EXHIBIT 4.2
STANDARD TERMS
TO
MASTER SERVICING
AND
TRUST AGREEMENT
-----------------------------------------------------
GS Mortgage Securities Corp.
Depositor
GSR Mortgage Loan Trust 2004-4
Mortgage Pass-Through Certificates, Series 2004-4
February 2004 Edition
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
ARTICLE II
MORTGAGE LOAN FILES
Section 2.01 Mortgage Loan Files..........................................
Section 2.02 Acceptance by the Trustee....................................
Section 2.03 Purchase of Mortgage Loans by a Servicer, a Seller, GSMC
or the Depositor............................................
Section 2.04 Representations and Warranties of the Depositor..............
ARTICLE III
ADMINISTRATION OF THE TRUST
Section 3.01 The Collection Accounts; the Master Servicer Account; the
Distribution Accounts and the Certificate Account...........
Section 3.02 Filings with the Commission..................................
Section 3.03 Securities Administrator to Cooperate; Release of
Mortgage Files..............................................
Section 3.04 Amendments to Servicing Agreement............................
Section 3.05 Monthly Advances by Master Servicer or Securities
Administrator...............................................
Section 3.06 Enforcement of Servicing Agreement...........................
ARTICLE IV
REPORTING/REMITTING TO CERTIFICATEHOLDERS
Section 4.01 Statements to Certificateholders.............................
Section 4.02 Remittance Reports and other Reports from the Servicers......
Section 4.03 Compliance with Withholding Requirements.....................
Section 4.04 Reports of Class Principal Balances to The Depository
Trust Company...............................................
Section 4.05 Preparation of Regulatory Reports............................
Section 4.06 Management and Disposition of REO Property...................
ARTICLE V
THE INTERESTS AND THE SECURITIES
Section 5.01 REMIC Interests..............................................
Section 5.02 The Certificates.............................................
Section 5.03 Book-Entry Securities........................................
Section 5.04 Registration of Transfer and Exchange of Certificates........
Section 5.05 Restrictions on Transfer.....................................
Section 5.06 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.07 Persons Deemed Owners........................................
Section 5.08 Appointment of Paying Agent..................................
ARTICLE VI
THE DEPOSITOR
Section 6.01 Liability of the Depositor...................................
Section 6.02 Merger or Consolidation of the Depositor.....................
ARTICLE VII
TERMINATION OF SERVICING ARRANGEMENTS
Section 7.01 Termination and Substitution of Servicer.....................
Section 7.02 Notification to Certificateholders...........................
ARTICLE VIII
administration and servicing of mortgage loans
by the master servicer
Section 8.01 Duties of the Master Servicer; Enforcement of Servicer's
and Master Servicer's Obligations...........................
Section 8.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance...................................................
Section 8.03 Representations and Warranties of the Master Servicer........
Section 8.04 Master Servicer Events of Default............................
Section 8.05 Waiver of Default............................................
Section 8.06 Successor to the Master Servicer.............................
Section 8.07 Fees and Other Amounts Payable to the Master Servicer........
Section 8.08 Merger or Consolidation......................................
Section 8.09 Resignation of Master Servicer...............................
Section 8.10 Assignment or Delegation of Duties by the Master Servicer....
Section 8.11 Limitation on Liability of the Master Servicer and Others....
Section 8.12 Indemnification; Third-Party Claims..........................
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01 Duties of Trustee............................................
Section 9.02 Certain Matters Affecting the Trustee........................
Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans........
Section 9.04 Trustee May Own Certificates.................................
Section 9.05 Trustee's Fees and Expenses..................................
Section 9.06 Eligibility Requirements for Trustee.........................
Section 9.07 Resignation and Removal of the Trustee.......................
Section 9.08 Successor Trustee............................................
Section 9.09 Merger or Consolidation of Trustee...........................
Section 9.10 Appointment of Co-Trustee or Separate Trustee................
Section 9.11 Appointment of Custodians....................................
Section 9.12 Appointment of Office or Agent...............................
Section 9.13 Representations and Warranties of the Trustee................
ARTICLE X
TERMINATION OF TRUST
Section 10.01 Qualified Liquidation........................................
Section 10.02 Termination..................................................
Section 10.03 Procedure for Termination....................................
Section 10.04 Additional Termination Requirements..........................
ARTICLE XI
CONCERNING THE SECURITIES ADMINISTRATOR
Section 11.01 Certain Matters Affecting the Securities Administrator.......
Section 11.02 Securities Administrator Not Liable for Certificates or
Mortgage Loans..............................................
Section 11.03 Securities Administrator May Own Certificates................
Section 11.04 Securities Administrator's Expenses..........................
Section 11.05 Resignation and Removal of the Securities Administrator......
Section 11.06 Successor Securities Administrator...........................
Section 11.07 Representations and Warranties of the Securities
Administrator...............................................
ARTICLE XII
REMIC TAX PROVISIONS
Section 12.01 REMIC Administration.........................................
Section 12.02 Prohibited Activities........................................
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment of Trust Agreement.................................
Section 13.02 Recordation of Agreement; Counterparts.......................
Section 13.03 Limitation on Rights of Certificateholders...................
Section 13.04 [Reserved]...................................................
Section 13.05 Notices......................................................
Section 13.06 Severability of Provision....................................
Section 13.07 Sale of Mortgage Loans.......................................
Section 13.08 Notice to Rating Agencies....................................
Exhibit A Form of Trust Receipt
Exhibit B Form of Final Certification
Exhibit C Form of Rule 144A Agreement - QIB Certification
Exhibit D [Reserved]
Exhibit E Form of Benefit Plan Affidavit
Exhibit F Residual Transfer Affidavit
Exhibit G Transferor Certificate
Exhibit H Form of Trustee Certification
Exhibit I Form of Master Servicer Certificate
Schedule I Bond Level Report
Schedule II Loan Level Report
Schedule III Remittance Report
RECITALS
GS Mortgage Securities Corp. (the "Depositor"), a trustee (together
with its successors and assigns, the "Trustee"), a securities administrator
(together with its successor and assigns, the "Securities Administrator"), a
custodian (together with its successors and assigns, the "Custodian"), and a
master servicer (together with it successors and assigns, the "Master Servicer")
identified in the Trust Agreement (as defined below), have entered into the
Trust Agreement that provides for the issuance of mortgage pass-through
certificates (the "Certificates") that in the aggregate evidence the entire
interest in Mortgage Loans or certificates or securities evidencing an interest
therein and other property owned by the Trust created by such Trust Agreement.
These Standard Terms are a part of, and are incorporated by reference into, the
Trust Agreement.
STANDARD PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises,
covenants, representations, and warranties made in the Trust Agreement and as
hereinafter set forth, the Depositor, the Trustee, the Securities
Administrator, the Custodian and the Master Servicer agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Except as otherwise specified herein or
in the Trust Agreement or as the context may otherwise require, whenever used in
these Standard Terms, the following words and phrases shall have the meanings
specified in this Article. Capitalized words and phrases used herein but not
defined herein or in the Trust Agreement shall, when applied to a Trust, have
the meanings set forth in the Servicing Agreement(s) assigned to such Trust as
in effect on the date of this Agreement. In the event of a conflict between the
Trust Agreement and these Standard Terms, the Trust Agreement shall govern.
Unless otherwise specified, all calculations described herein shall be made on
the basis of a 360 day year consisting of twelve 30-day months.
"Administrative Cost Rate": As set forth in the Trust Agreement.
"Advance": The aggregate amount of the (i) advances made by a
Servicer on any Servicer Remittance Date in respect of delinquent Scheduled
Payments pursuant to the applicable Sale and Servicing Agreement, (ii) any
advances made by the Master Servicer (or by the Securities Administrator
pursuant to Section 3.05 in the event the Master Servicer fails to make such
advances as required) in respect of any such delinquent Scheduled Payments
pursuant to Section 3.05 and (iii) amounts necessary to preserve the Trust's
interest in the Mortgaged Property or the Mortgage Loans, including without
limitation, property taxes or insurance premiums not paid as required by the
Borrower and advanced by the related Servicer or the Master Servicer (or by the
Securities Administrator pursuant to Section 3.05 in the event the Master
Servicer fails to make such advances as required).
"Affiliate": Any person or entity controlling, controlled by, or
under common Control with the Depositor, the Trustee, the Securities
Administrator, the Custodian, the Master Servicer or any Servicer. "Control"
means the power to direct the management and policies of a person or entity,
directly or indirectly, whether through ownership of voting securities, by
contract or otherwise. "Controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Assignment Agreement": Any Assignment, Assumption and Recognition
Agreement or Agreements identified in the Trust Agreement to which the Depositor
is a party.
"Available Distribution Amount": Unless otherwise provided in the
Trust Agreement, on each Distribution Date, the Available Distribution Amount
shall equal (i) the sum of the following: (A) all amounts credited to the
Collection Account as of the close of business on the related Distribution Date,
(B) an amount equal to Monthly Advances made on or before the previous
Distribution Date, to the extent such Monthly Advances were made from funds on
deposit in any related Collection Account held for future distribution, (C) all
Monthly Advances made with respect to such Distribution Date (to the extent not
included in clause (B) above) and (D) all amounts deposited into the Certificate
Account to effect a Terminating Purchase in accordance with Section 10.02 minus
(ii) the sum of (A) any Principal Prepayments (including Liquidation Proceeds,
Insurance Proceeds, Condemnation Proceeds and Subsequent Recoveries) or Payoffs
received after the related Principal Prepayment Period, (B) Scheduled Payments
collected but due on a Due Date or Dates subsequent to the related Due Period,
(C) reinvestment income on amounts deposited in any Collection Account to the
extent included in (i) above and (D) all amounts reimbursable on such
Distribution Date to the Securities Administrator and Trustee as provided
herein.
"Bankruptcy Loss": (A) Any reduction in the total amount owed by a
Borrower on a Mortgage Loan occurring as a result of a final order of a court in
a bankruptcy proceeding and (B) a Modification Loss in connection with a
bankruptcy.
"Beneficial Owner": With respect to a Book-Entry Security, the
Person who is registered as owner of that Certificate in the books of the
Clearing Agency for that Certificate or in the books of a Person maintaining an
account with such Clearing Agency.
"Benefit Plan Affidavit": An affidavit substantially in the form of
Exhibit E hereto.
"Bond Level Reports": Shall mean the reports prepared by the Trustee
in substantially the form attached as Schedule I hereto.
"Book-Entry Custodian": The custodian appointed pursuant to Section
5.03(d).
"Book-Entry Securities": The Classes of Certificates, if any,
specified as such in the Trust Agreement for a Series.
"Borrower": The individual or individuals obligated to repay a
Mortgage Loan.
"Business Day": Any day that is not (i) a Saturday or Sunday, or
(ii) a legal holiday in the State of New York and the city and state in which
the Corporate Trust Office or the principal office of the Securities
Administrator, the Master Servicer or any Servicer is located, or (iii) a day on
which the banking or savings and loan institutions in the State of New York and
the city and state in which the Corporate Trust Office or the principal office
of the Securities Administrator, the Master Servicer or any Servicer is located
are authorized or obligated by law or executive order to be closed.
"Certificate": Any security issued under the Trust Agreement and
designated as such.
"Certificate Account": The account or accounts created and
maintained for the Trust pursuant to Section 3.01 hereof.
"Class Principal Balance": As set forth in the Trust Agreement.
"Certificate of Title Insurance": A certificate of title insurance
issued pursuant to a title insurance policy.
"Certificate Rate": With respect to the Certificates, as to each
Distribution Date, the rate specified as such in the Trust Agreement.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.04 hereof.
"Class": Collectively, all of the Certificates bearing the same
designation.
"Class BI Interests": As set forth in the Trust Agreement, if
applicable.
"Clearing Agency": The Depository Trust Company, or any successor
organization or any other organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended, and
the regulations of the Securities and Exchange Commission thereunder.
"Clearing Agency Participant": A broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date": The date on which Certificates are issued by a Trust
as set forth in the related Trust Agreement.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Account": The collection account or accounts identified
in or established in connection with the Servicing Agreement or Agreements
identified in the Trust Agreement.
"Compensating Interest Payment": With respect to the Mortgage Loans
and any Distribution Date, an amount actually paid by the Servicer pursuant to
the applicable Servicing Agreement in respect of Prepayment Interest Shortfalls
during the related Prepayment Period.
"Condemnation Proceeds": All awards or settlements in respect of a
taking of an entire Mortgaged Property or a part thereof by exercise of the
power of eminent domain or condemnation.
"Contract of Insurance Holder": Any FHA approved mortgagee
identified as such in the Trust Agreement or any Servicing Agreement.
"Contractually Delinquent": With respect to any Mortgage Loan,
having one or more uncured delinquencies in respect of payment at any time
during the term of such Mortgage Loan.
"Corporate Trust Office": The respective principal corporate trust
office of the Trustee or the Securities Administrator, as applicable, at which
at any particular time its corporate trust business shall be administered.
"Custody Agreement": The Custody Agreement or Agreements identified
in the Trust Agreement.
"Custodian": The Custodian or Custodians identified in the Trust
Agreement, which shall hold all or a portion of the Trustee Mortgage Loan Files
with respect to a Series.
"Cut-Off Date": The date specified as such in the Trust Agreement.
"Defect Discovery Date": With respect to a Mortgage Loan, the
earliest date on which any of the Trustee, the Securities Administrator, the
Master Servicer or the Servicer first discovers a Qualification Defect affecting
the Mortgage Loan.
"Depositor": GS Mortgage Securities Corp., a Delaware corporation,
and its successors.
"Disqualified Organization": Either (a) the United States, (b) any
state or political subdivision thereof, (c) any foreign government, (d) any
international organization, (e) any agency or instrumentality of any of the
foregoing, (f) any tax-exempt organization (other than a cooperative described
in Section 521 of the Code) that is exempt from federal income tax unless such
organization is subject to tax under the unrelated business taxable income
provisions of the Code, (g) any organization described in Section 1381(a)(2)(C)
of the Code, or (h) any other entity identified as a disqualified organization
by the REMIC Provisions. A corporation will not be treated as an instrumentality
of the United States or any state or political subdivision thereof if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such governmental unit.
"Distribution Account": An Eligible Account maintained by the
Securities Administrator on behalf of the Trustee for a REMIC. Unless otherwise
provided in the Trust Agreement, the Distribution Account shall be considered an
asset of each REMIC, to the extent of amounts distributable from such REMIC.
"Distribution Date": As set forth in the Trust Agreement.
"Distribution Statement": As defined in Section 4.01.
"Due Date": The first day of a calendar month.
"Due Period": As set forth in the Trust Agreement.
"Eligible Account": A trust account in the name of the Securities
Administrator for the benefit of the Certificateholders (i) maintained by a
depository institution, the long-term unsecured debt obligations of which are
rated by each Rating Agency in one of its two highest rating categories at the
time of any deposit therein, (ii) maintained with the Securities Administrator
or the Trustee, or (iii) an account otherwise acceptable to each Rating Agency.
If the definition of Eligible Account is met, any Certificate Account may be
maintained with the Trustee, the Securities Administrator or the Master Servicer
or any of their respective affiliates.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Errors and Omissions Insurance Policy": An errors and omissions
insurance policy to be maintained by the Master Servicer pursuant to Section
8.02 or a Servicer pursuant to the Related Servicing Agreement.
"Event of Default": With respect to each Servicer, a Servicer Event
of Default and with respect to the Master Servicer, a Master Servicer Event of
Default.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Xxxxxx Xxx": The Federal National Mortgage Association, and its
successors in interest.
"Fidelity Bond": A fidelity bond to be maintained by the Master
Servicer pursuant to Section 8.02 or a Servicer pursuant to the related
Servicing Agreement.
"Final Certification": A certification as to the completeness of
each Trustee Mortgage Loan File substantially in the form of Exhibit B hereto
provided by the Securities Administrator (or the Custodian) on or before the
first anniversary of the Closing Date pursuant to Section 2.02 hereof.
"Fiscal Year": Unless otherwise provided in the Trust Agreement, the
fiscal year of the Trust shall run from January 1 (or from the Closing Date, in
the case of the first fiscal year) through the last day of December.
"Fraud Losses": Losses on Mortgage Loans resulting from fraud,
dishonesty or misrepresentation in the origination of such Mortgage Loans.
"Xxxxxxx Mac": The Federal Home Loan Mortgage Corporation, and its
successors in interest.
"GSMC": Xxxxxxx Xxxxx Mortgage Company, and its successors and
assigns.
"Holders" or "Certificateholders": The holders of the Certificates,
as shown on the Certificate Register maintained by the Certificate Registrar.
"Independent": When used with respect to any specified Person,
another Person who (a) is in fact independent of the Depositor, the Initial
Purchaser, the Trustee, the Securities Administrator, the Master Servicer, each
Servicer or GSMC, any obligor upon the Certificates or any Affiliate of the
Depositor, the Initial Purchaser, the Trustee, the Securities Administrator, the
Master Servicer, each Servicer or GSMC or such obligor, (b) does not have any
direct financial interest or any material indirect financial interest in the
Depositor, the Initial Purchaser, the Trustee, the Securities Administrator, the
Master Servicer, each Servicer or GSMC or in any such obligor or in an Affiliate
of the Depositor, the Trustee, the Securities Administrator, the Master
Servicer, each Servicer or GSMC or such obligor, and (c) is not connected with
the Depositor, the Initial Purchaser, the Trustee, the Securities Administrator,
the Master Servicer, each Servicer or GSMC or any such obligor as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions. Whenever it is provided herein that any Independent Person's
opinion or certificate shall be furnished to the Trustee or the Securities
Administrator, such Person shall be appointed by the Depositor, the Initial
Purchaser, the Trustee, the Securities Administrator, the Master Servicer, any
applicable Servicer or GSMC in the exercise of reasonable care by such Person,
as the case may be, and approved by the Securities Administrator, and such
opinion or certificate shall state that the Person executing the same has read
this definition and that such Person is independent within the meaning thereof.
"Initial Class Principal Balance": With respect to any Class of
Certificates or Interests, the Class Principal Balance of such Class of
Certificates or Interests as of the Closing Date.
"Initial Purchaser": Xxxxxxx, Sachs & Co.
"Insurance Proceeds": Proceeds of any title policy, hazard policy or
other insurance policy covering a Mortgage Loan, if any, to the extent such
proceeds are not to be applied to the restoration of the related Mortgaged
Property or released to the Borrower in accordance with the procedures that the
Servicer would follow in servicing mortgage loans held for its own account.
"Insurer": Any issuer of an insurance policy relating to the
Mortgage Loans or Certificates of a Series.
"Interest": The REMIC "regular interests" that are issued by the
REMICs and established by the Trust for purposes of the REMIC Provisions. The
Interests shall be Regular Interests in, and assets of, the REMICs specified in
the Trust Agreement.
"JPMorgan Chase": JPMorgan Chase Bank and its successors.
"Liquidation Loss": The excess, upon a disposition of a defaulted
Mortgage Loan, of (i) the amount owed by the Borrower thereunder, including on
account of all Advances, over (ii) the Liquidation Proceeds thereof.
"Liquidation Proceeds": Amounts, other than Insurance Proceeds and
Condemnation Proceeds, received by the related Servicer in connection with the
liquidation of a defaulted Mortgage Loan through trustee's sale, foreclosure
sale or otherwise, including (i) amounts received following the disposition of
an REO Property pursuant to the applicable Servicing Agreement less costs and
expenses of such foreclosure sale and (ii) in the case of any Mortgage Loan with
assets pledged in addition to the Mortgaged Property, amounts received upon the
liquidation or conversion of such assets.
"Loan Level Report": The report prepared by the Master Servicer in
substantially the form set forth in Schedule II hereto.
"Lost Document Affidavit": An affidavit, in recordable form, in
which the Seller of a Mortgage Loan represents, warrants and covenants that: (i)
immediately prior to the transfer of such Mortgage Loan under the related Sale
Agreement, such Seller was the lawful owner of the Mortgage Loan and the Seller
has not canceled, altered, assigned or hypothecated the mortgage note or the
related Mortgage, (ii) the missing document was not located after a thorough and
diligent search by the Seller, (iii) in the event that the missing document ever
comes into the Seller's possession, custody or power, the Seller covenants
immediately and without further consideration to surrender such document to the
Securities Administrator, and (iv) that it shall indemnify and hold harmless the
Trust, its successors, and assigns, against any loss, liability, or damage,
including reasonable attorney's fees, resulting from the unavailability of any
originals of any such documents or of a complete chain of intervening
endorsements, as the case may be.
"Master Servicer": Shall have the meaning set forth in the recitals
hereto.
"Master Servicer Account": An Eligible Account established by the
Master Servicer pursuant to Section 3.01 hereof.
"Master Servicer Event of Default": Those events of default
described in Section 8.04 hereof.
"Master Servicer Fee": Shall have the meaning set forth in the Trust
Agreement.
"Master Servicer Fee Rate": Not applicable.
"Master Servicer Remittance Date": With respect to each Distribution
Date, shall be a date which occurs two Business Days prior to such Distribution
Date.
"Modification Loss": A decrease in the total payments due from a
Borrower as a result of a modification of such Mortgage Loans following a
default or reasonably expected default thereon. If a Modification Loss results
in a decrease in the Note Rate of a Mortgage Loan, such Modification Loss shall
be treated as occurring on each Due Date to the extent of such decrease.
"Month End Interest Shortfall": For any Distribution Date, the
aggregate Prepayment Interest Shortfall Amount for the Mortgage Loans, to the
extent not reimbursed by the Servicer pursuant to the applicable Servicing
Agreement.
"Monthly Advance": The aggregate amount of the (i) advances made by
a Servicer on any Remittance Date in respect of delinquent Scheduled Payments
pursuant to the applicable Servicing Agreement and (ii) any advances made by the
Master Servicer (or the Securities Administrator pursuant to Section 3.05 in the
even the Master Servicer fails to make such advances as required) in respect of
any such delinquent Scheduled Payment pursuant to Section 3.05.
"Mortgage Loan": The mortgage loans sold by the Depositor to the
Trust as listed on the Mortgage Loan Schedules to the Trust Agreement. Unless
the context indicates otherwise the term "Mortgage Loan" includes any REO
Property held by the Trust.
"Mortgage Loan Schedule": The list or lists of Mortgage Loans sold
by the Depositor to the Trust, which list(s) is attached to the Trust Agreement
and to the applicable Custody Agreement, and which shall set forth for each
Mortgage Loan the following information:
(a) the Servicer (Depositor) loan number;
(b) the Borrower's name;
(c) the original principal balance;
(d) the Scheduled Principal Balance as of the Cut off Date;
(e) the applicable Servicing Fee; and
(f) the applicable Loan Group;
together with such additional information as may be reasonably requested by the
Securities Administrator or the Master Servicer.
"Mortgaged Property": The real property securing repayment of the
debt evidenced by a Note.
"Net Rate": Unless otherwise provided in the Trust Agreement, with
respect to each Mortgage Loan, the Note Rate of that Mortgage Loan less the
Administrative Cost Rate applicable thereto.
"Non-U.S. Person": A Person other than a U.S. Person.
"Note": A manually executed written instrument evidencing the
Borrower's promise to repay a stated sum of money, plus interest, to the holder
of the Note by a specific date according to a schedule of principal and interest
payments.
"Note Rate": The rate of interest borne by each Note according to
its terms.
"Opinion of Counsel": A written opinion of counsel, who may be
counsel for the Depositor or a Servicer, reasonably acceptable to the Trustee,
the Securities Administrator, the Master Servicer and the Servicer, as
applicable. An Opinion of Counsel relating to tax matters must be an opinion of
Independent counsel.
"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.
"Par Price": An amount equal to (i) 100% of the Scheduled Principal
Balance of each Mortgage Loan remaining in the Trust on the day of such
purchase, plus accrued interest thereon at the Note Rate to the Due Date in the
month in which the Termination Price is distributed to Certificateholders, plus
the amount of outstanding Servicing Advances thereon to the Due Date in the
month in which the Termination Price is distributed to Certificateholders, plus
(ii) the lesser of (A) the Scheduled Principal Balance of the Mortgage Loan for
any REO Property remaining in the Trust, plus accrued interest thereon at the
Note Rate (less the related Servicing Fee Rate) to the Due Date in the month in
which the Termination Price is distributed to Certificateholders, and (B) the
current appraised value of any such REO Property, such appraisal to be conducted
by an appraiser satisfactory to the Trustee, plus (iii) the amount of any costs
and damages incurred by the Trust as a result of any violation of any applicable
federal, state, or local predatory or abusive lending law arising from or in
connection with the origination of any Mortgage Loans remaining in the Trust.
"Paying Agent": The paying agent appointed pursuant to Section 5.08
hereof.
"Payoff": Any payment or other recovery of principal on a Mortgage
Loan equal to the Unpaid Principal Balance of such Mortgage Loan, received in
advance of the last scheduled Due Date, including any prepayment penalty or
premium thereon, which is accompanied by an amount of interest representing
scheduled interest from and including the Due Date interest was last paid by the
Borrower to but excluding the date of such prepayment.
"Percentage Interest": With respect to any Certificate to which
principal is assigned as of the Closing Date, the portion of the Class evidenced
by such Certificate, expressed as a percentage, the numerator of which is the
initial Class Principal Balance of such Certificate and the denominator of which
is the aggregate Class Principal Balance of all of the Certificates of such
Class as of the Closing Date. With respect to any Certificate to which a
principal balance is not assigned as of the Closing Date, the portion of the
Class evidenced by such Certificate, expressed as a percentage, as stated on the
face of such Certificate.
