xxx and Freddie Mac, as well as all additional requirements set forth in Section
2.10 of the Meritage Interim Servicing Agreement. All individual insurance
policies contain a standard mortgagee clause naming the Meritage and its
successors and assigns as mortgagee, and all premiums thereon have been paid.
The Mortgage obligates the Mortgagor thereunder to maintain the hazard insurance
policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to obtain and maintain such insurance
at such Xxxxxxxxx's cost and expense, and to seek reimbursement therefor from
the Mortgagor. Where required by state law or regulation, the Mortgagor has been
given an opportunity to choose the carrier of the required hazard insurance,
provided the policy is not a "master" or "blanket" hazard insurance policy
covering a condominium, or any hazard insurance policy covering the common
facilities of a planned unit development;
(g) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity and disclosure laws or unfair and deceptive practices
laws applicable to the Meritage Mortgage Loan including, without limitation, any
provisions relating to Prepayment Premiums, have been complied with, the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations. Each Meritage Mortgage Loan at the
time it was made complied in all material respects with applicable local, state,
and federal laws, including, but not limited to, all applicable predatory and
abusive lending laws;
(h) No Satisfaction of Mortgage. The Mortgage has not been satisfied,
canceled, subordinated or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission. The Seller has not waived the
performance by the Meritage Mortgagor of any action, if the Mortgagor's failure
to perform such action would cause the Meritage Mortgage Loan to be in default,
nor has the Seller waived any default resulting from any action or inaction by
the Mortgagor;
(i) Location and Type of Mortgaged Property. The Mortgaged Property is
located in the state identified in the Meritage Mortgage Loan Schedule and
consists of real property with a detached single family residence erected
thereon, or a two- to four-family dwelling, or an individual condominium unit in
a low-rise condominium project, or an individual unit in a planned unit
development or a de minimis planned unit development which is in each case four
stories or less, provided, however, that any mobile home (double wide only) or
manufactured dwelling shall conform with the applicable Xxxxxx Xxx or Xxxxxxx
Mac requirements regarding such dwellings and that no Meritage Mortgage Loan is
secured by a single parcel of real property with a cooperative housing
corporation, a log home or a mobile home erected thereon or by a mixed-use
property, or other unique property types;
(j) Valid First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected, first or second lien (as applicable) on the Mortgaged
Property, including all buildings and improvements on the Mortgaged Property and
all installations and mechanical, electrical, plumbing, heating and air
conditioning systems located in or annexed to such buildings, and all additions,
alterations and replacements made at any time with respect to the foregoing. The
lien of the Mortgage is subject only to:
(1) the lien of current real property taxes and assessments not yet
due and payable;
(2) covenants, conditions and restrictions, rights of way, easements
and other matters of the public record as of the date of recording
acceptable to prudent mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy delivered
to the originator of the Mortgage Loan and (a) specifically referred to or
otherwise considered in the appraisal made for the originator of the
Mortgage Loan or (b) which do not adversely affect the Appraised Value of
the Mortgaged Property set forth in such appraisal;
(3) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property; and
(4) with respect to Second Lien Mortgage Loans, the lien of the
first mortgage on the Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Meritage Mortgage Loan establishes and creates
a valid, subsisting, enforceable and perfected (A) first lien and first priority
security interest with respect to each first lien mortgage loan, or (B) second
lien and second priority security interest with respect to each Second Lien
Mortgage Loan, in either case, on the property described therein and Seller has
full right to sell and assign the same to Purchaser.
(k) Validity of Mortgage Documents. The Mortgage Note and the Mortgage and
any other agreement executed and delivered by a Mortgagor in connection with a
Mortgage Loan are genuine, and each is the legal, valid and binding obligation
of the maker thereof enforceable in accordance with its terms (including,
without limitation, any provisions therein relating to Prepayment Premiums). To
the best of the Seller's knowledge, all parties to the Mortgage Note, the
Mortgage and any other such related agreement had legal capacity to enter into
the Mortgage Loan and to execute and deliver the Mortgage Note, the Mortgage and
any such agreement, and the Mortgage Note, the Mortgage and any other such
related agreement have been duly and properly executed by other such related
parties.
(l) Full Disbursement of Proceeds. The Meritage Mortgage Loan has been
closed and the proceeds of the Meritage Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and any and all
requirements as to completion of any on-site or off-site improvement and as to
disbursements of any escrow funds therefor have been complied with. All costs,
fees and expenses incurred in making or closing the Meritage Mortgage Loan and
the recording of the Mortgage were paid, and the Mortgagor is not entitled to
any refund of any amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. As of the related Closing Date, the Seller is the sole
owner of record and holder of the Meritage Mortgage Loan and the indebtedness
evidenced by each Mortgage Note. The Meritage Mortgage Loan is not assigned or
pledged, and the Seller has good, indefeasible and marketable title thereto, and
has full right to transfer and sell the Meritage Mortgage Loan to the Purchaser
free and clear of any encumbrance, equity, participation interest, lien, pledge,
charge, claim or security interest, and has full right and authority subject to
no interest or participation of, or agreement with, any other party, to sell and
assign each Meritage Mortgage Loan pursuant to this Agreement;
(n) Doing Business. All parties which have had any interest in the
Meritage Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise,
are (or, during the period in which they held and disposed of such interest,
were) (1) in compliance with any and all applicable licensing requirements of
the laws of the state wherein the Mortgaged Property is located, and (2) either
(i) organized under the laws of such state, or (ii) qualified to do business in
such state, or (iii) a federal savings and loan association, a savings bank or a
national bank having a principal office in such state, or (3) not doing business
in such state;
(o) CLTV, LTV. No Meritage Mortgage Loan that is a Second Lien Mortgage
Loan has a CLTV in excess of 100%. No Meritage Mortgage Loan has an LTV greater
than 100%.
