EXHIBIT 4
EXECUTION COPY
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GS MORTGAGE SECURITIES CORP.,
Depositor,
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee
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TRUST AGREEMENT
Dated as of November 1, 2004
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GSAMP TRUST 2004-WF
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2004-WF
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.....................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans....................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.................
Section 2.03 Execution and Delivery of Certificates..........................
Section 2.04 REMIC Matters...................................................
Section 2.05 Representations and Warranties of the Depositor.................
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Excess Reserve Fund Account; Distribution Account...............
Section 3.02 Investment of Funds in the Distribution Account.................
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution......................................
Section 4.02 Monthly Statements to Certificateholders........................
Section 4.03 Allocation of Applied Realized Loss Amounts.....................
Section 4.04 Certain Matters Relating to the Determination of LIBOR..........
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates................................................
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates.......................................
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates...............
Section 5.04 Persons Deemed Owners...........................................
Section 5.05 Access to List of Certificateholders' Names and Addresses.......
Section 5.06 Maintenance of Office or Agency.................................
ARTICLE VI
THE DEPOSITOR AND THE TRANSACTION OVERSIGHT MANAGER
Section 6.01 Liabilities of the Depositor....................................
Section 6.02 Merger or Consolidation of the Depositor........................
Section 6.03 Limitation on Liability of the Depositor and Others.............
Section 6.04 Servicing Compliance Review.....................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default...............................................
Section 7.02 Trustee to Act; Appointment of Successor........................
Section 7.03 Trustee to Act as Servicer......................................
Section 7.04 Notification to Certificateholders..............................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee...........................................
Section 8.02 Administration of the Servicer..................................
Section 8.03 Certain Matters Affecting the Trustee...........................
Section 8.04 Trustee Not Liable for Certificates or Mortgage Loans...........
Section 8.05 Trustee May Own Certificates....................................
Section 8.06 Trustee's Fees and Expenses.....................................
Section 8.07 Eligibility Requirements for the Trustee........................
Section 8.08 Resignation and Removal of the Trustee..........................
Section 8.09 Successor Trustee...............................................
Section 8.10 Merger or Consolidation of the Trustee..........................
Section 8.11 Appointment of Co-Trustee or Separate Trustee...................
Section 8.12 Tax Matters.....................................................
Section 8.13 Periodic Filings................................................
Section 8.14 Tax Classification of the Excess Reserve Fund Account...........
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage
Loans..........................................................
Section 9.02 Final Distribution on the Certificates..........................
Section 9.03 Additional Termination Requirements.............................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment.......................................................
Section 10.02 Recordation of Agreement; Counterparts..........................
Section 10.03 Governing Law...................................................
Section 10.04 Intention of Parties............................................
Section 10.05 Notices.........................................................
Section 10.06 Severability of Provisions......................................
Section 10.07 Limitation on Rights of Certificateholders......................
Section 10.08 Certificates Nonassessable and Fully Paid.......................
Section 10.09 Waiver of Jury Trial............................................
SCHEDULES
Schedule I Mortgage Loan Schedule
EXHIBITS
Exhibit A Form of Class A, Class M, Class B Certificate
Exhibit B Form of Class P Certificate
Exhibit C Form of Class R Certificate
Exhibit D Form of Class X Certificate
Exhibit E Form of Initial Certification of Trustee
Exhibit F Form of Document Certification and Exception Report of Trustee
Exhibit G Form of Residual Transfer Affidavit
Exhibit H Form of Transferor Certificate
Exhibit I Form of Rule 144A Letter
Exhibit J Form of Certification to be provided with Form 10-K
Exhibit K Form of Certification to be provided to Depositor
Exhibit L The Master Seller's Warranties and Servicing Agreement
Exhibit M Request for Release
THIS TRUST AGREEMENT, dated as of November 1, 2004, between GS
MORTGAGE SECURITIES CORP., a Delaware corporation, as depositor (the
"Depositor"), and DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking
association, as trustee (the "Trustee"),
W I T N E S S E T H:
- - - - - - - - - -
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Trustee shall elect that two segregated asset pools within the
Trust Fund be treated for federal income tax purposes as comprising two REMICs
(each, a "Trust REMIC" or, in the alternative, the Lower Tier REMIC and the
Upper Tier REMIC, respectively). The Class X Interest and each Class of
Principal Certificates (other than the right of each Class of Principal
Certificates to receive Basis Risk Carry Forward Amounts), represents ownership
of a regular interest in the Upper Tier REMIC for purposes of the REMIC
Provisions. The Class R Certificates represent ownership of the sole class of
residual interest in each of the Lower Tier REMIC and the Upper Tier REMIC for
purposes of the REMIC Provisions. The Startup Day for each REMIC described
herein is the Closing Date. The latest possible maturity date for each
Certificate is the latest date referenced in Section 2.04. The Upper Tier REMIC
shall hold as assets the several classes of uncertificated Lower Tier Regular
Interests, set out below. The Lower Tier REMIC shall hold as assets the assets
described in the definition of "Trust Fund" herein (other than the Prepayment
Premiums and the Excess Reserve Fund Account). Each such Lower Tier Regular
Interest is hereby designated as a regular interest in the Lower Tier REMIC. The
Class LT-A-1A, Class LT-A-1B, Class LT-A-2A, Class LT-A-2B, Class LT-A-2C, Class
LT-A-2D, Class LT-M-1, Class LT-M-2, Class LT-M-3, Class LT-B-1, Class LT-B-2,
Class LT-B-3 and Class LT-B-4 Interests are hereby designated the LT Accretion
Directed Classes (the "LT Accretion Directed Classes"). The Class P Certificates
represent beneficial ownership of the Prepayment Premiums, each LIBOR
Certificate represents a beneficial ownership of a regular interest in the Upper
Tier REMIC and the right to receive Basis Risk Carry Forward Amounts and the
Class X Certificate represents beneficial ownership of a regular interest in the
Upper Tier REMIC and the Excess Reserve Fund Account, which portions of the
Trust Fund shall be treated as a grantor trust.
Lower Tier REMIC
Corresponding
Lower Tier Regular Upper Tier
Interest Lower Tier Initial Lower Tier Principal Regular
Designation Interest Rate Amount Interest
------------------ --------------- ------------------------------- -------------
Class LT-A-1A (1) 1/2 initial Class Certificate A-1A
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-A-1B (1) 1/2 initial Class Certificate A-1B
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-A-2A (1) 1/2 initial Class Certificate A-2A
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-A-2B (1) 1/2 initial Class Certificate A-2B
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-A-2C (1) 1/2 initial Class Certificate A-2C
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-A-2D (1) 1/2 initial Class Certificate A-2D
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-M-1 (1) 1/2 initial Class Certificate M-1
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-M-2 (1) 1/2 initial Class Certificate M-2
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-M-3 (1) 1/2 initial Class Certificate M-3
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-B-1 (1) 1/2 initial Class Certificate B-1
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-B-2 (1) 1/2 initial Class Certificate B-2
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-B-3 (1) 1/2 initial Class Certificate B-3
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-B-4 (1) 1/2 initial Class Certificate B-4
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-Accrual (1) 1/2 Pool Stated Principal
Balance plus 1/2
Overcollateralized Amount,
less aggregate Initial Lower
Tier Principal Amounts of
Class LT Group I and Class
LT Group II Interests
Class LT-Group I (2) 0.001% aggregate Stated
Principal Balance of Group I
Mortgage Loans (4)
Class LT-Group II (3) 0.001% aggregate Stated
Principal Balance of
Group II Mortgage Loans (4)
Class LT-R (5) (5)
-----------------
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the WAC Cap.
(2) The interest rate with respect to any Distribution Date for the Class
LT-Group I Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the Loan Group I Cap.
(3) The interest rate with respect to any Distribution Date for the Class
LT-Group II Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the Loan Group II
Cap.
(4) For all Distribution Dates, the Lower Tier Principal Amount of these Lower
Tier Regular Interests shall be rounded to eight decimal places.
(5) The Class LT-R Interest is the sole Class of residual interest in the
Lower Tier REMIC and it does not have a principal amount or an interest
rate.
The Lower Tier REMIC shall hold as assets all of the assets included
in the Trust Fund other than Prepayment Premiums, the Excess Reserve Fund
Account, and the Lower Tier Regular Interests.
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount will be payable as a reduction of the Lower Tier
Principal Amount of the LT-Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralized
Amount that is attributable to a reduction in the Class Certificate Balance of
its Corresponding Class) and will be accrued and added to the Lower Tier
Principal Amount of the Class LT-Accrual Interest. On each Distribution Date,
the increase in the Lower Tier Principal Amount of the Class LT-Accrual Interest
may not exceed interest accruals for such Distribution Date for the Class
LT-Accrual Interest. In the event that: (i) 50% of the increase in the
Overcollateralized Amount exceeds (ii) interest accruals on the Class LT-Accrual
Interest for such Distribution Date, the excess for such Distribution Date
(accumulated with all such excesses for all prior Distribution Dates) will be
added to any increase in the Overcollateralized Amount for purposes of
determining the amount of interest accrual on the Class LT-Accrual Interest
payable as principal on the LT-Accretion Directed Classes on the next
Distribution Date pursuant to the first sentence of this paragraph. All payments
of scheduled principal and prepayments of principal generated by the Mortgage
Loans shall be allocated (i) 50% to the Class LT-Accrual Interest, the Class
LT-Group I Interest and Class LT-Group II Interest (and further allocated among
these Lower Tier Regular Interests in the manner described below) and (ii) 50%
to the LT-Accretion Directed Classes (principal payments shall be allocated
among such LT-Accretion Directed Classes in an amount equal to 50% of the
principal amounts allocated to their respective Corresponding Classes), until
paid in full. Notwithstanding the above, principal payments allocated to the
Class X Interest that result in the reduction in the Overcollateralized Amount
shall be allocated to the Class LT-Accrual Interest (until paid in full).
Realized Losses shall be applied so that after all distributions have been made
on each Distribution Date (i) the Lower Tier Principal Amount of each of the
LT-Accretion Directed Classes is equal to 50% of the Class Certificate Balance
of their Corresponding Class, and (ii) the Class LT-Accrual Interest, the Class
LT-Group I and the Class LT-Group II Interest (and further allocated between
these Lower Tier Regular Interests in the manner described below) is equal to
50% of the aggregate Stated Principal Balance of the Mortgage Loans plus 50% of
the Overcollateralized Amount. As among the Class LT Accrual Interest, the Class
LT-Group I Interest and the Class LT-Group II Interest, all payments of
scheduled principal and prepayments of principal generated by the Mortgage
Loans, and all Realized Losses, allocable to such Lower Tier Regular Interests
shall be allocated (i) to the Class LT-Group I Interest and the Class LT-Group
II Interest, each from the related Loan Group so that their respective Lower
Tier Principal Amounts (computed to at least eight decimal places) are equal to
0.001% of the aggregate Stated Principal Balance of the Mortgage Loans in the
related Loan Group and (ii) the remainder to the Class LT-Accrual Interest.
The Upper Tier REMIC shall issue the following classes of Upper Tier
Regular Interests, and each such interest, other than the Class UT-R Interest,
is hereby designated as a regular interest in the Upper Tier REMIC.
Upper Tier REMIC
Upper Tier
Interest Rate Initial Upper Tier
and Principal Amount
Corresponding and Corresponding Corresponding
Upper Tier Class Class Certificate Class of
Class Designation Pass-Through Rate Balance Certificates
--------------------- ----------------- ------------------ --------------------
Class A-1A (1) $145,492,000 Class A-1A(11)
Class A-1B (2) $ 36,373,000 Class A-1B(11)
Class A-2A (3) $ 42,349,000 Class A-2A(11)
Class A-2B (4) $ 27,782,000 Class A-2B(11)
Class A-2C (5) $ 13,777,000 Class A-2C(11)
Class A-2D (6) $100,000,000 Class A-2D(11)
Class M-1 (7) $ 31,321,000 Class M-1(11)
Class M-2 (7) $ 16,426,000 Class M-2(11)
Class M-3 (7) $ 4,381,000 Class M-3(11)
Class B-1 (7) $ 4,381,000 Class B-1(11)
Class B-2 (7) $ 4,380,000 Class B-2(11)
Class B-3 (7) $ 4,381,000 Class B-3(11)
Class B-4 (8) $ 4,380,000 Class B-4(11)
Class X (9) 0(9) Class X(9)
Class UT-R (10) (10) Class R
-----------------
(1) The Class A-1A Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the least of (i) LIBOR plus 0.330%, (ii) the Loan Group
I Cap and (iii) the WAC Cap or (b) after the Optional Termination Date,
the least of (i) LIBOR plus 0.660%, (ii) the Loan Group I Cap and (iii)
the WAC Cap.
(2) The Class A-1B Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the least of (i) LIBOR plus 0.390%, (ii) the Loan Group
I Cap and (iii) the WAC Cap or (b) after the Optional Termination Date,
the least of (i) LIBOR plus 0.780%, (ii) the Loan Group I Cap and (iii)
the WAC Cap.
(3) The Class A-2A Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the least of (i) LIBOR plus 0.140%, (ii) the Loan Group
II Cap and (iii) the WAC Cap or (b) after the Optional Termination Date,
the least of (i) LIBOR plus 0.280%, (ii) the Loan Group II Cap and (iii)
the WAC Cap.
(4) The Class A-2B Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the least of (i) LIBOR plus 0.330%, (ii) the Loan Group
II Cap and (iii) the WAC Cap or (b) after the Optional Termination Date,
the least of (i) LIBOR plus 0.660%, (ii) the Loan Group II Cap and (iii)
the WAC Cap.
(5) The Class A-2C Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the least of (i) LIBOR plus 0.500%, (ii) the Loan Group
II Cap and (iii) the WAC Cap or (b) after the Optional Termination Date,
the least of (i) LIBOR plus 1.000%, (ii) the Loan Group II Cap and (iii)
the WAC Cap.
(6) The Class A-2D Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the least of (i) LIBOR plus 0.340%, (ii) the Loan Group
II Cap and (iii) the WAC Cap or (b) after the Optional Termination Date,
the least of (i) LIBOR plus 0.680%, (ii) the Loan Group II Cap and (iii)
the WAC Cap.
(7) The Class M-1, Class M-2, Class M-3, Class B-1, Class B-2 and Class B-3
Interests will bear interest during each Interest Accrual Period at a per
annum rate equal to (a) on or prior to the Optional Termination Date, the
lesser of (i) LIBOR plus 0.580%, 1.100%, 1.250%, 1.650%, 1.750% and
3.000%, respectively, and (ii) the WAC Cap or (b) after the Optional
Termination Date, the lesser of (i) LIBOR plus 0.870%, 1.650%, 1.875%,
2.475%, 2.625% and 4.500% respectively, and (ii) the WAC Cap.