"Permitted Investments": Permitted Investments shall consist of the
following:
(i) direct obligations of, or obligations fully guaranteed as
to principal and interest by, the United States or any agency or
instrumentality thereof, provided such obligations are backed by the
full faith and credit of the United States;
(ii) repurchase obligations (the collateral for which is held
by a third party, the Trustee or the Securities Administrator, or
any of their respective affiliates) with respect to any security
described in clause (i) above, provided that the long-term or
short-term unsecured debt obligations of the party agreeing to
repurchase such obligations are at the time rated by each Rating
Agency in its highest long-term unsecured debt rating categories;
(iii) certificates of deposit, time deposits and bankers'
acceptances of any bank or trust company (including the Trustee or
the Securities Administrator) incorporated under the laws of the
United States or any state, provided that the long-term unsecured
debt obligations of such bank or trust company at the date of
acquisition thereof have been rated by each Rating Agency in one of
its two highest long-term unsecured debt rating categories;
(iv) commercial paper (having original maturities of not more
than 270 days) of any corporation (including an affiliate of the
Trustee or the Securities Administrator) incorporated under the laws
of the United States or any state thereof which on the date of
acquisition has been rated by each Rating Agency in its highest
short-term unsecured debt rating available (i.e., "P-1" by Moody's
and "A-1+" by S&P);
(v) money market funds administered by the Trustee or the
Securities Administrator or any of their respective affiliates,
provided that such money market funds are rated by each Rating
Agency (i) in its highest short-term unsecured debt rating category
available (i.e., "P-1" by Moody's and "A-1+" by S&P) or (ii) in one
of its two highest long-term unsecured debt rating categories ; and
(vi) any other demand, money market or time deposit or
obligation, or interest-bearing or other security or investment as
would not affect the then current rating of the Certificates by any
Rating Agency (which shall include money market funds rated in the
highest long-term rating category with portfolios consisting solely
of obligations in clauses (i) through (iv) above).
provided, however, that no investment described above shall constitute a
Permitted Investment (A) if such investment evidences either the right to
receive (i) only interest with respect to the obligations underlying such
instrument or (ii) both principal and interest payments derived from obligations
underlying such instrument if the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of the
yield to maturity at par of the underlying obligations or (B) if such investment
is not a "permitted investment" for purposes of the REMIC Provisions; and
provided, further, that no investment described above shall constitute a
Permitted Investment unless such investment matures no later than the Business
Day immediately preceding the Distribution Date or the Master Servicer
Remittance Date, as applicable, on which the funds invested therein are required
to be distributed (or, in the case of an investment that is an obligation of the
institution in which the account is maintained, no later than such Distribution
Date). Neither the Securities Administrator nor the Master Servicer shall sell
or permit the sale of any Permitted Investment unless it shall have determined
that such a sale would not result in a prohibited transaction in which a gain
would be realized under the REMIC Provisions.
"Permitted Transferee": Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a U.S.
Person or a U.S. Person with respect to whom income from a Residual Certificate
is attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of such Person or any other U.S.
Person, (vi) an "electing large partnership" within the meaning of Section 775
of the Code and (vii) any other Person so designated by the Depositor based upon
an Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to such Person may cause any Trust REMIC to fail to qualify as a
REMIC at any time that the Certificates are outstanding. The terms "United
States," "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of Xxxxxxx Mac, a majority of its board
of directors is not selected by such government unit.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof or any other organization or
entity.
"Plan": Any employee benefit plan or retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds in which such plans, accounts, annuities or
arrangements are invested, that are described in or subject to the Plan Asset
Regulations, ERISA or corresponding provisions of the Code.
"Plan Asset Regulations": The Department of Labor regulations set
forth in 29 C.F.R. ss. 2510.3-101, as amended from time to time.
"Plan Investor": Any Plan or any governmental plan as described in
Section 3(32) of ERISA subject to Similar Law, or any Person acting on behalf of
any such Plan or governmental plan or using the assets of such Plan or
governmental plan.
"Prepayment Period": Unless otherwise specified in the Trust
Agreement, with respect to each Distribution Date, the calendar month preceding
the month in which such Distribution Date occurs.
"Prepayment Interest Shortfall": With respect to any Distribution
Date and (any Principal Prepayment Amount, the difference between (i) one full
month's interest at the applicable Note Rate (after giving effect to any
applicable Servicemembers' Shortfall), and (ii) the amount of interest actually
received with respect to such Mortgage Loan in connection with such Principal
Prepayment Amount.
"Prime Rate": With respect to any Distribution Date, the rate
published as the "Prime Rate" in the "Money Rates" section or other comparable
section of The Wall Street Journal on such date. In the event The Wall Street
Journal publishes a prime rate range, the average of that range, as determined
by the Securities Administrator, shall be the Prime Rate. In the event The Wall
Street Journal no longer publishes a "Prime Rate" entry, the Securities
Administrator shall designate a new methodology for determining the Prime Rate
based on comparable data.
"Principal Prepayment Amount": As defined in the Trust Agreement.
"Purchase Price": With respect to a Mortgage Loan purchased from the
Trust pursuant to Section 2.03, an amount equal to the Scheduled Principal
Balance of the Mortgage Loan, plus accrued and unpaid interest thereon at the
Note Rate to the last day of the month in which the purchase occurs, plus, in
the case of purchases by a Seller or Servicer, the amount of any costs and
damages incurred by the Trust as a result of any violation of any applicable
federal, state, or local predatory or abusive lending law arising from or in
connection with the origination of such Mortgage Loan, and less any amounts
received in respect of such Mortgage Loan and being held in the Collection
Account.
"Purchaser": The Person that purchases a Mortgage Loan from the
Trust pursuant to Section 2.03 hereof.
"QIB Certificate": As defined in Section 5.05(a), a Rule 144A
Agreement or a certificate substantially to the same effect.
"Qualification Defect": With respect to a Mortgage Loan, (a) a
defective document in the Trustee Mortgage Loan File, (b) the absence of a
document in the Trustee Mortgage Loan File, or (c) the breach of any
representation, warranty or covenant with respect to the Mortgage Loan made by
the applicable Seller or Servicer or the Depositor but only if the affected
Mortgage Loan would cease to qualify as a "qualified mortgage" for purposes of
the REMIC Provisions. With respect to a REMIC Regular Interest or a mortgage
certificate described in Section 860G(a)(3) of the Code, the failure to qualify
as a "qualified mortgage" for purposes of the REMIC Provisions.
"Qualified Institutional Buyer": Any "qualified institutional buyer"
as defined in clause (a)(1) of Rule 144A.
"Rating Agency": Any nationally recognized statistical rating
agency, or its successor, that on the Closing Date rated one or more Classes of
the Certificates at the request of the Depositor and identified in the Trust
Agreement. If such agency or a successor is no longer in existence, the "Rating
Agency" shall be such nationally recognized statistical rating agency, or other
comparable Person, designated by the Depositor, notice of which designation
shall be given to the Securities Administrator. References herein to any
long-term rating category of a Rating Agency shall mean such rating category
without regard to any plus or minus or numerical designation.
"Realized Loss": A Liquidation Loss, a Modification Loss that has
been allocated to reduce the Certificate Principal Balance of one or more
Classes of Certificates pursuant to the Trust Agreement, or a Bankruptcy Loss,
in each case, to the extent not covered by Insurance Proceeds.
"Record Date": Shall have the meaning set forth in the Trust
Agreement.
"Regular Interest": An interest in a REMIC that is designated in the
Trust Agreement as a "regular interest" under the REMIC Provisions.
"Regular Certificate": Any Certificate other than a Residual
Certificate that represents a Regular Interest in a REMIC or a combination of
Regular Interests in a REMIC.
"REMIC": With respect to each Trust, each real estate mortgage
investment conduit, within the meaning of the REMIC Provisions, for such Trust.
"REMIC I": The REMIC consisting primarily of the Mortgage Loans and
the REMIC I Distribution Account.
"REMIC I Distribution Account": The distribution account or accounts
created and maintained for REMIC I pursuant to Section 3.01 hereof.
"REMIC I Interests": The interests issued by the Trust that
represent the Regular Interests in REMIC I.
"REMIC II": The REMIC consisting primarily of the Regular Interests
in REMIC I and the Certificate Account.
"REMIC II Distribution Account": The distribution account or
accounts created and maintained for REMIC II pursuant to Section 3.01 hereof.
"REMIC II Interests": The interests issued by the Trust that
represent the Regular Interests in REMIC II.
"REMIC Provisions": Provisions of the Code relating to real estate
mortgage investment conduits, which appear at sections 860A through 860G of the
Code, related Code provisions, and regulations, announcements and rulings
thereunder, as the foregoing may be in effect from time to time.
"Remittance Date": As set forth in the Trust Agreement.
"Remittance Report": The report (either a data file or hard copy)
that is prepared by each Servicer for the Master Servicer which contains the
information specified in Schedule III hereto.
"REO Disposition": The receipt by the applicable Servicer of
Insurance Proceeds and other payments and recoveries (including Liquidation
Proceeds) which the Servicer recovers from the sale or other disposition of an
REO Property.
"REO Property": Mortgaged Property acquired by the Trust in
foreclosure or similar actions.
"Request for Release": A request signed by an Officer of the
Servicer, requesting that the Trustee (or applicable Custodian) release the
Trustee Mortgage Loan File to the Servicer for the purpose set forth in such
release, in accordance with the terms of the Servicing Agreement and these
Standard Terms.
"Reserve Fund": Unless otherwise provided in the Trust Agreement,
any fund in the Trust Estate other than (a) the Certificate Account, REMIC I
Distribution Account, the Master Servicer Account and Termination Account and
(b) any other fund that is expressly excluded from a REMIC.
"Residual Certificate": The R Certificates designated as such in the
Trust Agreement.
"Residual Interest": An interest in a REMIC that is designated as a
"residual interest" under the REMIC Provisions.
"Residual Transfer Affidavit": An affidavit substantially in the
form of Exhibit F hereto.
"Responsible Officer": When used with respect to the Trustee or the
Securities Administrator, any senior vice president, any vice president, any
assistant vice president, any assistant treasurer, any trust officer, any
assistant secretary in the Corporate Trust Office of the Trustee or the
Securities Administrator, as the case may be, or any other officer of the
Trustee or the Securities Administrator customarily performing functions similar
to those performed by the persons who at the time shall be such officers and
having direct responsibility for the administration of this Agreement, and also
to whom with respect to a particular corporate trust matter such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject; provided, however, when used with respect to the Master
Servicer, any senior vice president, any assistant vice president, any trust
officer, or any other officer of the Master Servicer customarily performing
functions similar to those performed by any such named officer and having direct
responsibility for the master servicing of the Mortgage Loans under this Trust
Agreement. With respect to any other Person, the chairman of the board, the
president, a vice president (however designated), the treasurer or controller.
"Rule 144A": Rule 144A promulgated by the Securities and Exchange
Commission under the Securities Act, as the same may be amended from time to
time.
"Rule 144A Agreement": An agreement substantially in the form of
Exhibit C hereto.
"Sale Agreement": The Sale and Servicing Agreement or Sale and
Servicing Agreements, as defined in the Trust Agreement.
"Scheduled Payment": For each Mortgage Loan, payments of interest
and principal scheduled to be paid on each Due Date in accordance with the terms
of related Mortgage Note.
"Scheduled Principal Balance": For any Mortgage Loan as of any Due
Date subsequent to the Cut-Off Date up to and including the date on which such
Mortgage Loan is finally liquidated or repurchased from the Trustee, the
scheduled principal balance thereof as of the Cut-Off Date reduced by (i) the
principal portion of all Scheduled Payments due on or before such Due Date,
whether or not paid by the Borrower or advanced by a Servicer, the Master
Servicer, the Securities Administrator or an Insurer, net of any portion thereof
that represents principal due on a Due Date occurring on or before the date on
which such proceeds were received, (ii) the principal portion of all
Prepayments, including Liquidation Proceeds, Condemnation Proceeds and Insurance
Proceeds, and Payoffs received on or before the last day of the Prepayment
Period preceding such date of determination, and (iii) without duplication, the
amount of any Realized Loss that has occurred with respect to such Mortgage
Loan.
"Securities Act": The Securities Act of 1933, as amended.
"Securities Administrator": As set forth in the Trust Agreement.
"Seller": The Seller or Sellers identified in the Trust Agreement.
"Senior Percentage": The percentage, if any, calculated as set forth
in the Trust Agreement.
"Senior Prepayment Percentage": The percentage, if any, calculated
as set forth in the Trust Agreement.
"Series": A group of Certificates issued by a separate Trust.
"Servicemembers' Shortfall": Interest losses on a Mortgage Loan
resulting from application of the Servicemembers Civil Relief Act, or any
similar state or local statute.
"Servicer": The Servicer or Servicers identified in the Servicing
Agreement or Agreements. If there is more than one Servicer and the context so
requires, all references to "Servicer" herein shall be read to refer to the
Servicer for the related Mortgage Loan or group of Mortgage Loans, as the case
may be.
"Servicer Mortgage Loan File": With respect to each Mortgage Loan,
the related Mortgage File, as that term is defined in the related Servicing
Agreement.
"Servicer Remittance Date": Shall mean the 18th day of each month
or, if such day is not a Business Day, the immediately preceding Business Day,
or such other day or days as may be set forth in the related Servicing Agreement
for remittances by the Servicer to the owner of the Mortgage Loans.
"Servicing Agreement": The Sale and Servicing Agreement or Sale and
Servicing Agreements, as defined in the Trust Agreement.
"Servicing Fee": Unless otherwise provided in the Trust Agreement,
in any month, an amount equal to one-twelfth of the Servicing Fee Rate
multiplied by the aggregate Scheduled Principal Balance of the Mortgage Loans as
of the Due Date preceding a Distribution Date without taking into account any
payment of principal due or made on such Due Date.
"Servicing Fee Rate": The rate or rates specified as such in the
applicable Servicing Agreement.
"Similar Law": Any federal, state or local law materially similar to
the fiduciary responsibility provisions of ERISA or Section 4975 of the Code.
"Shortfall": Month End Interest Shortfall and Servicemembers'
Shortfall.
"Special Tax Consent": The written consent of the Holder of a
Residual Certificate to any tax (or risk thereof) arising out of a proposed
transaction or activity that may be imposed upon such Holder or that may affect
adversely the value of such Holder's Residual Certificate.
"Special Tax Opinion": An Opinion of Counsel that a proposed
transaction or activity will not (a) affect adversely the status of any REMIC as
a REMIC or of the Regular Interests as the "regular interests" therein under the
REMIC Provisions, (b) affect the payment of interest or principal on the Regular
Interests, or (c) result in the encumbrance of the Mortgage Loans by a tax lien.
"Standard Terms": These Standard Terms, as amended or supplemented,
incorporated by reference in a Trust Agreement.
"Subordinate Prepayment Percentage": For any Distribution Date,
unless otherwise specified in the Trust Agreement, (x) 100% minus (y) the Senior
Prepayment Percentage for such Distribution Date.
"Tax Matters Person": The Securities Administrator, in its capacity
as "tax matters person" (within the meaning of the REMIC Provisions) of a REMIC.
"Terminating Purchase": The purchase of all Mortgage Loans and each
REO Property owned by a Trust pursuant to Section 10.02 hereof.
"Termination Account": An escrow account maintained by the Trustee
into which any Trust funds not distributed on the Distribution Date on which the
earlier of (a) a Terminating Purchase or (b) the final payment or other
Liquidation of the last Mortgage Loan remaining in the Trust or the disposition
of the last REO Property remaining in the Trust is made are deposited. The
Termination Account shall be an Eligible Account.
"Termination Price": The greater of (i) the Par Price and (ii) the
sum of the aggregate fair market value of all of the assets of the Trust, as
determined by the Securities Administrator in consultation with the Initial
Purchaser (or, if the Initial Purchaser is unwilling or unable to serve in that
capacity, a financial advisor selected by the Securities Administrator in a
commercially reasonable manner, whose fees will be an expense of the Depositor
(or other party causing the Terminating Purchase)), based upon the mean of bids
from at least three recognized broker/dealers that deal in similar assets) as of
the close of business on the third Business Day preceding the date upon which
notice of any such termination is furnished to Certificateholders pursuant to
Section 10.03; provided, however, that in determining such aggregate fair market
value, the Securities Administrator shall be entitled to conclusively rely on
such bids or the opinion of a nationally recognized investment banker (the fees
of which shall be an expense of the Trust). The fair market value of the assets
in the Trust or the appraised value of any REO Property shall be based upon the
inclusion of (i) accrued interest to the Due Date in the month in which the
Termination Price is distributed to the Certificateholders, at the applicable
Note Rate (less the related Servicing Fee Rate) on the Scheduled Principal
Balance of each Mortgage Loan (including any Mortgage Loan which became an REO
Property as to which an REO Property Disposition has not occurred), (ii) the
amount of outstanding Servicing Advances to the Due Date in the month in which
the Termination Price is distributed to the Certificateholders, and (iii) the
amount of any costs and damages incurred by the Trust as a result of any
violation of any applicable federal, state, or local predatory or abusive
lending law arising from or in connection with the origination of any Mortgage
Loans remaining in the Trust.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
"Trust": The trust formed pursuant to the Trust Agreement.
"Trust Agreement" or this "Agreement": The Master Servicing and
Trust Agreement, dated as of February 1, 2004, among the Depositor, the Master
Servicer, the Securities Administrator and the Trustee and the Custodian
relating to the issuance of Certificates, and into which these Standard Terms
are incorporated by reference.
"Trust Estate": The segregated pool of assets sold and assigned to
the Trustee for the benefit of the Certificateholders by the Depositor pursuant
to the conveyance clause of the Trust Agreement.
"Trust Receipt": A certification as to the completeness of each
Trustee Mortgage Loan File substantially in the form of Exhibit A hereto
provided by the Securities Administrator (or the Custodian) pursuant to Section
2.02 hereof.
"Trustee": The bank or trust company identified as the Trustee in
the Trust Agreement, and its successors and assigns.
"Trustee Mortgage Loan File": With respect to each Mortgage Loan,
unless otherwise provided in the Trust Agreement, collectively, the following
documents, together with any other Mortgage Loan documents held by the Trustee
or the related Custodian with respect to such Mortgage Loan:
(a) The original executed mortgage note endorsed, "Pay to the
order of ________________ or in the name of the Trustee, Wachovia
Bank, National Association, as trustee under a Master Servicing and
Trust Agreement, dated as of February 1, 2004, without recourse",
and signed in the name of the Seller (or an affiliate of such
Seller, if applicable) by an officer of such Seller (or an affiliate
of such Seller, if applicable), or a Lost Document Affidavit with a
copy of the original mortgage note attached; provided that unless
otherwise provided in the related Sale Agreement, the words
"Wachovia Bank, National Association, as trustee under a Master
Servicing and Trust Agreement, dated as of February 1, 2004" shall
be inserted into the blank; and provided that the mortgage note
shall include all intervening original endorsements showing a
complete chain of title from the originator to such Seller (or an
affiliate of such Seller, if applicable);
(b) The original executed Mortgage, or a certified copy
thereof, in either case with evidence of recording noted thereon;
(c) The original assignment of each Mortgage from the related
Seller (or its affiliate, if applicable) delivered in blank in
recordable form;
(d) The original or copy of a policy of title insurance, a
certificate of title, or attorney's opinion of title (accompanied by
an abstract of title), as the case may be, with respect to each
Mortgage Loan;
(e) Originals of any intervening assignments of the mortgage
necessary to show a complete chain of title from the original
mortgagee to the Seller, or certified copies thereof, in either case
with evidence of recording noted thereon; provided that such
intervening assignments may be in the form of blanket assignments, a
copy of which, with evidence of recording noted thereon, shall be
acceptable;
(f) Originals of all modification agreements, or certified
copies thereof, in either case with evidence of recording noted
thereon if recordation is required to maintain the lien of the
mortgage or is otherwise required, or, if recordation is not so
required, an original or copy of any such modification agreement;
and
(g) To the extent applicable, (x) an original power of
attorney, or a certified copy thereof, in either case with evidence
of recordation thereon if necessary to maintain the lien on the
Mortgage or if the document to which such power of attorney relates
is required to be recorded, or, if recordation is not so required,
an original or copy of such power of attorney, and (y) an original
or copy of any surety agreement or guaranty agreement.
Notwithstanding the foregoing, with respect to any power of
attorney, mortgage, assignment, intervening assignment, assumption agreement,
modification agreement or deed of sale for which a certified copy is delivered
in accordance with the foregoing, the copy must be certified as true and
complete by the appropriate public recording office, or, if the original has
been submitted for recording but has not yet been returned from the applicable
recording office, an officer of the Seller (or a predecessor owner, a title
company, closing/settlement/escrow agent or company or closing attorney) must
certify the copy as a true copy of the original submitted for recordation.
Copies of blanket intervening assignments, however, need not be certified.
"UCC": The Uniform Commercial Code as in effect in the jurisdiction
that governs the interpretation of the substantive provisions of the Trust
Agreement, as such Uniform Commercial Code may be amended from time to time.
"Unpaid Principal Balance": With respect to any Mortgage Loan, the
outstanding principal balance payable by the related Borrower under the terms of
the Note.
"U.S. Person": (i) A citizen or resident of the United States; (ii)
a corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of any
State thereof, including, for this purpose, the District of Columbia; (iii) a
partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any state
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury Regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control all substantial decisions of the
trust. Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury Regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
"Voting Rights": With respect to any date of determination, the
percentage of all the voting rights allocated among holders of the certificates
(other than the Interest Only Certificates) will be 99% and will be allocated
among the Classes of those Certificates in the proportion that the aggregate
Class Principal Balance of a Class then outstanding bears to the aggregate Class
Principal Balance of all Certificates then outstanding. With respect to any date
of determination, the percentage of all the voting rights allocated among
holders of the Interest Only Certificates will be 1%. The voting rights
allocated to a Class of Certificates will be allocated among all holders of that
Class in proportion to the outstanding Certificate Principal Balances, or
Notional Amount, of those Certificates.
"Withholding Agent": The Securities Administrator or its designated
Paying Agent or other person who is liable to withhold federal income tax from a
distribution on a Residual Certificate under Sections 1441 and 1442 of the Code
and the Treasury Regulations thereunder.
ARTICLE II
MORTGAGE LOAN FILES
Section 2.01 Mortgage Loan Files. Pursuant to the Trust Agreement,
the Depositor has sold to the Trustee without recourse all the right, title and
interest of the Depositor in and to the Mortgage Loans, any and all rights,
privileges and benefits accruing to the Depositor under each Assignment
Agreement, each Sale Agreement, and each Servicing Agreement with respect to the
Mortgage Loans, including the rights and remedies with respect to the
enforcement of any and all representations, warranties and covenants under such
agreements and all other agreements and assets included or to be included in the
Trust for the benefit of the Certificateholders as set forth in the conveyance
clause of the Trust Agreement. Such assignment includes all of the Depositor's
rights to Scheduled Payments on the Mortgage Loans due after the Cut-Off Date,
and all other payments of principal (and interest) made on or after the Cut-Off
Date that are reflected in the initial aggregate Class Principal Balance for a
Trust.
In connection with such transfer and assignment, the Depositor shall
deliver, or cause to be delivered, to the Trustee or the Custodian on or before
the Closing Date, with respect to each Mortgage Loan, the Trustee Mortgage Loan
File that was delivered to such Custodian by the Servicer. If any Mortgage or an
assignment of a Mortgage to the Trustee or any prior assignment is in the
process of being recorded on the Closing Date, the Depositor shall cause each
such original recorded document or certified copy thereof, to be delivered to
the Trustee or the related Custodian promptly following its recordation and
return to the Depositor.
Section 2.02 Acceptance by the Trustee. (a) By its execution of the
Trust Agreement, the Trustee acknowledges and declares that it or the Custodian
holds and will hold or has agreed to hold (in each case through the applicable
Custodian) all documents delivered to it or any such Custodian from time to time
with respect to a Mortgage Loan and all assets included in the definition of
"Trust Estate" in the Trust Agreement in trust for the exclusive use and benefit
of all present and future Certificateholders. The Trustee represents and
warrants that (i) it acquired the Mortgage Loans on behalf of the Trust from the
Depositor in good faith, for value, and without actual notice or actual
knowledge of any adverse claim, lien, charge, encumbrance or security interest
(including, without limitation, federal tax liens or liens arising under ERISA)
(it being understood that the Trustee has not undertaken searches (lien records
or otherwise) of any public records), (ii) except as permitted in the Trust
Agreement, it has not and will not, in any capacity, assert any claim or
interest in the Mortgage Loans and will hold (or its agent will hold) such
Mortgage Loans and the proceeds thereof in trust pursuant to the terms of the
Trust Agreement, and (iii) it has not encumbered or transferred its right, title
or interest in the Mortgage Loans.
(b) The Trustee will cause the Custodian to review, for the benefit
of the Certificateholders and the parties hereto, each Trustee Mortgage Loan
File and deliver to the Trustee (with a copy to the Depositor) on the Closing
Date a Trust Receipt with respect to each Mortgage Loan to the effect that,
except as specifically noted on a schedule of exceptions thereto (the
"Exceptions List"):
(i) all documents required to be delivered to it pursuant to
clause (a) through (e) of the definition of Trustee Mortgage Loan
File are in the Trustee's or Custodian's possession;
(ii) all documents required to be delivered to it pursuant to
clause (f) of the definition of Trustee Mortgage Loan File are in
the Trustee's or Custodian's possession, provided that
(A) the Custodian shall have no obligation to verify the
receipt of any such documents the existence of which was not
made known to the Custodian by the Trustee Mortgage Loan File,
and
(B) the Custodian shall have no obligation to determine
whether recordation of any such modification is necessary;
(iii) all powers of attorney required to be delivered to it
pursuant to clause (g) of the definition of Trustee Mortgage Loan
File are in the Custodian's possession, provided that
(A) the Custodian shall have no obligations to verify
the receipt of any such documents the existence of which was
not made known to the Custodian by the Trustee Mortgage Loan
File, and
(B) the Custodian shall have no obligation to determine
whether recordation of any such power of attorney is necessary
(except that the Custodian shall conclude that if the document
to which such power of attorney relates is a mortgage, interim
assignment, assignment or a document that was recorded, then
the Custodian shall conclude that such power of attorney
should have been recorded);
(iv) all documents have been examined by the Custodian and
appear regular on their face and to relate to the Mortgage Loans;
and
(v) that each mortgage note has been endorsed and each
assignment of mortgage has been assigned as described in the
definition of Trustee Mortgage Loan File, provided that the
Custodian shall have no obligation to confirm that the assignments
are in recordable form.