(p) Title Insurance. The Meritage Mortgage Loan is covered by an ALTA
lender's title insurance policy, or with respect to any Meritage Mortgage Loan
for which the related Mortgaged Property is located in California a CLTA
lender's title insurance policy, or with respect to any Mortgage Loan for which
the related Mortgaged Property is located in Iowa, an attorney's opinion or
other generally acceptable form of policy or insurance acceptable to Xxxxxx Xxx
or Freddie Mac and each such title insurance policy is issued by a title insurer
acceptable to Xxxxxx Xxx or Freddie Mac and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring the Seller, its
successors and assigns, as to the first priority lien (with respect to first
lien Meritage Mortgage Loans) or second priority lien (with respect to Second
Lien Mortgage Loans) of the Mortgage in the original principal amount of the
Meritage Mortgage Loan, subject only to the exceptions contained in clauses (1),
(2), (3) and (4) of paragraph (j) of this Exhibit III, and in the case of
adjustable rate the Meritage Mortgage Loans, against any loss by reason of the
invalidity or unenforceability of the lien resulting from the provisions of the
Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly
Payment. Where required by state law or regulation, the Mortgagor has been given
the opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender's title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or any
interest therein. The title policy does not contain any special exceptions
(other than the standard exclusions) for zoning and uses and has been marked to
delete the standard survey exceptions or to replace the standard survey
exception with a specific survey reading. The Seller, its successor and assigns,
are the sole insureds of such lender's title insurance policy, and such lender's
title insurance policy is valid and remains in full force and effect and will be
in force and effect upon the consummation of the transactions contemplated by
this Agreement. No claims have been made under such lender's title insurance
policy, and no prior holder of the related Mortgage, including the Seller, has
done, by act or omission, anything which would impair the coverage of such
lender's title insurance policy;
(q) No Defaults. Other than payments due but not yet 30 days or more
delinquent, to the best of the Seller's knowledge there is no default, breach,
violation or event which would permit acceleration existing under the Mortgage
or the Mortgage Note and no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a default,
breach, violation or event which would permit acceleration, and neither the
Seller nor any of its affiliates nor any of their respective predecessors, have
waived any default, breach, violation or event which would permit acceleration.
With respect to each Second Lien Mortgage Loan, (i) the prior mortgage is in
full force and effect, (ii) there is no default, breach, violation or event of
acceleration existing under such prior mortgage or the related mortgage note,
(iii) as of the Closing Date, no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration thereunder, and either (A)
the prior mortgage contains a provision which allows or (B) applicable law
requires, the mortgagee under the Second Lien Mortgage Loan to receive notice
of, and affords such mortgagee an opportunity to cure any default by payment in
full or otherwise under the prior mortgage;
(r) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage; provided, however, that this warranty
shall be deemed not to have been made at the time of the initial issuance of the
Certificates if a title policy affording, in substance, the same protection
afforded by this warranty is furnished to the Trustee by the Seller;
(s) Location of Improvements; No Encroachments. All improvements which
were considered in determining the Appraised Value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of the Mortgaged
Property, and no improvements on adjoining properties encroach upon the
Mortgaged Property. To the best of the Seller's knowledge, no improvement
located on or being part of the Mortgaged Property is in violation of any
applicable zoning law or regulation;
(t) Origination; Payment Terms. The Meritage Mortgage Loan was originated,
either (a) the originator was a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to Sections 203 and 211 of the National Housing
Act or a savings and loan association, a savings bank, a commercial bank or
similar banking institution which is supervised and examined by a Federal or
State authority or (b) the following requirements have been met with respect to
the Mortgage Loan: Meritage meets the requirements set forth in clause (a), and
(i) such Meritage Mortgage Loan was underwritten in accordance with standards
established by Meritage, using application forms and related credit documents
approved by Meritage, (ii) Meritage approved each application and the related
credit documents before a commitment by the correspondent was issued, and no
such commitment was issued until Meritage agreed to fund such Meritage Mortgage
Loan, (iii) the closing documents for such Meritage Mortgage Loan were prepared
on forms approved by Meritage, and (iv) such Meritage Mortgage Loan was
purchased by Meritage at closing or soon thereafter. The documents, instruments
and agreements submitted for loan underwriting were not falsified and contain no
untrue statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the information and statements therein
not misleading. No Meritage Mortgage Loan contains terms or provisions which
would result in negative amortization. Except with respect to Meritage Mortgage
Loans that are Interest Only Mortgage Loans, principal payments on the Meritage
Mortgage Loan commenced no more than sixty days after funds were disbursed in
connection with the Meritage Mortgage Loan. The Mortgage Interest Rate as well
as the Lifetime Rate Cap and the Periodic Mortgage Interest Rate Cap, are as set
forth on the Meritage Mortgage Loan Schedule hereto. Except with respect to
Meritage Mortgage Loans that are Interest Only Mortgage Loans or Meritage
Mortgage Loans that require principal and interest payments sufficient to
amortize the Mortgage Loan fully by the stated maturity date over an original
term of not more than 40 years from commencement of amortization, the Mortgage
Note is payable in monthly installments of principal and interest (or with
respect to Meritage Mortgage Loans that are Interest Only Mortgage Loans,
payments of interest during the interest-only period), which installments of
interest with respect to Adjustable Rate Mortgage Loans, are subject to change
due to the adjustments to the Mortgage Interest Rate on each Adjustment Date,
with interest calculated and payable in arrears, sufficient to amortize the
Mortgage Loan fully by the stated maturity date, over an original term of not
more than thirty years from commencement of amortization. The Mortgage Loan is
payable on the first day of each month. No Meritage Mortgage Loan is a balloon
mortgage loan that has an original stated maturity of less than seven (7) years;
(u) Customary Provisions. The Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits of
the security provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by judicial
foreclosure There is no homestead or other exemption available to a Mortgagor
which would interfere with the right to sell the Mortgaged Property at a
trustee's sale or the right to foreclose the Mortgage, subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption or similar law;
(v) Conformance with Underwriting Guidelines. The Meritage Mortgage Loan
was underwritten in accordance with the Underwriting Guidelines (a copy of which
is attached as Exhibit J to the Meritage Purchase Agreement);
(w) Occupancy of the Mortgaged Property. To the best of the Seller's
knowledge, the Mortgaged Property is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect to
the use and occupancy of the same, including but not limited to certificates of
occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities;
(x) Mortgaged Property Undamaged; No Condemnation Proceedings. There is no
proceeding pending or, to Seller's knowledge, threatened for the total or
partial condemnation of the Mortgaged Property. The Mortgaged Property is
undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
hurricane, tornado or other casualty so as to affect adversely the value of the
Mortgaged Property as security for the Meritage Mortgage Loan or the use for
which the premises were intended. There have not been any condemnation
proceedings with respect to the Mortgaged Property and the Seller has no
knowledge of any such proceedings in the future;
(y) Prior Servicing. Each Meritage Mortgage Loan has been serviced in
strict compliance with Accepted Servicing Practices;
(z) Credit Information. As to each consumer report (as defined in the Fair
Credit Reporting Act, Public Law 91-508) or other credit information furnished
by the Seller to the Purchaser, that Seller has full right and authority and is
not precluded by law or contract from furnishing such information to the
Purchaser and the Purchaser is not precluded by the terms of the Mortgage Loan
Documents from furnishing the same to any subsequent or prospective purchaser of
such Mortgage. The Seller has in its capacity as servicer, for each Meritage
Mortgage Loan, fully furnished, in accordance with the Fair Credit Reporting Act
and its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian and
Trans Union Credit Information Company (three of the credit repositories), on a
monthly basis;
(aa) Leaseholds. If the Meritage Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple interest in
the land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent and
the acquisition by the holder of the Mortgage of the rights of the lessee upon
foreclosure or assignment in lieu of foreclosure or provide the holder of the
Mortgage with substantially similar protections; (3) the terms of such lease do
not (a) allow the termination thereof upon the lessee's default without the
holder of the Mortgage being entitled to receive written notice of, and
opportunity to cure, such default, (b) allow the termination of the lease in the
event of damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving proceeds of
insurance) under the hazard insurance policy or policies relating to the
Mortgaged Property or (d) permit any increase in rent other than pre-established
increases set forth in the lease; (4) the original term of such lease is not
less than 15 years; (5) the term of such lease does not terminate earlier than
five years after the maturity date of the Mortgage Note; and (6) the Mortgaged
Property is located in a jurisdiction in which the use of leasehold estates in
transferring ownership in residential properties is a widely accepted practice;
(bb) Prepayment Premium. With respect to each Meritage Mortgage Loan that
has a Prepayment Premium feature, each Prepayment Premium is enforceable, and
each Prepayment Premium is permitted pursuant to federal, state and local law.