(8) The Class B-4 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the lesser of (i) 6.000% and the WAC Cap or (b) after
the Optional Termination Date, the lesser of (i) 6.500% and (ii) the WAC
Cap.
(9) The Class X Interest has an initial principal balance of $2,628,881, but
it will not accrue interest on such balance but will accrue interest on a
notional principal balance. As of any Distribution Date, the Class X
Interest shall have a notional principal balance equal to the aggregate of
the principal balances of the Lower Tier Regular Interests as of the first
day of the related Interest Accrual Period. With respect to any Interest
Accrual Period, the Class X Interest shall bear interest at a rate equal
to the excess, if any, of the WAC Cap over the product of (i) 2 and (ii)
the weighted average Pass-Through Rate of the Lower Tier REMIC Interests,
where the interest rates on the Class LT-Accrual, Class LT Group I and
Class LT Group II Interests are subject to a cap equal to zero and each
LT-Accretion Directed Class is subject to a cap equal to the Pass-Through
Rate on its Corresponding Class. With respect to any Distribution Date,
interest that so accrues on the notional principal balance of the Class X
Interest shall be deferred in an amount equal to any increase in the
Overcollateralized Amount on such Distribution Date. Such deferred
interest shall not itself bear interest.
(10) The Class UT-R Interest is the sole class of residual interest in the
Upper Tier REMIC. The Class UT-R Interest does not have an interest rate.
(11) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper Tier Regular Interest but also the right to
receive payments from the Excess Reserve Fund Account in respect of any
Basis Risk Carry Forward Amounts. For federal income tax purposes, the
Trustee will treat a Certificateholder's right to receive payments from
the Excess Reserve Fund Account as payments made pursuant to an interest
rate cap contract written by the Class X Certificateholders.
The minimum denomination for each of the Class A Certificates and
the Subordinated Certificates will be $25,000 and $250,000, respectively, with
integral multiples of $1 in excess thereof. The minimum denomination for (a)
each of the Class R and Class P Certificates will be a 100% Percentage Interest
in such Class and (b) the Class X Certificates will be a 10% Percentage Interest
in such Class.
It is expected that each Class of Certificates will receive its
final distribution of principal and interest on or prior to the Rated Final
Distribution Date.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates...... All Classes of Certificates other than the
Physical Certificates.
Class A Certificates......... Class A-1A, Class X-0X, Xxxxx X-0X, Xxxxx X-0X,
Class A-2C and Class A-2D Certificates.
Delay Certificates........... Class B-4 Certificates.
ERISA-Restricted
Certificates............... Class B-4, Class R, Class P and Class X
Certificates; any certificate with a rating below
the lowest applicable permitted rating under the
Underwriters' Exemption.
Fixed Certificates........... Class B-4 Certificates.
LIBOR Certificates........... All Classes of Certificates other than the
Private Certificates.
Non-Delay Certificates....... LIBOR Certificates and Class X Certificates
Physical Certificates........ Class P, Class X and Class R Certificates.
Principal Certificates....... LIBOR Certificates and Fixed Certificates.
Private Certificates......... Class B-4, Class P, Class X and Class R
Certificates.
Rating Agencies.............. Standard & Poor's and Moody's.
Regular Certificates......... All Classes of Certificates other than the
Class P and Class R Certificates.
Residual Certificates........ Class R Certificates.
Subordinated Certificates.... Class M-1, Class M-2, Class M-3, Class B-1,
Class B-2, Class B-3 and Class B-4 Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein but not
defined herein shall have the meanings given them in the Master Seller's
Warranties and Servicing Agreement. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Account: Any of the Distribution Account or the Excess Reserve
Fund Account. Each Account shall be an Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of Principal Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior to
such Distribution Date, as reduced by such Class's share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for such Distribution
Date allocated to such Class pursuant to Section 4.01.
Adjusted Net Mortgage Interest Rate: As to each Mortgage Loan and at
any time, the per annum rate equal to the Mortgage Interest Rate less the
Expense Fee Rate.
Advance: Any Monthly Advance or Servicing Advance.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Trust Agreement and all amendments or supplements
hereto.
Applied Realized Loss Amount: With respect to any Distribution Date,
the amount, if any, by which the aggregate Class Certificate Balance of the
Principal Certificates after distributions of principal on such Distribution
Date exceeds the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date.
Assignment Agreement: The Purchaser Assignment Agreement or the
Depositor Assignment Agreement, as applicable.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Trustee (x) the sum of (i) all
scheduled installments of interest (net of the related Expense Fees) and
principal due on the Due Date on such Mortgage Loans in the related Due Period
and received prior to the related Determination Date, together with any Monthly
Advances in respect thereof; (ii) all Condemnation Proceeds, Insurance Proceeds
and Liquidation Proceeds during the related Principal Prepayment Period (in each
case, net of unreimbursed expenses incurred in connection with a liquidation or
foreclosure and unreimbursed Advances, if any); (iii) all partial or full
prepayments on the Mortgage Loans received during the related Principal
Prepayment Period together with all Compensating Interest payments in connection
therewith; (iv) all amounts received with respect to such Distribution Date as
the Substitution Adjustment Amount or purchase price in respect of a Deleted
Mortgage Loan or a Mortgage Loan repurchased by the Responsible Party, the
Purchaser or the Depositor as of such Distribution Date; and (v) the proceeds
received with respect to the termination of the Trust Fund pursuant to clause
(a) of Section 9.01; reduced by (y) amounts in reimbursement for Monthly
Advances and Servicing Advances previously made with respect to the Mortgage
Loans and other amounts as to which the Depositor, the Servicer or the Trustee
(or co-trustee) are entitled to be paid or reimbursed pursuant to this Agreement
or the Master Seller's Warranties and Servicing Agreement.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the Principal Remittance Amount for such
Distribution Date over (ii) the Excess Overcollateralized Amount, if any, for
such Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of
Principal Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of Principal Certificates
is based upon a Loan Group Cap or the WAC Cap, the excess of (i) the amount of
interest such Class of Certificates would otherwise be entitled to receive on
such Distribution Date had the Pass-Through Rate not been subject to the Loan
Group Cap or the WAC Cap, over (ii) the amount of interest payable on such Class
of Certificates (a) with respect to the Class A-1 Certificates at the lesser of
the WAC Cap and the Loan Group I Cap, (b) with respect to the Class A-2
Certificates at the lesser of the WAC Cap and the Loan Group II Cap, and (c)
with respect to each other Class of Principal Certificates, the WAC Cap, and (B)
the Basis Risk Carry Forward Amount for such Class of Principal Certificates for
all previous Distribution Dates not previously paid, together with interest
thereon at a rate equal to the applicable Pass-Through Rate for such Class of
Principal Certificates for such Distribution Date (without giving effect to the
WAC Cap, Loan Group I Cap or Loan Group II Cap, as applicable).
Basis Risk Payment: For any Distribution Date, an amount equal to
the lesser of (i) the aggregate Basis Risk Carry Forward Amounts for such
Distribution Date and (ii) the Class X Distributable Amount (prior to any
reduction for Basis Risk Payments or Class A-2A Turbo Trigger Event Payment
Amounts).
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in (a) the States of New
York, California, Maryland and Iowa, (b) the State in which the Servicer's
servicing operations are located, or (c) the State in which the Trustee's
operations are located, are authorized or obligated by law or executive order to
be closed.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of Certificates,
other than the Class P or Class R Certificates, at any date, the maximum dollar
amount of principal to which the Holder thereof is then entitled hereunder, such
amount being equal to the Denomination thereof minus all distributions of
principal previously made with respect thereto and in the case of any
Subordinated Certificates, reduced by any Applied Realized Loss Amounts
applicable to such Class of Subordinated Certificates; provided, however, that
immediately following the Distribution Date on which a Subsequent Recovery is
distributed, the Class Certificate Balances of any Class or Classes of
Certificates that have been previously reduced by Applied Realized Loss Amounts
will be increased, in order of seniority, by the amount of the Subsequent
Recovery distributed on such Distribution Date (up to the amount of Applied
Realized Loss Amounts allocated to such Class or Classes). The Class X, Class P
and Class R Certificates have no Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to
Section 5.02.
Certificateholder or Holder: The person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided, however,
that if any such Person (including the Depositor) owns 100% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires the
consent of the Holders of Certificates of a particular Class as a condition to
the taking of any action hereunder. The Trustee is entitled to rely conclusively
on a certification of the Depositor or any affiliate of the Depositor in
determining which Certificates are registered in the name of an affiliate of the
Depositor.
Certification: As defined in Section 8.13(b).
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Certificate Group: Either the Class A-1 Certificates,
collectively, or the Class A-2 Certificates, collectively, as applicable.
Class A Certificates: As defined in the Preliminary Statement.
Class A Principal Allocation Percentage: For any Distribution Date,
the percentage equivalent of a fraction, determined as follows: (A) with respect
to the Class A-1 Certificates, the numerator of which is the portion of the
Principal Remittance Amount for such Distribution Date that is attributable to
the principal received or advanced on the Group I Mortgage Loans and the
denominator of which is the Principal Remittance Amount for such Distribution
Date; and (B) with respect to the Class A-2 Certificates, the numerator of which
is the portion of the Principal Remittance Amount for such Distribution Date
that is attributable to the principal received or advanced on the Group II
Mortgage Loans and the denominator of which is the Principal Remittance Amount
for such Distribution Date.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class Certificate Balances of
the Class A Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) 67.00% (rounded to two decimal places) of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class A-1 Certificates: The Class A-1A and Class A-1B
Certificates, collectively.
Class A-1A Certificates: All Certificates bearing the class
designation of "Class A-1A."
Class A-1B Certificates: All Certificates bearing the class
designation of "Class A-1B."
Class A-2 Certificates: The Class A-2A, Class A-2B, Class A-2C and
Class A-2D Certificates, collectively.
Class A-2 Sequential Certificates: The Class A-2A, Class A-2B and
Class A-2C Certificates, collectively.
Class A-2A Certificates: All Certificates bearing the class
designation of "Class A-2A."
Class A-2A Turbo Trigger Event: With respect to any Distribution
Date beginning with the Distribution Date in November 2011, until the Class
Certificate Balance of the Class A-2A Certificates is reduced to zero, the
circumstances in which the Class Certificate Balance of the Class A-2A
Certificates (after application of the Principal Distribution Amount) on that
Distribution Date exceed a specified amount described below with respect to such
Distribution Date:
Distribution Date
Occurring In Trigger Balance
------------------- -----------------
November 2011 $942,769.94
December 2011 $542,920.01
January 2012 $145,321.47
February 2012
and thereafter $0
Class A-2A Turbo Trigger Event Payment Amount: With respect to any
Distribution Date, the lesser of (a) the amount of funds remaining after making
payments pursuant to Section 4.01(a)(iii)(J) and (b) the Class Certificate
Balance of the Class A-2A Certificates (after application of the Principal
Distribution Amount on that Distribution Date).
Class A-2B Certificates: All Certificates bearing the class
designation of "Class A-2B."
Class A-2C Certificates: All Certificates bearing the class
designation of "Class A-2C."
Class A-2D Certificates: All Certificates bearing the class
designation of "Class A-2D."
Class B-1 Certificates: All Certificates bearing the class
designation of "Class B-1."
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(B) the Class Certificate Balance of the Class M-1 Certificates (after taking
into account the payment of the Class M-1 Principal Distribution Amount on such
Distribution Date), (C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the payment of the Class M-2 Principal
Distribution Amount on such Distribution Date), (D) the Class Certificate
Balance of the Class M-3 Certificates (after taking into account the payment of
the Class M-3 Principal Distribution Amount on such Distribution Date), and (E)
the Class Certificate Balance of the Class B-1 Certificates immediately prior to
such Distribution Date, over (ii) the lesser of (A) the product of (x) 92.80%
(rounded to two decimal places) and (y) the aggregate Stated Principal Balance
of the Mortgage Loans for such Distribution Date, and (B) the excess, if any, of
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over the Overcollateralization Floor.
Class B-2 Certificates: All Certificates bearing the class
designation of "Class B-2."
Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(B) the Class Certificate Balance of the Class M-1 Certificates (after taking
into account the payment of the Class M-1 Principal Distribution Amount on such
Distribution Date), (C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the payment of the Class M-2 Principal
Distribution Amount on such Distribution Date), (D) the Class Certificate
Balance of the Class M-3 Certificates (after taking into account the payment of
the Class M-3 Principal Distribution Amount on such Distribution Date), (E) the
Class Certificate Balance of the Class B-1 Certificates (after taking into
account the payment of the Class B-1 Principal Distribution Amount on such
Distribution Date), and (F) the Class Certificate Balance of the Class B-2
Certificates immediately prior to such Distribution Date, over (ii) the lesser
of (A) the product of (x) 94.80% (rounded to two decimal places) and (y) the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date, and (B) the excess, if any, of the aggregate Stated Principal Balance of
the Mortgage Loans for such Distribution Date over the Overcollateralization
Floor.
Class B-3 Certificates: All Certificates bearing the class
designation of "Class B-3."
Class B-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(B) the Class Certificate Balance of the Class M-1 Certificates (after taking
into account the payment of the Class M-1 Principal Distribution Amount on such
Distribution Date), (C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the payment of the Class M-2 Principal
Distribution Amount on such Distribution Date), (D) the Class Certificate
Balance of the Class M-3 Certificates (after taking into account the payment of
the Class M-3 Principal Distribution Amount on such Distribution Date), (E) the
Class Certificate Balance of the Class B-1 Certificates (after taking into
account the payment of the Class B-1 Principal Distribution Amount on such
Distribution Date), (F) the Class Certificate Balance of the Class B-2
Certificates (after taking into account the payment of the Class B-2 Principal
Distribution Amount on such Distribution Date), and (G) the Class Certificate
Balance of the Class B-3 Certificates immediately prior to such Distribution
Date, over (ii) the lesser of (A) the product of (x) 96.80% (rounded to two
decimal places) and (y) the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date, and (B) the excess, if any, of the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution Date over
the Overcollateralization Floor.
Class B-4 Certificates: All Certificates bearing the class
designation of "Class B-4 Certificates."