In making the verification required by this Section 2.02(b), the
Custodian may rely conclusively on the Mortgage Loan Schedule attached hereto,
and the Custodian shall have no obligation to independently verify the
correctness of such Mortgage Loan Schedule.
(c) It is understood that before delivering the Trust Receipt, the
Custodian, on behalf of the Trustee, shall examine the Mortgage Loan Documents
to confirm the following (and shall report any exceptions to these confirmations
in the Exceptions Report attached to the Trust Receipt):
(i) each mortgage note, mortgage, assumption, modification,
guaranty, power of attorney and deed of sale bears a signature or
signatures that appear to be original and that purport to be that of
the Person or Persons named as the maker and mortgagor/trustor or,
if photocopies are permitted, that such copies bear a reproduction
of such signature or signatures;
(ii) except for the endorsement required pursuant to clause
(a) of the definition of Trustee Mortgage Loan File, neither the
mortgage nor any assignment, on the face or the reverse side(s)
thereof, contains evidence of any unsatisfied claims, liens,
security interests, encumbrances or restrictions on transfer;
(iii) the principal amount of the indebtedness secured by the
mortgage is identical to the original principal amount of the
mortgage note;
(iv) the interest rate shown on the Mortgage Loan Schedule is
identical to the interest rate shown on the mortgage note;
(v) the assignment of the mortgage from the related Seller (or
its affiliate, if applicable) to the Trustee is in the form required
pursuant to clause (c) of the definition of Trustee Mortgage Loan
File, and bears the signature of the related Seller (or its
affiliate, if applicable) that appears to be an original and any
other necessary party or, if photocopies are permitted, such copies
bear a reproduction of such signature or signatures;
(vi) if intervening assignments are included in the Trustee
Mortgage Loan File, each such intervening assignment bears the
signature of the mortgagee and/or the assignor (and any other
necessary party) that appears to be an original or, if photocopies
are permitted, that such copies bear a reproduction of such
signature or signatures; and
(vii) the title insurance policy or certificate of title is
for an amount not less than the original principal amount of the
related note.
(d) Prior to the first anniversary date of the Closing Date, the
Custodian shall deliver to the Depositor, the Trustee, the Securities
Administrator and each Servicer a Final Certification evidencing the
completeness of the Trustee Mortgage Loan File for each Mortgage Loan, with any
applicable exceptions noted on such Certification.
(e) No later than the fifth Business Day of each month, commencing
the first month following the month in which the Closing Date occurs, the
Custodian shall deliver to each Servicer (or such other party responsible for
recordation of any Mortgages and/or assignments as specified in the related
Servicing Agreement), and the Depositor in hard copy format (and, if requested,
in electronic format), the Exceptions List, updated to remove exceptions cured
since the Closing Date. In addition, such monthly reports shall list any
document with respect to which the related Seller delivered a copy certifying
that the original had been sent for recording, until such time as the related
Seller or Servicer delivers to the Trustee (or Custodian) the original of such
document or a copy thereof certified by the appropriate public recording office.
(f) In lieu of taking possession of the Trustee Mortgage Loan Files
and reviewing such files itself, the Trustee shall, in accordance with Section
9.11 hereof, appoint one or more Custodians to hold the Trustee Mortgage Loan
Files on its behalf and to review them as provided in this Section 2.02. The
Depositor shall, upon notice of the appointment of a Custodian, deliver or cause
to be delivered all documents to the Custodian that would otherwise be
deliverable to the Trustee. In such event, the Trustee shall obtain from each
such Custodian, within the specified times, the Trust Receipt and the Final
Certifications with respect to those Mortgage Loans held and reviewed by such
Custodian and may deliver (or cause the Custodian to deliver) such
Certifications and electronically deliver Reports to the Depositor in
satisfaction of the Trustee's obligation to prepare such Certifications and
Reports (it being understood that absent actual knowledge to the contrary, the
Trustee may conclusively rely on the certifications provided by such Custodian).
The Trustee shall notify the Custodian of any notices delivered to the Trustee
with respect to those Trustee Mortgage Loan Files.
Section 2.03 Purchase of Mortgage Loans by a Servicer, a Seller,
GSMC or the Depositor.
(a) Servicer Breach. In addition to taking any action required
pursuant to Section 7.01 hereof, upon discovery by a Responsible Officer of the
Master Servicer, the Securities Administrator or the Trustee of any breach by
the Servicer of any representation, warranty or covenant under the related
Servicing Agreement, which breach materially and adversely affects the value of
any Mortgage Loan or the interest of the Trust therein (it being understood that
any such breach shall be deemed to have materially and adversely affected the
value of the related Mortgage Loan or the interest of the Trust therein if the
Trust incurs or may incur a loss as a result of such breach), the Trustee shall
promptly request that the Servicer cure such breach, and if the Servicer does
not cure such breach in all material respects by the end of the cure period set
forth in the related Servicing Agreement, shall enforce the Servicer's
obligation under such Servicing Agreement to purchase such Mortgage Loan from
the Trustee. Notwithstanding the foregoing, however, if such breach results in
or is a Qualification Defect, such cure, purchase or substitution must take
place within 75 days of the Defect Discovery Date.
(b) Sellers' Breach. Upon discovery by a Responsible Officer of the
Master Servicer, the Securities Administrator or the Trustee or notice to the
Master Servicer, the Securities Administrator or the Trustee of any defective or
missing document (as described in the related Sale Agreement) in a Trustee
Mortgage Loan File, or of any breach by any Seller of any representation,
warranty or covenant under the related Sale Agreement, which defect or breach
materially and adversely affects the value of any Mortgage Loan or the interest
of the Trust therein (it being understood that any such defect or breach shall
be deemed to have materially and adversely affected the value of the related
Mortgage Loan or the interest of the Trust therein if the Trust incurs a loss as
a result of such defect or breach), the parties discovering or receiving notice
of such defect or breach shall notify the Securities Administrator. Upon
discovering or receipt of notice of such breach, the Securities Administrator
shall promptly request that such Seller cure such defect or breach and, if such
Seller does not cure such defect or breach in all material respects by the end
of the cure period specified in such Sale Agreement and any extension of the
cure period granted as permitted by such Sale Agreement, shall enforce such
Seller's obligation under such Sale Agreement to purchase such Mortgage Loan
from the Trustee.
In the event any Servicer has breached a representation or warranty
under the related Servicing Agreement that is substantially identical to a
representation or warranty breached by a Seller, the Securities Administrator
shall first proceed against such Servicer. If the Servicer does not within 60
days (or such other period provided in the related Servicing Agreement) after
notification of the breach, either take steps to cure such breach (which may be
evidenced by a certificate asking for an extension of time in which to
effectuate a cure) or complete the purchase of the Mortgage Loan, then (i) the
Securities Administrator shall enforce the obligations of the Seller under the
related Sale Agreement to cure such breach or to purchase the Mortgage Loan from
the Trust, and (ii) such Seller shall succeed to the rights of the Securities
Administrator to enforce the obligations of the Servicer to cure such breach or
repurchase such Mortgage Loan under the Servicing Agreement with respect to such
Mortgage Loan.
Notwithstanding the foregoing, however, if any breach of a
representation or warranty by the Servicer or of a Seller is a Qualification
Defect, a cure or purchase must take place within 75 days of the Defect
Discovery Date.
(c) GSMC Breach. Upon its discovery or notice to it of any breach by
GSMC of any representation, warranty or covenant under any Assignment Agreement
which materially and adversely affects the value of any Mortgage Loan or the
interest of the Trust therein (it being understood that any such defect or
breach shall be deemed to have materially and adversely affected the value of
the related Mortgage Loan or the interest of the Trust therein if the Trust
incurs a loss as a result of such defect or breach), the Securities
Administrator shall promptly request that GSMC cure such breach and, if GSMC
does not cure such breach in all material respects within 90 days from the date
on which it is notified of the breach, shall enforce GSMC's obligation under
such Assignment Agreement to purchase such Mortgage Loan from the Trustee.
(d) Depositor Breach. Within 90 days of the earlier of its discovery
or receipt of notice by the Depositor of the breach of any of its
representations or warranties set forth in Section 2.04 hereof with respect to
any Mortgage Loan, which breach materially and adversely affects the value of
the related Mortgage Loan or the interest of the Trust therein (it being
understood that any such defect or breach shall be deemed to have materially and
adversely affected the value of the related Mortgage Loan or the interest of the
Trust therein if the Trust incurs a loss as a result of such defect or breach),
the Depositor shall (i) cure such breach in all material respects, or (ii)
purchase the Mortgage Loan from the Trustee.
In the event the Depositor has breached a representation or warranty
under Section 2.04 hereof that is substantially identical to a representation or
warranty breached by a Servicer or Seller, the Securities Administrator shall
first proceed against the applicable Servicer or Seller, as appropriate. If such
Servicer or Seller, as appropriate, does not within the cure period set forth in
the related Sale Agreement or Servicing Agreement, as applicable, either take
steps to cure such breach (which may be evidenced by a certificate asking for an
extension of time in which to effectuate a cure) or complete the purchase of or
substitution for the Mortgage Loan, then (i) the Securities Administrator shall
enforce the obligations of the Depositor to cure such breach or to purchase the
Mortgage Loan from the Trust, and (ii) the Depositor shall succeed to the rights
of the Securities Administrator to enforce the obligations of such Servicer or
Seller to cure such breach or repurchase such Mortgage Loan under the related
Servicing Agreement or Sale Agreement, as applicable, with respect to such
Mortgage Loan.
Notwithstanding the foregoing, however, if any breach of a
representation or warranty by the Depositor is a Qualification Defect, a cure or
purchase must take place within 75 days of the Defect Discovery Date.
(e) Purchase Price. The purchase of any Mortgage Loan from the Trust
pursuant to this Section 2.03 shall be effected for its Purchase Price. If the
Purchaser is the related Servicer, the Purchase Price shall be deposited in the
Collection Account. If the Purchaser is other than such Servicer, an amount
equal to the Purchase Price shall be deposited into the Certificate Account.
Within five Business Days of its receipt of such funds or certification by the
appropriate Servicer that such funds have been deposited in the related
Collection Account, the Trustee shall release or cause the applicable Custodian
to release to the Purchaser or its designee the related Trustee Mortgage Loan
File and, at the request of the Purchaser, the Trustee shall execute and deliver
such instruments of transfer or assignment, in each case without recourse, in
form as presented by the Purchaser and satisfactory to the Trustee, as shall be
necessary to vest in the Purchaser title to any Mortgage Loan released pursuant
hereto and the Trustee shall have no further responsibility with regard to such
Trustee Mortgage Loan File.
(f) Determination of Purchase Price. The Securities Administrator
will be responsible for determining the Purchase Price for any Mortgage Loan
that is sold by the Trustee on behalf of the Trust or with respect to which
provision is made for the escrow of funds pursuant to this Section 2.03 and
shall at the time of any purchase or escrow certify such amounts to the
Depositor; provided that the Securities Administrator may consult with the
Servicer to determine the Purchase Price unless the Servicer is the Purchaser of
such Mortgage Loan. If, for whatever reason, the Securities Administrator shall
determine that there is a miscalculation of the amount to be paid to the Trust,
the Securities Administrator shall from monies in the REMIC I Distribution
Account return any overpayment that the Trust received as a result of such
miscalculation to the applicable Purchaser upon the discovery of such
overpayment, and the Securities Administrator shall collect from the applicable
Purchaser for deposit to the REMIC I Distribution Account any underpayment that
resulted from such miscalculation upon the discovery of such underpayment.
Recovery may be made either directly or by set-off of all or any part of such
underpayment against amounts owed by the Trust to such Purchaser.
(g) Qualification Defect. If (A) any person required to cure or
purchase under subsections 2.03(a), 2.03(b), 2.03(c) or 2.03(d) of these
Standard Terms or under a separate agreement for a Mortgage Loan affected by a
Qualification Defect fails to perform within the earlier of (1) 75 days of the
Defect Discovery Date or (2) the time limit set forth in those subsections or
that separate agreement or (B) no person is obligated to cure or purchase a
Mortgage Loan affected by a Qualification Defect, the Securities Administrator
shall dispose of such Mortgage Loan in such manner and for such price as the
Securities Administrator determines are appropriate, provided that the removal
of such Mortgage Loan occurs no later than the 90th day from the Defect
Discovery Date. If the Servicer is not the person required to cure or repurchase
the Mortgage Loan, the Securities Administrator may consult with such Servicer
to determine an appropriate manner of disposition for and price for such
Mortgage Loan. It is the express intent of the parties that a Mortgage Loan
affected by a Qualification Defect be removed from the Trust by the 90th day
from the Defect Discovery Date so that the related REMIC(s) will continue to
qualify as a REMIC. Accordingly, the Securities Administrator is not required to
sell an affected Mortgage Loan for its fair market value nor shall the
Securities Administrator be required to make up any shortfall resulting from the
sale of such Mortgage Loan. The person failing to perform under subsections
2.03(a), 2.03(b), 2.03(c) or 2.03(d) of these Standard Terms shall be liable to
the Trust for (i) any difference between (A) the Unpaid Principal Balance of the
Mortgage Loan plus accrued and unpaid interest thereon at the Note Rate to the
date of disposition and (B) the net amount received by the Securities
Administrator from the disposition (after the payment of related expenses), (ii)
interest on such difference at the Note Rate (less the Administrative Cost Rate)
from the date of disposition to the date of payment and (iii) any legal and
other expenses incurred by or on behalf of the Trust in seeking such payments.
The Securities Administrator shall pursue the legal remedies of the Trust on the
Trust's behalf and the Trust shall reimburse the Securities Administrator for
any legal or other expenses of the Securities Administrator related to such
pursuit not recovered from such person.
(h) Unless otherwise provided in the applicable Sale Agreement, and
notwithstanding Section 2.03(b) hereof, if a Seller concludes at the end of any
applicable cure period (and any extension thereof) that a document required to
be included in the Trustee Mortgage Loan File cannot be found or replaced, the
Seller may, in lieu of immediately repurchasing the related Mortgage Loan,
provide (a) a Lost Document Affidavit and (b) Opinion of Counsel that the
missing document does not constitute a Qualification Defect. In that event, the
Securities Administrator shall not require such Seller immediately to repurchase
the Mortgage Loan, but, if at any time there is any loss, liability, or damage,
including reasonable attorney's fees, resulting from the unavailability of any
originals of any such documents or of a complete chain of intervening
endorsements, as the case may be (collectively, "Losses"), the Securities
Administrator shall enforce the Seller's obligation to indemnify the Trust for
such Losses.
(i) Notices. Any Person required under this Section 2.03 to give
notice or to make a request of another Person to give notice shall give such
notice or make such request promptly.
(j) No Other Enforcement Obligation. Except as specifically set
forth herein, neither the Master Servicer nor the Securities Administrator shall
have any responsibility to enforce any provision of a Sale Agreement, Servicing
Agreement or Assignment Agreement assigned to it hereunder, to oversee
compliance thereof, or to take notice of any breach or default thereof. No
successor servicer shall have any obligation to repurchase a Mortgage Loan
except to the extent specifically set forth in the Servicing Agreement signed by
such substitute servicer.
Section 2.04 Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Trustee that as of the Closing
Date or as of such other date specifically provided herein:
(a) The Depositor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware with
full power and authority (corporate and other) to enter into and perform its
obligations under the Trust Agreement;
(b) The Trust Agreement has been duly executed and delivered by the
Depositor, and, assuming due authorization, execution and delivery by the
Trustee, the Securities Administrator and the Master Servicer, constitutes a
legal, valid and binding agreement of the Depositor, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and to
general principles of equity regardless of whether enforcement is sought in a
proceeding in equity or at law;
(c) The execution, delivery and performance by the Depositor of the
Trust Agreement and the consummation of the transactions contemplated thereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any state,
federal or other governmental authority or agency, except such as has been
obtained, given, effected or taken prior to the date thereof;
(d) The execution and delivery of this Trust Agreement have been
duly authorized by all necessary corporate action on the part of the Depositor;
neither the execution and delivery by the Depositor of the Trust Agreement, nor
the consummation by the Depositor of the transactions therein contemplated, nor
consummation of the transactions therein contemplated, nor compliance by the
Depositor with the provisions thereof, will conflict with or result in a breach
of, or constitute a default under, any of the provisions of the articles of
incorporation or by-laws of the Depositor or any law, governmental rule or
regulation or any judgment, decree or order binding on the Depositor or any of
its properties, or any of the provisions of any indenture, mortgage, deed of
trust, contract or other instrument to which the Depositor is a party or by
which it is bound;
(e) There are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened against the Depositor, before or by any
court, administrative agency, arbitrator or governmental body (A) with respect
to any of the transactions contemplated by the Trust Agreement or (B) with
respect to any other matter which in the judgment of the Depositor will be
determined adversely to the Depositor and will if determined adversely to the
Depositor materially adversely affect its ability to perform its obligations
under the Trust Agreement;
(f) Except for the sale to the Trustee, the Depositor has not
assigned or pledged any mortgage note or the related mortgage or any interest or
participation therein;
(g) The Depositor has acquired its ownership in the Mortgage Loans
in good faith and without notice of any adverse claim; and
(h) The Depositor has not canceled, satisfied or subordinated in
whole or in part, or rescinded any Mortgage, and the Depositor has not released
any Mortgaged Premise from the lien of the related mortgage, in whole or in
part, nor has the Depositor executed an instrument that would effect any such
release, cancellation, subordination or rescission.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the respective Trustee
Mortgage Loan Files to the Trustee (or the Custodian) and shall inure to the
benefit of the Trustee notwithstanding any restrictive or qualified endorsement
or assignment. Upon the discovery by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee of a breach of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other parties to the Trust Agreement, and in no
event later than two Business Days from the date of such discovery. It is
understood and agreed that the obligations of the Depositor set forth in Section
2.03(d) to cure or repurchase a Mortgage Loan constitute the sole remedies
available to the Certificateholders or to the Trustee on their behalf respecting
a breach of the representations and warranties contained in this Section 2.04.
It is further understood and agreed that the Depositor shall be deemed not to
have made the representations and warranties in this Section 2.04 with respect
to, and to the extent of, representations and warranties made, as to the matters
covered in this Section 2.04, by the Servicer in any Servicing Agreement or the
Seller in any Sale Agreement assigned to the Trustee.
It is understood and agreed that the Depositor has made no
representations or warranties to the Trust other than those contained in this
Section 2.04. GSMC has made no representations or warranties to the Trust other
than those in any Assignment Agreement, or in any Sale Agreement under which
GSMC is acting as Seller, and no other Affiliate of the Depositor has made any
representations or warranties of any kind to the Trust. Neither the Depositor,
GSMC, nor any of the directors, officers, employees or agents of either such
entity shall be under any liability to the Trust or the Certificateholders and
all such Persons shall be indemnified and held harmless by the Trust for any
claims, losses, penalties, forfeitures, legal fees and related costs, judgments,
and any other costs, fees and expenses that such Persons may sustain as a result
of or arising out of or based upon any breach of a representation, warranty or
covenant made by any Servicer or Seller or any failure by any Servicer or Seller
to perform its obligations in strict compliance with the terms of the related
Servicing or Sale Agreement or the failure of the Securities Administrator or
the Trustee to perform its duties hereunder; provided, however, that this
provision shall not protect the Depositor against any breach of warranties or
representations made in Section 2.04 herein, or the Depositor against any breach
of representations or warranties made in any Assignment Agreement or Sale
Agreement.
ARTICLE III
ADMINISTRATION OF THE TRUST
Section 3.01 The Collection Accounts; the Master Servicer Account;
the Distribution Accounts and the Certificate Account.
(a) Servicer and Master Servicer Remittances.
(i) On or prior to the Closing Date, the Servicers shall have
established one or more separate Collection Accounts as provided in
the related Servicing Agreement, each of which shall be an Eligible
Account. All Monthly Payments and other amounts collected by each
Servicer on the Mortgage Loans, shall, to the extent provided in the
related Servicing Agreement, be deposited by such Servicer within
one Business Day of receipt (or within 2 Business Days in the case
of Liquidation Proceeds, Insurance Proceeds and Condemnation
Proceeds) into the related Collection Account.
(ii) On each Servicer Remittance Date, each Servicer is
required to remit to the Master Servicer all payments received
during the related Due Period or Prepayment Period in respect of the
Mortgage Loans serviced by it, less certain deductions as described
herein and in each Servicing Agreement. The Master Servicer will
establish and maintain a separate account for the benefit of the
Trustee (the "Master Servicer Account") which account shall be an
Eligible Account. The amounts remitted by the Servicers to the
Master Servicer on each Servicer Remittance Date shall be credited
to the Master Servicer Account.
(iii) On each Master Servicer Remittance Date, the Master
Servicer shall remit to the Securities Administrator the amounts
received from the Servicers on the related Servicer Remittance Date,
net of any fees, expenses and other amounts payable to the Master
Servicer hereunder. The amounts remitted by the Master Servicer to
the Securities Administrator will be credited to the REMIC I
Distribution Account which will be established and maintained by the
Securities Administrator.
(iv) On each Distribution Date, amounts on deposit in the
REMIC I Distribution Account (net of any expenses or amounts payable
to the Securities Administrator under Section 11.04 hereof or to the
Trustee under Section 9.05 hereof) will be allocated by the
Securities Administrator to pay amounts due on the REMIC I
Interests, in accordance with Section 2.03(b) of the Trust
Agreement. On each Distribution Date, amounts on deposit in the
REMIC II Distribution Account (net of any expenses payable to the
Securities Administrator under Section 11.04 hereof or to the
Trustee under Section 9.05 hereof) will be allocated by the
Securities Administrator to pay amounts due on the REMIC II
Interests, in accordance with Section 2.03(c). Such amounts will
then be passed through the REMIC II Distribution Account and to the
Certificate Account for distribution to the Certificateholders in
accordance with Section 3.01 of the Trust Agreement.
(b) Accounts. The Securities Administrator shall establish and
maintain one or more Eligible Accounts in its own name for the benefit of the
Certificateholders. The account held by the REMIC that directly owns the
Mortgage Loans shall be the "REMIC I Distribution Account" and the account held
by the REMIC that owns all interests in the REMIC I shall be the "REMIC II
Distribution Account." In addition, the Securities Administrator shall establish
and maintain an account for the benefit of the Certificateholders into which it
shall deposit all amounts to be distributed on each Distribution Date to the
Certificateholders (the "Certificate Account"). Each account shall be an
Eligible Account. On each Distribution Date, the Securities Administrator shall
deposit into the REMIC I Distribution Account the following amounts, to the
extent not previously deposited therein:
(i) all amounts remitted by the Master Servicer to the
Securities Administrator pursuant to Section 3.01(a)(iii);
(ii) all P&I Advances made pursuant to Section 3.05;
(iii) the amount (if any) required to effect a Terminating
Purchase pursuant to Section 10.02 and received from the Master
Servicer or the Depositor; and
(iv) the amount, if any, required to be deposited from any
Reserve Fund, as provided in the Trust Agreement.
(c) Deposits. In the event a Servicer or the Master Servicer has
remitted to the Master Servicer Account or to the REMIC I Distribution Account,
respectively, in error, any amount not required to be remitted in accordance
with the definition of Available Distribution Amount, either may at any time
direct the Master Servicer or the Securities Administrator, as applicable, to
withdraw such amount from such account for repayment to the Servicer or Master
Servicer, as applicable, by delivery of an Officer's Certificate to the Master
Servicer or the Securities Administrator which describes the amount deposited in
error and the Master Servicer or the Securities Administrator, as applicable,
shall withdraw such amount from the Master Servicer or the REMIC I Distribution
Account, as applicable, and pay such amount as directed, but only to the extent
it agrees that the amount so described was deposited in error.
(d) Withdrawal. On each Distribution Date, the Securities
Administrator shall transfer the Available Distribution Amount on deposit in the
REMIC I Distribution Account to the REMIC II Distribution Account and then to
the Certificate Account in accordance with the amounts set forth in the
statement prepared pursuant to Section 4.01 and shall distribute such amounts to
Holders of the Certificates, in accordance with Article III of the Trust
Agreement, in the order of priority set forth therein.
(e) Accounting. The Master Servicer shall keep and maintain separate
accounting (to the extent provided to it by each Servicer), on a Mortgage Loan
by Mortgage Loan basis, for the purpose of justifying any payment to and from
the Master Servicer Account. No later than 21 days after each Distribution Date,
the Master Servicer shall, upon written request, forward to the Depositor and
the Securities Administrator a statement setting forth the balance of the Master
Servicer Account as of the close of business on the last day of the month of the
Distribution Date and showing, for the one calendar month covered by the
statement, any deposits and or withdrawals from the Master Servicer Account.
(f) Investments by the Master Servicer or the Securities
Administrator. Any investment by the Master Servicer or the Securities
Administrator of amounts received hereunder shall be in Permitted Investments
only. All income and gain realized from any such investment of amounts in the
Master Servicer Account shall be for the benefit of the Master Servicer and
shall be subject to its withdrawal on order from time to time and shall not be
part of the Trust Estate. All income and gain realized from any such investment
of amounts in the Certificate Account shall be for the benefit of the Securities
Administrator and shall be subject to its withdrawal on order from time to time.
In the event of a loss or reduction in the amount to be remitted by the Master
Servicer to the Securities Administrator on the Master Servicer Remittance Date
or the amount to be remitted by the Securities Administrator on the Distribution
Date because of a loss on a Permitted Investment, the Master Servicer or the
Securities Administrator, as applicable, shall be required to deposit the amount
of such loss into the Master Servicer Account or the Certificate Account, as
applicable, within one Business Day of realization of such loss from its own
funds without reimbursement.