Each such Prepayment Premium is in an amount equal to the maximum amount
permitted under applicable law and no such Prepayment Premium may be imposed for
a term in excess of five (5) years with respect to Mortgage Loans originated
prior to October 1, 2002. With respect to Meritage Mortgage Loans originated on
or after October 1, 2002, unless indicated otherwise in the Meritage Mortgage
Loan Schedule, no such Prepayment Premium may be imposed for a term in excess of
three (3) years. With respect to any Meritage Mortgage Loan that contains a
provision permitting imposition of a premium upon a prepayment prior to
maturity: (i) prior to the loan's origination, the borrower agreed to such
premium in exchange for a monetary benefit, including but not limited to a rate
or fee reduction, and (ii) the Prepayment Premium is disclosed to the borrower
in the loan documents pursuant to applicable state and federal law;
(cc) Predatory Lending Regulations. No Meritage Mortgage Loan is a High
Cost or Covered Loan, as applicable, and no Meritage Mortgage Loan originated on
or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair
Lending Act;
(dd) Single-premium Credit Life Insurance Policy. In connection with the
origination of any Meritage Mortgage Loan, no proceeds from any Meritage
Mortgage Loan were used to finance or acquire a single-premium credit life
insurance policy. No Mortgagor was required to purchase any single premium
credit insurance policy (e.g., life, disability, accident, unemployment, or
health insurance product) or debt cancellation agreement as a condition of
obtaining the extension of credit. No Mortgagor obtained a prepaid single
premium credit insurance policy (e.g., life, disability, accident, unemployment,
mortgage, or health insurance) in connection with the origination of the
Meritage Mortgage Loan; no proceeds from any Meritage Mortgage Loan were used to
purchase single premium credit insurance policies or debt cancellation
agreements as part of the origination of, or as a condition to closing, such
Meritage Mortgage Loan;
(ee) Qualified Mortgage. The Meritage Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code;
(ff) Arbitration. With respect to any Meritage Mortgage Loan originated on
or after August 1, 2004, neither the related Mortgage nor the related Mortgage
Note requires the Mortgagor to submit to arbitration to resolve any dispute
arising out of or relating in any way to the Mortgage Loan transaction; and
(gg) Delivery to the Trustee. With respect to each Meritage Mortgage Loan,
GSMC is in possession of a complete Mortgage File except for the documents which
have been delivered to the Trustee or which have been submitted for recording
and not yet returned.
EXHIBIT III
Representations and Warranties Regarding the First NLC Mortgage Loans
(a) First NLC Mortgage Loans as Described. The information set forth in
the First NLC Mortgage Loan Schedule with respect to the First NLC Mortgage
Loans is complete, true and correct;
(b) Payments Current. All payments required to be made up to the Closing
Date for the First NLC Mortgage Loan under the terms of the Mortgage Note, other
than payments not yet 30 days delinquent, have been made and credited. No
payment required under the First NLC Mortgage Loan is 30 days or more delinquent
nor has any payment under the First NLC Mortgage Loan been 30 days or more
delinquent at any time since the origination of the First NLC Mortgage Loan;
(c) No Outstanding Charges. Except for payment defaults of less than 30
days, there are no defaults in complying with the terms of the Mortgage, and all
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or an escrow of funds has been established in an amount
sufficient to pay for every such item which remains unpaid and which has been
assessed but is not yet due and payable. The Seller has not advanced funds, or
induced, solicited or knowingly received any advance of funds by a party other
than the Mortgagor, directly or indirectly, for the payment of any amount
required under the First NLC Mortgage Loan, except for interest accruing from
the date of the Mortgage Note or date of disbursement of the First NLC Mortgage
Loan proceeds, whichever is earlier, to the date which precedes by one month the
Due Date of the first installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and Mortgage
have not been impaired, waived, altered or modified in any respect, from the
date of origination except by a written instrument which has been recorded, if
necessary to protect the interests of the Purchaser, and which has been
delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing, and the terms of which are reflected in the First NLC
Mortgage Loan Schedule. No First NLC Mortgage Loan has been modified so as to
restructure the payment obligations or re-age the First NLC Mortgage Loan. The
substance of any such waiver, alteration or modification has been approved by
the title insurer, if any, to the extent required by the policy, and its terms
are reflected on the First NLC Mortgage Loan Schedule, if applicable. No
Mortgagor has been released, in whole or in part, except in connection with an
assumption agreement, approved by the issuer of the title insurer, to the extent
required by the policy, and which assumption agreement is part of the Custodial
File delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing and the terms of which are reflected in the First NLC
Mortgage Loan Schedule;
(e) No Defenses. The First NLC Mortgage Loan is not subject to any right
of rescission, set-off, counterclaim or defense, including without limitation
the defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto, and to the best
of the Seller's knowledge, no Mortgagor was a debtor in any state or federal
bankruptcy or insolvency proceeding at, or subsequent to, the time the First NLC
Mortgage Loan was originated;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all buildings
or other improvements upon the Mortgaged Property are insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage and such
other hazards as are customary in the area where the Mortgaged Property is
located, in an amount which is at least equal to the lesser of (i) the maximum
insurable value of the improvements securing such First NLC Mortgage Loan and
(ii) the greater of (a) the outstanding principal balance of the First NLC
Mortgage Loan and (b) an amount such that the proceeds thereof shall be
sufficient to prevent the Mortgagor or the loss payee from becoming a
co-insurer. If required by the National Flood Insurance Act of 1968, as amended,
each First NLC Mortgage Loan is covered by a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