Class B-4 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(B) the Class Certificate Balance of the Class M-1 Certificates (after taking
into account the payment of the Class M-1 Principal Distribution Amount on such
Distribution Date), (C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the payment of the Class M-2 Principal
Distribution Amount on such Distribution Date), (D) the Class Certificate
Balance of the Class M-3 Certificates (after taking into account the payment of
the Class M-3 Principal Distribution Amount on such Distribution Date), (E) the
Class Certificate Balance of the Class B-1 Certificates (after taking into
account the payment of the Class B-1 Principal Distribution Amount on such
Distribution Date), (F) the Class Certificate Balance of the Class B-2
Certificates (after taking into account the payment of the Class B-2 Principal
Distribution Amount on such Distribution Date), (G) the Class Certificate
Balance of the Class B-3 Certificates (after taking into account the payment of
the Class B-3 Principal Distribution Amount on such Distribution Date), and (H)
the Class Certificate Balance of the Class B-4 Certificates immediately prior to
such Distribution Date, over (ii) the lesser of (A) the product of (x) 98.80%
(rounded to two decimal places) and (y) the aggregate Stated Principal Balance
of the Mortgage Loans for such Distribution Date, and (B) the excess, if any, of
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over the Overcollateralization Floor.
Class Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class LT-R Interest: The residual interest in the Lower Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class M-1 Certificates: All Certificates bearing the class
designation of "Class M-1."
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
and (B) the Class Certificate Balance of the Class M-1 Certificates immediately
prior to such Distribution Date over (ii) the lesser of (A) the product of (x)
81.30% (rounded to two decimal places) and (y) the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date, and (B) the excess, if
any, of the Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-2 Certificates: All Certificates bearing the class
designation of "Class M-2".
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(B) the Class Certificate Balance of the Class M-1 Certificates (after taking
into account the payment of the Class M-1 Principal Distribution Amount on such
Distribution Date) and (C) the Class Certificate Balance of the Class M-2
Certificates immediately prior to such Distribution Date over (ii) the lesser of
(A) the product of (x) 88.80% (rounded to two decimal places) and (y) the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date and (B) the excess, if any, of the Stated Principal Balance of the Mortgage
Loans for such Distribution Date over the Overcollateralization Floor.
Class M-3 Certificates: All Certificates bearing the class
designation of "Class M-3."
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(B) the Class Certificate Balance of the Class M-1 Certificates (after taking
into account the payment of the Class M-1 Principal Distribution Amount on such
Distribution Date), (C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the payment of the Class M-2 Principal
Distribution Amount on such Distribution Date) and (D) the Class Certificate
Balance of the Class M-3 Certificates immediately prior to such Distribution
Date, over (ii) the lesser of (A) the product of (x) 90.80% (rounded to two
decimal places) and (y) the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date, and (B) the excess, if any, of the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution Date over
the Overcollateralization Floor.
Class P Certificates: All Certificates bearing the class
designation of "Class P."
Class R Certificates: All Certificates bearing the class
designation of "Class R."
Class UT-R Interest: The residual interest in the Upper Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class X Certificates: All Certificates bearing the class designation
of "Class X."
Class X Distributable Amount: On any Distribution Date, (i) as a
distribution in respect of interest, the amount of interest that has accrued on
the Class X Interest and not applied as an Extra Principal Distribution Amount
on such Distribution Date, plus any such accrued interest remaining
undistributed from prior Distribution Dates, plus, without duplication, (ii) as
a distribution in respect of principal, any portion of the principal balance of
the Class X Interest which is distributable as an Overcollateralization
Reduction Amount, minus (iii) any amounts paid as a Basis Risk Payment and any
amounts paid as a Class A-2A Turbo Trigger Event Payment Amount.
Class X Interest: The Upper Tier Regular Interest represented by the
Class X Certificates as specified and described in the Preliminary Statement and
the related footnote thereto.
Closing Date: November 23, 2004.
Code: The Internal Revenue Code of 1986, including any successor
or amendatory provisions.
Collection Account: The "Custodial Account" as defined in the
Master Seller's Warranties and Servicing Agreement.
Compensating Interest: For any Distribution Date, the lesser of (a)
the Prepayment Interest Shortfall, if any, for the Distribution Date, with
respect to Principal Prepayments during the related Principal Prepayment Period,
and (b) the Servicing Fee payable to the Servicer for such Distribution Date.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Corporate Trust Office: The designated office of the Trustee in the
State of California at which at any particular time its corporate trust business
with respect to this Agreement is administered, which office at the date of the
execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx Xxxxx Xxxxx Xxx,
Xxxxxxxxxx 00000-0000, Attn: Trust Administration-Trust Administration -GS04W1,
facsimile no. (000) 000-0000 and which is the address to which notices to and
correspondence with the Trustee should be directed.
Corresponding Class: The Class of interests in one Trust REMIC that
corresponds to the Class of interests in the other Trust REMIC or to a Class of
Certificates in the manner set out below:
Corresponding Class of
Lower Tier Upper Tier Certificates or
Class Designation Regular Interest Regular Interest
----------------------- ------------------ ----------------------
Class LT-A-1A Class A-1A Class A-1A
Class LT-A-1B Class A-1B Class A-1B
Class LT-A-2A Class A-2A Class A-2A
Class LT-A-2B Class A-2B Class A-2B
Class LT-A-2C Class A-2C Class A-2C
Class LT-A-2D Class A-2D Class A-2D
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-B-1 Class B-1 Class B-1
Class LT-B-2 Class B-2 Class B-2
Class LT-B-3 Class B-3 Class B-3
Class LT-B-4 Class B-4 Class B-4
N/A Class X Class X
Custodial File: With respect to each Mortgage Loan, the Mortgage
Loan Documents which are delivered to the Trustee or which at any time comes
into the possession of the Trustee.
Cut-off Date: November 1, 2004.
Cut-off Date Pool Principal Balance: The aggregate Stated
Principal Balances of all Mortgage Loans as of the Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date (after
giving effect to payments of principal due on that date, whether or not
received).
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Deleted Mortgage Loan: A Mortgage Loan which is repurchased by the
Responsible Party, the Depositor or the Purchaser in accordance with the terms
of the Master Seller's Warranties and Servicing Agreement, an Assignment
Agreement or this Agreement and which is, in the case of a substitution pursuant
to the Master Seller's Warranties and Servicing Agreement, replaced or to be
replaced with a Qualified Substitute Mortgage Loan.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: GS Mortgage Securities Corp., a Delaware corporation,
and its successors in interest.
Depositor Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of November 23, 2004, among the Depositor,
the Trustee and the Servicer.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code
of the State of New York.
Depository Institution: Any depository institution or trust company,
including the Trustee, that (a) is incorporated under the laws of the United
States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated P-1 by Moody's, F1+ by Fitch and A-1 by Standard & Poor's.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to each Remittance Date, the
Business Day immediately preceding the related Remittance Date.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.01(b) in the name of the Trustee
for the benefit of the Certificateholders and designated "Deutsche Bank National
Trust Company in trust for registered holders of GSAMP Trust 2004-WF Mortgage
Pass-Through Certificates, Series 2004-WF." Funds in the Distribution Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in this Agreement.
Distribution Date: The 25th day of each calendar month after the
initial issuance of the Certificates, or if such day is not a Business Day, the
next succeeding Business Day, commencing in December 2004.
Document Certification and Exception Report: The report attached
to Exhibit F hereto.
Due Date: The day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
the Distribution Date occurs and ending on the first day of the calendar month
in which the Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a federal or
state chartered depository institution or trust company the short-term unsecured
debt obligations of which (or, in the case of a depository institution or trust
company that is a subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated "A-1+" by Standard & Poor's and
"P-1" by Moody's (or a comparable rating if another Rating Agency is specified
by the Depositor by written notice to the Servicer) at the time any amounts are
held on deposit therein, (ii) a trust account or accounts maintained with a
federal or state chartered depository institution or trust company acting in its
fiduciary capacity or (iii) any other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
Eligible Party: Any party that is eligible to cause the Optional
Termination Date to occur at the direction of the Majority Class X
Certificateholder pursuant to Prohibited Transaction Exemption 2002-41, 67 Fed.
Reg. 54487 (2002) (or any successor thereto), or any substantially similar
applicable administrative exemption granted by the U.S. Department of Labor.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of Prohibited
Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other related
document.
Event of Default: As defined in the Master Seller's Warranties
and Servicing Agreement.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Sections 3.01(a) in the name of the
Trustee for the benefit of the Regular Certificateholders and designated
"Deutsche Bank National Trust Company in trust for registered holders of GSAMP
Trust 2004-WF, Mortgage Pass-Through Certificates, Series 2004-WF." Funds in the
Excess Reserve Fund Account shall be held in trust for the Regular
Certificateholders for the uses and purposes set forth in this Agreement.
Amounts on deposit in the Excess Reserve Fund Account shall not be invested.
Excess Overcollateralized Amount: With respect to any Distribution
Date, the excess, if any, of (a) the Overcollateralized Amount on such
Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per-annum rate
equal to the sum of the Servicing Fee Rate, Transaction Oversight Manager Fee
Rate and the Trustee Fee Rate.
Expense Fees: As to each Mortgage Loan, the sum of the Servicing
Fee, the Transaction Oversight Manager Fee and the Trustee Fee.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for such Distribution
Date and (y) the related Overcollateralization Deficiency for such Distribution
Date.
Xxxxxx Xxx: The Federal National Mortgage Association, and its
successors in interest.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for the Class A-2A Certificates is the Distribution Date occurring in
November 2013, for all the other Certificates is the Distribution Date occurring
in October 2034.
Fitch: Fitch Ratings, or any successor thereto. If Fitch is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Fitch shall be Fitch Ratings, Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: MBS Monitoring - GSAMP
Trust 2004-WF, or such other address as Fitch may hereafter furnish to the
Depositor and the Servicer.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, and its successors in interest.
Group I Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group I Mortgage Loans.
Group I Sequential Trigger Event: With respect to any Distribution
Date (a) before the 37th Distribution Date, the circumstances in which the
aggregate amount of Realized Losses incurred since the Cut-off Date through the
last day of the related Principal Prepayment Period divided by the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date exceeds
2.500%, or (b) on or after the 37th Distribution Date, if a Trigger Event is in
effect.
Group II Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group II Mortgage Loans.
Index: With respect to any Mortgage Loan, the index identified on
the Data File and set forth in the related Mortgage Note for the purpose of
calculating the interest thereon.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds
of insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
Interest Accrual Period: With respect to each Class of Non-Delay
Certificates and the Corresponding Class of Lower Tier Regular Interests and any
Distribution Date, the period commencing on the preceding Distribution Date (or,
the initial Distribution Date, the Closing Date) and ending on the day preceding
the current Distribution Date, and with respect to the Delay Certificates, the
calendar month preceding the month in which such Distribution Date occurs. For
purposes of computing interest accruals on each Class of Non-Delay Certificates,
each Interest Accrual Period has the actual number of days in such period and
each year is assumed to have 360 days. For purposes of computing interest
accruals on each Class of Delay Certificates, each Interest Accrual Period has
the 30 days in such period and each year is assumed to have 360 days.
Interest Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans in a Loan Group, that portion of Available Funds
attributable to interest relating to the Mortgage Loans in such Loan Group.
Investment Account: As defined in Section 3.02(a).
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Trustee on the related LIBOR
Determination Date on the basis of the offered rate for one-month U.S. dollar
deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on such date; provided, that if such rate does not appear on Telerate Page
3750, the rate for such date will be determined on the basis of the rates at
which one-month U.S. dollar deposits are offered by the Reference Banks at
approximately 11:00 a.m. (London time) on such date to prime banks in the London
interbank market. In such event, the Trustee shall request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16%). If fewer than two quotations are provided as
requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Trustee (after
consultation with the Depositor), at approximately 11:00 a.m. (New York City
time) on such date for one-month U.S. dollar loan to leading European banks.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: With respect to any Interest Accrual
Period (other than the initial Interest Accrual Period) for the LIBOR
Certificates, the second London Business Day preceding the commencement of such
Interest Accrual Period.
Lifetime Rate Cap: The provision of each Mortgage Note which
provides for an absolute maximum Mortgage Interest Rate thereunder. The Mortgage
Interest Rate during the terms of each adjustable rate Mortgage Loan shall not
at any time exceed the Mortgage Interest Rate at the time of origination of such
Mortgage Loan by more than the amount per annum set forth on the Mortgage Loan
Schedule.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
Servicer has certified (in accordance with this Agreement) that it has received
all amounts it expects to receive in connection with the liquidation of such
Mortgage Loan including the final disposition of an REO Property.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through a trustee's sale,
foreclosure sale or otherwise, or the sale of the related Mortgaged Property if
the Mortgaged Property is acquired in satisfaction of the Mortgage Loan,
including any Subsequent Recoveries.
Loan Group: The Group I Mortgage Loans or the Group II Mortgage
Loans, as applicable.
Loan Group Cap: The Loan Group I Cap or the Loan Group II Cap, as
applicable.
Loan Group I Cap: With respect to the Group I Mortgage Loans as of
any Distribution Date, the product of (i) the weighted average of the Adjusted
Net Mortgage Interest Rates then in effect on the beginning of the related Due
Period on the Group I Mortgage Loans and (ii) a fraction, the numerator of which
is 30 and the denominator of which is the actual number of days in the Interest
Accrual Period related to such Distribution Date.
Loan Group II Cap: With respect to the Group II Mortgage Loans as of
any Distribution Date, the product of (i) the weighted average of the Adjusted
Net Mortgage Interest Rates then in effect on the beginning of the related Due
Period on the Group II Mortgage Loans and (ii) a fraction, the numerator of
which is 30 and the denominator of which is the actual number of days in the
Interest Accrual Period related to such Distribution Date.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lower Tier Principal Amount: As described in the Preliminary
Statement.
Lower Tier Regular Interest: Each of the Class LT-A-1A, Class
LT-A-1B, Class LT-A-2A, Class A-2B, Class LT-A-2C, Class LT-A-2D, Class LT-M-1,
Class LT-M-2, Class LT-M-3, Class LT-B-1, Class LT-B-2, Class LT-B-3, Class
LT-B-4, Class LT-Group I, Class LT-Group II, and Class LT-Accrual Interests as
described in the Preliminary Statement.
Lower Tier REMIC: As described in the Preliminary Statement.
Majority Class X Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class X Certificates.
Master Seller's Warranties and Servicing Agreement: The Master
Seller's Warranties and Servicing Agreement, dated as of September 1, 2004,
between the Responsible Party and the Purchaser, a copy of which is attached
hereto as Exhibit L.
MERS: Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware,
or any successor thereto.
MERS Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Advance: With respect to any Distribution Date, the portion
of each Monthly Payment that is delinquent with respect to each Mortgage Loan at
the close of business on the preceding Determination Date required to be
advanced by the Servicer pursuant to Section 5.03 of the Master Seller's
Warranties and Servicing Agreement.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.02.