(g) Compensating Interest. The amount of the Master Servicing Fee
payable to the Master Servicer in respect of any Distribution Date shall be
reduced by the amount of any Compensating Interest Payment for such Distribution
Date, but only to the extent such Compensating Interest Payment is not actually
made by a Servicer on the applicable Servicer Remittance Date. Such amount shall
not be treated as an Advance and shall not be reimbursable to the Master
Servicer.
Section 3.02 Filings with the Commission. No later than ten Business
Days prior to the date on which any Annual Report on Form 10-K with respect to
the Trust is required to be filed, the Securities Administrator shall deliver to
the Depositor an officer's certificate in the form set forth in Exhibit H and
the Master Servicer shall deliver to the Depositor an officer's certificate in
the form set forth in Exhibit I. The Securities Administrator shall prepare or
cause to be prepared for filing with the Securities and Exchange Commission
(other than the initial Current Report on Form 8-K, which is to be filed by the
Depositor in connection with the issuance of the Certificates) and the Depositor
shall sign and certify any and all reports, statements and information relating
to the Trust and/or the Certificates required to be filed, and shall solicit any
and all proxies of the Certificateholders whenever such proxies are required to
be solicited, pursuant to the Securities Exchange Act of 1934, as amended, and
the rules thereunder ("1934 Act Documents"). Upon execution and certification of
the 1934 Act Documents by the Depositor, the Securities Administrator shall file
such documents with the Securities and Exchange Commission. Unless otherwise
advised by the Depositor, the Securities Administrator shall assume that all
1934 Act Documents shall consist of only the following: Form 8-K reports
attaching the Remittance Report, to be filed each month beginning in March 2004,
a Form 15D to be filed no later than March 30, 2004 (provided, however, that if
the criteria for filing a Form 15D are not met, the Securities Administrator
shall continue filing the monthly and annual forms), and a Form 10-K to be filed
each March beginning in March 2004. The Securities Administrator shall promptly
file no-action requests prepared by the Depositor with, or request other
appropriate exemptive relief from, the Securities and Exchange Commission
seeking the usual and customary exemption from such reporting requirements
granted to issuers of securities similar to the Certificates if and to the
extent the Depositor shall deem any such relief to be necessary or appropriate.
Unless otherwise advised by the Depositor, the Securities Administrator shall
assume that the Depositor is in compliance with the preceding sentence. In no
event shall the Securities Administrator have any liability for the execution or
content of any 1934 Act Document. The Depositor hereby grants to the Securities
Administrator a limited power of attorney to execute and file each such document
on behalf of the Depositor. Such power of attorney shall continue until either
the earlier of (i) receipt by the Securities Administrator from the Depositor of
written termination of such power of attorney and (ii) the termination of the
Trust. The Depositor agrees to promptly furnish to the Securities Administrator,
from time to time upon request, such further information, reports, and financial
statements within its control related to the Trust Agreement and the Mortgage
Loans as the Depositor reasonably deems appropriate to prepare and file all
necessary reports with the Securities and Exchange Commission.
Section 3.03 Securities Administrator to Cooperate; Release of
Mortgage Files. The Securities Administrator, on behalf of the Trustee, shall,
if requested by any Servicer, execute a power of appointment pursuant to which
the Securities Administrator on behalf of the Trustee shall authorize, make,
constitute and appoint designated officers of the Servicer with full power to
execute in the name of the Trustee (without recourse, representation or
warranty) any deed of reconveyance, any substitution of trustee documents or any
other document to release, satisfy, cancel or discharge any Mortgage or Mortgage
Loan serviced by such Servicer upon its payment in full or other liquidation;
provided, however, that such power of appointment shall be limited to the powers
limited above; provided, further, that such Servicer shall have agreed to
promptly forward to the Trustee for its files copies of all documents executed
pursuant to such power of appointment.
Pursuant to the Custodial Agreement, the Servicer may submit a
Request for Release to have delivered to it the related Trustee Mortgage Loan
File and a release of the Mortgaged Property from the lien of the Mortgage. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to a Collection Account, the Master Servicer
Account or the Certificate Account.
Upon receipt of any other Request for Release for purposes of
servicing a Mortgage Loan, including but not limited to, collection under any
Insurance Policy, title insurance policy, primary mortgage insurance policy,
flood insurance policy or hazard insurance policy or to effect a partial release
of any Mortgaged Property from the lien of the Mortgage, the Securities
Administrator, on behalf of the Trustee, within five Business Days of receipt of
such Request for Release, shall release, or shall cause the Custodian to
release, the related Trustee Mortgage Loan File to the Servicer. Upon receipt of
an Officer's Certificate of the Servicer stating that such Mortgage Loan was
liquidated and that all amounts received or to be received in connection with
such liquidation which are required to be deposited into the Collection Account
or the Certificate Account have been so deposited, or that such Mortgage Loan
has become an REO Property, the Request for Release shall be released by the
Trustee (or the Custodian) to the Servicer.
Any Servicer may execute a written certification to have delivered
to it, pursuant to the Custodial Agreement, court pleadings, requests for
trustee's sale or other documents necessary to the foreclosure or trustee's sale
in respect of a Mortgaged Property or to any legal action brought to obtain
judgment against any Borrower on the Note or Mortgage or to obtain a deficiency
judgment, or to enforce any other remedies or rights provided by the Note or
Mortgage or otherwise available at law or in equity.
Section 3.04 Amendments to Servicing Agreement. Each Servicing
Agreement may be amended or supplemented from time to time by the related
Servicer, the Master Servicer, the Securities Administrator and the Trustee
without the consent of any of the Certificateholders to (a) cure any ambiguity,
(b) correct or supplement any provisions therein which may be inconsistent with
any other provisions therein, (c) modify, eliminate or add to any of its
provisions to such extent as shall be necessary or appropriate to maintain the
qualification of the Trust (or certain assets thereof) as one or more REMICs, at
all times that any Certificates are outstanding, (d) conform the terms of the
Servicing Agreement to the terms described in the Prospectus dated January 23,
2004, together with the Prospectus Supplement thereto dated February 24, 2004,
or (e) make any other provisions with respect to matters or questions arising
under such Servicing Agreement or matters arising with respect to the servicing
of the Mortgage Loans which are not covered by such Servicing Agreement which
shall not be inconsistent with the provisions of such Servicing Agreement,
provided that such action shall not adversely affect in any material respect the
interests of any Certificateholder. Any such amendment or supplement shall be
deemed not to adversely affect in any material respect any Certificateholder if
there is delivered to the Trustee and the Securities Administrator written
notification from each Rating Agency that rated the applicable Certificates to
the effect that such amendment or supplement will not cause that Rating Agency
to reduce or qualify the then current rating assigned to such Certificates, as
well as an Opinion of Counsel that such amendment or supplement will not result
in the loss by the Trust or the assets thereof of REMIC status or result in the
imposition of any taxes on the Trust or any REMIC.
Each Servicing Agreement may also be amended from time to time by
the related Servicer, the Master Servicer, the Securities Administrator and the
Trustee with the consent of the Holders of Certificates entitled to at least 66%
of the Voting Rights for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of such Servicing Agreement or
of modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (A) reduce in any manner the amount of, or
delay the timing of, payments received on Mortgage Loans which are required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (B) adversely affect in any material respect the interests of the
Holders of any Class of Certificates, or (C) reduce the aforesaid percentage of
Certificates the Holders of which are required to consent to any such amendment,
unless each Holder of a Certificate affected by such amendment consents. For
purposes of the giving or withholding of consents pursuant to this Section 3.04,
Certificates registered in the name of the Depositor or an Affiliate thereof
shall be entitled to Voting Rights with respect to matters affecting such
Certificates.
Upon delivery of a written request to the Trustee, the Securities
Administrator and/or the Master Servicer together with a certification from the
Servicer that any such amendment or supplement is permitted hereunder, the
Securities Administrator may join in any such amendment or supplement.
Promptly after the execution of any such amendment the Securities
Administrator shall notify each Certificateholder and the Master Servicer of
such amendment and, upon written request, shall furnish a copy of such amendment
to each Certificateholder.
It shall not be necessary for the consent of Certificateholders
under this Section 3.04 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Securities Administrator may prescribe. Prior
to consenting to any amendment pursuant to this Section 3.04, the Trustee,
Securities Administrator and the Master Servicer shall be entitled to receive an
Opinion of Counsel (at the expense of the party requesting the amendment) that
such amendment is authorized and permitted pursuant to the terms of this Trust
Agreement and the applicable Servicing Agreement.
Section 3.05 Monthly Advances by Master Servicer or Securities
Administrator. (a) Under the terms of each Servicing Agreement, on the Business
Day prior to each Servicer Remittance Date, the related Servicer is obligated to
make a Monthly Advance with respect to any delinquencies as of the related
Distribution Date, unless such Servicer furnishes to the Securities
Administrator, an Officer's Certificate evidencing the determination by such
Servicer, in its reasonable judgment, that such Monthly Advance would be
non-recoverable in accordance with the applicable Servicing Agreement with
respect to such Mortgage Loan (a "Non-Recoverability Certificate"). If (i) a
Servicer reports a delinquency on a Remittance Report, and (ii) such Servicer,
by 11 a.m. (New York Time) on the related Distribution Date, neither makes a
Monthly Advance nor provides the Securities Administrator and the Master
Servicer with a Non-Recoverability Certificate with respect to such delinquency,
then subject to paragraph (b) below, the Master Servicer shall deposit, from its
own funds on the Master Servicer Remittance Date, the amount of such Monthly
Advance not made by the Servicer into the Certificate Account for distribution
to Certificateholders as provided in the Trust Agreement. If the Master Servicer
fails to make a Monthly Advance as required by the preceding sentence, then the
Securities Administrator shall deposit, from its own funds, on the Distribution
Date, the amount of such Monthly Advance into the Certificate Account.
Notwithstanding the foregoing, if either the Master Servicer or the Securities
Administrator, in its reasonable judgment, determines that such Monthly Advance
would be non-recoverable from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds or otherwise with respect to such Mortgage Loan, then neither
the Master Servicer nor the Securities Administrator, as applicable, shall be
obligated to make such Monthly Advance.
(b) Each Servicer is obligated under the applicable Servicing
Agreement to remit to the Master Servicer the required remittance on each
Servicer Remittance Date. If (i) a Servicer fails to remit such remittance on
any Servicer Remittance Date, and (ii) such failure is not cured by 11 a.m. (New
York Time) on the related Master Servicer Remittance Date, then, to the extent
permitted by the related Servicing Agreement, the Master Servicer shall withdraw
the amount of such required remittance from such Collection Account, to the
extent that such amount is on deposit in such Collection Account, and shall
deposit such amount in the Certificate Account.
(c) All Monthly Advances, (together with, in the case of the Master
Servicer and the Securities Administrator, interest thereon at a rate equal to
the prevailing Prime Rate plus 2.0%), shall be reimbursable to the related
Servicer, the Master Servicer or the Securities Administrator, as the case may
be, on a first priority basis from deposits to the Collection Account of late
collections, Insurance Proceeds, Liquidation Proceeds and Condemnation Proceeds
from the related Mortgage Loan as to which a Monthly Advance has been made. The
Master Servicer or the Securities Administrator's right to reimbursement as
provided in this paragraph (c) shall not negate its obligation to continue to
make Monthly Advances as provided in paragraph (a) of this Section 3.05. To the
extent Monthly Advances are not recoverable as set forth in the first sentence
of this paragraph (c), the Master Servicer or the Securities Administrator, as
the case may be, shall be entitled to recover such Monthly Advances as provided
in Section 3.01(b).
(d) To the extent that a Servicer is required to pay penalty
interest pursuant to the Servicing Agreement, and the Master Servicer or the
Securities Administrator makes any Monthly Advance, the Master Servicer or the
Securities Administrator, as applicable, in its individual capacity shall be
entitled to retain such penalty interest.
Section 3.06 Enforcement of Servicing Agreement. Subject to Article
VIII hereof, the Master Servicer agrees to comply with the terms of each
Servicing Agreement and to enforce the terms and provisions thereof against the
related Servicer for the benefit of the Certificateholders.
ARTICLE IV
REPORTING/REMITTING TO CERTIFICATEHOLDERS
Section 4.01 Statements to Certificateholders. On each Distribution
Date, the Securities Administrator shall prepare a statement as to the
distributions to be made on such date (the "Distribution Statement"), based
substantially on information provided by the Servicers in the related Remittance
Reports, and on each Distribution Date, such statement will be made available at
a website located at xxxx://xxx.xxxxxxxx.xxx/xxx to the Depositor and each
Certificateholder, setting forth:
(a) the class factor for each Class of Certificates;
(b) the aggregate Scheduled Principal Balance of each pool and/or
group of Mortgage Loans;
(c) the Available Distribution Amount and the Principal Prepayment
Amount for such Distribution Date;
(d) [Reserved];
(e) the amount of such distributions to the Holders of Certificates
of such Class to be applied to reduce the Class Principal Balance thereof,
separately identifying the amounts, if any, of any Payoffs, Principal
Prepayments made by the Borrower, Liquidation Proceeds, Condemnation Proceeds
and Insurance Proceeds;
(f) the amount of such distributions to the Holders of Certificates
of such Class allocable to interest, and the Certificate Rate applicable to each
Class (separately identifying (i) the amount of such interest accrued during the
calendar month preceding the month of such Distribution Date, and (ii) the
amount of interest from previous calendar months;
(g) the aggregate amount of Servicing Fees and other fees and
expenses paid or to be paid out of the Available Distribution Amount for such
Distribution Date;
(h) if applicable, the aggregate amount of outstanding Monthly
Advances included in such distributions, the aggregate amount of Monthly
Advances reimbursed during the calendar month preceding the Distribution Date
and the aggregate amount of unreimbursed Monthly Advances at the close of
business on such Distribution Date;
(i) if applicable, the aggregate amount of outstanding Monthly
Advances included in such distributions, and the aggregate amount of Monthly
Advances reimbursed to the Master Servicer or Securities Administrator during
the calendar month preceding the Distribution Date;
(j) [Reserved];
(k) the number and aggregate Scheduled Principal Balance of the
Mortgage Loans outstanding as of the last Business Day of the calendar month
preceding such Distribution Date;
(l) the number and aggregate Scheduled Principal Balance of Mortgage
Loans as reported to the Securities Administrator by the Servicer, (i) that are
current, 30 days contractually delinquent, 60 days contractually delinquent, 90
days contractually delinquent or 120 days or more contractually delinquent),
(ii) as to which foreclosure proceedings have been commenced, and (iii) as to
which the Borrower is subject to a bankruptcy proceeding;
(m) with respect to any mortgaged property acquired on behalf of
Certificateholders through foreclosure or deed in lieu of foreclosure during the
preceding calendar month, the Scheduled Principal Balance of the related
Mortgage Loan as of the last Business Day of the calendar month preceding the
Distribution Date;
(n) the aggregate Class Principal Balance of each Class of
Certificates (and, in the case of any Certificate with no Class Principal
Balance, the notional amount of such Class) after giving effect to the
distributions to be made on such Distribution Date, and separately identifying
any reduction thereof on account of Realized Losses;
(o) the aggregate amount of (i) Payoffs and Principal Prepayments
made by Borrowers, (ii) Liquidation Proceeds, Condemnation Proceeds and
Insurance Proceeds, and (iii) Realized Losses incurred during the related
Prepayment Period;
(p) the aggregate amount of any Mortgage Loan that has been
repurchased from the Trust;
(q) the aggregate Shortfall, if any, allocated to each Class of
Certificates at the close of business on such Distribution Date;
(r) the Certificate Rate for each Class of Certificates applicable
to such Distribution Date;
(s) the Senior Percentages, the Senior Prepayment Percentages, the
Subordinate Percentages and the Subordinate Prepayment Percentages, if any, for
such Distribution Date;
(t) in the case of a Trust with respect to which one or more REMIC
elections have been or will be made, any reports required to be provided to
Holders by the REMIC Provisions; and
(u) such other customary information as the Securities Administrator
deems necessary or desirable, or which a Certificateholder reasonably requests,
to enable Certificateholders to prepare their tax returns.
In the case of information furnished pursuant to clauses (a) through
(c) above, the amounts shall be expressed, with respect to any Certificate, as a
dollar amount per $1,000 denomination; provided, however, that if any Class of
Certificates does not have a Class Principal Balance, then the amounts shall be
expressed as a dollar amount per 10% Percentage Interest.
In addition to the Distribution Date report specified above, the
Securities Administrator shall prepare and make available to each Holder of a
Residual Certificate, if any, on each Distribution Date a statement setting
forth the amounts actually distributed with respect to the Residual Certificates
of such Class on such Distribution Date, and the aggregate Class Principal
Balance, if any, of the Residual Certificates of such Class after giving effect
to any distribution made on such Distribution Date, separately identifying the
amount of Realized Losses allocated to such Residual Certificates of such Class
on such Distribution Date.
Within a reasonable period of time after the end of each calendar
year, the Securities Administrator shall prepare and furnish a statement,
containing the information set forth in clauses (a) through (d) above (based on
the information provided by the Master Servicer), to each Person who at any time
during the calendar year was a Holder that requests such statement, aggregated
for such calendar year or portion thereof during which such Person was a
Certificateholder. Such obligation of the Securities Administrator shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Master Servicer or the Securities
Administrator pursuant to any requirements of the Code as from time to time are
in force.
Within a reasonable period of time after the end of each calendar
year, the Securities Administrator shall prepare and shall furnish to each
Person who at any time during the calendar year was a Holder of a Residual
Certificate a statement, upon request, containing the information provided
pursuant to the second preceding paragraph aggregated for such calendar year
thereof during which such Person was a Certificateholder. Such obligation of the
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 are
in force.
Section 4.02 Remittance Reports and other Reports from the
Servicers. To the extent received from the Servicers, the Master Servicer shall
make the information in each Remittance Report available to the Depositor, the
Trustee, and the Securities Administrator or any Certificateholder upon written
request therefor. In addition, upon written request from the Depositor, the
Trustee, the Securities Administrator or any Certificateholder (such party, the
"Requesting Party"), the Master Servicer shall use commercially reasonable
efforts to obtain from the Servicers and subsequently provide to the Requesting
Party any other reports or information that may be obtained by the Master
Servicer from any Servicer pursuant to the related Servicing Agreement;
provided, however, that if the Master Servicer incurs costs pursuant to the
Servicing Agreement with respect to any particular request, the Master Servicer
shall be entitled to reimbursement from the Requesting Party for such costs,
together with any other reasonable costs incurred by it for obtaining or
delivering the reports or information specified by such request. Upon the
request of the Depositor, if permitted pursuant to a Sale and Servicing
Agreement, the Master Servicer shall request, on an annual basis beginning one
year after the Closing Date, copies of the Servicer's internal quality control
reports (it being understood that the Master Servicer shall have no
responsibility for, or be deemed to have, constructive notice of any information
contained therein or determinable therefrom). Neither the Master Servicer, the
Securities Administrator nor any agent of the Securities Administrator shall be
under any duty to recalculate, verify or recompute the information provided to
it under any Servicing Agreement by the applicable Servicer.
Section 4.03 Compliance with Withholding Requirements.
Notwithstanding any other provisions of the Trust Agreement, the Securities
Administrator shall comply with all federal withholding requirements respecting
payments of interest or principal to the extent of accrued original issue
discount on Certificates to each Holder of such Certificates who (a) is not a
"United States person," within the meaning of Code Section 7701(a)(30), (b)
fails to furnish its TIN to the Securities Administrator, (c) furnishes the
Securities Administrator an incorrect TIN, (d) fails to report properly interest
and dividends, (e) under certain circumstances, fails to provide the Securities
Administrator or the Certificateholder's securities broker with a certified
statement, signed under penalties of perjury, that the TIN provided by such
Certificateholder to the Securities Administrator or such broker is correct and
that the Certificateholder is not subject to backup withholding or (f) otherwise
fails to satisfy any applicable certification requirements relating to the
withholding tax. The consent of such a Certificateholder shall not be required
for such withholding. In the event the Securities Administrator, on behalf of
the Trustee, does withhold the amount of any otherwise required distribution
from interest payments on the Mortgage Loans (including principal payments to
the extent of accrued original issue discount) or Monthly Advances thereof to
any Certificateholder pursuant to federal withholding requirements, the
Securities Administrator shall indicate with any payments to such
Certificateholders the amount withheld. In addition, if any United States
federal income tax is due at the time a Non-U.S. Person transfers a Residual
Certificate, the Securities Administrator, on behalf of the Trustee, or other
Withholding Agent may (1) withhold an amount equal to the taxes due upon
disposition of such Residual Certificate from future distributions made with
respect to such Residual Certificate to the transferee thereof (after giving
effect to the withholding of taxes imposed on such transferee), and (2) pay the
withheld amount to the Internal Revenue Service unless satisfactory written
evidence of payment by the transferor of the taxes due has been provided to the
Securities Administrator or such Withholding Agent. Moreover, the Securities
Administrator, on behalf of the Trustee, or other Withholding Agent may (1) hold
distributions on a Residual Certificate, without interest, pending determination
of amounts to be withheld, (2) withhold other amounts, if any, required to be
withheld pursuant to United States federal income tax law from distributions
that otherwise would be made to such transferee on each Residual Certificate
that it holds, and (3) pay to the Internal Revenue Service all such amounts
withheld.
Section 4.04 Reports of Class Principal Balances to The Depository
Trust Company. If and for so long as any Certificate is held by The Depository
Trust Company, on each Distribution Date, the Securities Administrator shall
give notice to The Depository Trust Company (and shall promptly thereafter
confirm in writing) the following: (a) the amount to be reported pursuant to
clause (c) of each statement provided to Holders of Certificates pursuant to
Section 4.01 in respect of the next succeeding distribution, (b) the Record Date
for such distribution, (c) the Distribution Date for such distribution and (d)
the aggregate Class Principal Balance of each Class of Certificates to be
reported pursuant to clause (n) of the first paragraph of Section 4.01 in such
month.
Section 4.05 Preparation of Regulatory Reports. Notwithstanding any
other provision of this Agreement, the Securities Administrator has not assumed,
nor shall by its performance hereunder be deemed to have assumed, any of the
duties or obligations of the Depositor or any other Person with respect to (i)
the registration of the Certificates pursuant to the Securities Act, (ii) the
issuance or sale of the Certificates, or (iii) compliance with the provisions of
the Securities Act, the Exchange Act, or any offering circular, applicable
federal or state securities or other laws including, without limitation, any
requirement to update the registration statement or prospectus relating to the
Certificates in order to render the same not materially misleading to investors.
Section 4.06 Management and Disposition of REO Property. The Master
Servicer shall enforce the obligation of each Servicer under any Servicing
Agreement to dispose of any REO Property acquired by such Servicer on behalf of
the Trust before the end of the third calendar year following the calendar year
in which the related REO Property was acquired; provided that the Master
Servicer shall waive such requirement if the Servicer and the Securities
Administrator (1) receive an Opinion of Counsel (obtained at the expense of the
party requesting such Opinion of Counsel) indicating that, under then-current
law, the REMIC may hold such REO Property for a period longer than three years
without threatening the REMIC status of any related REMIC or causing the
imposition of a tax upon any such REMIC or (2) the Servicer applies for and is
granted an extension of such three year period pursuant to Code Sections
860G(a)(8) and 856(e)(3) (the applicable period provided pursuant to such
Opinion of Counsel or such Code section being referred to herein as an "Extended
Holding Period"). In that event, the Master Servicer shall direct the Servicer
to sell any REO Property remaining after such date in an auction before the end
of the Extended Holding Period.
ARTICLE V
THE INTERESTS AND THE SECURITIES
Section 5.01 REMIC Interests. The Trust Agreement will set forth the
terms of the Regular Interests and Residual Interests of each REMIC. Unless
otherwise specified in the Trust Agreement, (a) the Regular Interests in each
REMIC will be "regular interests" for purposes of the REMIC Provisions; (b) the
Trustee will be the owner of the Regular Interests in any REMIC held by another
REMIC formed pursuant to the terms of the Trust Agreement, and such Regular
Interests may not be transferred to any person other than a successor trustee
appointed pursuant to Section 9.07 hereof unless the party desiring the transfer
obtains a Special Tax Opinion; and (c) such Regular Interests will be
represented by the respective Interests.
Section 5.02 The Certificates. The Certificates shall be designated
in the Trust Agreement. The Certificates in the aggregate will represent the
entire beneficial ownership interest in the Trust Estate. On the Closing Date,
the aggregate Class Principal Balance of the Certificates will equal the
aggregate Scheduled Principal Balance of the Mortgage Loans as of the Cut-Off
Date. The Certificates will be substantially in the forms annexed to the Trust
Agreement. Unless otherwise provided in the Trust Agreement, the Certificates of
each Class will be issuable in registered form, in denominations of authorized
Percentage Interests as described in the definition thereof. Each Certificate
will share ratably in all rights of the related Class.
Upon original issue, the Certificates shall be executed by the
Trustee and delivered by the Securities Administrator and the Securities
Administrator shall cause the Certificates to be authenticated by the
Certificate Registrar to or upon the order of the Depositor upon receipt by the
Trustee of the documents specified in Section 2.01. The Certificates shall be
executed and attested by manual or facsimile signature on behalf of the Trustee
by an authorized Officer under its seal imprinted thereon. Certificates bearing
the manual or facsimile signatures of individuals who were at any time the
proper Officers of the Trustee shall bind the Trustee, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices at
the date of such Certificates. No Certificate shall be entitled to any benefit
under this Agreement or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
in the Trust Agreement executed by the Certificate Registrar by manual
signature, and such certificate of authentication shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
execution.