as in effect with a generally acceptable insurance carrier rated A:VI or better
in Best's in an amount representing coverage equal to the lesser of (i) the
minimum amount required, under the terms of coverage, to compensate for any
damage or loss on a replacement cost basis (or the unpaid balance of the
mortgage if replacement cost coverage is not available for the type of building
insured) and (ii) the maximum amount of insurance which is available under the
Flood Disaster Protection Act of 1973, as amended. All individual insurance
policies contain a standard mortgagee clause naming First NLC and its successors
and assigns as mortgagee, and all premiums thereon have been paid and such
policies may not be reduced, terminated or cancelled without 30 days' prior
written notice to the mortgagee. The Mortgage obligates the Mortgagor thereunder
to maintain the hazard insurance policy at the Mortgagor's cost and expense, and
on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to
obtain and maintain such insurance at such Xxxxxxxxx's cost and expense, and to
seek reimbursement therefor from the Mortgagor. Where required by state law or
regulation, the Mortgagor has been given an opportunity to choose the carrier of
the required hazard insurance, provided the policy is not a "master" or
"blanket" hazard insurance policy covering a condominium, or any hazard
insurance policy covering the common facilities of a planned unit development;
(g) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity and disclosure laws or unfair and deceptive practices
laws applicable to the First NLC Mortgage Loan including, without limitation,
any provisions relating to Prepayment Premiums, have been complied with, the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations. Each First NLC Mortgage Loan at the
time it was made complied in all material respects with applicable local, state,
and federal laws, including, but not limited to, all applicable predatory and
abusive lending laws;
(h) No Satisfaction of Mortgage. The Mortgage has not been satisfied,
canceled, subordinated or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission. The Seller has not waived the
performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the First NLC Mortgage Loan to be in default,
nor has the Seller waived any default resulting from any action or inaction by
the Mortgagor;
(i) Location and Type of Mortgaged Property. The Mortgaged Property is a
fee simple property located in the state identified in the First NLC Mortgage
Loan Schedule except that with respect to real property located in jurisdictions
in which the use of leasehold estates for residential properties is a
widely-accepted practice, the Mortgaged Property may be a leasehold estate and
consists of a single parcel of real property with a detached single family
residence erected thereon, or a two- to four-family dwelling, or an individual
residential condominium unit in a low-rise condominium project, or an individual
unit in a planned unit development and that no residence or dwelling is (i) a
mobile home or (ii) a manufactured home;
(j) Valid First or Second Lien. Each Mortgage is a valid and subsisting
first or second lien (as applicable) of record on a single parcel of real estate
constituting the Mortgaged Property, including all buildings and improvements on
the Mortgaged Property and all installations and mechanical, electrical,
plumbing, heating and air conditioning systems located in or annexed to such
buildings, and all additions, alterations and replacements made at any time,
with respect to the related First NLC Mortgage Loan, which exceptions are
generally acceptable to prudent mortgage lending companies, and such other
exceptions to which similar properties are commonly subject and which do not
individually, or in the aggregate, materially and adversely affect the benefits
of the security intended to be provided by such Mortgage. The lien of the
Mortgage is subject only to:
(1) the lien of current real property taxes and assessments not yet
due and payable;
(2) covenants, conditions and restrictions, rights of way, easements
and other matters of the public record as of the date of recording
acceptable to prudent mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy delivered
to the originator of the First NLC Mortgage Loan and (a) specifically
referred to or otherwise considered in the appraisal made for the
originator of the First NLC Mortgage Loan or (b) which do not adversely
affect the Appraised Value of the Mortgaged Property set forth in such
appraisal;
(3) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property; and
(4) with respect to Second Lien Mortgage Loans, the lien of the
first mortgage on the Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the First NLC Mortgage Loan establishes and creates
a valid, subsisting, enforceable and perfected (A) first lien and first priority
security interest with respect to each first lien mortgage loan, or (B) second
lien and second priority security interest with respect to each Second Lien
Mortgage Loan, in either case, on the property described therein and the Seller
has full right to sell and assign the same to Purchaser;
(k) Validity of Mortgage Documents. The Mortgage Note and the Mortgage and
any other agreement executed and delivered by a Mortgagor in connection with a
First NLC Mortgage Loan are genuine, and each is the legal, valid and binding
obligation of the maker thereof enforceable in accordance with its terms. To the
best of the Seller's knowledge, all parties to the Mortgage Note, the Mortgage
and any other such related agreement had legal capacity to enter into the First
NLC Mortgage Loan and to execute and deliver the Mortgage Note, the Mortgage and
any such agreement, and the Mortgage Note, the Mortgage and any other such
related agreement have been duly and properly executed by other such related
parties;
(l) Full Disbursement of Proceeds. The First NLC Mortgage Loan has been
closed and the proceeds of the First NLC Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and any and all
requirements as to completion of any on-site or off-site improvement and as to
disbursements of any escrow funds therefor have been complied with. All costs,
fees and expenses incurred in making or closing the First NLC Mortgage Loan and
the recording of the Mortgage were paid, and the Mortgagor is not entitled to
any refund of any amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. The Seller is the sole owner of record and holder of the
First NLC Mortgage Loan and the indebtedness evidenced by each Mortgage Note.