Moody's: Xxxxx'x Investors Service, Inc. If Xxxxx'x is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Moody's shall be Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Residential Mortgage Pass-Through Group, or such other address as
Moody's may hereafter furnish to the Depositor and the Servicer.
Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to the Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of
the Master Seller's Warranties and Servicing Agreement, each Mortgage Loan
originally sold and subject to the Master Seller's Warranties and Servicing
Agreement being identified on the Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage File, the Servicing File, the Monthly
Payments, Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, REO Disposition proceeds and all other rights, benefits,
proceeds and obligations arising from or in connection with such Mortgage Loan.
Mortgage Loan Documents: With respect to a Mortgage Loan, the
documents listed as 1-10 on Exhibit B of the Master Seller's Warranties and
Servicing Agreement.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Schedule I, such schedule setting forth the following information with
respect to each Mortgage Loan: (1) the Responsible Party Mortgage Loan
identifying number; (2) the address, city, state and zip code of the Mortgaged
Property; (3) a code indicating whether the Mortgaged Property is a single
family residence, two-family residence, three-family residence, four-family
residence, planned unit development; (4) the Gross Margin; (5) the current
Mortgage Interest Rate; (6) the Servicing Fee Rate; (7) the current Monthly
Payment; (8) the original term to maturity; (9) the scheduled maturity date
(and, if different, the stated maturity date indicated on the Mortgage Note on
its date of origination); (10) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date (whether or not received); (11) the Loan-to-Value Ratio; (12) the
Adjustment Date; (13) the Lifetime Rate Cap under the terms of the Mortgage
Note; (14) whether the Mortgage Loan is convertible or not; (15) if applicable,
a code indicating the name of the mortgage guaranty insurance company; (16)if
applicable, the certificate number of the policy of primary mortgage guaranty
insurance; (17) a code indicating whether the Mortgage Loan is a Group I
Mortgage Loan or a Group II Mortgage Loan; and (18) the original principal
balance.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the amount
remaining for distribution pursuant to subsection 4.01(a)(iii) (before giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date, the
amount by which the sum of the Prepayment Interest Shortfalls exceeds the sum of
the Compensating Interest payments made on such Distribution Date.
NIM Issuer: The entity established as the issuer of the NIM
Securities.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class X and Class P Certificates that are rated by one or
more Rating Agencies.
NIM Trustee: The trustee for the NIM Securities.
Non-Delay Certificates: As specified in the Preliminary Statement.
Non-Permitted Transferee: As defined in Section 8.11(e).
Nonrecoverable Monthly Advance: Any Monthly Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property that, in
the sole reasonable opinion of the Servicer or any successor Servicer including
the Trustee, as applicable, will not or, in the case of a proposed Monthly
Advance, would not be ultimately recoverable from related late payments,
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds on such
Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in the sole reasonable opinion of the Servicer or any successor Servicer
including the Trustee, as applicable, will not or, in the case of a proposed
Servicing Advance, would not, be ultimately recoverable from related Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President or
an Assistant Vice President and by the Treasurer or the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of the Servicer, and delivered to
the Trustee as required by the Master Seller's Warranties and Servicing
Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for the Servicer, reasonably acceptable to the Trustee;
provided, that any Opinion of Counsel relating to (a) qualification of either
the Lower Tier REMIC or Upper Tier REMIC or (b) compliance with the REMIC
Provisions, must (unless otherwise stated in such Opinion of Counsel) be an
opinion of counsel who (i) is in fact independent of the Servicer of the
Mortgage Loans, (ii) does not have any material direct or indirect financial
interest in the Servicer of the Mortgage Loans or in an affiliate of either and
(iii) is not connected with the Servicer of the Mortgage Loans as an officer,
employee, director or person performing similar functions.
Optional Termination Agreement: As defined in Section 9.02.
Optional Termination Date: The date determined as follows: the
Servicer or any other Eligible Party (at the direction of the Majority Class X
Certificateholders (as evidenced on the Certificate Register)), pursuant to
Section 9.01, shall cause the Optional Termination Date to occur on the
Distribution Date when the aggregate Stated Principal Balance of the Mortgage
Loans, as of the last day of the related Due Period, is equal to 10% or less of
the Cut-off Date Pool Principal Balance (provided, that if the Depositor or an
Affiliate of the Depositor is one of the Holders constituting such majority,
then there must be at least one other unaffiliated Holder constituting such
majority and the Class X Certificates held by such Holder, or unaffiliated
Holders in the aggregate, must represent at least a 10% Percentage Interest in
the Class X Certificates).
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Amount: As of any Distribution Date, the excess,
if any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over (b) the aggregate of the Class Certificate Balances
of the Principal Certificates as of such Distribution Date (after giving effect
to the payment of the Principal Remittance Amount on such Certificates on such
Distribution Date).
Overcollateralization Floor: With respect to any Distribution Date,
0.50% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
Overcollateralization Deficiency: With respect to any Distribution
Date, the excess, if any, of (a) the Specified Overcollateralized Amount
applicable to such Distribution Date over (b) the Overcollateralized Amount
applicable to such Distribution Date.
Overcollateralization Reduction Amount: With respect to any
Distribution Date, an amount equal to the lesser of (a) the Excess
Overcollateralized Amount and (b) the Net Monthly Excess Cash Flow.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
Pass-Through Margin: With respect to each Class of LIBOR
Certificates, the following percentages: Class A-1A, 0.330%; Class A-1B, 0.390%;
Class A-2A, 0.140%; Class A-2B, 0.330%; Class A-2C, 0.500%; Class A-2D, 0.340%;
Class M-1, 0.580%; Class M-2, 1.100%; Class M-3, 1.250%; Class B-1, 1.650%;
Class B-2, 1.750%; and Class B-3, 3.000%. On the first Distribution Date after
the Optional Termination Date, the Pass-Through Margins shall increase to: Class
A-1A, 0.660%; Class A-1B, 0.780%; Class A-2A, 0.280%; Class A-2B, 0.660%; Class
A-2C, 1.000%; Class A-2D, 0.680%; Class M-1, 0.870%; Class M-2, 1.650%; Class
M-3, 1.875%; Class B-1, 2.475%; Class B-2, 2.625%; and Class B-3, 4.50%.
Pass-Through Rate: For each Class of Certificates and each Lower
Tier Regular Interest, the per annum rate set forth or calculated in the manner
described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Periodic Rate Cap: As to each Mortgage Loan, the maximum increase or
decrease in the Mortgage Interest Rate on any Adjustment Date pursuant to the
terms of the Mortgage Note.
Permitted Investments: Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued by the Servicer, the Trustee or any of their respective
Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars and
issued by any Depository Institution and rated F1+ by Fitch, P-1 by
Moody's and A-1+ by S&P, to the extent they are Rating Agencies designated
hereunder;
(iii) repurchase obligations with respect to any security described
in clause (i) above entered into with a Depository Institution (acting as
principal);
(iv) securities bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the United States
of America or any state thereof and that are rated by each Rating Agency
that rates such securities in its highest long-term unsecured rating
categories at the time of such investment or contractual commitment
providing for such investment;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 30 days after the date of acquisition
thereof) that is rated by each Rating Agency that rates such securities in
its highest short-term unsecured debt rating available at the time of such
investment;
(vi) units of money market funds, including money market funds
advised by the Depositor or the Trustee or an Affiliate thereof, that have
been rated "Aaa" by Moody's, "AAAm" or "AAAm-G" by Standard & Poor's and,
if rated by Fitch, at least "AA" by Fitch, to the extent they are Rating
Agencies designated hereunder; and
(vii) if previously confirmed in writing to the Trustee, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to the Rating Agencies as a permitted
investment of funds backing "Aaa" or "AAA" rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a U.S.
Person or a U.S. Person with respect to whom income from a Residual Certificate
is attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of such Person or any other U.S.
Person, (vi) an "electing large partnership" within the meaning of Section 775
of the Code and (vii) any other Person so designated by the Depositor based upon
an Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to such Person may cause either the Lower Tier REMIC or the Upper
Tier REMIC to fail to qualify as a REMIC at any time that the Certificates are
outstanding. The terms "United States," "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions. A corporation will not be treated as an instrumentality of the
United States or of any State or political subdivision thereof for these
purposes if all of its activities are subject to tax and, with the exception of
the Xxxxxxx Mac, a majority of its board of directors is not selected by such
government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans for such
Distribution Date that were Outstanding Mortgage Loans on the Due Date in the
related Due Period.
Prepayment Interest Shortfall: With respect to any Remittance Date,
the sum of, for each Mortgage Loan that was during the related Principal
Prepayment Period the subject of a Principal Prepayment that was applied by the
Servicer to reduce the outstanding principal balance of such Mortgage Loan on a
date preceding the Due Date in the succeeding Principal Prepayment Period, an
amount equal to the product of (a) the Mortgage Interest Rate net of the
Servicing Fee Rate for such Mortgage Loan, (b) the amount of the Principal
Prepayment for such Mortgage Loan, (c) 1/360 and (d) the number of days
commencing on the date on which such Principal Prepayment was applied and ending
on the last day of the related Principal Prepayment Period.
Prepayment Premium: Any prepayment premium, penalty or charge, if
any, required under the terms of the related Mortgage Note (as defined in the
Master Seller's Warranties and Servicing Agreement) to be paid in connection
with a Principal Prepayment, to the extent permitted by law.
Principal Distribution Amount: For any Distribution Date, the sum of
(i) the Basic Principal Distribution Amount for such Distribution Date and (ii)
the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other recovery
of principal on a Mortgage Loan (including the liquidation of a Mortgage Loan)
which is received in advance of its scheduled Due Date, excluding any Prepayment
Premium and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Prepayment Period: The calendar month preceding the month
in which related Distribution Date occurs.
Principal Remittance Amount: With respect to any Distribution Date,
the amount equal to the sum of the following amounts (without duplication) with
respect to the related Due Period: (i) each scheduled payment of principal on a
Mortgage Loan due during such Due Period and received by the Servicer on or
prior to the related Determination Date or advanced by the Servicer prior to the
related Remittance Date, (ii) all Principal Prepayments received during the
related Principal Prepayment Period, (iii) the Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds on the Mortgage Loans allocable to
principal actually collected by the Servicer during the related Principal
Prepayment Period, (iv) the portion of the repurchase price allocable to
principal with respect to each Deleted Mortgage Loan, that was repurchased with
respect to that Distribution Date, (v) the principal portion of all Substitution
Adjustment Amounts with respect to the substitutions of Mortgage Loans that
occur during the calendar month in which such Distribution Date occurs and (vi)
the allocable portion of the proceeds received pursuant to clause (a) of Section
9.01 (to the extent such proceeds relate to principal).
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated November
18, 2004, relating to the LIBOR Certificates.
PTCE 95-60: As defined in Section 5.02(b).
Purchaser: Xxxxxxx Sachs Mortgage Company, a New York limited
partnership, and its successors in interest, as purchaser of the Mortgage Loans
under the Master Seller's Warranties and Servicing Agreement.
Purchaser Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of November 23, 2004, among the Purchaser,
the Depositor and the Servicer.
Qualified Substitute Mortgage Loan: As defined in the Master
Seller's Warranties and Servicing Agreement.
Rated Final Distribution Date: For each Class of LIBOR
Certificates other than the Class A-2A Certificates, the Final Scheduled
Distribution Date for such Class. For the Class A-2A Certificates, the
Distribution Date in November 2013.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee. References
herein to a given rating or rating category of a Rating Agency shall mean such
rating category without giving effect to any modifiers. For purposes of Section
10.05(b), the addresses for notices to each Rating Agency shall be the address
specified therefor in the definition corresponding to the name of such Rating
Agency, or such other address as either such Rating Agency may hereafter furnish
to the Depositor and the Servicer.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid principal
balance of such Liquidated Mortgage Loan together with accrued and unpaid
interest thereon exceeds (b) the Liquidation Proceeds with respect thereto net
of the expenses incurred by the Servicer in connection with the liquidation of
such Liquidated Mortgage Loan and net of any amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the related Interest Accrual Period;
provided, however, that, for any Certificate issued in definitive form, the
Record Date shall be the close of business on the last Business Day of the month
immediately preceding the month in which the related Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers Civil Relief Act or any similar state
statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance Advice Date: The 12th day of each calendar month or the
immediately following Business Day if the 12th is not a Business Day.
Remittance Date: With respect to any Distribution Date, the 18th day
(or if such 18th day is not a Business Day, the first Business Day immediately
preceding such 18th day) of the month in which such Distribution Date occurs.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Repurchase Price: With respect to any Mortgage Loan, and (a) any
repurchase thereof by the Responsible Party pursuant to the Master Seller's
Warranties and Servicing Agreement, the "Repurchase Price" as defined in the
Master Seller's Warranties and Servicing Agreement, or (b) any repurchase by the
Depositor pursuant to Section 2.05 or pursuant to the Depositor Assignment
Agreement or (c) any repurchase by the Purchaser pursuant to the Purchase
Assignment Agreement, an amount equal to the sum of (i) the unpaid principal
balance of such Mortgage Loan as of the date of repurchase, (ii) interest on
such unpaid principal balance of such Mortgage Loan at the Mortgage Interest
Rate from the last date through which interest has been paid and distributed to
the Trustee to the date of repurchase, (iii) all unreimbursed Servicing
Advances, (iv) all expenses incurred by the Servicer or the Trustee, as the case
may be, in respect of a breach or defect, including, without limitation,
reasonable and customary expenses arising out of the Servicer's or Trustee's, as
the case may be, enforcement of the Purchaser's repurchase obligation, to the
extent not included in (iii) and (v) any costs and damages incurred by the Trust
in connection with any violation by such Mortgage Loan of any predatory lending
law or abusive lending law.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee, substantially in the form of Exhibit M.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, any associate or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers who at such time shall be officers to whom, with respect to a
particular matter, such matter is referred because of such officer's knowledge
of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement.
Responsible Party: Xxxxx Fargo Bank, N.A., a national banking
association, and its successors in interest.
Rule 144A Letter: As defined in Section 5.02(b).
Securities Act: The Securities Act of 1933, as amended.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
Senior Specified Enhancement Percentage: As of any date of
determination, 33.00%.
Servicer: The Responsible Party, in its capacity as servicer
under the Master Seller's Warranties and Servicing Agreement, and any
successor Servicer appointed thereunder.
Servicer Remittance Report: As defined in Section 4.02(d).
Servicing Advances: As defined in the Master Seller's Warranties
and Servicing Agreement.
Servicing Fee: As defined in the Master Seller's Warranties and
Servicing Agreement.