Section 5.03 Book-Entry Securities. (a) The Book-Entry Securities
will be represented initially by one or more certificates registered in the name
designated by the Clearing Agency. The Depositor and the Securities
Administrator may for all intents and purposes (including the making of payments
on the Book-Entry Securities) deal with the Clearing Agency as the authorized
representative of the Beneficial Owners of the Book-Entry Securities for as long
as those Certificates are registered in the name of the Clearing Agency. The
rights of Beneficial Owners of the Book-Entry Securities shall be limited by law
to those established by law and agreements between such Beneficial Owners and
the Clearing Agency and Clearing Agency Participants. The Beneficial Owners of
the Book-Entry Securities shall not be entitled to certificates for the
Book-Entry Securities as to which they are the Beneficial Owners, except as
provided in subsection (c) below. Requests and directions from, and votes of,
the Clearing Agency, as Holder, shall not be deemed to be inconsistent if they
are made with respect to different Beneficial Owners. Without the consent of the
Depositor and the Securities Administrator, a Book-Entry Security may not be
transferred by the Clearing Agency except to another Clearing Agency that agrees
to hold the Book-Entry Security for the account of the respective Clearing
Agency Participants and Beneficial Owners.
(b) Neither the Depositor nor the Securities Administrator will have
any liability for any aspect of the records relating to or payment made on
account of Beneficial Owners of the Book-Entry Securities held by the Clearing
Agency, for monitoring or restricting any transfer of beneficial ownership in a
Book-Entry Security or for maintaining, supervising or reviewing any records
relating to such Beneficial Owners.
(c) A Book-Entry Security will be registered in fully registered,
certificated form to Beneficial Owners of Book-Entry Securities or their
nominees, rather than to the Clearing Agency or its nominee, if (a) the
Depositor advises the Securities Administrator in writing that the Clearing
Agency is no longer willing or able to discharge properly its responsibilities
as depository with respect to the Book-Entry Securities, and the Depositor is
unable to locate a qualified successor within 30 days, (b) the Depositor, at its
option, elects to terminate the book-entry system operating through the Clearing
Agency or (c) after the occurrence of an Event of Default, Beneficial Owners
representing at least a majority of the aggregate outstanding Class Principal
Balance of the Book-Entry Securities advise the Clearing Agency in writing that
the continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of the Beneficial Owners. Upon the occurrence of any such
event, the Securities Administrator shall notify the Clearing Agency, which in
turn will notify all Beneficial Owners of Book-Entry Securities through Clearing
Agency Participants, of the availability of certificated Certificates. Upon
surrender by the Clearing Agency or the Book-Entry Custodian of the certificates
representing the Book-Entry Securities and receipt of instructions for
re-registration, the Securities Administrator will reissue the Book-Entry
Securities as certificated Certificates to the Beneficial Owners identified in
writing by the Clearing Agency. Neither the Depositor nor the Securities
Administrator shall be liable for any delay in the delivery of such instructions
and may rely conclusively on, and shall be protected in relying on, such
instructions. Such certificated Certificates shall not constitute Book-Entry
Securities. All reasonable costs associated with the preparation and delivery of
certificated Certificates shall be borne by the Trust.
(d) The Securities Administrator is hereby initially appointed as
Book-Entry Custodian with respect to the Book-Entry Securities, and hereby
agrees to act as such in accordance herewith and in accordance with the
agreement that it has with the Clearing Agency authorizing it to act as such (it
being understood that should any conflict arise between the provisions hereof
and the provisions of the agreement between the Securities Administrator and the
Clearing Agency, the agreement with the Clearing Agency will control). The
Book-Entry Custodian may, and, if it is no longer qualified to act as such, the
Book-Entry Custodian shall, appoint, by a written instrument delivered to the
Depositor and, if the Securities Administrator is not the Book-Entry Custodian,
the Securities Administrator, any other transfer agent (including the Clearing
Agency or any successor Clearing Agency) to act as Book-Entry Custodian under
such conditions as the predecessor Book-Entry Custodian and the Clearing Agency
or any successor Clearing Agency may prescribe; provided that the predecessor
Book-Entry Custodian shall not be relieved of any of its duties or
responsibilities by reason of such appointment of other than the Clearing
Agency. If the Securities Administrator resigns or is removed in accordance with
the terms hereof, the successor trustee, or, if it so elects, the Clearing
Agency shall immediately succeed to its predecessor's duties as Book-Entry
Custodian. The Depositor shall have the right to inspect, and to obtain copies
of, any Certificates held as Book-Entry Securities by the Book-Entry Custodian.
Section 5.04 Registration of Transfer and Exchange of Certificates.
The Securities Administrator shall cause to be kept a certificate register in
which, subject 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. The Securities
Administrator will initially serve as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. The Securities Administrator may appoint any other Person to act as
Certificate Registrar hereunder.
Subject to Section 5.05, upon surrender for registration of transfer
of any Certificate at the Corporate Trust Office of the Securities Administrator
or at any other office or agency of the Securities Administrator maintained for
such purpose, the Securities Administrator shall execute and the Certificate
Registrar shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class of a
like aggregate Percentage Interest.
At the option of the Certificateholders, each Certificate may be
exchanged for other Certificates of the same Class with the same authorized
denominations and a like aggregate Percentage Interest, upon surrender of such
Certificate to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange, the Securities Administrator shall
execute and cause the Certificate Registrar to authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for transfer or exchange
shall (if so required by the Securities Administrator) be duly endorsed by, or
be accompanied by a written instrument of transfer in the form satisfactory to
the Securities Administrator duly executed by, the Holder thereof or his
attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any
transfer or exchange of Certificates, but the 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 Certificates.
All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
The Securities Administrator will cause the Certificate Registrar
(unless the Securities Administrator is acting as Certificate Registrar) to
provide notice to the Securities Administrator of each transfer of a
Certificate, and the Certificate Registrar will provide the Securities
Administrator with an updated copy of the Certificate Register on January 1 and
July 1 of each year.
Section 5.05 Restrictions on Transfer.
(a) Securities Law Compliance. No transfer of any Junior Subordinate
Certificate shall be made unless that transfer is made pursuant to an effective
registration statement under the Securities Act and effective registration or
qualification under applicable state securities laws, or is made in a
transaction that does not require such registration or qualification. Any Holder
of a Junior Subordinate Certificate shall, and, by acceptance of such Junior
Subordinate Certificate, does agree to, indemnify the Depositor, the Certificate
Registrar and the Securities Administrator against any liability that may result
if any transfer of such Certificates by such Holder is not exempt from
registration under the Securities Act and all applicable state securities laws
or is not made in accordance with such federal and state laws. Neither the
Depositor, the Certificate Registrar nor the Securities Administrator is
obligated to register or qualify any Junior Subordinate Certificate under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of such Certificates
without such registration or qualification. Neither the Certificate Registrar
nor the Securities Administrator shall register any transfer of a Junior
Subordinate Certificate unless and until the prospective transferee provides the
Securities Administrator with an agreement certifying to facts which, if true,
would mean that the proposed transferee is a Qualified Institutional Buyer (a
"QIB Certificate"), and unless and until the transfer otherwise complies with
the provisions of this Section 5.05. If so provided in the Trust Agreement, the
prospective transferee will be deemed to have provided a QIB Certificate upon
acceptance of the Certificate. Notwithstanding the foregoing, no QIB Certificate
shall be required in connection with the initial transfer of the Junior
Subordinate Certificates.
The Depositor (or, upon direction of the Depositor, the Securities
Administrator, which directions shall specify the information to be provided,
and at the expense of the Depositor or the Securities Administrator) shall
provide to any Holder of a Junior Subordinate Certificate and any prospective
transferee designated by such Holder information regarding the related
Certificates and the Mortgage Loans and such other information as shall be
necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4)
for transfer of any such Junior Subordinate Certificate without registration
thereof under the Securities Act pursuant to the registration exemption provided
by Rule 144A.
(b) ERISA Restrictions. No Junior Subordinate Certificate or
Residual Certificate shall be transferred unless the prospective transferee
provides the Trustee with a properly completed Benefit Plan Affidavit.
(c) Residual Certificates. No Residual Certificate (including any
beneficial interest therein) may be transferred to a Disqualified Organization
or a Person that is not a Permitted Transferee (a "non-Permitted Transferee").
In addition, no Residual Certificate (including any beneficial interest therein)
may be transferred unless (i) the proposed transferee provides the Securities
Administrator or the Certificate Registrar with a Residual Transfer Affidavit,
(ii) the proposed transferor provides the Trustee or Certificate Registrar with
a certificate substantially in the form of Exhibit G hereto, and (iii) the
interest transferred involves the entire interest in a Residual Certificate or
an undivided interest therein (unless the transferor or the transferee provides
the Securities Administrator or the Certificate Registrar with an Opinion of
Counsel (which shall not be an expense of the Securities Administrator or the
Certificate Registrar, as applicable) that the transfer will not jeopardize the
REMIC status of any related REMIC). In any event, neither the Securities
Administrator nor the Certificate Registrar shall effect any transfer of a
Residual Certificate except upon notification of such transfer to the Securities
Administrator or the Certificate Registrar, as applicable. Notwithstanding the
fulfillment of the prerequisites described above, the Securities Administrator
or the Certificate Registrar may refuse to recognize any transfer to the extent
necessary to avoid a risk of disqualification of any related REMIC as a REMIC or
the imposition of a tax upon any such REMIC.
Upon notice to the Securities Administrator that any legal or
beneficial interest in any portion of the Residual Certificates has been
transferred, directly or indirectly, to a Disqualified Organization, a
non-Permitted Transferee or agent thereof (including a broker, nominee, or
middleman) in contravention of the foregoing restrictions, such transferee shall
be deemed to hold the Residual Certificate in constructive trust for the last
transferor who was not a Disqualified Organization or agent thereof, and such
transferor shall be restored as the owner of such Residual Certificate as
completely as if such transfer had never occurred, provided that the Securities
Administrator may, but is not required to, recover any distributions made to
such transferee with respect to the Residual Certificate and return such
recovery to the transferor. The Securities Administrator, on behalf of the
Trustee, agrees to furnish to the Internal Revenue Service and to any transferor
of the Residual Certificate or such agent (within 60 days of the request
therefor by the transferor or agent) such information necessary for the
computation of the tax imposed under Section 860E(e) of the Code and as
otherwise may be required by the Code, including but not limited to the present
value of the total anticipated excess inclusions with respect to the Residual
Certificate (or portion thereof) for periods after such transfer. At the
election of the Securities Administrator, the cost to the Securities
Administrator of computing and furnishing such information may be charged to the
transferor or such agent referred to above; however, the Securities
Administrator shall not be excused from furnishing such information.
If a tax or a reporting cost is borne by any REMIC as a result of
the transfer of a Residual Certificate or any beneficial interest therein in
violation of the restrictions set forth in this Section, the transferor shall
pay such tax or cost and, if such tax or cost is not so paid, the Securities
Administrator, on behalf of the Trustee, shall pay such tax or cost with amounts
that otherwise would have been paid to the transferee of the Residual
Certificate (or beneficial interest therein). In that event, neither the
transferee nor the transferor shall have any right to seek repayment of such
amounts from the Depositor, the Securities Administrator, any REMIC, or the
other Holders of any of the Certificates, and none of such parties shall have
any liability for payment of any such tax or reporting cost.
Section 5.06 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Securities Administrator or
the Certificate Registrar, or the Securities Administrator and the Certificate
Registrar receive evidence to their satisfaction of the destruction, loss or
theft of any Certificate, and (b) there is delivered to the Securities
Administrator and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
knowledge by the Securities Administrator or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Securities
Administrator shall execute and cause the Certificate Registrar to authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of the same Class and of like tenor and
Percentage Interest. Upon the issuance of any new Certificate pursuant to this
Section, the 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
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the destroyed,
lost or stolen Certificate shall be found at any time.
Section 5.07 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Securities Administrator, the
Certificate Registrar and any agent of any of them may treat the person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions and for all other purposes whatsoever, and
neither the Securities Administrator, the Certificate Registrar nor any agent of
any of them shall be affected by notice to the contrary.
Section 5.08 Appointment of Paying Agent. The Securities
Administrator may appoint a Paying Agent for the purpose of making distributions
to Certificateholders. The Securities Administrator shall cause such Paying
Agent (if other than the Securities Administrator) to execute and deliver to the
Securities Administrator an instrument in which such Paying Agent shall agree
with the Securities Administrator that such Paying Agent will hold all sums held
by it for the payment to Certificateholders in an Eligible Account in trust for
the benefit of the Certificateholders entitled thereto until such sums shall be
paid to the Certificateholders. All funds remitted by the Securities
Administrator to any such Paying Agent for the purpose of making distributions
shall be paid to Certificateholders on each Distribution Date and any amounts
not so paid shall be returned on such Distribution Date to the Securities
Administrator. The initial Paying Agent shall be JPMorgan Chase Bank.
ARTICLE VI
THE DEPOSITOR
Section 6.01 Liability of the Depositor. The Depositor shall be
liable in accordance herewith only to the extent of the obligations specifically
imposed by the Trust Agreement and undertaken by the Depositor under the Trust
Agreement.
Section 6.02 Merger or Consolidation of the Depositor. Subject to
the following paragraph, the Depositor will keep in full effect its corporate
existence, rights and franchises under the laws of the jurisdiction of its
organization, and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Trust Agreement, the Certificates
or any of the Mortgage Loans and to perform its duties under the Trust
Agreement.
The Depositor may be merged or consolidated with or into any Person,
or transfer all or substantially all of their respective assets to any Person,
in which case any Person resulting from any merger or consolidation to which the
Depositor shall be a party, or any Person succeeding to the business of the
Depositor, shall be the successor of the Depositor without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
ARTICLE VII
TERMINATION OF SERVICING ARRANGEMENTS
Section 7.01 Termination and Substitution of Servicer. Upon the
occurrence of any Servicer Event of Default for which the any Servicer may be
terminated pursuant to the related Servicing Agreement, the Master Servicer, in
accordance with Section 8.01(a) hereof, may, and shall, at the direction of the
Certificateholders holding 66% of the Voting Rights, terminate such Servicing
Agreement. The Holders of Certificates evidencing at least 66% of the Voting
Rights of Certificates affected by a Servicer Event of Default may waive such
Servicer Event of Default; provided, however, that (a) a Servicer Event of
Default with respect to any Servicer's obligation to make Monthly Advances may
be waived only by all of the holders of the Certificates affected by such
Servicer Event of Default and (b) no such waiver is permitted that would
materially adversely affect any non-consenting Certificateholder. Subject to the
conditions set forth below in this Section 7.01, the Master Servicer, at the
direction of the Certificateholders holding 66% of the Voting Rights, shall,
concurrently with such termination, either assume the duties of the terminated
Servicer under the applicable Servicing Agreement or appoint another servicer to
enter into such Servicing Agreement.
Notwithstanding the foregoing, the Master Servicer may not terminate
a Servicer without cause unless the Master Servicer or a successor servicer is
appointed concurrently with such termination. There may be a transition period
of not longer than 90 days prior to the effective date of the servicing transfer
to the successor Servicer or Master Servicer, as applicable, provided, however,
that during such transition period, the Master Servicer or successor Servicer
shall use commercially reasonable efforts to perform the duties of the Servicer
in its capacity as successor Servicer.
If the Master Servicer terminates a Servicer, the Master Servicer
may name another mortgage loan service company and such mortgage loan service
company shall be acceptable to each Rating Agency and such mortgage loan service
company shall assume, satisfy, perform and carry out all liabilities, duties,
responsibilities and obligations that are to be, or otherwise were to have been,
satisfied, performed and carried out by the Servicer under such Servicing
Agreement. Such successor Servicer shall be a mortgage loan servicing
institution in good standing with Xxxxxx Xxx and Xxxxxxx Mac, with a net worth
of at least $25,000,000. In the event that the Master Servicer cannot appoint a
substitute Servicer, it shall petition a court of competent jurisdiction for the
appointment of a substitute Servicer meeting the foregoing requirements.
In the event any Servicer resigns or is terminated as provided above
and the Master Servicer has not appointed a successor servicer (or no successor
servicer has accepted such appointment) prior to the effective date of such
resignation or termination, then the Master Servicer shall serve as successor
Servicer and shall succeed to, satisfy, perform and carry out all obligations
which otherwise were to have been satisfied, performed and carried out by such
Servicer under the terminated Servicing Agreement until another successor
Servicer has been appointed and has accepted its appointment. In no event shall
the Master Servicer be deemed to have assumed the obligations of a Servicer to
purchase any Mortgage Loan from the Trust pursuant to any Servicing Agreement or
any obligations of the Servicer which were incurred thereunder prior to the date
the Master Servicer assumes the obligations of the Servicer under such Servicing
Agreement. As compensation to the Master Servicer for any servicing obligations
fulfilled or assumed by the Master Servicer, the Master Servicer shall be
entitled to any servicing compensation to which such Servicer would have been
entitled if the Servicing Agreement with such Servicer had not been terminated.
In no event shall the Master Servicer be deemed to have assumed the
obligations of a Servicer to purchase any Mortgage Loan from the Trust pursuant
to any Servicing Agreement.
No Certificateholder, solely by virtue of such holder's status as a
Certificateholder, will have any right under the Trust Agreement to institute
any proceeding with respect to the Trust Agreement or any Servicing Agreement,
Custodial Agreement or any Assignment Agreement, unless such holder previously
has given to the Trustee written notice of default and unless the
Certificateholders evidencing at least 25% of Voting Rights have made written
request upon the Trustee to institute such proceeding and have offered to the
Trustee reasonable indemnity, and the Trustee for 60 days has neglected or
refused to institute any such proceeding.
Section 7.02 Notification to Certificateholders. (a) Upon any
termination pursuant to Section 7.01 above or appointment of a successor to any
Servicer or the Master Servicer, the Securities Administrator shall give prompt
written notice thereof to the Certificateholders at their respective addresses
appearing in the Certificate Register, and to each Rating Agency.
(b) Within 60 days after the occurrence of any Servicer Event of
Default involving any Servicer, the Securities Administrator shall transmit by
mail to all Holders of Certificates, each Rating Agency, the Trustee and the
Master Servicer notice of each such Servicer Event of Default or occurrence
known to a Responsible Officer of the Trustee unless such default shall have
been cured or waived.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
BY THE MASTER SERVICER
Section 8.01 Duties of the Master Servicer; Enforcement of
Servicer's and Master 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 Servicers under the Servicing Agreements, and (except as set
forth below) shall use its reasonable good faith efforts to cause the Servicers
to duly and punctually to perform their duties and obligations thereunder. Upon
the occurrence of a Servicer Event of Default of which a Responsible Officer of
the Master Servicer has actual knowledge under a Servicing Agreement, the Master
Servicer shall promptly notify the Securities Administrator and shall specify in
such notice the action, if any, the Master Servicer plans to take in respect of
such default. So long as any such default shall be continuing, the Master
Servicer may (i) terminate all of the rights and powers of such Servicer
pursuant to the applicable provisions of the Servicing Agreement; (ii) exercise
any rights it may have to enforce the Servicing Agreement against such Servicer;
(iii) waive any such default under the Servicing Agreement in accordance with
Section 7.01 hereof or (iv) take any other action with respect to such default
as is permitted thereunder. Except as set forth in Section 4.06 hereof, the
Master Servicer shall have no duty to supervise any Servicer's activities
related to the servicing or administration of defaulted or delinquent Mortgage
Loans or the management and disposition of any REO Properties.
(b) The Master Servicer shall pay the costs of monitoring the
Servicers as required hereunder (including costs associated with (i) termination
of any 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 by the related Servicing Agreement, 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 a 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 any Servicer it replaces or for any errors or omissions of such
Servicer.
(d) None of the Depositor, the Securities Administrator nor the
Trustee shall consent to the assignment by any Servicer of such Servicer's
rights and obligations under any Servicing Agreement without the prior written
consent of the Master Servicer, which consent shall not be unreasonably
withheld.
Section 8.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
(a) The Master Servicer shall maintain with responsible companies,
at its own expense, a blanket Fidelity Bond and an Errors and Omissions
Insurance Policy, with broad coverage on all directors, officers, employees or
other persons acting in any capacity requiring such persons to handle funds,
money, documents or papers relating to the related Mortgage Loans ("Master
Servicing Employees"). Any such Fidelity Bond and Errors and Omissions Insurance
Policy shall be in the form of the Mortgage Banker's Blanket Bond and shall
protect and insure the Master Servicer against losses, including forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of the Master
Servicer Employees. Such Fidelity Bond and Errors and Omissions Insurance Policy
also shall protect and insure the Master Servicer against losses in connection
with the release or satisfaction of a related Mortgage Loan without having
obtained payment in full of the indebtedness secured thereby. No provision of
this Section 8.02 requiring such Fidelity Bond and Errors and Omissions
Insurance Policy shall diminish or relieve the Master Servicer from its duties
and obligations as set forth in this Agreement. The minimum coverage under any
such bond and insurance policy shall be at least equal to the corresponding
amounts required by Xxxxxx Xxx or Xxxxxxx Mac. Upon the request of the
Securities Administrator, the Master Servicer shall cause to be delivered to the
Securities Administrator a certificate of insurance of the insurer and the
surety including a statement from the surety and the insurer that such fidelity
bond and insurance policy shall in no event be terminated or materially modified
without 30 days' prior written notice to the Securities Administrator. The
Master Servicer shall (i) require each Servicer to maintain an Errors and
Omissions Insurance Policy and a Fidelity Bond in accordance with the provisions
of the applicable Servicing Agreement, (ii) cause each Servicer to provide to
the Master Servicer certificates evidencing that such policy and bond is in
effect and to furnish to the Master Servicer any notice of cancellation,
non-renewal or modification of the policy or bond received by it, as and to the
extent provided in the applicable Servicing Agreement, and (iii) furnish copies
of the certificates and notices referred to in clause (ii) to the Securities
Administrator upon its request.
(b) The Master Servicer shall promptly report to the Securities
Administrator any material changes that may occur in the Master Servicer
Fidelity Bond or the Master Servicer Errors and Omissions Insurance Policy and
shall furnish to the Securities Administrator, on request, certificates
evidencing that such bond and insurance policy are in full force and effect. The
Master Servicer shall promptly report to the Securities Administrator all cases
of forgery, theft, embezzlement, fraud, errors or omissions, if such events
involve funds relating to the Mortgage Loans. The total losses, regardless of
whether claims are filed with the applicable insurer or surety, shall be
disclosed in such reports together with the amount of such losses covered by
insurance. If a bond or insurance claim report is filed with any of such bonding
companies or insurers, the Master Servicer shall promptly furnish a copy of such
report to the Securities Administrator. Any amounts relating to the Mortgage
Loans collected by the Master Servicer under any such bond or policy shall be
promptly remitted by the Master Servicer to the Securities Administrator for
deposit into the Certificate Account. Any amounts relating to the Mortgage Loans
collected by any Servicer under any such bond or policy shall be remitted to the
Master Servicer to the extent provided in the applicable Servicing Agreement.
Section 8.03 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the
Depositor, the Securities Administrator and the Trustee, for the benefit of the
Certificateholders, as of the Closing Date that:
(i) it is a corporation validly existing and in good standing
under the laws of New Jersey, and as Master Servicer has full power
and authority to transact any and all business contemplated by this
Trust Agreement and to execute, deliver and comply with its
obligations under the terms of this Trust 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 Trust Agreement by the
Master Servicer and its performance and compliance with the terms of
this Trust 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 Trust Agreement;
(iii) this Trust 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 Trust Agreement or that requires the consent
of any third person to the execution of this Trust Agreement or the
performance by the Master Servicer of its obligations under this
Trust 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 Trust Agreement or performing
its obligations under this Trust Agreement;
(vii) the Master Servicer, or an affiliate thereof the primary
business of which is the servicing of conventional residential
mortgage loans, is a FNMA and FHLMC approved seller/servicer;
(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 Trust Agreement or the consummation of
the transactions contemplated by this Trust 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
Trust Agreement are in the ordinary course of business of the Master
Servicer.
(b) It is understood and agreed that the representations and
warranties set forth in this Section shall survive the execution and delivery of
this Trust Agreement. The Master Servicer shall indemnify the Depositor, the
Securities Administrator and the Trustee 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 8.03(a) above. It is understood and agreed that the
enforcement of the obligation of the Master Servicer set forth in this Section
to indemnify the Depositor, the Securities Administrator and the Trustee
constitutes the sole remedy of the Depositor and the Trustee, 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 Trust 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, the Securities Administrator or the Trustee or notice thereof
by any one of such parties to the other parties.
Section 8.04 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 remit to the Securities
Administrator any payment required to be made under the terms of this Trust
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 the Securities
Administrator;
(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 Trust 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 Securities Administrator;
(c) failure by the Master Servicer to maintain its license to do
business in any jurisdiction where the Mortgaged Premises are located if such
license is required;
(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, 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;
(e) 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;
(f) 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;
(g) an affiliate of the Master Servicer that performs any back-up
servicer duties of the Master Servicer or any servicing duties assumed by the
Master Servicer as successor servicer under any Servicing Agreement ceases to
meet the qualifications of a FNMA or FHLMC servicer;
(h) the Master Servicer attempts to assign this Trust Agreement or
its responsibilities hereunder or to delegate its duties hereunder (or any
portion thereof) without the consent of the Trustee and the Depositor; or
(i) the indictment of the Master Servicer for the taking of any
action by the Master Servicer, any employee thereof, any Affiliate or any
director or employee thereof that constitutes fraud or criminal activity in the
performance of its obligations under the Trust Agreement, in each case, where
such indictment materially and adversely affects the ability of the Master
Servicer to perform its obligations under the Trust 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
terminate with cause all the rights and obligations of the Master Servicer under
this Trust Agreement.
Upon receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer under this Trust 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 Master
Servicer, 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, together
with any Mortgage Files related to any pool of Mortgage Loans with respect to
which it acts as a successor servicer, 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 Master Servicer Account or are thereafter received with respect to the
Mortgage Loans.