The First NLC Mortgage Loan is not assigned or pledged, and the Seller has good,
indefeasible and marketable title thereto, and has full right to transfer and
sell the First NLC Mortgage Loan to the Purchaser free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest, and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
First NLC Mortgage Loan pursuant to this Agreement;
(n) Doing Business. All parties which have had any interest in the First
NLC Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are
(or, during the period in which they held and disposed of such interest, were)
(1) in compliance with any and all applicable licensing requirements of the laws
of the state wherein the Mortgaged Property is located, and (2) either (i)
organized under the laws of such state, or (ii) qualified to do business in such
state, or (iii) a federal savings and loan association, a savings bank or a
national bank having a principal office in such state, or (3) not doing business
in such state;
(o) LTV. No First NLC Mortgage Loan has a LTV greater than 100%;
(p) Title Insurance. The First NLC Mortgage Loan is covered by an ALTA
lender's title insurance policy, or with respect to any First NLC Mortgage Loan
for which the related Mortgaged Property is located in California a CLTA
lender's title insurance policy, and each such title insurance policy is issued
by a title insurer and qualified to do business in the jurisdiction where the
Mortgaged Property is located, insuring the Seller, its successors and assigns,
as to the first priority lien (with respect to first lien First NLC Mortgage
Loans) or second priority lien (with respect to Second Lien Mortgage Loans) of
the Mortgage in the original principal amount of the First NLC Mortgage Loan,
subject only to the exceptions contained in clauses (1), (2), (3) and (4) of
paragraph (j) of this Exhibit II, and in the case of Adjustable Rate Mortgage
Loans, against any loss by reason of the invalidity or unenforceability of the
lien resulting from the provisions of the Mortgage providing for adjustment to
the Mortgage Interest Rate and Monthly Payment. Where required by state law or
regulation, the Mortgagor has been given the opportunity to choose the carrier
of the required mortgage title insurance. Additionally, such lender's title
insurance policy affirmatively insures ingress and egress, and against
encroachments by or upon the Mortgaged Property or any interest therein. The
title policy does not contain any special exceptions (other than the standard
exclusions) for zoning and uses and has been marked to delete the standard
survey exception or to replace the standard survey exception with a specific
survey reading. The Seller, its successor and assigns, are the sole insureds of
such lender's title insurance policy, and such lender's title insurance policy
is valid and remains in full force and effect and will be in force and effect
upon the consummation of the transactions contemplated by this Agreement. No
claims are pending under such lender's title insurance policy, and no prior
holder of the related Mortgage, including the Seller, has done, by act or
omission, anything which would impair the coverage of such lender's title
insurance policy;
(q) No Defaults. To the best of the Seller's knowledge, there is no
default, breach, violation or event which would permit acceleration existing
under the Mortgage or the Mortgage Note and no event which, with the passage of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event which would permit
acceleration, and neither the Seller nor any of its affiliates nor any of their
respective predecessors, have waived any default, breach, violation or event
which would permit acceleration. With respect to each Second Lien Mortgage Loan,
(i) the prior mortgage is in full force and effect, (ii) there is no default,
breach, violation or event of acceleration existing under such prior mortgage or
the related mortgage note, (iii) no event which, with the passage of time or
with notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration thereunder, and either (A)
the prior mortgage contains a provision which allows or (B) applicable law
requires, the mortgagee under the Second Lien Mortgage Loan to receive notice
of, and affords such mortgagee an opportunity to cure any default by payment in
full or otherwise under the prior mortgage;
(r) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage; provided, however, that this warranty
shall be deemed not to have been made at the time of the initial issuance of the
Certificates if a title policy affording, in substance, the same protection
afforded by this warranty is furnished to the Trustee by the Seller;
(s) Location of Improvements; No Encroachments. All improvements which
were considered in determining the Appraised Value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of the Mortgaged
Property, and no improvements on adjoining properties encroach upon the
Mortgaged Property. To the best of the Seller's knowledge, no improvement
located on or being part of the Mortgaged Property is in violation of any
applicable zoning law or regulation;
(t) Origination; Payment Terms. The First NLC Mortgage Loan was originated
by a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act, savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or other similar institution which is supervised and examined by a federal or
state authority. The documents, instruments and agreements submitted for loan
underwriting were not falsified and contain no untrue statement of material fact
or omit to state a material fact required to be stated therein or necessary to
make the information and statements therein not misleading. No First NLC
Mortgage Loan contains terms or provisions which would result in negative
amortization. Principal payments on the First NLC Mortgage Loan commenced no
more than sixty days after funds were disbursed in connection with the First NLC
Mortgage Loan. The Mortgage Interest Rate as well as the Lifetime Rate Cap and
the Periodic Mortgage Interest Rate Cap are as set forth on the First NLC
Mortgage Loan Schedule. The Mortgage Note is payable in equal monthly
installments of principal and interest, which installments of interest, with
respect to Adjustable Rate Mortgage Loans, are subject to change due to the
adjustments to the Mortgage Interest Rate on each Adjustment Date, with interest
calculated and payable in arrears, sufficient to amortize the First NLC Mortgage
Loan fully by the stated maturity date, over an original term of not more than
thirty years from commencement of amortization. There are no Convertible
Mortgage Loans which contain a provision allowing the Mortgagor to convert the
Mortgage Note from an adjustable interest rate Mortgage Note to a fixed interest
rate Mortgage Note. No First NLC Mortgage Loan is a simple interest mortgage
loan;
(u) Customary Provisions. The Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits of
the security provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by judicial
foreclosure. There is no homestead or other exemption available to a Mortgagor
which would interfere with the right to sell the Mortgaged Property at a
trustee's sale or the right to foreclose the Mortgage, subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption or similar law;
(v) Conformance with Underwriting Guidelines. The First NLC Mortgage Loan
was underwritten in accordance with the Underwriting Guidelines in effect as of
the date of origination of such First NLC Mortgage Loan (a copy of which is
attached as Exhibit I to the First NLC Purchase Agreement);
(w) Occupancy of the Mortgaged Property. To the best of the Seller's
knowledge, as of the Closing Date the Mortgaged Property is lawfully occupied
under applicable law. All inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of the Mortgaged Property
and, with respect to the use and occupancy of the same, including but not
limited to certificates of occupancy and fire underwriting certificates, have
been made or obtained from the appropriate authorities;
(x) Mortgaged Property Undamaged; No Condemnation Proceedings. There is no
proceeding pending or, to the Seller's knowledge, threatened for the total or
partial condemnation of the Mortgaged Property. As of the Closing Date, the
Mortgaged Property is undamaged by waste, fire, earthquake or earth movement,
windstorm, flood, tornado or other casualty so as to affect adversely the value
of the Mortgaged Property as security for the First NLC Mortgage Loan or the use
for which the premises were intended and each Mortgaged Property is inhabitable
under applicable state and local laws;
(y) Prior Servicing. Each First NLC Mortgage Loan has been serviced in all
material respects in strict compliance with Accepted Servicing Practices and the