Servicing Fee Rate: As defined in the Master Seller's Warranties and
Servicing Agreement; provided, however, in calculating the Expense Fee Rate, the
Servicing Fee Rate shall be adjusted to equal a per annum rate the equivalent of
a fraction (expressed as a percentage), the numerator of which is the product of
0.50% and the outstanding principal balance of the applicable Mortgage Loan for
the applicable month, and the denominator of which is the Stated Principal
Balance of such Mortgage Loan for such month.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer consisting of originals of all documents in the
Mortgage File which are not delivered to the Trustee in the Custodial File and
copies of the Mortgage Loan Documents listed in the Custodial Agreement the
originals of which are delivered to the Trustee pursuant to Section 2.03 of the
Master Seller's Warranties and Servicing Agreement.
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which any portion of a Monthly Payment is, as of the last day of the prior Due
Period, two months or more past due (without giving effect to any grace period),
each Mortgage Loan in foreclosure, all REO Property.
Specified Overcollateralized Amount: Prior to the Stepdown Date, an
amount equal to 0.60% of the Cut-off Date Pool Principal Balance. On and after
the Stepdown Date, an amount equal to 1.20% of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date, subject, until the
Class Certificate Balance of each Class of Principal Certificates has been
reduced to zero, to a minimum amount equal to 0.50% of the Cut-off Date Pool
Principal Balance; provided, however, that if, on any Distribution Date, a
Trigger Event has occurred, the Specified Overcollateralized Amount shall not be
reduced to the applicable percentage of the then current aggregate Stated
Principal Balance of the Mortgage Loans until the Distribution Date on which a
Trigger Event is no longer occurring.
Standard & Poor's or S&P: Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc. If Standard & Poor's is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
10.05(b) the address for notices to Standard & Poor's shall be Standard &
Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential
Mortgage Surveillance Group - GSAMP Trust 2004-WF, or such other address as
Standard & Poor's may hereafter furnish to the Depositor and the Servicer.
Startup Day: The Closing Date.
Stated Principal Balance: As to each Mortgage Loan and as of any
date of determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date (whether or not received), minus (ii) all amounts previously remitted to
the Trustee with respect to the related Mortgage Loan representing payments or
recoveries of principal including advances in respect of scheduled payments of
principal. For purposes of any Distribution Date, the Stated Principal Balance
of any Mortgage Loan will give effect to any scheduled payments of principal
received or advanced prior to the related Remittance Date and any unscheduled
principal payments and other unscheduled principal collections received during
the related Principal Prepayment Period, and the Stated Principal Balance of any
Mortgage Loan that has prepaid in full or has become a Liquidated Mortgage Loan
during the related Principal Prepayment Period shall be zero.
Stepdown Date: The earlier to occur of (a) the date on which the
aggregate Class Certificate Balances of the Class A Certificates have been
reduced to zero, and (b) the later to occur of (i) the Distribution Date in
December 2007, and (ii) the first Distribution Date on which the Senior
Enhancement Percentage is greater than or equal to the Senior Specified
Enhancement Percentage.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subsequent Recoveries: Amounts received with respect to any
Mortgage Loan or Mortgaged Property that has previously been liquidated or
otherwise disposed of.
Substitution Adjustment Amount: An amount, if any, by which the
aggregate Stated Principal Balance of all Deleted Mortgage Loans (calculated
after application of scheduled principal payments due in the month of
substitution), exceeds the aggregate principal balance of all Qualified
Substitute Mortgage Loans as of the date of substitution.
Telerate Page 3750: The display page currently so designated on the
Bridge Telerate Service (or such other page as may replace that page on that
service for displaying comparable rates or prices).
Termination Price: As defined in Section 9.01.
Total Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess if any, of (i) the interest collected (prior to the related
Determination Date) or advanced by the Servicer for the related Servicer
Remittance Date (net of Expense Fees) over (ii) the sum of the interest payable
to the Classes of Certificates on such Distribution Date pursuant to Section
4.01(a)(i).
Transaction Oversight Management Agreement: The Transaction
Oversight Management Agreement, dated as of November 1, 2004, by and among the
Transaction Oversight Manager, the Depositor and the Trustee.
Transaction Oversight Manager: Xxxxxxx Services Inc., a Delaware
corporation, and its successors in interest.
Transaction Oversight Manager Fee: As to each Mortgage Loan and any
Distribution Date, an amount equal to one month's interest at the Transaction
Oversight Manager Fee Rate on the Stated Principal Balance of such Mortgage Loan
or, in the event of any payment of interest which accompanies a Principal
Prepayment in Full made by the Mortgagor, interest at the Credit Risk Manager
Fee Rate on the Stated Principal Balance of such Mortgage Loan for the period
covered by such payment of interest.
Transaction Oversight Manager Fee Rate: With respect to each
Mortgage Loan, 0.02875% per annum.
Transfer: Any direct or indirect transfer or sale of any
Ownership Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a Trigger
Event exists if (i) the quotient (expressed as a percentage) of (x) the rolling
three month average of the aggregate unpaid principal balances of 60+ Day
Delinquent Mortgage Loans and (y) the aggregate unpaid principal balance of the
Mortgage Loans as of the last day of the related Due Period equals or exceeds
33% of the Senior Enhancement Percentage as of the last day of the prior Due
Period or (ii) the quotient (expressed as a percentage) of (x) the aggregate
amount of Realized Losses incurred since the Cut-off Date through the last day
of the related Principal Prepayment Period divided by (y) the Cut-off Date Pool
Principal Balance exceeds the applicable percentages set forth below with
respect to such Distribution Date:
Distribution Date Occurring In Loss Percentage
---------------------------------- -------------------------------------------
December 2007 - November 2008 2.500% for the first month, plus an
additional 1/12th of 1.250% for each month
thereafter (e.g., approximately 2.604% in
January 2008)
December 2008 - November 2009 3.750% for the first month, plus an
additional 1/12th of 1.000% for each month
thereafter (e.g., approximately 3.833% in
January 2009)
December 2009 - November 2010 4.750% for the first month, plus an
additional 1/12th of 0.500% for each month
thereafter (e.g., approximately 4.792% in
January 2010)
December 2010 and thereafter 5.250%
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal received on or with
respect thereto after the related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or before the related Cut-off Date; (ii) the
Excess Reserve Fund Account, the Distribution Account, and all amounts deposited
therein pursuant to the applicable provisions of this Agreement; (iii) property
that secured a Mortgage Loan and has been acquired by foreclosure, deed-in-lieu
of foreclosure or otherwise; (iv) the rights of the Depositor under the Purchase
Assignment Agreement, including without limitation the rights of the Depositor
under the Master Seller's Warranties and Servicing Agreement related to the
Mortgage Loans, to the extent such rights are assigned to the Depositor pursuant
to the Purchaser Assignment Agreement (and further assigned to the Trust by the
Depositor hereunder and under the Depositor Assignment Agreement); and (v) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing.
Trust REMIC: As specified in the Preliminary Statement.
Trustee: Deutsche Bank National Trust Company and its successors
and, if a successor trustee is appointed hereunder, such successor.
Trustee Fee: As to each Mortgage Loan and any Distribution Date, an
amount equal to one month's interest at the related Trustee Fee Rate on the
Stated Principal Balance of such Mortgage Loan or, in the event of any payment
of interest which accompanies a Principal Prepayment in Full made by the
Mortgagor, interest at the Trustee Fee Rate on the Stated Principal Balance of
such Mortgage Loan for the period covered by such payment of interest.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.0062% per
annum.
Trustee Float Period: With respect to the Distribution Date and the
related amounts in the Distribution Account, the period commencing on the
Business Day immediately preceding such Distribution Date and ending on such
Distribution Date.
Underwriters' Exemption: Any exemption listed in footnote 1 of,
and amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487
(2002), or any successor exemption.
Unpaid Interest Amounts: As of any Distribution Date and any Class
of Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from prior Distribution Dates remaining unpaid immediately
prior to the current Distribution Date and (b) interest on such unpaid amount in
clause (a) at the applicable Pass-Through Rate (to the extent permitted by
applicable law).
U.S. Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of any
state thereof, including, for this purpose, the District of Columbia; (iii) a
partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any state
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control all substantial decisions of the
trust. Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
Upper Tier Regular Interest: As described in the Preliminary
Statement.
Upper Tier REMIC: As described in the Preliminary Statement.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any, and (c) the remaining Voting Rights shall be allocated
among Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
WAC Cap: With respect to the Mortgage Loans as of any Distribution
Date, a per annum rate equal to (i) the weighted average of the Adjusted Net
Mortgage Interest Rates then in effect on the beginning of the related Due
Period on the Mortgage Loans and (ii) a fraction, the numerator of which is 30
and the denominator of which is the actual number of days in the Interest
Accrual Period related to such Distribution Date.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered or caused to be delivered to the Trustee for
the benefit of the Certificateholders the following documents or instruments
with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(ii) The original Assignment of Mortgage in blank, unless the
Mortgage Loan is a MERS Loan;
(iii) the original Mortgage, with evidence of recording thereon or a
certified true and correct copy of the Mortgage sent for recordation. If
in connection with any Mortgage Loan, the Responsible Party cannot deliver
or cause to be delivered the original Mortgage with evidence of recording
thereon on or prior to the Closing Date because of a delay caused by the
public recording office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost or because such public
recording office retains the original recorded Mortgage, the Responsible
Party shall deliver or cause to be delivered to the Trustee, a photocopy
of such Mortgage, together with (i) in the case of a delay caused by the
public recording office, an Officer's Certificate of the Responsible Party
stating that such Mortgage has been dispatched to the appropriate public
recording office for recordation and that the original recorded Mortgage
or a copy of such Mortgage certified by the title company, escrow agent,
or closing attorney to be a true and complete copy of the original
recorded Mortgage will be promptly delivered to the Trustee upon receipt
thereof by the Responsible Party; or (ii) in the case of a Mortgage where
a public recording office retains the original recorded Mortgage or in the
case where a Mortgage is lost after recordation in a public recording
office, a copy of such Mortgage certified by such public recording office
or by the title insurance company that issued the title policy to be a
true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, or certified
true copies of any document sent for recordation;
(v) the original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for the insertion of
the name of the assignee and recording information). The Assignment of
Mortgage must be duly recorded only if recordation is either necessary
under applicable law or commonly required by private institutional
mortgage investors in the area where the Mortgaged Property is located or
on direction of the Trustee. If the Assignment of Mortgage is to be
recorded, the Mortgage shall be assigned to the Trustee. If the Assignment
of Mortgage is not to be recorded, the Assignment of Mortgage shall be
delivered in blank. If the Mortgage Loan was acquired by the Responsible
Party in a merger, the Assignment of Mortgage must be made by
"[Responsible Party], successor by merger to [name of predecessor]." If
the Mortgage Loan was acquired or originated by the Responsible Party
while doing business under another name, the Assignment of Mortgage must
be by "[Responsible Party], formerly know as [previous name]";
(vi) originals or certified true copies of documents sent for
recordation of all intervening assignments of the Mortgage with evidence
of recording thereon, or if any such intervening assignment has not been
returned from the applicable recording office or has been lost or if such
public recording office retains the original recorded assignments of
mortgage, the Responsible Party shall deliver or cause to be delivered to
the Trustee, a photocopy of such intervening assignment, together with (A)
in the case of a delay caused by the public recording office, an Officer's
Certificate of the Responsible Party stating that such intervening
assignment of mortgage has been dispatched to the appropriate public
recording office for recordation and that such original recorded
intervening assignment of mortgage or a copy of such intervening
assignment of mortgage certified by the escrow agent, or closing attorney
or by the title insurance company that issued the title policy to be a
true and complete copy of the original recorded intervening assignment of
mortgage will be promptly delivered to the Trustee upon receipt thereof by
the Responsible Party; or (B) in the case of an intervening assignment
where a public recording office retains the original recorded intervening
assignment or in the case where an intervening assignment is lost after
recordation in a public recording office, a copy of such intervening
assignment certified by such public recording office to be a true and
complete copy of the original recorded intervening assignment;
(vii) the original policy of primary mortgage guaranty insurance or
certificate of insurance, if applicable, or the electronic form of such
policy as identified by certificate number, if applicable;
(viii) the original lender's title policy insurance or other
evidence of title such as a copy of the preliminary title commitment, or a
copy thereof;
(ix) any security agreement, chattel mortgage or equivalent executed
in connection with the Mortgage; and
(x) original power of attorney, if applicable.
The Depositor shall deliver to the Trustee the applicable recorded
document promptly upon receipt from the respective recording office but in no
event later than 240 days from the Closing Date.
From time to time, pursuant to the Master Seller's Warranties and
Servicing Agreement, the Responsible Party may forward to the Trustee additional
original documents, additional documents evidencing an assumption, modification,
consolidation or extension of a Mortgage Loan approved by the Responsible Party,
in accordance with the terms of the Master Seller's Warranties and Servicing
Agreement. All such mortgage documents held by the Trustee as to each Mortgage
Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall deliver to the
Trustee Assignments of Mortgages (except in the case of MERS Loans), in blank,
for each Mortgage Loan. On the Closing Date, the Trustee shall provide a written
request to the Responsible Party to submit the Assignments of Mortgage for
recordation in the name of the Trustee on behalf of the Trust, at the
Responsible Party's expense, pursuant to Section 12.11 of the Master Seller's
Warranties and Servicing Agreement. The Trustee shall deliver the Assignment of
Mortgages to be submitted for recordation to the Responsible Party.
In the event that such original or copy of any document submitted
for recordation to the appropriate public recording office is not so delivered
to the Trustee within the time period and in the manner specified in the Master
Seller's Warranties and Servicing Agreement, the Trustee shall take or cause to
be taken such remedial actions under the Master Seller's Warranties and
Servicing Agreement against the Responsible Party as may be permitted to be
taken thereunder, including without limitation, if applicable, the repurchase by
the Responsible Party of such Mortgage Loan. The foregoing repurchase remedy
shall not apply in the event that the Responsible Party cannot deliver such
original or copy of any document submitted for recordation to the appropriate
public recording office within the specified period due to a delay caused by the
recording office in the applicable jurisdiction; provided, that the Responsible
Party shall instead deliver a recording receipt of such recording office or, if
such recording receipt is not available, an officer's certificate of an officer
of the Responsible Party, confirming that such document has been accepted for
recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses the
original Mortgage or assignment after it has been recorded, the obligations of
the Responsible Party shall be deemed to have been satisfied upon delivery by
the Responsible Party to the Trustee prior to the Closing Date of a copy of such
Mortgage or assignment, as the case may be, certified (such certification to be
an original thereof) by the public recording office to be a true and complete
copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "GSAMP Trust 2004-WF" and
Deutsche Bank National Trust Company is hereby appointed as Trustee in
accordance with the provisions of this Agreement.