Section 8.05 Waiver of Default.
By a written notice, the Trustee may 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 Trust 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 8.06 Successor to the Master Servicer.
Upon termination of the Master Servicer's responsibilities and
duties under this Trust Agreement, the Trustee shall appoint a successor, which
shall succeed to all rights and assume all of the responsibilities, duties and
liabilities of the Master Servicer under this Trust Agreement prior to the
termination of the Master Servicer. 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 Servicer 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 Trust 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 Trust 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 8.03(a) hereof and the remedies available to
the Trustee under Section 8.03(b) hereof, it being understood and agreed that
the provisions of Section 8.03 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 Trust 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 the
Trust 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 Monthly Advances; provided, however, that any failure to
perform any duties or responsibilities caused by the Master Servicer's failure
to provide information required by these Standard Terms 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 under these Standard Terms, including the fees and other amounts
payable pursuant to Section 8.07 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 8.03 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 Trust Agreement. Any
termination or resignation of the Master Servicer or termination of this Trust
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.
Upon a successor's acceptance of appointment as such, the Master
Servicer shall notify by mail the Trustee of such appointment.
Section 8.07 Fees and Other Amounts Payable to the Master Servicer.
The Master Servicer shall be entitled to either retain or withdraw
from the Master Servicer Account, (i) the Master Servicing Fee, (ii) amounts
necessary to reimburse itself for any previously unreimbursed Advances, (iii) an
aggregate annual amount to indemnify the Master Servicer for amounts due in
accordance with Section 8.01(b), 8.11 and 8.12 hereof, and (iv) any other
amounts which it is entitled to receive hereunder for reimbursement,
indemnification or otherwise. The Master Servicer 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 Trust
Agreement. Amounts in excess of this limit which are subject to indemnification
hereunder shall be reimbursed to the Master Servicer in succeeding years subject
to the annual limit.
Section 8.08 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 that is qualified and
approved to service mortgage loans for Xxxxxx Xxx and FHLMC and (ii) have a net
worth of not less than $25,000,000.
Section 8.09 Resignation of Master Servicer.
Except as otherwise provided in Sections 8.08 and 8.10 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 shall have been
appointed by the Trustee and until such successor shall have assumed, the Master
Servicer's responsibilities and obligations under this Trust Agreement. Notice
of such resignation shall be given promptly by the Master Servicer and the
Depositor to the Trustee and the Guarantor.
Section 8.10 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 Trustee and the
Depositor, 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
downgrading 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 amount of the Master Servicing Fees and other compensation
payable to the Master Servicer pursuant hereto shall thereafter be payable to
such successor master servicer but in no event shall the Master Servicer Fee
payable to the successor master servicer exceed that payable to the predecessor
master servicer.
Section 8.11 Limitation on Liability of the Master Servicer and
Others.
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, the Securities Administrator or the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant to
this Trust 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 Trust 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 Trust 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 Trust 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 Master Servicer Account in
accordance with the provisions of Section 8.07 and Section 8.12.
The Master Servicer shall not be liable for any acts or omissions of
any 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 obligations of the Servicers in this Trust Agreement.
Section 8.12 Indemnification; Third-Party Claims.
The Master Servicer agrees to indemnify the Depositor, the
Securities Administrator and the Trustee, 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 or the Trustee 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 Trust Agreement. The Depositor, the
Securities Administrator and the Trustee shall immediately notify the Master
Servicer if a claim is made by a third party with respect to this Trust
Agreement or the Mortgage Loans which would entitle the Depositor, the
Securities Administrator or the Trustee to indemnification under this Section
8.12, 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 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 Trust Agreement, the Servicing Agreements, any
Assignment Agreement, the Custodial Agreement or the Certificates that is an
"unanticipated expense" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii), 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 the Trust Agreement or (ii) the Master
Servicer's willful malfeasance, bad faith or negligence or by reason of its
reckless disregard of its duties and obligations under any such agreement. The
Master Servicer shall be entitled to reimburse itself for any such indemnified
amount from funds on deposit in the Master Servicer Account.
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01 Duties of Trustee. The Trustee, prior to the occurrence
of a Master Servicer Event of Default and after the curing of any such Master
Servicer Event of Default, undertakes to perform such duties and only such
duties as are specifically set forth in the Trust Agreement. Notwithstanding
anything to the contrary herein, the appointment by the Trustee of JPMorgan
Chase Bank as Securities Administrator to perform the duties and obligations
specifically set forth in Sections 2.03, 3.01, 3.02, 3.03, 3.05, 4.01, 4.03,
4.04, 5.02, 5.03, 5.04, 5.08, 7.01, 7.02 and 10.03 hereof, and any other duties
and obligations as may be set forth in a letter agreement between JPMorgan Chase
Bank and the Trustee, shall not release the Trustee from its duty to perform
such duties and obligations hereunder. During a Master Servicer Event of Default
relating to the Trustee of which a Responsible Officer of the Trustee has
notice, the Trustee shall exercise such of the rights and powers vested in it by
the Trust Agreement, and use the same degree of care and skill in their exercise
as a prudent man would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee upon receipt of all resolutions, certificates,
statements, reports, documents, orders or other instruments created by any
Person other than itself and furnished to it which are specifically required to
be furnished pursuant to any provision of the Trust Agreement, Custody
Agreement, Servicing Agreement, Sale Agreement or Assignment Agreement shall
examine them to determine whether they conform to the requirements of such
agreement; provided, however, that the Trustee shall not be under any duty to
recalculate, verify or recompute the information provided to it hereunder by the
Servicer or the Depositor. If any such instrument is found not to conform to the
requirements of such agreement in a material manner, the Trustee shall take
action as it deems appropriate to have the instrument corrected, and if the
instrument is not corrected to its satisfaction, then it will provide notice
thereof to the other and to the Certificateholders.
No provision of the Trust Agreement shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided, however, that:
(a) Prior to the occurrence of any Master Servicer Event of Default
and after the curing of all of such Events of Default, the respective duties and
obligations of the Trustee shall be determined solely by the express provisions
of the Trust Agreement (including the obligation of the Trustee to enforce each
Servicing Agreement against the related Servicer, each Custody Agreement against
the related Custodian, each Sale Agreement against the related Seller, each
Assignment Agreement against GSMC and otherwise to act as owner under such
agreements for the benefit of the Certificateholders), the Trustee shall not be
liable except for the performance of the respective duties and obligations as
are specifically set forth in the Trust Agreement, no implied covenants or
obligations shall be read into the Trust Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Trustee that conform to the requirements of the Trust Agreement;
(b) The Trustee shall not be personally liable for an error of
judgment made in good faith by an Officer of the Trustee unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
(c) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% of the
Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under the Trust Agreement;
(d) Any determination of negligence, bad faith, willful misconduct
or breach of conduct of the Trustee shall be made only upon a finding that there
is clear and convincing evidence (and not upon the mere preponderance of
evidence) thereof in a proceeding before a court of competent jurisdiction in
which the Trustee has had an opportunity to defend; and
(e) In no event shall the Trustee be held liable for the actions or
omissions of any Servicer or Custodian (excepting the Trustee's own actions as
Servicer or Custodian). Prior to the occurrence of any Event of Default and
after the curing of all such Events of Default, other than those obligations
assumed by the Trustee as successor Servicer under Article VII, no provision of
the Trust Agreement shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it unless
such risk or liability relates to duties set forth herein.
Section 9.02 Certain Matters Affecting the Trustee. (a) Except as
otherwise provided in Section 9.01 hereof:
(i) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate of auditors
or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties. Further, the Trustee may
accept a copy of the vote of the board of directors of any party
certified by its clerk or assistant clerk or secretary or assistant
secretary as conclusive evidence of the authority of any person to
act in accordance with such vote, and such vote may be considered as
in full force and effect until receipt by the Trustee of written
notice to the contrary;
(ii) The Trustee may, in the absence of bad faith on its part,
rely upon a certificate of an Officer of the appropriate Person
whenever in the administration of the Trust Agreement the Trustee
shall deem it desirable that a matter be proved or established
(unless other evidence be herein specifically prescribed) prior to
taking, suffering or omitting any action hereunder;
(iii) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in
accordance with such written advice or Opinion of Counsel;
(iv) The Trustee shall not be under any obligation to exercise
any of the trusts or powers vested in it by the Trust Agreement or
to institute, conduct or defend any litigation thereunder or in
relation thereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of the Trust
Agreement, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby;
(v) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred
upon it by the Trust Agreement;
(vi) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested
in writing to do so by Holders of Certificates entitled to at least
25% of the Voting Rights; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee not assured to the
Trustee by the security afforded to it by the terms of the Trust
Agreement, the Trustee may require indemnity against such expense or
liability as a condition to taking any such action;
(vii) The Trustee may execute any of the trusts or powers
under the Trust Agreement or perform any duties hereunder either
directly or by or through agents or attorneys and the Trustee shall
not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it under the Trust
Agreement, provided that any agent appointed by the Trustee
hereunder shall be entitled to all of the protections of the Trustee
under this Agreement including, without limitation, the
indemnification provided for under Section 9.05 hereof;
(viii) Whenever the Trustee is authorized herein to require
acts or documents in addition to those required to be provided it in
any matter, it shall be under no obligation to make any
determination whether or not such additional acts or documents
should be required unless obligated to do so under Section 9.01;
(ix) The permissive right or authority of the Trustee to take
any action enumerated in this Agreement shall not be construed as a
duty or obligation;
(x) The Trustee shall not be deemed to have notice of any
matter, including without limitation any Event of Default, unless
one of its Responsible Officers has actual knowledge thereof or
unless written notice thereof is received by the Trustee at its
Corporate Trust Office and such notice references the applicable
Certificates generally, the applicable Servicer or Seller, the Trust
or this Agreement;
(xi) The Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability for the performance
of any of its duties hereunder or the exercise of any of its rights
or powers (except with respect to its obligation to make Monthly
Advances pursuant hereto) if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity
against such risk or liability is not assured to it, and none of the
provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of any Servicer or the Master
Servicer under this Agreement except with respect to the Trustee's
obligation to make Monthly Advances pursuant hereto or as successor
servicer under any Servicing Agreement or any successor master
servicer under this Agreement and during such time, if any, as the
Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, any Servicer or the Master
Servicer in accordance with the terms of this Agreement;
(xii) Subject to the other provisions of this Agreement and
without limiting the generality of this Section 9.02, the Trustee
shall not have any duty (A) to see to any recording, filing or
depositing of this Agreement or any agreement referred to herein or
any financing statement or continuation statement evidencing a
security interest, or to see the maintenance of any such recording
of filing or depositing or to any rerecording, refiling or
redepositing any thereof, (B) to see to any insurance, (C) to see to
the payment or discharge of any tax, assessment or other
governmental charge or any lien or encumbrance of any kind owing
with respect to, assessed or levied against, any part of the Trust
Estate other than from funds available in the Certificate Account,
or (D) to confirm or verify the contents of any reports or
certificates of any Servicer delivered to the Trustee pursuant to
this Agreement believed by the Trustee to be genuine and to have
been signed or presented by the proper party or parties;
(xiii) The Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust Estate created
hereby or the powers granted hereunder; and
(xiv) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Trustee be liable for
special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the
Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action.
(b) All rights of action under the Trust Agreement or under any of
the Certificates, enforceable by the Trustee may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of the Trust
Agreement. Any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders in
respect of which such judgment has been recovered.
Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained in the Trust Agreement and in the Certificates (other
than the signature of the Trustee, the acknowledgments by the Trustee in Section
2.02 hereof and the representations and warranties made in Section 9.13 hereof)
shall be taken as the statements of the Depositor, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations or
warranties as to the validity or sufficiency of the Trust Agreement or of the
Certificates (other than the signature of the Trustee on the Certificates) or of
any Mortgage Loan or related document. The Trustee shall not be accountable for
the use or application by the Depositor of any of the Certificates or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor in respect of the Mortgage Loans or deposited in or withdrawn
from any Collection Account, the Master Servicer Account or the Certificate
Account other than any funds held by or on behalf of the Trustee in accordance
with Section 3.01 or as owner of the Regular Interests of any REMIC.
Section 9.04 Trustee May Own Certificates. The Trustee in its
individual capacity or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not Trustee.
Section 9.05 Trustee's Fees and Expenses. Pursuant to the Trust
Agreement, the Trustee shall be paid out of the Securities Administrator Fee by
the Securities Administrator pursuant to a separate agreement between the
Trustee and the Securities Administrator. The Trustee shall be entitled to
reimbursement for all reasonable expenses and disbursements incurred or made by
the Trustee in accordance with any of the provisions of the Trust Agreement
(including but not limited to the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ) so
long as such expenses constitute "unanticipated expenses" within the meaning of
Treasury Regulation Section 1.860G-1(b)(3)(ii), except any such expense,
disbursement or advance as may arise from its negligence, bad faith, willful
misconduct or breach of contract by the Trustee. The Trustee and any director,
officer, employee or agent of the Trustee shall be indemnified and held harmless
by the Trust against any loss, liability or expense thereof, including
reasonable attorney's fees, incurred, arising out of or in connection with the
Trust Agreement, any custody agreement or the Certificates, including, but not
limited to, any such loss, liability, or expense incurred in connection with any
legal action against the Trust or the Trustee or any director, officer, employee
or agent thereof, or the performance of any of the Trustee's duties under the
Trust Agreement other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith, negligence, willful misconduct or breach of
contract in the performance of duties under the Trust Agreement or by reason of
reckless disregard of obligations and duties under the Trust Agreement. The
provisions of this Section 9.05 shall survive the resignation or removal of the
Trustee.
Section 9.06 Eligibility Requirements for Trustee. The Trustee shall
at all times be a corporation or national banking association that is not an
Affiliate of the Depositor organized and doing business under the laws of any
state or the United States of America, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authority. If such corporation publishes reports of its conditions at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of conditions so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 9.07.
Section 9.07 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts created pursuant to the
Trust Agreement by giving written notice thereof to the Depositor, the Master
Servicer and to all Certificateholders. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee by written
instrument, in triplicate, which instrument shall be delivered to the resigning
Trustee and to the successor trustee. A copy of such instrument shall be
delivered to the Depositor, the Certificateholders and each Servicer by the
Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within 60 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
The Depositor may at any time remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, which instrument shall be
delivered to the Trustee so removed and to the successor trustee. If the
Depositor executes such an instrument, then the Depositor shall deliver a copy
of such instrument to the Certificateholders, the Trustee and each Servicer.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to each of the Depositor, the Trustee so removed and the
successor trustee so appointed. A copy of such instrument shall be delivered to
the Certificateholders and each Servicer and Seller by the Depositor.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor trustee as
provided in Section 9.08 hereof.
Section 9.08 Successor Trustee. Any successor trustee appointed as
provided in Section 9.07 shall execute, acknowledge and deliver to the Depositor
and to the predecessor trustee an instrument accepting such appointment under
the Trust Agreement and thereupon the resignation or removal of the predecessor
trustee shall become effective and such successor trustee without any further
act, deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor thereunder, with the like effect as if
originally named as trustee therein. The predecessor trustee shall deliver to
the successor trustee, all Trustee Mortgage Loan Files and related documents and
statements held by it under the Trust Agreement and the Depositor and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in the successor trustee, all such rights, powers, duties and
obligations.
No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 9.06 hereof.
Upon acceptance of appointment by a successor trustee as provided in
this Section, the Depositor shall mail notice of the succession of such trustee
under the Trust Agreement to all Holders of Certificates at their addresses as
shown in the Certificate Register. If the Depositor fails to mail such notice
within 10 days after acceptance of appointment by the successor trustee, the
Trustee shall cause such notice to be mailed at the expense of the Depositor.
Notwithstanding anything to the contrary contained herein, the
appointment of any successor Trustee pursuant to any provisions of this
Agreement will be subject to the prior written consent of the Trustee, which
consent will not be unreasonably withheld.
Section 9.09 Merger or Consolidation of Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the corporate trust business of the Trustee shall be the successor
of the Trustee under the Trust Agreement, provided such corporation shall be
eligible under the provisions of Section 9.06, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 9.10 Appointment of Co-Trustee or Separate Trustee. For the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust or property securing the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section 9.10, such powers,
duties, obligations, rights and trusts as the Depositor and the Trustee may
consider necessary or desirable. If the Depositor shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee(s) hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 9.06 hereof and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 9.08 hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to the Trust Agreement and the
conditions of this Article IX. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of the
Trust Agreement, specifically including every provision of the Trust Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee. No
trustee (including the Trustee) shall be responsible for the actions of any
co-trustee.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of the
Trust Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 9.11 Appointment of Custodians. The Trustee may appoint one
or more Custodians to hold all or a portion of the Trustee Mortgage Loan Files
as agent for the Trustee, by entering into a custody agreement. The appointment
of any Custodian may at any time be terminated and a substitute custodian
appointed therefor by the Trustee. Subject to Article IX, the Trustee agrees to
comply with the terms of each custody agreement and to enforce the terms and
provisions thereof against the Custodian for the benefit of the
Certificateholders. Each Custodian shall be a depository institution or trust
company subject to supervision by federal or state authority, shall have
combined capital and surplus of at least $10,000,000 and shall be qualified to
do business in the jurisdiction in which it holds any Trustee Mortgage Loan
File. Any such Custodian may not be an affiliate of the Depositor or any Seller
or Servicer. The Trustee shall not be responsible or liable for the acts or
omissions of any Custodian appointed by it hereunder (except for a Custodian
which is an affiliate of the Trustee). Except as otherwise provided in the
Custody Agreement, any fees, expenses and other amounts (except for amounts due
as a result of indemnification provisions) due to a Custodian shall be the
responsibility of the Servicer. Any indemnification due a Custodian under a
Custody Agreement shall be an obligation of the Trust and payable out of the
Trust Estate, and reimbursed in accordance with the Trust Agreement.
Section 9.12 Appointment of Office or Agent. The Trustee shall
appoint an office or agent in The City of New York where notices and demands to
or upon the Trustee in respect of the Certificates and the Trust Agreement may
be served. The parties hereto and the Certificateholders hereby acknowledge that
the Trustee may delegate or assign to or subcontract with or authorize or
appoint any qualified Person to perform and carry out certain non-fiduciary
duties or obligations relating to the administration of the Trust, including the
duties and obligations of the Certificate Registrar and Paying Agent; provided,
however, in no event shall any such delegation, assignment, authorization or
appointment relieve the Trustee of its liability with regard to such duties or
obligations. Any such agent shall nevertheless be entitled to all the rights,
benefits and protections afforded to the Trustee under Article IX, to the extent
assigned to any such agent by the Trustee.
Section 9.13 Representations and Warranties of the Trustee. The
Trustee hereby represents and warrants to the Depositor that as of the Closing
Date or as of such other date specifically provided herein:
(a) It is a national banking association and has been duly
organized, and is validly existing in good standing under the laws of the United
States with full power and authority (corporate and other) to enter into and
perform its obligations under the Trust Agreement;
(b) The Trust Agreement has been duly executed and delivered by it,
and, assuming due authorization, execution and delivery by the Depositor,
constitutes a legal, valid and binding agreement of such entity, enforceable
against it in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and to general principles of equity regardless of whether enforcement
is sought in a proceeding in equity or at law;
(c) The execution, delivery and performance by it of the Trust
Agreement and the consummation of the transactions contemplated thereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date thereof;
(d) The execution and delivery of this Trust Agreement by it have
been duly authorized by all necessary corporate action on its part; neither the
execution and delivery by it of the Trust Agreement, nor consummation of the
transactions therein contemplated, nor compliance by it with the provisions
thereof, will conflict with or result in a breach of, or constitute a default
under, any of the provisions of its articles of organization or by-laws or any
law, governmental rule or regulation or any judgment, decree or order binding on
it to its knowledge or any of its properties, or any of the provisions of any
indenture, mortgage, deed of trust, contract or other instrument to which it is
a party or by which it is bound;
(e) There are no actions, suits or proceedings pending or, to its
knowledge, threatened or asserted against it, before or by any court,
administrative agency, arbitrator or governmental body (A) with respect to any
of the transactions contemplated by the Trust Agreement or (B) with respect to
any other matter which in its judgment will be determined adversely to it and
will if determined adversely to it materially adversely affect its ability to
perform its obligations under the Trust Agreement; and
(f) It meets all of the eligibility requirements set forth in
Section 9.06 thereof.
ARTICLE X
TERMINATION OF TRUST
Section 10.01 Qualified Liquidation. The Provisions of this Article
X are subject to the requirement that any termination shall be a "qualified
liquidation" of each associated REMIC unless 100% of the affected holders of
interests in each such REMIC have consented to waive such requirements. For this
purpose "affected holders" shall mean each holder of a regular or residual
interest which would likely receive a smaller amount in final distributions if
the termination were not a "qualified liquidation" and REMIC owed taxes as a
result hereof.
Section 10.02 Termination. The Servicer (or other party) designated
in Section 4.03 of the Trust Agreement may, at its option, make or cause a
Person to make a Terminating Purchase for the Termination Price at the time and
on the terms and conditions specified in the Trust Agreement. Upon such
Terminating Purchase or the final payment or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan remaining in the Trust or the
disposition of the last REO Property remaining in the Trust, the respective
obligations and responsibilities under the Trust Agreement of the Depositor, the
Master Servicer, the Trustee and the Securities Administrator shall terminate
upon payment to the Certificateholders of all amounts held by or on behalf of
the Securities Administrator and required hereunder to be so paid and upon
deposit of unclaimed funds otherwise distributable to Certificateholders in the
Termination Account. Notwithstanding the foregoing, in no event shall the Trust
created hereby continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of
the United States to the Court of St. James's, living on the date hereof.
The Trust also may be terminated and the Certificates retired if the
Securities Administrator determines, based upon an Opinion of Counsel, that the
REMIC status of any related REMIC has been lost or that a substantial risk
exists that such REMIC status will be lost for the then-current taxable year.
Section 10.03 Procedure for Termination. The Servicer (or other
party) designated in Section 4.03 of the Trust Agreement shall advise the
Securities Administrator in writing of its election to cause a Terminating
Purchase, no later than the Distribution Date in the month preceding the
Distribution Date on which the Terminating Purchase will occur.
Notice of the Distribution Date on which any such termination shall
occur (or the Distribution Date on which final payment or other Liquidation of
the last Mortgage Loan remaining in the Trust or the disposition of the last REO
Property remaining in the Trust will be distributed to Certificateholders, as
reflected in the Remittance Report for such month (the "Final Distribution
Date") shall be given promptly by the Securities Administrator by letter to
Certificateholders mailed (a) in the event such notice is given in connection
with a Terminating Purchase, not earlier than the 15th day and not later than
the last day of the month preceding the month of such final distribution or (b)
otherwise during the month of such final distribution on or before the Servicer
Remittance Date in such month, in each case specifying (i) the Final
Distribution Date and that final payment of the Certificates will be made upon
presentation and surrender of Certificates at the office of the Securities
Administrator therein designated on that date, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such Final
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office of the Securities Administrator.
The Securities Administrator shall give such notice to the Certificate Registrar
at the time such notice is given to Certificateholders. In the event such notice
is given in connection with a Terminating Purchase, the purchaser shall deliver
to the Securities Administrator for deposit in the Certificate Account on the
Business Day immediately preceding the Final Distribution Date an amount in next
day funds equal to the Termination Price, as the case may be.
Upon presentation and surrender of the Certificates on a
Distribution Date by Certificateholders, the Securities Administrator shall
distribute to Certificateholders (A) the amount otherwise distributable on such
Distribution Date, if not in connection with Terminating Purchase, or (B) if in
connection with a Terminating Purchase, an amount determined as follows: with
respect to each Certificate with an outstanding Class Principal Balance, the
outstanding Class Principal Balance thereof, plus interest thereon through the
last day of the month preceding the month in which the Distribution Date fixed
for termination occurs and any previously unpaid interest, net of unrealized
losses, Realized Interest Shortfall and Shortfall with respect thereto; and in
addition, with respect to each Residual Certificate, the Percentage Interest
evidenced thereby multiplied by the difference between the Termination Price and
the aggregate amount to be distributed as provided in the first clause of this
sentence and the next succeeding sentence.
Upon the deposit of the Termination Price in the Certificate
Account, the Securities Administrator, on behalf of the Trustee, and any
Custodian acting as its agent, shall promptly release to the purchaser the
Trustee Mortgage Loan Files for the remaining Mortgage Loans, and the Securities
Administrator, on behalf of the Trustee, shall execute all assignments,
endorsements and other instruments without recourse necessary to effectuate such
transfer. The Trust shall terminate immediately following the deposit of funds
in the Termination Account as provided below.
In the event that all of the Certificateholders shall not surrender
their Certificates within six months after the Final Distribution Date specified
in the above-mentioned written notice, the Securities Administrator shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates and receive the final distribution with respect thereto, net of the
cost of such second notice. If within one year after the second notice all the
Certificates shall not have been surrendered for cancellation, the 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
amounts otherwise payable on such Certificates. Any funds payable to
Certificateholders that are not distributed on the Final Distribution Date shall
be deposited in a Termination Account, which shall be an Eligible Account, to be
held for the benefit of Certificateholders not presenting and surrendering their
Certificates in the aforesaid manner, and shall be disposed of in accordance
with this Section. The Securities Administrator shall establish the Termination
Accounts, which shall be Eligible Accounts, on or about the Closing Date.