Seller has reported or caused to be reported, the Mortgagor credit files to each
of the three primary credit repositories monthly in a timely manner;
(z) Leaseholds. If the First NLC Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple interest in
the land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent and
the acquisition by the holder of the Mortgage of the rights of the lessee upon
foreclosure or assignment in lieu of foreclosure or provide the holder of the
Mortgage with substantially similar protections; (3) the terms of such lease do
not (a) allow the termination thereof upon the lessee's default without the
holder of the Mortgage being entitled to receive written notice of, and
opportunity to cure, such default, (b) allow the termination of the lease in the
event of damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving proceeds of
insurance) under the hazard insurance policy or policies relating to the
Mortgaged Property or (d) permit any increase in rent other than pre-established
increases set forth in the lease; (4) the original term of such lease is not
less than 15 years; (5) the term of such lease does not terminate earlier than
five years after the maturity date of the Mortgage Note; and (6) the Mortgaged
Property is located in a jurisdiction in which the use of leasehold estates in
transferring ownership in residential properties is a widely accepted practice;
(aa) Prepayment Premium. The First NLC Mortgage Loan is subject to a
Prepayment Premium as provided in the related Mortgage Note except as set forth
on the First NLC Mortgage Loan Schedule. With respect to each First NLC Mortgage
Loan that has a Prepayment Premium feature, each such Prepayment Premium is
enforceable and will be enforced by the Seller for the benefit of the Purchaser,
and each Prepayment Premium is permitted pursuant to federal, state and local
law. Each such Prepayment Premium is in an amount equal to the maximum amount
permitted under applicable law and no such Prepayment Premium may be imposed for
a term in excess of five (5) years with respect to First NLC Mortgage Loans
originated prior to October, 1, 2002. With respect to First NLC Mortgage Loans
originated on or after October 1, 2002, unless indicated otherwise in the First
NLC Mortgage Loan Schedule, no such Prepayment Premium may be imposed for a term
in excess of three (3) years;
(bb) Predatory Lending Regulations. No First NLC Mortgage Loan is a High
Cost Loan. No First NLC Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the then current Standard & Poor's
LEVELS(R) Glossary). No First NLC Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act;
(cc) Single-premium Credit Life Insurance Policy. In connection with the
origination of any First NLC Mortgage Loan, the Mortgagor did not obtain a
prepaid, single-premium credit-life, credit disability, credit unemployment or
credit property insurance policy;
(dd) Qualified Mortgage. The First NLC Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code;
(ee) Delivery to the Trustee. With respect to each First NLC Mortgage
Loan, GSMC is in possession of a complete Mortgage File except for the documents
which have been delivered to the Trustee or which have been submitted for
recording and not yet returned;
(ff) Credit Information. As to each consumer report (as defined in the
Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, that Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded by the terms of
the Mortgage Loan Documents from furnishing the same to any subsequent or
prospective purchaser of such Mortgage. The Seller has or has caused the related
servicer to, for each First NLC Mortgage Loan, fully furnish, in accordance with
the Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (e.g., favorable and unfavorable) on its borrower credit
files to Equifax, Experian and Trans Union Credit Information Company (three of
the credit repositories), on a monthly basis; and
(gg) Arbitration. With respect to any First NLC Mortgage Loan originated
on or after August 1, 2004, neither the related Mortgage nor the related
Mortgage Note requires the Mortgagor to submit to arbitration to resolve any
dispute arising out of or relating in any way to the First NLC Mortgage Loan
transaction.
EXHIBIT IV
Representations and Warranties Regarding the Conduit Mortgage Loans
(a) Conduit Mortgage Loans as Described. The information set forth in the
Conduit Mortgage Loan Schedule with respect to the Conduit Mortgage Loans is
complete, true and accurate;
(b) Criteria for Eligible Loans. Unless otherwise agreed upon, the
Mortgage Loan has been generally underwritten in accordance with, and meets the
parameters of, the underwriting requirements set forth in the Underwriting Guide
or the Seller's underwriting guidelines. No Conduit Mortgage Loan is (i) covered
by the provisions of the Homeownership and Equity Protection Act of 1994 or (ii)
in violation of, or classified as a "high cost", "threshold", "covered" or
"predatory" loan under, any other applicable state, federal or local law (or a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees). No Conduit
Mortgage Loan is subject to any rights of rescission, counterclaims or defenses;
(c) Compliance with Applicable Laws: Each Mortgage Loan has been
originated in compliance with all applicable local, state and federal laws and
regulations including, without limitation, usury and predatory lending laws;
(d) Origination/Doing Business: The Conduit Mortgage Loan was originated
by a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or other similar institution which is supervised and examined by a federal or
state authority. All parties who have had any interest in the Conduit Mortgage
Loan, whether as a mortgagee, assignee, pledgee or otherwise are (or during the
period in which they held and disposed of such interest, were) (a) in compliance
with any and all applicable licensing requirements of the laws of the state
where the Mortgaged Property is located, and (b) either (i) organized under the
laws of such state, or (ii) qualified to do business in such state, or (iii) a
federal savings and loan association, a savings bank or a national bank having a
principal office in such state, or (c) not doing business in such state;
(e) Validity of Loan Documents: The Mortgage Note and the Mortgage and any
other agreement executed by a Mortgagor in connection with a Mortgage Loan are
genuine and each is the legal, valid, and binding obligation of its maker. Each
is enforceable according with its terms (including without limitation, any
provisions relating to prepayment charges or penalties), except as limited by
bankruptcy, insolvency or other similar laws generally affecting the enforcement
of creditor's rights. To the best of the Seller's knowledge, all parties
associated with the Mortgage Note, the Mortgage and any related document had
legal capacity to enter into the Mortgage Loan and to execute and deliver said
documents and said documents have been duly and properly executed by all such
related parties;
(f) No Defenses: The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury. The operation of any of the terms of the Mortgage Note or the
Mortgage, or the exercise of any right thereunder, will not render the Mortgage
Note or the Mortgage unenforceable, in whole or in part or subject to any right
of rescission, set-off, counterclaim or defense, including without limitation,
the defense of usury. In addition, no such right of rescission, set-off,
counterclaim or defense has been asserted with respect to the Mortgage Note or
the Mortgage. To the best of the Seller's knowledge, no Mortgagor was a debtor
in any local, state or federal bankruptcy or insolvency proceeding at the time
the related Mortgage Loan was originated or as of the related origination date;
(g) No Defaults: Other than payments due but not yet 30 days or more
delinquent, to the best of the Seller's knowledge, there is no default, breach,
violation or event which would permit acceleration existing under the Mortgage
or the Mortgage Note and no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a default,
breach, violation or event which would permit acceleration. No such default,
breach, violation or event which would permit acceleration has been waived by
the Seller or by any other entity involved in originating the Conduit Mortgage
Loan. With respect to each second lien loan, (i) the prior mortgage is in full
force and effect, (ii) there is no default, breach, violation or event which
would permit acceleration existing under such prior mortgage or the related
mortgage note, (iii) there is no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event which would permit acceleration thereunder,
and either (A) the prior mortgage contains a provision which allows or (B)