(d) It is the policy and intention of the Trust that none of the
Mortgage Loans included in the Trust are classified as a "covered," "high cost,"
"high cost home loan," "threshold," "predatory loan," (excluding New Jersey
"Covered Home Loans" as that term is defined in clause (1) of the definition of
that term in the New Jersey Home Ownership Security Act of 2002), or any other
designation that indicates that such Mortgage Loan has terms that result in
costs to the Mortgagor in excess of a specified limit under the Home Ownership
and Equity Protection Act of 1994, as amended, or any similar federal, state or
local statutes or regulations related to "high cost" mortgage loans or
"predatory lending" (as such terms are defined in the applicable statute or
regulation).
Section 2.02 Acceptance by the Trustee of the Mortgage Loans. The
Trustee acknowledges receipt of the documents identified in the Initial
Certification in the form annexed hereto as Exhibit E, and declares that it
holds and will hold such documents and the other documents delivered to it
pursuant to Section 2.01, and that it holds or will hold such other assets as
are included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders. The Trustee acknowledges that it will
maintain possession of the related Mortgage Notes in the State of California,
unless otherwise permitted by the Rating Agencies.
Prior to and as a condition to the Closing, the Trustee shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor an Initial Certification prior to the Closing Date, or as the
Depositor agrees to, on the Closing Date, certifying receipt of a Mortgage Note
and Assignment of Mortgage for each Mortgage Loan. The Trustee shall not be
responsible to verify the validity, sufficiency or genuineness of any document
in any Custodial File.
On the Closing Date, the Trustee shall ascertain that all documents
required to be delivered to it are in its possession and shall deliver to the
Depositor an Initial Certification, in the form annexed hereto as Exhibit E, and
shall deliver to the Depositor a Document Certification and Exception Report, in
the form annexed hereto as Exhibit F, within 90 days after the Closing Date (or,
with respect to any Substitute Mortgage Loan, within 30 days after the receipt
of the Mortgage File by the Trustee) to the effect that, as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or any Mortgage Loan specifically identified in such certification as an
exception and not covered by such certification): (i) all documents required to
be delivered to it are in its possession; (ii) such documents have been reviewed
by it and appear regular on their face and relate to such Mortgage Loan; (iii)
based on its examination and only as to the foregoing documents, the information
set forth in items (2), (4), (8), (9) and (18) of the Mortgage Loan Schedule
respecting such Mortgage Loan is correct; and (iv) each Mortgage Note has been
endorsed as provided in Section 2.01 of this Agreement. The Trustee shall not be
responsible to verify the validity, sufficiency or genuineness of any document
in any Custodial File.
The Trustee shall retain possession and custody of each Custodial
File in accordance with and subject to the terms and conditions set forth
herein. The Servicer shall promptly deliver to the Trustee, upon the execution
or receipt thereof, the originals of such other documents or instruments
constituting the Custodial File as come into the possession of the Servicer from
time to time.
The Trustee shall enforce the obligation of the Responsible Party to
cure or repurchase Mortgage Loans that do not conform to the requirements of
Sections 2.01 and 2.02 hereof as determined in the Trustee's review as required
herein by notifying the Responsible Party to correct or cure such default. The
Trustee shall also enforce the obligation of the Responsible Party under the
Master Seller's Warranties and Servicing Agreement, the Purchaser under the
Purchaser Assignment Agreement and the Depositor under the Depositor Assignment
Agreement to cure or repurchase Mortgage Loans for which there is a defect or a
breach of a representation or warranty thereunder of which a Responsible Officer
of the Trustee has actual knowledge, by notifying the applicable party to
correct or cure such default. If the Responsible Party or the Purchaser, as the
case may be, fails or is unable to correct or cure the defect or breach within
the period set forth in the applicable agreement, the Trustee shall notify the
Depositor of such failure to correct or cure. Unless otherwise directed by the
Depositor within five (5) Business Days after notifying the Depositor of such
failure by the applicable party to correct or cure, the Trustee shall notify
such party to repurchase the Mortgage Loan. If, within ten (10) Business Days of
receipt of such notice by such party, such party fails to repurchase such
Mortgage Loan, the Trustee shall notify the Depositor of such failure. At the
expense of the Trust, the Trustee shall pursue all legal remedies available to
the Trustee against the Responsible Party, the Purchaser and the Depositor, as
applicable, under this Trust Agreement, the Master Seller's Warranties and
Servicing Agreement, the Purchaser Assignment Agreement or the Depositor
Assignment Agreement, as applicable, if the Trustee has received written notice
from the Depositor directing the Trustee to pursue such remedies.
Section 2.03 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, has executed and delivered to or
upon the order of the Depositor, the Certificates in authorized denominations
evidencing directly or indirectly the entire ownership of the Trust Fund. The
Trustee agrees to hold the Trust Fund and exercise the rights referred to above
for the benefit of all present and future Holders of the Certificates.
Section 2.04 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
The "Startup Day" for purposes of the REMIC Provisions shall be the Closing
Date. The "latest possible maturity date" is October 25, 2034, which is the
Distribution Date following the latest Mortgage Loan maturity date. Amounts paid
to the Class X Certificates (prior to any reduction for any Basis Risk Payment)
shall be deemed paid from the Upper Tier REMIC in respect of the Class X
Interest to the holders of the Class X Certificates prior to distribution of
Basis Risk Payments to the Principal Certificates.
Section 2.05 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Trustee that as of
the date of this Agreement or as of such date specifically provided herein:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to convey
the Mortgage Loans and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite corporate action having been
taken, and, assuming the due authorization, execution and delivery hereof by the
Trustee, constitutes or will constitute the legal, valid and binding agreement
of the Depositor, enforceable against the Depositor in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law);
(d) No consent, approval, authorization or order of or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been made on or prior to the
Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of trust, contract
or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound; (ii)
results or will result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Depositor of any court or governmental
authority having jurisdiction over the Depositor or its subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or encumbrance which
would have a material adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of the Mortgage Note and the Mortgage
as and in the manner contemplated by this Agreement is sufficient either (i)
fully to transfer to the Trustee, for the benefit of the Certificateholders, all
right, title, and interest of the Depositor thereto as note holder and mortgagee
or (ii) to grant to the Trustee, for the benefit of the Certificateholders, the
security interest referred to in Section 10.04 hereof; and
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.05 shall survive delivery of the
respective Custodial Files to the Trustee or to a custodian, as the case may be,
and shall inure to the benefit of the Trustee.
Within 30 days of the earlier of either discovery by or notice to
the Depositor of a default or a breach set forth in clause (h) above that
materially and adversely affects the value of any Mortgage Loan or the interest
of the Trustee or the Certificateholders therein, the Depositor shall use its
best efforts to promptly to cure such breach in all material respects and if
such defect or breach cannot be remedied, the Depositor shall repurchase such
Mortgage Loan at the Repurchase Price. The Depositor shall repurchase each such
Deleted Mortgage Loan within 30 days of the earlier of discovery or receipt of
notice with respect to each such Deleted Mortgage Loan. Any such repurchase
shall be conducted in the same manner as set forth in Section 3.03 of the Master
Seller's Warranties and Servicing Agreement. The obligations of the Depositor to
cure such breach or to purchase any Mortgage Loan constitute the sole remedies
respecting a material breach of any such representation or warranty to the
Holders of the Certificates and the Trustee. In the event the Depositor is
required to repurchase a Mortgage Loan pursuant to this Section 2.05, the
Trustee shall assign to the Depositor all rights it has with respect to such
Mortgage Loan under the Purchaser Assignment Agreement and, solely to the extent
related to such Mortgage Loan, under the Master Seller's Warranties and
Servicing Agreement.
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Excess Reserve Fund Account; Distribution Account. (a)
The Trustee shall establish and maintain the Excess Reserve Fund Account, on
behalf of the Class X Certificateholders, to receive any Basis Risk Payment and
to secure their limited recourse obligation to pay to the Principal
Certificateholders Basis Risk Carry Forward Amounts. On each Distribution Date,
the Trustee shall deposit the amount of any Basis Risk Payment for such date
into the Excess Reserve Fund Account.
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class or Classes of Principal Certificates, the Trustee
shall (1) withdraw from the Distribution Account and deposit in the Excess
Reserve Fund Account, as set forth in Section 4.01(a)(iii)(H), the lesser of (x)
the Class X Distributable Amount (without regard to the reduction in clause
(iii) of the definition thereof with respect to Basis Risk Payments or with
respect to the Class A-2A Turbo Trigger Event Payment Amount, if any,
distributable pursuant to Section 4.01(a)(iii)(K)) (to the extent remaining
after the distributions specified in Sections 4.01(a)(iii)(A)-(G) and (y) the
aggregate Basis Risk Carry Forward Amounts of the Principal Certificates for
such Distribution Date and (2) withdraw from the Excess Reserve Fund Account
amounts necessary to pay to such Class or Classes of Certificates the related
Basis Risk Carry Forward Amount. Such payments shall be allocated to those
Classes on a pro rata basis based upon the amount of Basis Risk Carry Forward
Amount owed to each such Class and shall be paid in the priority set forth in
Section 4.01(a)(iii)(I) and (J) hereof.
The Trustee shall account for the Excess Reserve Fund Account as an
asset of grantor trust under subpart E, Part I of subchapter J of the Code and
not as an asset of either Trust REMIC. The beneficial owners of the Excess
Reserve Fund Account are the Class X Certificateholders. For all federal income
tax purposes, amounts transferred by the Upper Tier REMIC to the Excess Reserve
Fund Account shall be treated as first distributed by the Trustee to the Class X
Certificateholders in respect of the Class X Interest and then contributed by
the Class X Certificateholders to the Excess Reserve Fund Account.
Any Basis Risk Carry Forward Amounts paid by the Trustee to the
Principal Certificateholders shall be accounted for by the Trustee, for federal
income tax purposes, as amounts paid first to the Holders of the Class X
Certificate (in respect of the Class X Interest) and then to the respective
Class or Classes of Principal Certificates. In addition, the Trustee shall
account for the Principal Certificateholders' rights to receive payments of
Basis Risk Carry Forward Amounts as rights in a limited recourse interest rate
cap contract written by the Class X Certificateholders in favor of the Principal
Certificateholders.
Notwithstanding any provision contained in this Agreement, the
Trustee shall not be required to make any distributions from the Excess Reserve
Fund Account except as expressly set forth in this Section 3.01(a) and Section
4.01(a)(iii)(I) and (J).
(b) The Trustee shall establish and maintain the Distribution
Account on behalf of the Certificateholders. The Trustee shall, promptly upon
receipt on the Business Day received, deposit in the Distribution Account and
retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Trustee
pursuant to the Master Seller's Warranties and Servicing Agreement; and
(ii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the Servicer shall remit any amount not required
to be remitted pursuant to the Master Seller's Warranties and Servicing
Agreement, it may at any time direct the Trustee in writing to withdraw such
amount from the Distribution Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering notice to the
Trustee which describes the amounts deposited in error in the Distribution
Account. All funds deposited in the Distribution Account shall be held by the
Trustee in trust for the Certificateholders until disbursed in accordance with
this Agreement or withdrawn in accordance with Sections 4.01 or 6.03.
Section 3.02 Investment of Funds in the Distribution Account. (a)
The Trustee may (but shall not be obligated to) invest funds in the Distribution
Account during the Trustee Float Period (for purposes of this Section 3.02, such
Account is referred to as an "Investment Account"), in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand no later than the Business Day immediately preceding the date on which
such funds are required to be withdrawn from such account pursuant to this
Agreement. On or after the Remittance Date and prior to the Trustee Float
Period, the Depositor may direct the Trustee to invest funds in the Distribution
Account in such Permitted Investments. All such Permitted Investments shall be
held to maturity, unless payable on demand. Any investment of funds in an
Investment Account shall be made in the name of the Trustee. The Trustee shall
be entitled to sole possession over each such investment, and any certificate or
other instrument evidencing any such investment shall be delivered directly to
the Trustee or its agent, together with any document of transfer necessary to
transfer title to such investment to the Trustee. In the event amounts on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Trustee may:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Trustee during the Trustee
Float Period shall be subject to the Trustee's withdrawal in the manner set
forth in Section 8.05.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings. Notwithstanding the foregoing, the Depositor shall be
liable to the Trust for any loss on any investment of funds in the Distribution
Account other than during the Trustee Float Period and the Trustee shall be
liable to the Trust for any such loss only during the Trustee Float Period, and
the Depositor or the Trustee, as the case may be, shall deposit funds in the
amount of such loss in the Distribution Account promptly after such loss is
incurred.
(d) The Trustee or its Affiliates are permitted to receive
additional compensation that could be deemed to be in the Trustee's economic
self-interest for (i) serving as investment adviser, administrator, shareholder,
servicing agent, custodian or sub-custodian with respect to certain of the
Permitted Investments, (ii) using Affiliates to effect transactions in certain
Permitted Investments and (iii) effecting transactions in certain Permitted
Investments. Such compensation is not payable or reimbursable under Section 8.06
of this Trust Agreement.
(e) In order to comply with its duties under the USA Patriot Act of
2001, the Trustee shall obtain and verify certain information and documentation
from the other party to this Trust Agreement including, but not limited to, such
party's name, address and other identifying information.
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution. (a) On each Distribution
Date, the Trustee shall, from funds on deposit in the Distribution Account, pay
the Transaction Oversight Manager the Transaction Oversight Manager Fee for such
Distribution Date and shall make the disbursements and transfers from amounts
then on deposit in the Distribution Account in the following order of priority
and to the extent of the Available Funds remaining:
(i) to the holders of each Class of Principal Certificates in the
following order of priority:
(A) concurrently, (1) from the Interest Remittance Amount
related to the Group I Mortgage Loans to the Class A-1 Certificates,
their related Accrued Certificate Interest Distribution Amount and
Unpaid Interest Amounts for such Distribution Date allocated in
accordance with clauses (iv) and (v) of this Section 4.01(a); and
(2) from the Interest Remittance Amount related to the Group II
Mortgage Loans to the Class A-2 Certificates, their related Accrued
Certificate Interest Distribution Amount and Unpaid Interest Amounts
for such Distribution Date allocated in accordance with clauses (iv)
and (v) of this Section 4.01(a); provided, that if the Interest
Remittance Amount for either Loan Group is insufficient to make the
related payments set forth in clause (1) or (2) above, any Interest
Remittance Amount relating to the other Loan Group remaining after
payment of the related Accrued Certificate Interest Distribution and
Unpaid Interest Amount will be available to cover that shortfall;
(B) from any remaining Interest Remittance Amounts, to the
Class M-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(C) from any remaining Interest Remittance Amounts, to the
Class M-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(D) from any remaining Interest Remittance Amounts, to the
Class M-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(E) from any remaining Interest Remittance Amounts, to the
Class B-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date; and
(F) from any remaining Interest Remittance Amounts, to the
Class B-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(G) from any remaining Interest Remittance Amounts, to the
Class B-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date; and
(H) from any remaining Interest Remittance Amounts, to the
Class B-4 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(ii) (A) on each Distribution Date (a) before the Stepdown Date or
(b) with respect to which a Trigger Event is in effect, to the holders of
the related Class or Classes of Principal Certificates then entitled to
distributions of principal as set forth below, from Available Funds
remaining after making distributions pursuant to clause (i) above, an
amount equal to the Principal Distribution Amount in the following order
of priority:
(a) to the Class A Certificates, allocated as described in
Section 4.01(c), until the respective Class Certificate Balances
thereof are reduced to zero; and
(b) sequentially to the Class M-1, Class M-2, Class M-3, Class
B-1, Class B-2, Class B-3 and Class B-4 Certificates, in that order,
until the respective Class Certificate Balances thereof are reduced
to zero.