Section 10.04 Additional Termination Requirements. (a) In the event
of a Terminating Purchase as provided in Section 10.02, the Trust shall be
terminated in accordance with the following additional requirements, unless the
Securities Administrator receives (i) a Special Tax Opinion and (ii) a Special
Tax Consent from each of the Holders of the Residual Certificates (unless the
Special Tax Opinion specially provides that no REMIC-level tax will result from
the Terminating Purchase):
(A) Within 90 days prior to the Final Distribution Date,
the Depositor and the Securities Administrator on behalf of
the related REMIC shall adopt a plan of complete liquidation
meeting the requirements of a qualified liquidation under the
REMIC Provisions (which plan may be adopted by the Securities
Administrator's attachment of a statement specifying the first
day of the 90-day liquidation period to the REMIC's final
federal income tax return) and the REMIC will sell all of its
assets (other than cash);
(B) Upon making final payment on the Regular
Certificates or the deposit of any unclaimed funds otherwise
distributable to the holders of the Regular Certificates in
the Termination Account on the Final Distribution Date, the
Securities Administrator shall distribute or credit, or cause
to be distributed or credited, pro rata, to the Holders of the
Residual Certificates all cash on hand relating to the REMIC
after such final payment (other than cash retained to meet
claims), and the REMIC shall terminate at that time; and
(C) In no event may the final payment on the
Certificates be made after the 90th day from the date on which
the plan of complete liquidation is adopted. A payment into
the Termination Account with respect to any Certificate
pursuant to Section 10.03 shall be deemed a final payment on,
or final distribution with respect to, such Certificate for
the purposes of this clause.
(b) By its acceptance of a Residual Certificate, the Holder thereof
hereby (i) authorizes such action as may be necessary to adopt a plan of
complete liquidation of any related REMIC and (ii) agrees to take such action as
may be necessary to adopt a plan of complete liquidation of any related REMIC
upon the written request of the Trustee, which authorization shall be binding
upon all successor Holders of Residual Certificates.
ARTICLE XI
CONCERNING THE SECURITIES ADMINISTRATOR
Section 11.01 Certain Matters Affecting the Securities
Administrator.
(a) Except as otherwise provided herein:
(i) The Securities Administrator may rely and shall be
protected in acting or refraining from acting upon any resolution,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties. Further, the Securities Administrator may accept a copy of
the vote of the board of directors of any party certified by its
clerk or assistant clerk or secretary or assistant secretary as
conclusive evidence of the authority of any person to act in
accordance with such vote, and such vote may be considered as in
full force and effect until receipt by the Securities Administrator
of written notice to the contrary;
(ii) The Securities Administrator may, in the absence of bad
faith on its part, rely upon a certificate of an Officer of the
appropriate Person whenever in the administration of the Trust
Agreement the Securities Administrator shall deem it desirable that
a matter be proved or established (unless other evidence be herein
specifically prescribed) prior to taking, suffering or omitting any
action hereunder;
(iii) The Securities Administrator may consult with counsel
and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect
of any action taken or suffered or omitted by it hereunder in good
faith and in accordance with such written advice or Opinion of
Counsel;
(iv) The Securities Administrator shall not be under any
obligation to exercise any of the trusts or powers vested in it by
the Trust Agreement or to institute, conduct or defend any
litigation thereunder or in relation thereto at the request, order
or direction of any of the Certificateholders, pursuant to the
provisions of the Trust Agreement, unless such Certificateholders
shall have offered to the Securities Administrator reasonable
security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(v) The Securities Administrator shall not be personally
liable for any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by the Trust Agreement;
(vi) The 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 to do so by Holders of
Certificates entitled to at least 25% of the Voting Rights;
provided, however, that if the payment within a reasonable time to
the 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 assured to the
Securities Administrator by the security afforded to it by the terms
of the Trust Agreement, the Securities Administrator may require
indemnity against such expense or liability as a condition to taking
any such action;
(vii) The Securities Administrator may execute any of the
trusts or powers under the Trust Agreement or perform any duties
hereunder either directly or by or through agents or attorneys and
the Securities Administrator shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it under the Trust Agreement, provided
that any agent appointed by the Securities Administrator hereunder
shall be entitled to all of the protections of the Securities
Administrator under this Agreement;
(viii) Whenever the Securities Administrator is authorized
herein to require acts or documents in addition to those required to
be provided it in any matter, it shall be under no obligation to
make any determination whether or not such additional acts or
documents should be required unless obligated to do so hereunder;
(ix) The permissive right or authority of the Securities
Administrator to take any action enumerated in this Agreement shall
not be construed as a duty or obligation;
(x) The Securities Administrator shall not be deemed to have
notice of any matter, including without limitation any Event of
Default, unless one of its Responsible Officers has actual knowledge
thereof or unless written notice thereof is received by the
Securities Administrator at its Corporate Trust Office and such
notice references the applicable Certificates generally, the
applicable Servicer or Seller, the Trust or this Agreement;
(xi) The Securities Administrator shall not be required to
expend or risk its own funds or otherwise incur financial liability
for the performance of any of its duties hereunder or the exercise
of any of its rights or powers (except with respect to its
obligation to make Monthly Advances pursuant to Section 3.05 in the
event the Master Servicer fails to make such Monthly Advances as
required) if there is reasonable ground for believing that the
repayment of such funds or adequate indemnity against such risk or
liability is not assured to it, and none of the provisions contained
in this Agreement shall in any event require the Securities
Administrator to perform, or be responsible for the manner of
performance of, any of the obligations of any Servicer or the Master
Servicer under this Agreement except with respect to its obligation
to make Monthly Advances pursuant to Section 3.05 in the event the
Master Servicer fails to make such Monthly Advances as required;
(xii) Subject to the other provisions of this Agreement and
without limiting the generality of this Section 11.01, the
Securities Administrator shall not have any duty (A) to see to any
recording, filing or depositing of this Agreement or any agreement
referred to herein or any financing statement or continuation
statement evidencing a security interest, or to see the maintenance
of any such recording of filing or depositing or to any rerecording,
refiling or redepositing any thereof, (B) to see to any insurance,
(C) to see to the payment or discharge of any tax, assessment or
other governmental charge or any lien or encumbrance of any kind
owing with respect to, assessed or levied against, any part of the
Trust Estate other than from funds available in the Certificate
Account, or (D) to confirm or verify the contents of any reports or
certificates of any Servicer delivered to the Securities
Administrator pursuant to this Agreement believed by the Securities
Administrator to be genuine and to have been signed or presented by
the proper party or parties;
(xiii) The Securities Administrator shall not be required to
give any bond or surety in respect of the execution of the Trust
Estate created hereby or the powers granted hereunder; and
(xiv) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Securities Administrator be
liable for special, indirect or consequential loss or damage of any
kind whatsoever (including but not limited to lost profits), even if
the Securities Administrator has been advised of the likelihood of
such loss or damage and regardless of the form of action
(b) All rights of action under the Trust Agreement or under any of
the Certificates, enforceable by the Securities Administrator may be enforced by
it without the possession of any of the Certificates, or the production thereof
at the trial or other proceeding relating thereto, and any such suit, action or
proceeding instituted by the Securities Administrator shall be brought in name
of the Trustee for the benefit of all the Holders of such Certificates, subject
to the provisions of the Trust Agreement. Any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Securities Administrator, its agents and
counsel, be for the ratable benefit of the Holders in respect of which such
judgment has been recovered.
Section 11.02 Securities Administrator Not Liable for Certificates
or Mortgage Loans.
The recitals contained in the Trust Agreement and in the
Certificates (other than the signature of the Securities Administrator and the
representations and warranties made in Section 11.07 hereof) shall be taken as
the statements of the Depositor, and the Securities Administrator assumes no
responsibility for their correctness. The Securities Administrator makes no
representations or warranties as to the validity or sufficiency of the Trust
Agreement or of the Certificates (other than the signature of the Securities
Administrator on the Certificates) or of any Mortgage Loan or related document.
The Securities Administrator shall not be accountable for the use or application
by the Depositor of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the Mortgage Loans or deposited in or withdrawn from any
Collection Account, the Master Servicer Account or the Certificate Account other
than any funds held by or on behalf of the Securities Administrator in
accordance with Sections 3.01 and 3.02.
Section 11.03 Securities Administrator May Own Certificates.
The Securities Administrator in its individual capacity or any other
capacity may become the owner or pledgee of Certificates with the same rights it
would have if it were not Securities Administrator.
Section 11.04 Securities Administrator's Expenses.
The Securities Administrator shall be entitled to reimbursement for
all reasonable expenses and disbursements incurred or made by the Securities
Administrator in accordance with any of the provisions of the Trust Agreement
(including but not limited to the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
that is an "unanticipated expense" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii), except any such expense, disbursement or advance as
may arise from its negligence, bad faith, willful misconduct or breach of
contract by the Securities Administrator. On each Distribution Date, the
Securities Administrator may withdraw from the amount on deposit in the REMIC I
Distribution Account, its expenses (subject to the limits set forth herein). The
Securities Administrator, the Custodian and any director, officer, employee or
agent of the Securities Administrator and the Custodian shall be indemnified and
held harmless by the Trust against any loss, liability or expense thereof,
including reasonable attorney's fees, incurred, arising out of or in connection
with the Trust Agreement, any custody agreement or the Certificates, including,
but not limited to, any such loss, liability, or expense incurred in connection
with any legal action against the Trust or the Securities Administrator or any
director, officer, employee or agent thereof, or the performance of any of the
Securities Administrator's duties under the Trust Agreement that is an
"unanticipated expense" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii) other than any loss, liability or expense incurred by reason
of willful misfeasance, bad faith, negligence, willful misconduct or breach of
contract in the performance of duties under the Trust Agreement or by reason of
reckless disregard of obligations and duties under the Trust Agreement. The
provisions of this Section 11.04 shall survive the resignation or removal of the
Securities Administrator.
Section 11.05 Resignation and Removal of the Securities
Administrator.
The Securities Administrator may at any time resign and be
discharged from the trusts created pursuant to the Trust Agreement by giving
written notice thereof to the Depositor, the Master Servicer, the Trustee and to
all Certificateholders. Upon receiving such notice of resignation, the Trustee
shall promptly appoint a successor securities administrator by written
instrument, in triplicate, which instrument shall be delivered to the resigning
Securities Administrator and to the successor securities administrator. A copy
of such instrument shall be delivered to the Depositor, the Certificateholders
and each Servicer by the Trustee. If no successor securities administrator shall
have been so appointed and have accepted appointment within 60 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.
The Trustee may at any time remove the Securities Administrator and
appoint a successor securities administrator by written instrument, in
duplicate, which instrument shall be delivered to the Securities Administrator
so removed and to the successor securities administrator. If the Trustee
executes such an instrument, then the Trustee shall deliver a copy of such
instrument to the Certificateholders, the Depositor and each Servicer.
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 to each of the
Depositor, the Trustee, the Securities Administrator so removed and the
successor securities administrator so appointed. A copy of such instrument shall
be delivered to the Certificateholders and each Servicer and Seller by the
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 shall not become effective until acceptance of
appointment by the successor securities administrator as provided in Section
11.06 hereof.
Section 11.06 Successor Securities Administrator.
Any successor securities administrator appointed as provided in
Section 11.05 shall execute, acknowledge and deliver to the Trustee and to the
predecessor securities administrator an instrument accepting such appointment
under the Trust Agreement 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 thereunder, with the like effect as if originally named as
securities administrator therein. The predecessor securities administrator shall
deliver to the successor securities administrator, all Trustee Mortgage Loan
Files and related documents and statements held by it under the Trust Agreement
and the Trustee 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.
Upon acceptance of appointment by a successor securities
administrator as provided in this Section, the Trustee shall mail notice of the
succession of such securities administrator under the Trust Agreement to all
Holders of Certificates at their addresses as shown in the Certificate Register.
Notwithstanding anything to the contrary contained herein, the
appointment of any successor securities administrator pursuant to any provisions
of this Agreement will be subject to the prior written consent of the Trustee,
which consent will not be unreasonably withheld.
Section 11.07 Representations and Warranties of the Securities
Administrator.
The Securities Administrator hereby represents and warrants to the
Depositor, the Master Servicer and the Trustee that as of the Closing Date or as
of such other date specifically provided herein:
(a) It is a New York corporation and has been duly organized, and is
validly existing in good standing under the laws of the state of New York with
full power and authority (corporate and other) to enter into and perform its
obligations under the Trust Agreement;
(b) The Trust Agreement has been duly executed and delivered by it,
and, assuming due authorization, execution and delivery by the Depositor,
constitutes a legal, valid and binding agreement of such entity, enforceable
against it in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and to general principles of equity regardless of whether enforcement
is sought in a proceeding in equity or at law;
(c) The execution, delivery and performance by it of the Trust
Agreement and the consummation of the transactions contemplated thereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date thereof;
(d) The execution and delivery of this Trust Agreement by it have
been duly authorized by all necessary corporate action on its part; neither the
execution and delivery by it of the Trust Agreement, nor consummation of the
transactions therein contemplated, nor compliance by it with the provisions
thereof, will conflict with or result in a breach of, or constitute a default
under, any of the provisions of its articles of organization or by-laws or any
law, governmental rule or regulation or any judgment, decree or order binding on
it to its knowledge or any of its properties, or any of the provisions of any
indenture, mortgage, deed of trust, contract or other instrument to which it is
a party or by which it is bound; and
(e) There are no actions, suits or proceedings pending or, to its
knowledge, threatened or asserted against it, before or by any court,
administrative agency, arbitrator or government body (A) with respect to any of
the transactions contemplated by the Trust Agreement or (B) with respect to any
other matter which in its judgment will be determined adversely to it and will
if determined adversely to it materially adversely affect its ability to perform
its obligations under the Trust Agreement.
ARTICLE XII
REMIC TAX PROVISIONS
Section 12.01 REMIC Administration. (a) (i) Unless otherwise
specified in the Trust Agreement, the Securities Administrator, on behalf of the
Trustee, shall elect (on behalf of each REMIC to be created) to have the Trust
(or designated assets thereof) treated as one or more REMICs on Form 1066 or
other appropriate federal tax or information return for the taxable year ending
on the last day of the calendar year in which the Certificates are issued as
well as on any corresponding state tax or information return necessary to have
the Trust (or such assets) treated as a REMIC under state law.
(ii) In order to enable the Securities Administrator, on
behalf of the Trustee, to perform its duties as set forth herein,
the Depositor shall provide or cause to be provided to the
Securities Administrator, within ten (10) days after the Closing
Date, all information or data that the Securities Administrator
reasonably determines to be relevant for tax purposes to the
valuations and offering prices of the Certificates (security
instruments), including, without limitation, the price, yield,
prepayment assumption and projected cash flows of the Certificates
and the Mortgage Loans. Thereafter, the Depositor shall provide to
the Securities Administrator, promptly upon request therefor, any
additional information or data that the Securities Administrator may
from time to time reasonably request in order to enable the
Securities Administrator to perform its duties as set forth herein.
(b) The Securities Administrator, on behalf of the Trustee, shall
pay any and all tax related expenses (not including taxes) of each REMIC,
including but not limited to any professional fees or expenses related to audits
or any administrative or judicial proceedings with respect to such REMIC that
involve the Internal Revenue Service or state tax authorities, but only to the
extent that (i) such expenses are ordinary or routine expenses, including
expenses of a routine audit but not expenses of litigation (except as described
in (ii)); or (ii) such expenses or liabilities (including taxes and penalties)
are attributable to the negligence or willful misconduct of the Securities
Administrator in fulfilling its duties hereunder (including its duties as tax
return preparer). The Securities Administrator shall be entitled to
reimbursement of the expenses to the extent provided in clause (i)above from the
Trustee Account, but only to the extent such expenses are "unanticipated
expenses" for purposes of Treasury Regulation Section 1.860G-1(b)(3)(ii).
(c) The Securities Administrator, on behalf of the Trustee, shall
prepare any necessary forms for election as well as all of the Trust's and each
REMIC's federal and any appropriate state tax and information returns. The
Securities Administrator, on behalf of the Trustee, shall sign and the
Securities Administrator, on behalf of the Trustee, shall file such returns on
behalf of each REMIC. The expenses of preparing and filing such returns shall be
borne by the Securities Administrator.
(d) The Securities Administrator, on behalf of the Trustee, shall
perform all reporting and other tax compliance duties that are the
responsibility of the Trust and each REMIC under the REMIC Provisions or New
York tax law. Among its other duties, if required by the REMIC Provisions, the
Securities Administrator, on behalf of the Trustee, acting as agent of each
REMIC, shall provide (i) to the Treasury or other governmental authority such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Disqualified Organization and (ii) to
the Securities Administrator such information as is necessary for the Securities
Administrator, on behalf of the Trustee, to discharge its obligations under the
REMIC Provisions to report tax information to the Certificateholders.
(e) The Depositor, Securities Administrator, the Trustee and the
Holders of the Residual Certificates shall take any action or cause any REMIC to
take any action necessary to create or maintain the status of such REMIC as a
REMIC under the REMIC Provisions and shall assist each other as necessary to
create or maintain such status.
(f) The Depositor, Securities Administrator, the Trustee and the
Holders of the Residual Certificates shall not take any action, or fail to take
any action, or cause any REMIC to take any action or fail to take any action
that, if taken or not taken, as the case may be, could endanger the status of
any such REMIC as a REMIC unless the Securities Administrator has received an
Opinion of Counsel (at the expense of the party seeking to take or to fail to
take such action) to the effect that the contemplated action or failure to act
will not endanger such status.
(g) Any taxes that are imposed upon the Trust or any REMIC by
federal or state (including local) governmental authorities (other than taxes
paid by a party pursuant to Section 10.02 hereof or as provided in the following
sentence) shall be allocated in the same manner as Realized Losses are
allocated. Any state (or local) taxes imposed upon the Trust or any REMIC that
would not have been imposed on the Trust or such REMIC in the absence of any
legal or business connection between the Trustee and the state (or locality)
imposing such taxes shall be paid by the Securities Administrator, on behalf of
the Trustee, and, notwithstanding anything to the contrary in these Standard
Terms, such taxes shall be deemed to be part of the Securities Administrator's
cost of doing business and shall not be reimbursable to the Securities
Administrator.
(h) The Securities Administrator shall acquire a Residual
Certificate in each REMIC and the Securities Administrator will act as the Tax
Matters Person of each REMIC and perform various tax administration functions of
each REMIC as its agent, as set forth in this Section. If the Securities
Administrator or an Affiliate is unable for any reason to fulfill its duties as
Tax Matters Person for a REMIC, the holder of the largest Percentage Interest of
the Residual Certificates in such REMIC shall become the successor Tax Matters
Person of such REMIC.
(i) The Tax Matters Person shall apply for an employer
identification number with the Internal Revenue Service via a Form SS-4 or other
comparable method for each REMIC. In connection with the foregoing, the Tax
Matters Person shall provide the name and address of the person who can be
contacted to obtain information required to be reported to the holders of
Regular Interests in each REMIC as required by IRS Form 8811.
Section 12.02 Prohibited Activities. Except as otherwise provided in
the Trust Agreement, none of the Depositor, the Trustee, the Securities
Administrator, the Servicers, the Master Servicer nor the Holders of the
Residual Certificates, nor shall the Master Servicer engage in, nor shall the
Trustee permit, any of the following transactions or activities unless it has
received (a) a Special Tax Opinion and (b) a Special Tax Consent from each of
the Holders of the Residual Certificates (unless the Special Tax Opinion
specially provides that no REMIC-level tax will result from the transaction or
activity in question):
(i) the sale or other disposition of, or substitution for, any
of the Mortgage Loans except pursuant to (A) a foreclosure or
default with respect to such Mortgage Loans, (B) the bankruptcy or
insolvency of any REMIC, (C) the termination of any REMIC pursuant
to Section 10.02, or (D) a purchase in accordance with Section 2.03;
(ii) the acquisition of any Mortgage Loans for the Trust after
the Closing Date except during the three-month period beginning on
the Closing Date pursuant to a fixed price contract in effect on the
Closing Date that has been reviewed and approved by tax counsel
acceptable to the Trustee;
(iii) the sale or other disposition of any investment in the
Certificate Account or the REMIC I Distribution Account at a gain;
(iv) the sale or other disposition of any asset held in a
Reserve Fund for a period of less than three months (a "Short-Term
Reserve Fund Investment") if such sale or disposition would cause
30% or more of a REMIC's income from such Reserve Fund for the
taxable year to consist of a gain from the sale or disposition of
Short-Term Reserve Fund Investments;
(v) the withdrawal of any amounts from any Reserve Fund except
(A) for the distribution pro rata to the Holders of the Residual
Certificates or (B) to provide for the payment of Trust expenses or
amounts payable on the Certificates in the event of defaults or late
payments on the Mortgage Loans or lower than expected returns on
funds held in the Certificate Account or the REMIC I Distribution
Account, as provided under Section 860G(a)(7) of the Code;
(vi) the acceptance of any contribution to the Trust except
the following cash contributions: (A) a contribution received during
the three month period beginning on the Closing Date, (B) a
contribution to a Reserve Fund owned by a REMIC that is made pro
rata by the Holders of the Residual Certificates, (C) a contribution
to facilitate a Terminating Purchase that is made within the 90-day
period beginning on the date on which a plan of complete liquidation
is adopted pursuant to Section 10.04(a)(A), or (D) any other
contribution approved by the Securities Administrator after
consultation with tax counsel;
(vii) except in the case of a Mortgage Loan that is a default,
or as to which, in the reasonable judgment of any Servicer, default
is reasonably foreseeable, the Master Servicer shall not permit any
modification of any material term of a Mortgage Loan (including, but
not limited to, the interest rate, the principal balance, the
amortization schedule, the remaining term to maturity, or any other
term affecting the amount or timing of payments on the Mortgage
Loan) unless the Master Servicer has received an Opinion of Counsel
(at the expense of the party seeking to modify the Mortgage Loan) to
the effect that such modification would not be treated as giving
rise to a new debt instrument for REMIC purposes; or
(viii) any other transaction or activity that is not
contemplated by the Trust Agreement.
Any party causing the Trust to engage in any of the activities
prohibited in this Section shall be liable for the payment of any tax and any
associated cost imposed on the Trust pursuant to Code section 860F(a)(1) or
860G(d) as a result of the Trust engaging in such activities and indemnify the
Trust and the Master Servicer for such amounts.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment of Trust Agreement. The Trust Agreement may
be amended or supplemented from time to time by the Master Servicer, the
Depositor, the Securities Administrator and the Trustee without the consent of
any of the Certificateholders to (a) cure any ambiguity, (b) correct or
supplement any provisions herein which may be inconsistent with any other
provisions herein, (c) modify, eliminate or add to any of its provisions to such
extent as shall be necessary or appropriate to maintain the qualification of the
Trust (or any assets thereof) either as a REMIC, as applicable under the Code at
all times that any Certificates are outstanding, (d) conform the terms of this
Agreement to the terms described in the Prospectus dated January 23, 2004,
together with the Prospectus Supplement thereto dated February 24, 2004, or (e)
make any other provisions with respect to matters or questions arising under the
Trust Agreement or matters arising with respect to the Trust which are not
covered by the Trust Agreement which shall not be inconsistent with the
provisions of the Trust Agreement, provided that such action shall not adversely
affect in any material respect the interests of any Certificateholder. Any such
amendment or supplement shall be deemed not to adversely affect in any material
respect any Certificateholder if there is delivered to the Securities
Administrator written notification from each Rating Agency that rated the
applicable Certificates to the effect that such amendment or supplement will not
cause that Rating Agency to reduce the then current rating assigned to such
Certificates, as well as an Opinion of Counsel that such amendment or supplement
will not result in the loss by the Trust or the assets thereof of REMIC status.
The Trust Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
with the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Trust Agreement or of
modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (A) reduce in any manner the amount of, or
delay the timing of, payments received on Mortgage Loans which are required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (B) adversely affect in any material respect the interests of the
Holders of any Class of Certificates, or (C) reduce the aforesaid percentage of
Certificates the Holders of which are required to consent to any such amendment,
unless each Holder of a Certificate affected by such amendment consents. For
purposes of the giving or withholding of consents pursuant to this Section
13.01, Certificates registered in the name of the Depositor or an Affiliate
shall be entitled to Voting Rights with respect to matters affecting such
Certificates.
Prior to consenting to any amendment, each of the Securities
Administrator, the Trustee and the Master Servicer shall be entitled to receive
an Opinion of Counsel from the Depositor stating that the proposed amendment is
authorized and permitted pursuant to this Trust Agreement.
Promptly after the execution of any such amendment, the Securities
Administrator shall notify Certificateholders of such amendment and, upon
written request, furnish a copy of such amendment to any Certificateholder.
It shall not be necessary for the consent of Certificateholders
under this Section 13.01 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.
Section 13.02 Recordation of Agreement; Counterparts. To the extent
required by applicable law, the Trust Agreement is subject to recordation in all
appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the properties subject to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Custodian, on behalf of the
Trustee, at the expense of the Trust, but only if such recordation is requested
by the Depositor and accompanied by an Opinion of Counsel (which shall not be an
expense of the Depositor or the Custodian) to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of the Trust
Agreement as herein provided and for any other purpose the Trust Agreement may
be executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 13.03 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate the Trust
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust, or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Certificates, be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to the Trust Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any provision
of the Trust Agreement to institute any suit, action or proceeding in equity or
at law upon or under or with respect to the Trust Agreement or any Sale
Agreement, Servicing Agreement, Custody Agreement or Assignment Agreement,
unless such Holder previously shall have given to the Securities Administrator a
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of Certificates entitled to at least 25%
of the Voting Rights shall have made written request upon the Securities
Administrator to institute such action, suit or proceeding in its own name as
Securities Administrator under the Trust Agreement and shall have offered to the
Securities Administrator such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Securities Administrator, for 15 days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Securities Administrator, that no one or more Holders of Certificates shall have
any right in any manner whatever by virtue of any provision of the Trust
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of such Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under the Trust Agreement,
except in the manner therein provided and for the equal, ratable and common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section, each and every Certificateholder, the Master
Servicer, the Securities Administrator and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
Section 13.04 [Reserved].