applicable law requires, the mortgagee under the second lien loan to receive
notice of, and affords such mortgagee an opportunity to cure any default by
payment in full or otherwise under the prior mortgage;
(h) Original Terms Unmodified: The terms of the Mortgage Note and the
Mortgage have not been impaired, waived, altered or modified in any respect from
the date of origination, except by written instrument. Any such instrument was
recorded in the applicable public recording office if necessary to protect the
interests of the Purchaser in the related Conduit Mortgage Loan. In addition,
the changes to the terms have been delivered to the Purchaser or its designee
and reflected on the Conduit Loan Schedule. No Conduit Mortgage Loan has been
modified so as to restructure the payment obligations or extend the maturity
date of the Conduit Mortgage Loan. The substance of any such waiver, alteration
or modification has been approved by the title insurer to the extent required by
the title policy. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement, approved by the issuer of the title
insurance, to the extent required by the policy, and which assumption agreement
is part of the Custodial File delivered to the Purchaser or its designee and the
terms of which are reflected in the Conduit Loan Schedule;
(i) No Satisfaction of Mortgage: The Mortgage has not been satisfied,
cancelled, subordinated or rescinded, in whole or in part and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such
satisfaction, cancellation, subordination, or rescission. The Seller has not
waived the performance by the Mortgagor of any action, if the Mortgagor's
failure to perform such action would cause the Mortgage Loan to be in default,
nor has the Seller waived any default resulting from any action or inaction by
the Mortgagor;
(j) Customary Provisions: The Mortgage and related Mortgage Note contain
customary and enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security provided thereby, including: by
trustee's sale, in the case of a Mortgage designated as a deed of trust; and by
judicial foreclosure. There are no homestead or other exemptions or other rights
or interests available to the Mortgagor that would interfere with the right to
sell the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage, subject to applicable federal, state and local laws and judicial
precedent with respect to bankruptcy and right of redemption or similar law;
(k) Full Disbursement of Loan Proceeds: Each Mortgage Loan has been closed
and the proceeds of the Mortgage Loan have been fully disbursed. There is no
obligation for the Mortgagee to advance additional funds and any and all
requirements to complete any on-site or off-site improvement have been complied
with as well as any disbursements of escrow funds;
(l) Ownership: The Seller is the sole owner of record and holder of the
Mortgage Loan and the indebtedness evidenced by each Mortgage Note. The Mortgage
Loan is not assigned or pledged other than for normal warehouse arrangements or
other warehouse arrangements previously disclosed to the Purchaser, and the
Seller has good, indefeasible and marketable title thereto, and has full right
to transfer and sell the Mortgage Loan to the Purchaser free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest, and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to the underlying purchase documents, as applicable;
(m) Improvements: All the improvements that were considered in determining
the appraised value of the Mortgaged Property lie wholly within its boundaries
and the building restriction lines of the Mortgaged Property. Otherwise, the
title insurance policy insures against loss or damage by reason of any
violation, variation, encroachment or adverse circumstance that either is
disclosed or would have been disclosed by an accurate survey. No improvements to
adjoining properties encroach upon the Mortgaged Property in any respect so as
to affect the value or marketability of the Mortgaged Property. No improvement
located on, or being part of, the Mortgaged Property is in violation of any
applicable zoning law or regulation;
(n) Proper Servicing: The Conduit Mortgage Loan has been serviced by the
Seller (or a servicer or subservicer on its behalf) and any predecessor servicer
in accordance with Accepted Servicing Practices, applicable laws and regulations
and have been in all respects legal and proper and prudent in the mortgage
origination and servicing business;
(o) All Payments Made: Other than with respect to payments not yet 30 days
delinquent, no Conduit Mortgage Loan is 30 or more days delinquent on the
Closing Date, nor has any Conduit Mortgage Loan been delinquent since its
origination date. The Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds, directly or indirectly, from a party
other than the owner of the related Mortgaged Property for the payment of any
amount required by the Mortgage Note or Mortgage, except for interest accruing
from the date of the Mortgage Note or date of disbursement of the Conduit
Mortgage Loan proceeds, whichever is earlier, to the date which precedes by one
month the due date of the first installment of principal and interest;
(p) Title Insurance Policy: Each Conduit Mortgage Loan is covered by an
ALTA lender's title insurance policy, or with respect to any Conduit Mortgage
Loan for which the related Mortgaged Property is located in California, a CLTA
lender's title insurance policy or other generally acceptable form of policy or
insurance acceptable to Xxxxxx Xxx or Freddie Mac. The title insurance policy:
(1) is issued by a title insurer who is qualified to do business in the
jurisdiction where the Mortgaged Property is located;
(2) insures the Seller, its successors and assigns, as to the first or
second priority lien of the Mortgage in the original principal
amount of the Mortgage Loan;
(3) insures against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of the
Mortgage providing for adjustment in the interest rate and monthly
payment for any adjustable rate Mortgage Loan;
(4) affirmatively insures ingress and egress to and from the Mortgaged
Property;
(5) insures against encroachments by or upon the Mortgaged Property or
any interest therein;
(6) names the Seller, its successors and assigns, as the sole insured of
the title insurance policy;
(7) is valid and remains in full force and effect; and
(8) does not contain any special exceptions (other than standard
exclusions) for zoning and uses and has been marked to delete the
standard survey exceptions or to replace the standard exceptions
with a specific survey reading;
In addition, no claims are pending under such lender's title insurance policy,
and no prior holder of the related Mortgage, including the Seller, has done, by
act or omission, anything that would impair the coverage of such policy;
(q) Fire, Hazard and Flood Insurance: All buildings and other improvements
on the Mortgaged Property are insured. The buildings and other improvements are
insured against loss by fire, hazards of extended coverage and other hazards. If
the Mortgaged Property is in an area identified on a Flood Hazard Map or Flood
Insurance Rate Map issued by the Federal Emergency Management Agency as having
special flood hazards, the property must have a flood insurance policy in
effect. The flood insurance policy meets the requirements of the current
guidelines of the Federal Insurance Administration. All such insurance policies
contain a standard Mortgagee clause naming the Seller, its successors and
assigns as Mortgagee and all premiums due have been paid. Each Mortgage
obligates the Mortgagor to maintain all such insurance at the Mortgagor's cost
and expense. If the Mortgagor fails to maintain such insurance, then the holder
of the Mortgage is authorized to obtain such insurance and to seek reimbursement
from the Mortgagor;
(r) Mortgaged Property Undamaged; No Condemnation Proceedings: There is no
proceeding pending or, to the Seller's knowledge, threatened for the total or
partial condemnation of the Mortgaged Property. The Mortgaged Property is
undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
tornado or other casualty so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the premises
were intended;
(s) No Mechanics' Liens: There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage; provided, however, that this warranty
shall be deemed not to have been made at the time of the initial issuance of the
Certificates if a title policy affording, in substance, the same protection
afforded by this warranty is furnished to the Trustee by the Seller;
(t) Single-premium Credit Life Insurance: In connection with the
origination of any Mortgage Loan, no proceeds from any Mortgage Loan were used