(B) on each Distribution Date (a) on and after the related
Stepdown Date and (b) as long as a Trigger Event is not in effect, to the
holders of the related Class or Classes of Principal Certificates then
entitled to distribution of principal, from Available Funds remaining
after making distributions pursuant to clause (i) above, an amount equal
to, the Principal Distribution Amount in the following amounts and order
of priority:
(a) the lesser of (x) the Principal Distribution Amount and
(y) the Class A Principal Distribution Amount to the Class A
Certificates, allocated as described in Section 4.01(c), until the
respective Class Certificate Balances thereof are reduced to zero;
(b) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above and (y) the Class M-1
Principal Distribution Amount to the Class M-1 Certificateholders,
until the Class Certificate Balance thereof has been reduced to
zero;
(c) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above and to the Class M-1
Certificates in clause (ii)(B)(b) above and (y) the Class M-2
Principal Distribution Amount to the Class M-2 Certificates, until
the Class Certificate Balance thereof has been reduced to zero;
(d) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above and to the Class M-2
Certificates in clause (ii)(B)(c) above and (y) the Class M-3
Principal Distribution Amount to the Class M-3 Certificates, until
the Class Certificate Balance thereof has been reduced to zero; and
(e) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above and (y) the Class B-1
Principal Distribution Amount to the Class B-1 Certificates, until
the Class Certificate Balance thereof has been reduced to zero;
(f) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above and to the Class B-1
Certificates in clause (ii)(B)(e) above and (y) the Class B-2
Principal Distribution Amount to the Class B-2 Certificates, until
the Class Certificate Balance thereof has been reduced to zero;
(g) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class B-1
Certificates in clause (ii)(B)(e) above and to the Class B-2
Certificates in clause (ii)(B)(f) above and (y) the Class B-3
Principal Distribution Amount to the Class B-3 Certificates, until
the Class Certificate Balance thereof has been reduced to zero; and
(h) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class B-1
Certificates in clause (ii)(B)(e) above, to the Class B-2
Certificates in clause (ii)(B)(f) above and to the Class B-3
Certificates in clause (ii)(B)(g) above and (y) the Class B-4
Principal Distribution Amount to the Class B-4 Certificates, until
the Class Certificate Balance thereof has been reduced to zero;
(iii) any amount remaining after the distributions in clauses (i)
and (ii) above shall be distributed in the following order of priority:
(A) to the holders of the Class M-1 Certificates, any Unpaid
Interest Amount for such Class;
(B) to the holders of the Class M-2 Certificates, any Unpaid
Interest Amount for such Class;
(C) to the holders of the Class M-3 Certificates, any Unpaid
Interest Amount for such Class;
(D) to the holders of the Class B-1 Certificates, any Unpaid
Interest Amount for such Class;
(E) to the holders of the Class B-2 Certificates, any Unpaid
Interest Amount for such Class;
(F) to the holders of the Class B-3 Certificates, any Unpaid
Interest Amount for such Class;
(G) to the holders of the Class B-4 Certificates, any Unpaid
Interest Amount for such Class;
(H) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment for such Distribution Date;
(I) from funds on deposit in the Excess Reserve Fund Account
with respect to that Distribution Date, an amount equal to any Basis
Risk Carry Forward Amount with respect to the Class A-1 and Class
A-2 Certificates, allocated pro rata based on their respective Basis
Risk Carry Forward Amounts;
(J) sequentially, to the Class X-0, Xxxxx X-0, Class M-3,
Class B-1, Class B-2, Class B-3 and Class B-4 Certificates, any
Basis Risk Carry Forward Amounts for such Classes;
(K) in the event that a Class A-2A Turbo Trigger Event is in
effect, to make additional principal distributions to the Class A-2A
Certificates in the amount of the Class A-2A Turbo Trigger Event
Payment Amount until the Class Certificate Balance of the Class A-2A
Certificates is reduced to zero;
(L) to the holders of the Class X Certificates, the remainder
of the Class X Distributable Amount not distributed pursuant to
Sections 4.01(a)(iii)(A)-(K); and
(M) to the holders of the Class R Certificates, any remaining
amount;
(iv) Solely for purposes of interest allocation calculations, the
portion of the interest component of Available Funds attributable to Group
I Mortgage Loans will be allocated:
(A) first, pro rata (based on the accrued and unpaid interest
distributable pursuant to Section 4.01(a)(i)(A)(1)), to the Class
A-1A and the Class A-1B Certificates, the Accrued Certificate
Interest Distribution Amount and any Unpaid Interest Amount for each
such Class; and
(B) second, pro rata (based on the accrued and unpaid interest
distributable pursuant to Section 4.01(a)(i)(A)(2)), to the Class
A-2A, Class A-2B, Class A-2C and Class A-2D Certificates, the
Accrued Certificate Interest Distribution Amount and any Unpaid
Interest Amount for each such Class, to the extent not otherwise
previously paid from the interest component of Available Funds
attributable to Group II Mortgage Loans;
(v) Solely for purposes of interest allocation calculations, the
portion of the interest component of Available Funds attributable to Group
II Mortgage Loans will be allocated:
(A) first, pro rata (based on the accrued and unpaid interest
distributable pursuant to Section 4.01(a)(i)(A)(2)), to the Class
A-2A, Class A-2B, Class A-2C and Class A-2D Certificates, the
Accrued Certificate Interest Distribution Amount and any Unpaid
Interest Amount for each such Class; and
(B) second, pro rata (based on the accrued and unpaid interest
distributable pursuant to Section 4.01(a)(i)(A)(1)), to the Class
A-1A and the Class A-1B Certificates, the Accrued Certificate
Interest Distribution Amount and any Unpaid Interest Amount for each
such Class, to the extent not otherwise previously paid from the
interest component of Available Funds attributable to Group I
Mortgage Loans;
If on any Distribution Date, as a result of the foregoing allocation
rules, any Class of Class A Certificates does not receive the related Accrued
Certificate Interest Distribution Amount or the related Unpaid Interest Amount,
if any, then that unpaid amount will be recoverable by the holders of those
Classes, with interest thereon, on future Distribution Dates, as an Unpaid
Interest Amount, subject to the priorities described above. In the event the
Class Certificate Balance of any Class of Certificates has been reduced to zero,
that Class of Certificates shall no longer be entitled to receive any related
unpaid Basis Risk Carry Forward Amounts except to the extent the Class
Certificate Balance is increased as a result of any Subsequent Recovery.
(b) On each Distribution Date, all amounts representing Prepayment
Premiums from the Mortgage Loans received during the related Principal
Prepayment Period will be distributed to the holders of the Class P
Certificates.
(c) All principal distributions to the holders of the Class A
Certificates on any Distribution Date will be allocated between the Class A-1
Certificates and the Class A-2 Certificates based on the Class A Principal
Allocation Percentage for the Class A-1 Certificates or the Class A-2
Certificates, as applicable; provided, however, that if the aggregate Class
Certificate Balance of either Class A Certificate Group is reduced to zero, then
the remaining amount of principal distributions distributable to the Class A
Certificates on that Distribution Date, and the amount of those principal
distributions distributable on all subsequent Distribution Dates, will be
distributed to the Class A Certificates remaining outstanding in accordance with
the principal distribution allocations set forth in this Section 4.01(c), until
their Class Certificate Balances have been reduced to zero. Any payments of
principal to the Class A-1 Certificates shall be made first from Available Funds
relating to the Group I Mortgage Loans. Any payments of principal to the Class
A-2 Certificates shall be made first from Available Funds relating to the Group
II Mortgage Loans. Any principal distributions allocated to the Class A-1
Certificates shall be distributed pro rata between the Class A-1A Certificates
and the Class A-1B Certificates, based on their respective Class Certificate
Balances, until their Class Certificate Balances have been reduced to zero.
However, so long as a Group I Sequential Trigger Event is in effect, principal
distributions to the Class A-1 Certificates shall be allocated first to the
Class A-1A Certificates, until their Class Certificate Balance has been reduced
to zero, and then to the Class A-1B Certificates, until their Class Certificate
Balance has been reduced to zero. Any principal distributions allocated to the
Class A-2 Certificates shall be distributed between the Class A-2 Sequential
Certificates, on the one hand, and the Class A-2D Certificates, on the other,
pro rata, based on their respective Class Certificate Balances. Any principal
distributions allocated to the Class A-2 Sequential Certificates shall be
distributed sequentially, first, to the Class A-2A Certificates, until their
Class Certificate Balance has been reduced to zero, second, to the Class A-2B
Certificates, until their Class Certificate Balance has been reduced to zero and
third, to the Class A-2C Certificates, until their Class Certificate Balance has
been reduced to zero.
(d) Notwithstanding the allocation of principal to the Class A
Certificates described in the preceding paragraph, from and after the
Distribution Date on which the aggregate Class Certificate Balances of the Class
M-1, Class M-2, Class M-3, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates and the principal balance of the Class X Certificates have been
reduced to zero, any principal distributions allocated to the Class A
Certificates are required to be allocated pro rata to the Class A-1 Certificates
and the Class A-2 Certificates, based on their respective Certificate Principal
Balances, except that so long as a Group I Sequential Trigger Event is in
effect, principal distributions allocated to the Class A-1 Certificates will be
allocated sequentially, first, to the Class A-1A Certificates, until their Class
Certificate Balance has been reduced to zero, and, second, to the Class A-1B
Certificates, until their Class Certificate Balance has been reduced to zero.
(e) On any Distribution Date, any Relief Act Interest Shortfalls and
Net Prepayment Interest Shortfalls for such Distribution Date will be allocated
pro rata, as a reduction of the Accrued Certificate Interest Distribution
Amounts for the Principal Certificates, based on the amount of interest to which
such classes would otherwise be entitled.
Section 4.02 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Trustee shall make available to each
Certificateholder, the Servicer, the Depositor, the Responsible Party and each
Rating Agency a statement setting forth with respect to the related
distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any Unpaid Interest
Amounts included in such distribution and any remaining Unpaid Interest
Amounts after giving effect to such distribution, any Basis Risk Carry
Forward Amount for such Distribution Date and the amount of all Basis Risk
Carry Forward Amount covered by withdrawals from the Excess Reserve Fund
Account on such Distribution Date;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest, including any Basis Risk Carry Forward Amount not covered by
amounts in the Excess Reserve Fund Account;
(iv) the Class Certificate Balance of each Class of Principal
Certificates after giving effect to the distribution of principal on such
Distribution Date;
(v) the Pool Stated Principal Balance for the following Distribution
Date;
(vi) the amount of the Expense Fees (in the aggregate and separately
stated) paid to or retained by the Servicer, the Trustee and the
Transaction Oversight Manager with respect to such Distribution Date;
(vii) the Pass-Through Rate for each Class of LIBOR Certificates
with respect to such Distribution Date;
(viii) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances reported by the
servicer as outstanding as of the close of business on the last Business
Day of the immediately preceding month prior to such Distribution Date;
(ix) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the Monthly Payment is delinquent 31 to 60
days, 61 to 90 days and 91 or more days, (2) that have become REO
Property, (3) that are in foreclosure and (4) that are in bankruptcy, in
each case as of the close of business on the last Business Day of the
immediately preceding month;
(x) for each of the preceding 12 calendar months, or all calendar
months since the related Cut-off Date, whichever is less, the aggregate
dollar amount of the Monthly Payments (A) due on all Outstanding Mortgage
Loans on each of the Due Dates in each such month and (B) delinquent 60
days or more on each of the Due Dates in each such month;
(xi) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the last
Business Day of the immediately preceding month prior to such Distribution
Date and the date of acquisition thereof;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the last
Business Day of the immediately preceding month prior to such Distribution
Date;
(xiii) whether a Trigger Event or a Class A-2A Turbo Trigger Event
has occurred and is continuing (including the calculation of thereof and
the aggregate outstanding balance of all 60+ Day Delinquent Mortgage
Loans);
(xiv) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on such Distribution Date);
(xv) the aggregate amount of Applied Realized Loss Amounts incurred
during the preceding calendar month and aggregate Applied Realized Loss
Amounts through such Distribution Date;
(xvi) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the Certificateholders
with respect to Unpaid Interest Amounts;
(xvii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xviii) Prepayment Premiums collected by the Servicer; and
(xix) the amount distributed on the Class X, Class P and Class R
Certificates;
(b) The Trustee's responsibility for providing the above statement
to the Certificateholders, each Rating Agency, the Servicer, the Responsible
Party and the Depositor is limited to the availability, timeliness and accuracy
of the information derived from the Servicer. The Trustee will provide the above
statement via the Trustee's internet website. The Trustee's website will
initially be located at xxxx://xxx.xxx.xx.xxx/xxxx and assistance in using the
website can be obtained by calling the Trustee's investor relations desk at
0-000-000-0000. A paper copy of the above statement will also be made available
upon request.
(c) Within a reasonable period of time after the end of each
calendar year, the Trustee shall cause to be furnished to each Person who at any
time during the calendar year was a Certificateholder, a statement containing
the information set forth in clauses (a)(i) and (a)(ii) of this Section 4.02
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time in effect.