Section 13.05 Notices. All demands and notices under the Trust
Agreement shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by first class mail, postage prepaid, or by
express delivery service, to addresses, telecopy numbers or email addresses set
forth in the Trust Agreement. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first-class mail, postage prepaid, or by
express delivery service, at the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in the
Trust Agreement shall be conclusively presumed to have been duly given, whether
or not the Certificateholder receives such notice. A copy of any notice required
to be telecopied hereunder also shall be mailed to the appropriate party in the
manner set forth above. A copy of any notice given hereunder to any other party
shall be delivered to the Securities Administrator.
Section 13.06 Severability of Provision. If any one or more of the
covenants, agreements, provisions or terms of the Trust Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of the Trust Agreement and shall in no way affect the
validity or enforceability of the other provisions of the Trust Agreement or of
the Certificates or the rights of the Holders thereof.
Section 13.07 Sale of Mortgage Loans. It is the express intent of
the Depositor and the Trustee that the conveyance of the Mortgage Loans by the
Depositor to the Trustee pursuant to the Trust Agreement be construed as a sale
of the Mortgage Loans by the Depositor to the Trustee. It is, further, not the
intention of the Depositor and the Trustee that such conveyance be deemed a
pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or
other obligation of the Depositor. However, in the event that, notwithstanding
the intent of the parties, the Mortgage Loans are held to continue to be
property of the Depositor then (a) the Trust Agreement also shall be deemed to
be a security agreement within the meaning of Article 9 of the UCC; (b) the
conveyance by the Depositor provided for in the Trust Agreement shall be deemed
to be a grant by the Depositor to the Trustee of a security interest in all of
the Depositor's right, title and interest in and to the Mortgage Loans and all
amounts payable to the holders of the Mortgage Loans in accordance with the
terms thereof and all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, instruments, securities or other property, including
without limitation all amounts, other than investment earnings, from time to
time held or invested in any Collection Account, the REMIC I Distribution
Account or the Certificate Account, whether in the form of cash, instruments,
securities or other property; (c) the possession by the Trustee or its agent of
Notes and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" for purposes of perfecting the security interest pursuant to
Section 9-313 of the UCC; and (d) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law. The Depositor and the Trustee, shall, to the extent consistent
with the Trust Agreement, take such actions as may be necessary to ensure that,
if the Trust Agreement were deemed to create a security interest in the Mortgage
Loans, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Trust Agreement.
Section 13.08 Notice to Rating Agencies. (a) The Securities
Administrator, on behalf of the Trustee, shall use its best efforts promptly to
provide notice to the Rating Agency with respect to each of the following of
which an Officer of the Securities Administrator has actual knowledge:
(i) any material change or amendment to the Trust Agreement or
any agreement assigned to the Trust;
(ii) the occurrence of any Event of Default under a Servicing
Agreement;
(iii) the resignation, termination or merger of the Depositor,
the Securities Administrator, the Trustee or any Servicer or
Custodian;
(iv) the purchase of Mortgage Loans pursuant to Section 2.03;
(v) the final payment to Certificateholders;
(vi) any change in the location of any of the Collection
Account, Reserve Fund, REMIC I Distribution Account or Certificate
Account; and
(vii) any event that would result in the inability of the
Servicer to make Advances regarding delinquent Mortgage Loans.
(b) The Securities Administrator shall promptly make available,
through a website located at xxxx://xxx.xxxxxxxx.xxx/xxx, if practicable, to
each Rating Agency copies of the following:
(i) each report to Certificateholders described in Section
4.01; and
(ii) upon written request of any such Person, a hard copy of
each Annual Compliance Statement and other reports provided by the
Servicer under each Servicing Agreement.
(c) Any notice pursuant to this Section 13.08 shall be in writing
and shall be deemed to have been duly given if personally delivered or mailed by
first class mail, postage prepaid or by express delivery service to each Rating
Agency at the address specified in the Trust Agreement.
Exhibit A
FORM OF TRUST RECEIPT
[Date]
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Master Servicing and Trust Agreement, dated as of February 1, 2004,
among GS Mortgage Securities Corp., as Depositor, Chase Manhattan
Mortgage Corporation, as Master Servicer, JPMorgan Chase Bank, as
Securities Administrator and Custodian, and Wachovia Bank, National
Association, as Trustee of GSR Mortgage Loan Trust 2004-4
--------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the Standard Terms to the
above-referenced Trust Agreement and subject to the further examination, the
Trustee hereby certifies that, except as noted on the Schedule of Exceptions
attached hereto, it, or a Custodian on its behalf, has received a Trustee
Mortgage Loan File that (a) (i) all documents required to be delivered to it
pursuant to clause (a) through (e) of the definition of Trustee Mortgage Loan
File are in its possession; (ii) all documents required to be delivered to it
pursuant to clause (f) of the definition of Trustee Mortgage Loan File are in
its possession, provided that the Custodian has no obligation to verify the
receipt of any such documents the existence of which was not made known to the
Custodian by the Trustee Mortgage Loan File, and provided further, that the
Custodian has no obligation to determine whether recordation of any such
modification is necessary; (iii) all documents required to be delivered to it
pursuant to clause (g) of the definition of Trustee Mortgage Loan File are in
its possession; and (iv) all powers of attorney required to be delivered to it
pursuant to Section 1(i) of the Custody Agreement are in its possession;
provided that the Trustee (or Custodian) has no obligation to verify the receipt
of any such documents, the existence of which was not made known to the Trustee
(or Custodian) by the Trustee Mortgage Loan File, and provided further, that the
Trustee (or Custodian) has no obligation to determine whether recordation of any
such power of attorney is necessary except the Trustee (or Custodian) shall
conclude that a power of attorney must be recorded if the document to which it
relates is recorded; (b) except for the endorsement required pursuant to clause
(a) of the definition of Trustee Mortgage Loan File, the mortgage note, on the
face or the reverse side(s) thereof, does not contain evidence of any
unsatisfied claims, liens, security interests, encumbrances or restrictions on
transfer; (c) such documents have been reviewed by it and appear regular on
their face and related to such Mortgage Loans, except as set forth in the
attached exception report; provided, however, that the Custodian makes no
representation and has no responsibilities as to the authenticity of such
documents, their compliance with applicable law, or the collectability of any of
the Mortgage Loans relating thereto; and (d) each mortgage note has been
endorsed in blank and each assignment has been assigned as required under clause
(a) of the definition of Trustee Mortgage Loan File.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Trust Agreement.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
executed by a duly authorized Officer this __ day of __________, 20__.
[CUSTODIAN]
By:____________________________________
Its:___________________________________
Exhibit B
FORM OF FINAL CERTIFICATION
[Date]
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Master Servicing and Trust Agreement, dated as of February 1, 2004,
among GS Mortgage Securities Corp., as Depositor, Chase Manhattan
Mortgage Corporation, as Master Servicer, JPMorgan Chase Bank, as
Securities Administrator and Custodian, and Wachovia Bank, National
Association, as Trustee of GSR Mortgage Loan Trust 2004-4
--------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the Standard Terms to the
above-referenced Trust Agreement, the undersigned, as Trustee, hereby certifies
that, except as noted on the Schedule of Exceptions attached hereto, for each
Mortgage Loan listed on the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or listed on the attachment hereto) it, or a Custodian on its
behalf, has received a complete Trustee Mortgage Loan File (a) (i) all documents
required to be delivered to it pursuant to clause (a) through (e) of the
definition of Trustee Mortgage Loan File are in its possession, (ii) all
documents required to be delivered to it pursuant to clause (f) of the
definition of Trustee Mortgage Loan File are in its possession, provided that
the Custodian has no obligation to verify the receipt of any such documents the
existence of which was not made known to the Custodian by the Trustee Mortgage
Loan File, and provided further, that the Custodian has no obligation to
determine whether recordation of any such modification is necessary; (iii) all
documents required to be delivered to it pursuant to clause (g) of the
definition of Trustee Mortgage Loan File are in its possession; and (iv) all
powers of attorney required to be delivered to it pursuant to Section 1(i) of
the Custody Agreement are in its possession; provided that the Trustee (or
Custodian) has no obligation to verify the receipt of any such documents, the
existence of which was not made known to the Trustee (or Custodian) by the
Trustee Mortgage Loan File, and provided further, that the Trustee (or
Custodian) has no obligation to determine whether recordation of any such power
of attorney is necessary except the Trustee (or Custodian) shall conclude that a
power of attorney must be recorded if the document to which it relates is
recorded; (b) except for the endorsement required pursuant to clause (a) of the
definition of Trustee Mortgage Loan File, the mortgage note, on the face or the
reverse side(s) thereof, does not contain evidence of any unsatisfied claims,
liens, security interests, encumbrances or restrictions on transfer; (c) such
documents have been reviewed by it and appear regular on their face and related
to such Mortgage Loans, except as set forth in the attached exception report;
provided, however, Custodian makes no representation and has no responsibilities
as to the authenticity of such documents, their compliance with applicable law,
or the collectability of any of the Mortgage Loans relating thereto; and (d)
each mortgage note has been endorsed in blank and each assignment has been
assigned as required under clause (a) of the definition of Trustee Mortgage Loan
File.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Trust Agreement.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
executed by a duly authorized Officer this __ day of __________, 20__.
[CUSTODIAN]
By:____________________________________
Its:___________________________________
Exhibit C
FORM OF RULE 144A AGREEMENT -- QIB CERTIFICATION
______________, 20__
Wachovia Bank, National Association,
as Trustee
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: GS Mortgage Securities Corp., Depositor GSR Mortgage Loan
Trust 2004-4 Pass-Through Certificates, Series 2004-4 having
an original principal amount of $
------------------------------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of the Certificates
referred to above (the "Certificates"), we confirm that:
(A) We have received a copy of the Offering Circular dated
February 27, 2004 (the "Offering Circular"), relating to the
Certificates and such other information and documents as we deem
necessary in order to make our investment decision. We acknowledge
that we have read and agree to the restrictions on duplication and
circulation of the Offering Circular and the matters stated in the
section entitled "Notice to Investors."
(B) We are a "qualified institutional buyer" (as that term is
defined in Rule 144A under the Securities Act). We area aware that
the sale of the Certificates to us is being made in reliance on Rule
144A under the Securities Act. We are acquiring the Certificates for
our own account or for the account of a qualified institutional
buyer.
(C) We understand that the offer and sale of the Certificates
has not been registered under the Securities Act and that the
Certificates may not be offered, sold, or otherwise transferred in
the absence of such registration or an applicable exemption
therefrom. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that we will not
offer, sell, pledge or otherwise transfer any Certificate, or any
interest therein, except (1) (A) in accordance with Rule 144A under
the Securities Act to a "qualified institutional buyer" (as defined
therein), or (B) pursuant to an effective registration statement
under the Securities Act, and (2) in accordance with all applicable
securities laws of the states of the United States or any other
applicable jurisdiction.
(D) We understand that, on any proposed resale of any
Certificates, we will be required to furnish to the Depositor and to
the Trustee such certificates, legal opinions and other information
as the Depositor, or the Trustee may reasonably require to confirm
that the proposed sale complies with the foregoing restrictions. We
further understand that the Certificates purchased by us will bear a
legend to the foregoing effect.
(E) We acknowledge that neither the Depositor, Xxxxxxx, Xxxxx
& Co. (the "Initial Purchaser"), the Trustee, nor any person acting
on behalf of the Depositor, the Initial Purchaser, or the Trustee
has made any representations concerning the Trust or the offer and
sale of the Certificates, except as set forth in the Offering
Circular.
(F) We acknowledge that the Depositor, the Initial Purchaser,
the Trustee and others will rely on the truth and accuracy of the
foregoing acknowledgments, representations and agreements, and agree
that if any of the foregoing acknowledgments, representations and
agreements are no longer accurate we shall promptly notify the
Depositor, the Initial Purchaser, and the Trustee.
The Transferee hereby agrees to indemnify and hold harmless the
Depositor, the Trustee and the Initial Purchaser from and against any and all
loss, damage or liability (including attorney's fees) due to or arising out of a
breach of any representation or warranty, confirmation or statement contained in
this letter.
The Depositor, the Trustee and the Initial Purchaser are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered hereby.
Capitalized terms used but not otherwise defined herein shall have
the meanings assigned to such terms in the Master Servicing and Trust Agreement,
dated as of February 1, 2004, which incorporates by reference the Standard Terms
thereto (February 2004 Edition) among GS Mortgage Securities Corp., Chase
Manhattan Mortgage Corporation, JPMorgan Chase Bank and the Trustee.
Sincerely,
[Name of Transferee]
By:____________________________________
Name:
Title:
Exhibit D
[Reserved]
Exhibit E
FORM OF BENEFIT PLAN AFFIDAVIT
Re: GS Mortgage Securities Corp., as Depositor GSR Mortgage Loan
Trust 2004-4 (the "Trust")
------------------------------------------------------------
STATE OF )
) ss.:
COUNTY OF )
Under penalties of perjury, I, the undersigned, declare that, to the
best of my knowledge and belief, the following representations are true,
correct, and complete.
1. I am a duly authorized signatory of _______________, a
____________ (the "Transferee"), whose taxpayer identification number is
_______________, and on behalf of which I have the authority to make this
affidavit.
2. The Transferee is acquiring the _________ and __________
Certificates (the "Certificates"), each representing an interest in the Trust,
for certain assets of which one or more real estate mortgage investment conduit
("REMIC") elections are to be made under Section 860D of the Internal Revenue
Code of 1986, as amended (the "Code").
3. (a) The Transferee understands that the Class B4, Class B5 and
Class B6 Certificates will bear the following legend:
THIS CERTIFICATE MAY NOT BE PURCHASED BY A TRANSFEREE
THAT IS OR IS ACTING ON BEHALF OF OR INVESTING THE
ASSETS OF (A) AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE") (EACH, A "PLAN"), OR A GOVERNMENTAL PLAN AS
DEFINED IN SECTION 3(32) OF ERISA THAT IS SUBJECT TO
ANY ESSENTIALLY SIMILAR FEDERAL, STATE OR LOCAL LAW
(A "SIMILAR LAW"), OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE
SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD NOT CONSTITUTE OR RESULT IN A
PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA, SECTION 4975 OF THE CODE, OR A
MATERIALLY SIMILAR CHARACTERIZATION UNDER ANY SIMILAR
LAW.
(b) The Transferee understands that the Class R Certificates will
bear the following legend:
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED,
SOLD OR OTHERWISE TRANSFERRED TO ANY PERSON THAT IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY
RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN AS
DESCRIBED IN SECTION 3(32) OF ERISA SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE, OR ANY PERSON ACTING ON BEHALF OF
ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO
ACQUIRE THIS CERTIFICATE (A "PLAN INVESTOR").
4. The Transferee either
(a) is not an employee benefit plan subject to the fiduciary
responsibility provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan as described in Section
3(32) of ERISA subject to any federal, state or local law ("Similar Law")
materially similar to the foregoing provisions of ERISA or the Code, or any
person acting on behalf of any such plan or using the assets of such plan to
acquire this Certificate; or
(b) in the case of the Class B4, Class B5 or Class B6 Certificates,
is an insurance company using the assets of its general account under
circumstances whereby such purchase and the subsequent holding of such
Certificates by such insurance company would not constitute or result in a
prohibited transaction within the meaning of Section 406 or 407 of ERISA,
Section 4975 of the Code, or a materially similar characterization under any
Similar Law.
Capitalized terms used but not otherwise defined herein shall have
the meanings assigned to such terms in the Trust Agreement, dated as of February
1, 2004, which incorporates by reference the Standard Terms thereto (February
2004 Edition), among GS Mortgage Securities Corp. and the Trustee.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
duly executed on its behalf, by its duly authorized officer on this ____day of
________, 20 .
[Name of Transferee]
By:____________________________________
Name:
Title:
Personally appeared before me ________________, known or proved to
me to be the same person who executed the foregoing instrument and to be a
_________________________ of the Transferee, and acknowledged to me that he
executed the same as his or her free act and deed and as the free act and deed
of the Transferee.
Subscribed and sworn to before me this
______ day of ________________, 20__.
______________________________________
Notary Public
My commission expires:_________________
Exhibit F
RESIDUAL TRANSFER AFFIDAVIT
GSR Trust 2004-4,
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 (the "Transferee") of an Ownership Interest in a Residual
Certificate (the "Certificate") issued pursuant to the Trust Agreement, dated
February 1, 2004 (the "Trust Agreement") and the Standard Terms to Trust
Agreement, dated as of February 1, 2004 (the "Standard Terms," and together with
the Trust Agreement, the "Agreement"), each between GS Mortgage Securities
Corp., as depositor (the "Depositor"), JPMorgan Chase Bank, as securities
administrator (the "Securities Administrator"), Wachovia Bank, National
Association, as trustee (the "Trustee") and Chase Manhattan Mortgage
Corporation, as master servicer (the "Master Servicer"). Capitalized terms used
but not defined herein shall have the meanings ascribed to such terms in the
Agreement. The Transferee has authorized the undersigned to make this affidavit
on behalf of the Transferee for the benefit of the Depositor and the Trustee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.05 of the
Standard Terms 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 5.05 of the Standard Terms 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 Residual Transfer Affidavit
from any Person to whom the Transferee attempts to Transfer its Ownership
Interest in the Certificate, and in connection with any Transfer by a Person for
whom the Transferee is acting as nominee, trustee or agent, and the Transferee
will not Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit G to the Standard Terms 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.
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, this ___ day of ___, 20__.
Print Name of Transferee
By:____________________________________
Name:
Title:
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 G
TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Wachovia Bank, National Association,
as Trustee,
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services
Re: GSR Trust, 2004-4, Mortgage Pass-Through Certificates, Class
[ ]
------------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (C) we have no
reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
_______________________________________
Print Name of Transferor
By:____________________________________
Authorized Officer
Exhibit H
FORM OF CERTIFICATION TO BE PROVIDED TO THE DEPOSITOR BY THE SECURITIES
ADMINISTRATOR
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: GS Mortgage Securities Corp., Depositor GSR Mortgage Loan
Trust 2004-4 (the "Trust")
---------------------------------------------------------
Reference is made to the Trust Agreement, dated as of February 1,
2004 (the "Trust Agreement"), by and among GS Mortgage Securities Corp., as
depositor (the "Depositor"), JPMorgan Chase Bank, as securities administrator
(the "Securities Administrator"), Wachovia Bank, National Association, as
Trustee (the "Trustee") and Chase Manhattan Mortgage Corporation, as master
servicer, (the "Master Servicer"). The Trustee hereby certifies to the
Depositor, and its officers, directors and affiliates, and with the knowledge
and intent that they will rely upon this certification, that:
(i) The Securities Administrator has reviewed the annual report on
Form 10-K for the fiscal year [ ], and all reports on Form 8-K
containing distribution reports filed in respect of periods
included in the year covered by that annual report, relating
to the above-referenced trust;
(ii) Subject to paragraph (iv), the distribution information in the
distribution reports contained in all Monthly Form 8-K's
included in the year covered by the annual report on Form 10-K
for the calendar year [___], taken as a whole, does not
contain any untrue statement of a material fact or omit to
state a material fact required by the Trust Agreement to be
included therein and necessary to make the statements made, in
light of the circumstances under which such statements were
made, not misleading as of the last day of the period covered
by that annual report;
(iii) The distribution information required to be provided by the
Securities Administrator under the Trust Agreement is included
in these reports.
(iv) In compiling the distribution information and making the
foregoing certifications, the Securities Administrator has
relied upon information furnished to it by the Master Servicer
under the Trust Agreement. The Securities Administrator shall
have no responsibility or liability for any inaccuracy in such
reports resulting from information so provided by the Master
Servicer.
Date:
JPMorgan Chase Bank,
as Securities Administrator
By:____________________________________
Name:
Title:
Exhibit I
FORM OF CERTIFICATION TO BE PROVIDED TO THE DEPOSITOR BY THE MASTER SERVICER
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: GS Mortgage Securities Corp., Depositor GSR Mortgage Loan
Trust 2004-4 (the "Trust")
---------------------------------------------------------
Reference is made to the Trust Agreement, dated as of February 1,
2004 (the "Trust Agreement"), by and among Wachovia Bank, National Association
(the "Trustee"), Chase Manhattan Mortgage Corporation, as Master Servicer (the
"Master Servicer"), JPMorgan Chase Bank, as Securities Administrator (the
"Securities Administrator"), and GS Mortgage Securities Corp., as Depositor (the
"Depositor"). The Master Servicer hereby certifies to the Depositor, the
Securities Administrator and the Trustee, and their respective officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification, that:
(i) Based on our knowledge, the information prepared by the Master
Servicer and relating to the mortgage loans serviced by the
Master Servicer and provided by the Master Servicer to the
Securities Administrator and the Trustee and in its reports to
the Securities Administrator and the Trustee is accurate and
complete in all material respects as of the last day of the
period covered by such report;
(ii) Based on our knowledge, the servicing information required to
be provided to the Securities Administrator and the Trustee by
the Master Servicer pursuant to the Trust Agreement has been
provided to the Securities Administrator and the Trustee;
(iii) Based upon the review required under the Trust Agreement, and
except as disclosed in its reports, the Master Servicer as of
the last day of the period covered by such reports has
fulfilled its obligations under the Trust Agreement;
(iv) The Master Servicer has disclosed to its independent auditor,
who issues the independent auditor's report on the Uniform
Single Attestation Program for Mortgage Bankers for the Master
Servicer, any significant deficiencies relating to the Master
Servicer's compliance with minimum servicing standards; and
(v) In compiling the information and making the foregoing
certifications, the Master Servicer has relied upon
information furnished to it by the Servicers under the Trust
Agreement. The Master Servicer shall have no responsibility or
liability for any inaccuracy in such reports resulting from
information so provided by the Servicers.
Date:
Chase Manhattan Mortgage Corporation, as
Master Servicer
By:____________________________
Name:
Title:
SCHEDULE I
BOND LEVEL REPORT
SCHEDULE II
LOAN LEVEL REPORT
SCHEDULE III
REMITTANCE REPORT
-----------------------------------------------------------------------------------------------------------------------------
PIF
Servicer Investor Principal PIF Net
Data Field Investor ID Category ID loan number Loan # Amount Interest Paid PIF date
-----------------------------------------------------------------------------------------------------------------------------
Format Number Number Number Number Number (two Number (two Date
(no decimals) (no decimals) (no decimals) (no decimals) decimals) decimals) (mm/dd/yy)
format
-----------------------------------------------------------------------------------------------------------------------------
Description ID number used ID number used Servicer Loan number Paid-in-full Net interest Enter the date
by your company by your company Loan Number - used by principal paid the the loan was
for the investor for the specific loan number Investor balance loan was paid-in-full.
deal. used at your amount paid-in-full Leave blank if
company. no PIF
transaction.
-----------------------------------------------------------------------------------------------------------------------------
Example: 1000 2 1234 56789 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------
Table Continued
-----------------------------------------------------------------------------------------------------
Beginning
scheduled note Beginning schedule
Data Field rate Ending note rate service fee Ending service fee
-----------------------------------------------------------------------------------------------------
Format Number (seven Number (seven decimals) Number (seven Number (seven
Decimals) decimals) decimals)
-----------------------------------------------------------------------------------------------------
Description Beginning Ending scheduled loan Beginning scheduled Ending scheduled
scheduled note note rate after servicer service servicer service
rate before the servicer's monthly fee rate before the fee rate after the
servicer's activity (sch/sch) or servicer's monthly servicer's monthly
monthly the ending actual loan activity. Can be activity.
activity. Can note rate after blank for act/act
be blank for servicer's activity pools.
act/act pools. (act/act).
-----------------------------------------------------------------------------------------------------
Example: 0.0887500 0.0887500 0.0025000 0.0025000
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Beginning
schedule 100% Beginning Ending security Ending 100%
Ending due date P&I Ending 100% P&I security balance balance Ending part UPB UPB
-----------------------------------------------------------------------------------------------------------------------------------
Date (mm/dd/yy) Number (two Number (two decimals) Number (two Number (two Number (two Number (two
format decimals) decimals) decimals) decimals) decimals)
-----------------------------------------------------------------------------------------------------------------------------------
Ending actual Beginning Ending 100% scheduled (Sch/Sch) (Sch/Sch) Ending Ending actual Ending 100%
loan due date scheduled 100% monthly loan payment beginning scheduled participation actual
monthly payment amount after scheduled balance. balance. loan principal principal
amount before servicer's monthly (Act/Act) (Act/Act) Ending balance after balance after
the servicer's activity (sch/sch) or beginning 100% 100% Actual servicer's servicer's
monthly the ending 100% actual Actual balance or balance or the monthly monthly
activity. Can monthly loan payment the beginning ending activity. activity.
be blank for amount after participation participation
act/act pools. servicer's activity Actual balance Actual balance
(act/act). for participation for
loans. participation
loans.
-----------------------------------------------------------------------------------------------------------------------------------
07/01/02 4475.51 4475.51 557866.38 557516.76 557866.38 557866.38
-----------------------------------------------------------------------------------------------------------------------------------
Table Continued
------------------------------------------------------------------------------------------------
Principal
Ending due date remitted Interest remitted Principal Curtailment
------------------------------------------------------------------------------------------------
Date (mm/dd/yy) Number (two decimals) Number (two decimals) Number (two Number (two
format decimals) decimals)
------------------------------------------------------------------------------------------------
Ending actual (Sch/Sch) --- Add For Sch/Sch loans, (Sch/Sch) --- Curtailment
loan due date scheduled principal + enter the scheduled scheduled amount
Curtailments + net interest amount principal
payoff/liquidation remitted. For (Act/Act) ---
amount (Act/Act) --- Act/Act loans, enter actual
Add actual principal + the net interest principal paid
curtailments + amount remitted.
payoff/liquidation Net Interest should
amounts. equal the Gross
Interest Amount
minus Service Fee
Amount.
------------------------------------------------------------------------------------------------
07/01/02 349.62 4009.67 349.62 0.00
------------------------------------------------------------------------------------------------