to finance a single-premium credit life insurance policy;
(u) Valid First and Second Lien: Each Mortgage is a valid, enforceable and
perfected first lien, with respect to first lien loans, or second lien, with
respect to second lien Conduit Mortgage Loans, on real estate constituting the
Mortgaged Property, including all buildings and improvements on the Mortgaged
Property and all installations and mechanical, electrical, plumbing, heating and
air conditioning systems located in or annexed to such buildings, and all
additions, alterations and replacements made at any time, with respect to the
foregoing. The lien of the Mortgage is subject only to: with respect to second
lien loans, the lien of the first mortgage on the Mortgaged Property; the lien
of current real estate property taxes and assessments not yet due and payable;
covenants, conditions and restrictions, rights of way, easements and other
matters of the public record as of the date of recording acceptable to prudent
mortgage lending institutions generally and specifically referred to in the
lender's title insurance policy delivered to the originator of the Mortgage Loan
and (a) specifically referred to or otherwise considered in the appraisal made
for the originator of the Conduit Mortgage Loan or (b) which do not adversely
affect the appraised value of the Mortgaged Property set forth in such
appraisal; and other matters to which like properties are commonly subject which
do not materially interfere with the benefits of the security intended to be
provided by the Mortgage or the use, enjoyment, value or marketability of the
related Mortgaged Property. Any security agreement, chattel mortgage or
equivalent document related to and delivered in connection with the Conduit
Mortgage Loan establishes and creates a valid, subsisting, enforceable and
perfected (A) first lien and first priority security interest with respect to
each first lien loan, or (B) second lien and second priority security interest
with respect to each second lien loan, in either case, on the property described
therein and Seller has full right to sell and assign the same to the Seller;
(v) No Delinquent Amounts: There are no delinquent amounts that affect the
Mortgaged Property including, but not limited to: real estate property taxes;
ground rents; water charges; sewer and municipal charges; insurance premiums;
leasehold payments; and governmental assessments;
(w) Payment Terms: Principal payments on each Conduit Mortgage Loan
commenced no more than sixty days after funds were disbursed in connection with
such Conduit Mortgage Loan. The Mortgage Interest Rate as well as, with respect
to Adjustable Rate Mortgage Loan, the lifetime rate cap and the periodic cap are
as set forth on the Conduit Mortgage Loan Schedule. Except during the interest
only period for any Interest Only Mortgage Loan and with respect to any balloon
Conduit Mortgage Loan, the Mortgage Note is payable in equal monthly
installments of principal and interest, which installments of interest, with
respect to adjustable-rate loans, are subject to change due to the adjustments
to the Mortgage Interest Rate on each adjustment date, as set forth in the
related Mortgage Note, with interest calculated and payable in arrears,
sufficient to fully amortize the Conduit Mortgage Loan by the stated maturity
date, over an original term of not more than thirty years from commencement of
amortization. No Conduit Mortgage Loan contains a provision allowing the
Mortgagor to convert the mortgage interest rate from an adjustable interest rate
to a fixed interest rate. No Conduit Mortgage Loan contains terms or provisions
which would result in negative amortization;
(x) Prepayment Premiums: Except as set forth in the Conduit Mortgage Loan
Schedule, each Conduit Mortgage Loan is subject to a Prepayment Premium except
as set forth on the Conduit Mortgage Loan Schedule. With respect to each Conduit
Mortgage Loan that has a Prepayment Premium feature, each such Prepayment
Premium is enforceable, and each Prepayment Premium is permitted pursuant to
federal, state and local law. Each such Prepayment Premium is in an amount equal
to or less than the maximum amount permitted under applicable law; however, no
such Prepayment Premium may be imposed for a term in excess of three (3) years
(or five years with respect to Conduit Mortgage Loans originated prior to
October 1, 2002);
(y) Location and Type of Mortgaged Property: The Mortgaged Property is
located in the state identified in the Conduit Mortgage Loan Schedule and
consists of real property with a detached single family residence erected
thereon, or a two- to four-family dwelling, or an individual condominium unit in
a condominium project, or an individual unit in a planned unit development;
(z) Occupancy of Mortgaged Property: To the best of the Seller's
knowledge, the Mortgaged Property is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect to
the use and occupancy of the same, including but not limited to certificates of
occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities;
(aa) Leaseholds: If the Conduit Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple interest in
the land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent and
the acquisition by the holder of the Mortgage of the rights of the lessee upon
foreclosure or assignment in lieu of foreclosure or provide the holder of the
Mortgage with substantially similar protections; (3) the terms of such lease do
not (a) allow the termination thereof upon the lessee's default without the
holder of the Mortgage being entitled to receive written notice of, and
opportunity to cure, such default, (b) allow the termination of the lease in the
event of damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving proceeds of
insurance) under the hazard insurance policy or policies relating to the
Mortgaged Property or (d) permit any increase in rent other than pre-established
increases set forth in the lease; (4) the original term of such lease is not
less than fifteen (15) years; (5) the term of such lease to extend at least five
(5) years beyond the term of the Mortgage unless such lease contains a provision
for future vesting of land to the Mortgagor or homeowner's association after the
maturity date of the Mortgage Note; and (6) the Mortgaged Property is located in
a jurisdiction in which the use of leasehold estates in transferring ownership
in residential properties is a widely accepted practice;
(bb) Credit Information: As to each consumer report (as defined in the
Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, the Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded by the terms of
the Mortgage Loan Documents from furnishing the same to any subsequent or
prospective purchaser of such Mortgage. The Seller has in its capacity as
servicer, for each Mortgage Loan, 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 Credit Information Services, Inc. and Trans Union Credit
Information Company (three of the credit repositories), on a monthly basis;
(cc) Predatory Lending Regulations: No Conduit Mortgage Loan is a High
Cost or Covered Loan, as applicable. No Conduit Mortgage Loan originated on or
after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair
Lending Act.
(dd) Arbitration: With respect to any Conduit Mortgage Loan originated
after August 1, 2004, no Mortgagor agreed to submit to arbitration to resolve
any dispute arising out of or relating in any way to the Conduit Mortgage Loan
transaction;
(ee) LTV. No Mortgage Loan has a LTV greater than 100%;
(ff) Qualified Mortgage. The Conduit Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code; and
(gg) Delivery to the Custodian. With respect to each Conduit Mortgage
Loan, GSMC is in possession of a complete Mortgage File except for the documents
which have been delivered to the Custodian or which have been submitted for
recording and not yet returned.
EXHIBIT V
Exceptions to Representations and Warranties Regarding the Mortgage Loans
Exhibit Representation Exceptions
------- -------------- -----------------------------------------------------
I (b) Approximately 2.95% of the Acoustic loans are Monthly
Payment or more delinquent.
II (b) Approximately 2.05% of the Meritage loans are Monthly
Payment or more delinquent.
III (b) Approximately 1.00% of the First NLC loans are
Monthly Payment or more delinquent.
IV (o) Approximately 9.96% of the Conduit loans are Monthly
Payment or more delinquent.
SCHEDULE I
Acoustic Mortgage Loan Schedule
(Available Upon Request to Depositor)
SCHEDULE II
Meritage Mortgage Loan Schedule
(Available Upon Request to Depositor)
SCHEDULE III
First NLC Mortgage Loan Schedule
(Available Upon Request to Depositor)
SCHEDULE IV
Conduit Mortgage Loan Schedule
(Available Upon Request to Depositor)