(d) Pursuant to Section 5.02 of the Master Seller's Warranties and
Servicing Agreement, the Servicer has agreed to provide monthly information
reports to the Trustee. On the Closing Date, the Trustee shall request the
Servicer to deliver, on a monthly basis, no later than each Remittance Advice
Date a monthly remittance advice statement containing the information required
by the Trustee to calculate and provide the reports required by Section 4.02(a)
as to the accompanying remittance and the period ending on the close of business
on the last Business Day of the immediately preceding month (or the last day of
the Due Period, as applicable) (the "Servicer Remittance Report"). On a on-going
basis, the Trustee may reasonably request the Servicer to provide additional
information to be included in subsequent Servicer Remittance Reports.
On the Closing Date, the Trustee shall request the Servicer to
furnish an individual loan accounting report, as of the last day of the Due
Period of each month, to document Mortgage Loan payment activity on an
individual Mortgage Loan basis. With respect to each month, the Trustee shall
request the Servicer to furnish the corresponding individual loan accounting
report (in electronic format) to be received by the Trustee no later than the
Remittance Advice Date, which report shall contain the following:
(i) with respect to each Monthly Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any
Prepayment Premiums, along with a detailed report of interest on principal
prepayment amounts remitted in accordance with the Master Seller's
Warranties and Servicing Agreement);
(ii) with respect to each Monthly Payment, the amount of such
remittance allocable to interest;
(iii) the individual and aggregate Stated Principal Balance of the
Mortgage Loans;
(iv) the aggregate of any expenses reimbursed to the Servicer during
the prior distribution period pursuant to the Master Seller's Warranties
and Servicing Agreement;
(v) the number and aggregate outstanding principal balances of
Mortgage Loans (a) delinquent (1) 31 to 60 days, (2) 61 to 90 days, or (3)
91 days or more; (b) as to which foreclosure has commenced; and (c) as to
which REO Property has been acquired; and
(vi) any other information reasonably required by the Trustee to
enable it to prepare the monthly statements referred to in Section
4.02(a).
(e) The Trustee shall provide each Servicer Remittance Report, and
any Servicer provided information in the possession of the Trustee reasonably
requested by the Transaction Oversight Manager, to the Transaction Oversight
Manager within two (2) Business Days of its receipt from the Servicer. The
Trustee's responsibility for providing such information is limited to the
availability and timeliness of the information provided by the Servicer. The
Trustee shall provide such information in the same format as received from the
Servicer. The Trustee shall have no obligation to monitor, review or take any
action regarding such information received from the Servicer pursuant to the
Transaction Oversight Management Agreement other than forwarding copies to the
Transaction Oversight Manager. The Trustee shall have no liability for the
accuracy, completeness or otherwise for such information.
Section 4.03 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts will be allocated to the most junior Class of
Subordinate Certificates then outstanding in reduction of the Class Certificate
Balance thereof. In the event, Applied Realized Loss Amounts are allocated to
any Class of Certificates, their Class Certificate Balance shall be reduced by
the amount so allocated and no funds shall be distributed with respect to the
written down amounts or with respect to interest or Basis Risk Carry Forward
Amounts on the written down amounts on that Distribution Date or any future
Distribution Dates, even if funds are otherwise available therefor.
Notwithstanding the foregoing, the Class Certificate Balance of each
Class of Subordinated Certificates that has been previously reduced by Applied
Realized Loss Amounts will be increased, in that order or seniority, by the
amount of the Subsequent Recoveries (but not in excess of the Applied Realized
Loss Amount allocated to the applicable Class of Subordinated Certificates).
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Trustee in accordance with the definition of
"LIBOR." Until all of the LIBOR Certificates are paid in full, the Trustee will
at all times retain at least four Reference Banks for the purpose of determining
LIBOR with respect to each LIBOR Determination Date. The Trustee initially shall
designate the Reference Banks (after consultation with the Depositor). Each
"Reference Bank" shall be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, shall not control, be
controlled by, or be under common control with, the Trustee and shall have an
established place of business in London. If any such Reference Bank should be
unwilling or unable to act as such or if the Trustee should terminate its
appointment as Reference Bank, the Trustee shall promptly appoint or cause to be
appointed another Reference Bank (after consultation with the Depositor). The
Trustee shall have no liability or responsibility to any Person for (i) the
selection of any Reference Bank for purposes of determining LIBOR or (ii) any
inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
(i) The Pass-Through Rate for each Class of LIBOR Certificates for
each Interest Accrual Period shall be determined by the Trustee on each
LIBOR Determination Date so long as the LIBOR Certificates are outstanding
on the basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement. The Trustee shall not have any
liability or responsibility to any Person for its inability, following a
good-faith reasonable effort, to obtain quotations from the Reference
Banks or to determine the arithmetic mean referred to in the definition of
LIBOR, all as provided for in this Section 4.04 and the definition of
LIBOR. The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Trustee shall (in the absence of manifest error) be
final, conclusive and binding upon each Holder of a Certificate and the
Trustee.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral multiples
in excess thereof (except that one Certificate in each Class may be issued in a
different amount and aggregate denominations per Class set forth in the
Preliminary Statement.
The Depositor hereby directs the Trustee to register the Class X
Certificates and the Class P Certificates in the name of the Depositor or its
designee. On a date as to which the Depositor notifies the Trustee, the Trustee
shall transfer the Class X Certificates and the Class P Certificates in the name
of the NIM Trustee, or such other name or names as the Depositor shall request
and to deliver the Class X Certificates and Class P Certificates to Deutsche
Bank National Trust Company, as NIM Trustee, or such other person or persons as
the Depositor shall request.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such holder at a bank
or other entity having appropriate facilities therefor as directed by that
Certificateholder by written wire instructions provided to the Trustee or (y),
in the event that no wire instructions are provided to the Trustee, by check
mailed by first class mail to such Certificateholder at the address of such
holder appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the authentication and delivery of any such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless authenticated by the Trustee by manual signature, and
such authentication upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their authentication. On
the Closing Date, the Trustee shall authenticate the Certificates to be issued
at the direction of the Depositor, or any affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Trustee shall maintain, or cause to be
maintained in accordance with the provisions of Section 5.06, a Certificate
Register for the Trust Fund in which, subject to the provisions of subsections
(b) and (c) below and to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the name
of the designated transferee or transferees, one or more new Certificates of the
same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the designated office or agency of the Trustee.
Whenever any Certificates are so surrendered for exchange, the Trustee shall
execute, authenticate, and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Trustee duly executed
by the holder thereof or his attorney duly authorized in writing. In the event,
the Depositor or an Affiliate thereof transfers the Class X Certificates, or a
portion thereof, to another Affiliate, it shall notify the Trustee in writing of
the affiliated status of the transferee. The Trustee shall have no liability
regarding the lack of notice with respect thereto.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. Except
with respect to (i) the initial transfer of the Class X, Class P or Class R
Certificates on the Closing Date, (ii) the transfer of the Class X or Class P
Certificates to a NIM Issuer or a NIM Trustee or (iii) a transfer of the Class
X, Class P or Class R Certificates to the Depositor or any affiliate of the
Depositor, in the event that a transfer of a Private Certificate which is a
Physical Certificate is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer shall
certify to the Trustee in writing the facts surrounding the transfer in
substantially the form set forth in Exhibit H (the "Transferor Certificate") and
either (i) there shall be delivered to the Trustee a letter in substantially the
form of Exhibit I (the "Rule 144A Letter") or (ii) in the case of the Class X
Certificates, there shall be delivered to the Trustee at the expense of the
transferor an Opinion of Counsel that such transfer may be made without
registration under the Securities Act. In the event that a transfer of a Private
Certificate which is a Book-Entry Certificate is to be made in reliance upon an
exemption from the Securities Act and such laws, in order to assure compliance
with the Securities Act and such laws, the Certificateholder desiring to effect
such transfer will be deemed to have made as of the transfer date each of the
certifications set forth in the Transferor Certificate in respect of such
Certificate and the transferee will be deemed to have made as of the transfer
date each of the certifications set forth in the Rule 144A Letter in respect of
such Certificate, in each case as if such Certificate were evidenced by a
Physical Certificate. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) for transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Trustee shall cooperate with the Depositor
in providing the Rule 144A information referenced in the preceding sentence,
including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund as
the Depositor shall reasonably request to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor and the Servicer against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state laws.
Except with respect to (i) the initial transfer of the Class X,
Class P or Class R Certificates on the Closing Date, (ii) the transfer of the
Class X or Class P Certificates to a NIM Issuer or a NIM Trustee or (iii) a
transfer of the Class X or Class P Certificates to the Depositor or an affiliate
of the Depositor, no transfer of an ERISA-Restricted Certificate shall be made
unless the Trustee shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trustee (in the event such Certificate is a Private
Certificate or a Residual Certificate, such requirement is satisfied only by the
Trustee's receipt of a representation letter from the transferee substantially
in the form of Exhibit I), to the effect that such transferee is not an employee
benefit plan or arrangement subject to Section 406 of ERISA, a plan subject to
Section 4975 of the Code or a plan subject to any Federal, state or local law
("Similar Law") materially similar to the foregoing provisions of ERISA or the
Code, nor a person acting on behalf of any such plan or arrangement nor using
the assets of any such plan or arrangement to effect such transfer, (ii) in the
case of an ERISA-Restricted Certificate other than a Residual Certificate or a
Class P Certificate that has been the subject of an ERISA-Qualifying
Underwriting and the purchaser is an insurance company, a representation that
the purchaser is an insurance company that is purchasing such Certificates with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60")) and that the purchase and holding of such Certificates are covered
under Sections I and III of PTCE 95-60 or (iii) in the case of any such
ERISA-Restricted Certificate other than a Residual Certificate or Class P
Certificate presented for registration in the name of an employee benefit plan
subject to Title I of ERISA, a plan or arrangement subject to Section 4975 of
the Code (or comparable provisions of any subsequent enactments), or a plan
subject to Similar Law, or a trustee of any such plan or any other person acting
on behalf of any such plan or arrangement or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Trustee, which Opinion of
Counsel shall not be an expense of the Trustee or the Trust Fund, addressed to
the Trustee, to the effect that the purchase or holding of such ERISA-Restricted
Certificate will not constitute or result in a non-exempt prohibited transaction
within the meaning of ERISA, Section 4975 of the Code or Similar Law and will
not subject the Trustee to any obligation in addition to those expressly
undertaken in this Agreement or to any liability. For purposes of the preceding
sentence, with respect to an ERISA-Restricted Certificate that is not a Private
Certificate or a Residual Certificate, in the event the representation letter
referred to in the preceding sentence is not furnished, such representation
shall be deemed to have been made to the Trustee by the transferee's (including
an initial acquirer's) acceptance of the ERISA-Restricted Certificates. In the
event that such representation is violated, or any attempt to transfer to a plan
or arrangement subject to Section 406 of ERISA, a plan subject to Section 4975
of the Code or a plan subject to Similar Law, or a person acting on behalf of
any such plan or arrangement or using the assets of any such plan or
arrangement, without such Opinion of Counsel, such attempted transfer or
acquisition shall be void and of no effect.
The Class R and Class P Certificates may not be sold to any employee
benefit plan subject to Title I of ERISA, any plan subject to Section 4975 of
the Code, or any plan subject to any Similar Law or any person investing on
behalf of or with plan assets of such plan.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Trustee shall be under no liability to any Person for
any registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee in the form attached hereto as Exhibit G;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and the Rule 144A Letter. The Trustee shall be entitled but
not obligated to recover from any Holder of a Residual Certificate that
was in fact not a Permitted Transferee at the time it became a Holder or,
at such subsequent time as it became other than a Permitted Transferee,
all payments made on such Residual Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of
such Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund or the Trustee, to the
effect that the elimination of such restrictions will not cause either Trust
REMIC to fail to qualify as a REMIC at any time that the Certificates are
outstanding or result in the imposition of any tax on the Trust Fund, a
Certificateholder or another Person. Each Person holding or acquiring any
Ownership Interest in a Residual Certificate hereby consents to any amendment of
this Agreement which, based on an Opinion of Counsel furnished to the Trustee,
is reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Residual Certificate is not transferred, directly or
indirectly, to a Person that is not a Permitted Transferee and (b) to provide
for a means to compel the Transfer of a Residual Certificate which is held by a
Person that is not a Permitted Transferee to a Holder that is a Permitted
Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor or (y) the Depositor notifies the
Depository of its intent to terminate the book-entry system through the
Depository, the Depository Participants holding beneficial interests in the
Book-Entry Certificates agree to initiate such termination, the Trustee shall
notify all Certificate Owners, through the Depository, of the occurrence of any
such event and of the availability of definitive, fully-registered Certificates
(the "Definitive Certificates") to Certificate Owners requesting the same. Upon
surrender to the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. Neither the Depositor nor the
Trustee shall be liable for any delay in delivery of such instruction and each
may conclusively rely on, and shall be protected in relying on, such
instructions. The Depositor shall provide the Trustee with an adequate inventory
of Certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Trustee shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Trustee and the
Certificate Registrar, duly executed by the Certificateholder or his attorney
duly authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by the Certificate Registrar in accordance with its customary practice. No
service charge shall be made for any registration of transfer or exchange of
Private Certificates, but the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Private Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Trustee, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Depositor and the Trustee such
security or indemnity as may be required by them to hold each of them harmless,
then, in the absence of notice to the Trustee that such Certificate has been
acquired by a bona fide purchaser, the Trustee shall execute, authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like Class, tenor and Percentage
Interest. In connection with the issuance of any new Certificate under this
Section 5.03, the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith. Any replacement Certificate issued pursuant to this Section 5.03
shall constitute complete and indefeasible evidence of ownership, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04 Persons Deemed Owners. The Servicer, the Trustee, the
Depositor and any agent of the Servicer, the Depositor or the Trustee may treat
the Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and neither the Servicer, the
Trustee, the Depositor nor any agent of the Servicer, the Depositor or the
Trustee shall be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, the Servicer or such Certificateholders at
such recipients' expense the most recent list of the Certificateholders of such
Trust Fund held by the Trustee, if any. The Depositor and every
Certificateholder, by receiving and holding a Certificate, agree that the
Trustee shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. The Trustee will
maintain or cause to be maintained at its expense an office or offices or agency
or agencies in New York City where Certificates may be surrendered for
registration of transfer or exchange. The Trustee initially designates the
offices of its agent for such purposes located at DTC Transfer Agent Services,
00 Xxxxx Xxxxxx, Xxxxxxxx Xxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Trustee
will give prompt written notice to the Certificateholders of any change in such
location of any such office or agency. As of the Closing Date, the Trustee
designates the office of its agent located c/o DTC Transfer Agent Services, 00
Xxxxx Xxxxxx, Xxxxxxxx Xxxx Entrance, Xxx Xxxx, Xxx Xxxx 00000 for purposes of
transfers, exchanges or surrenders.
ARTICLE VI
THE DEPOSITOR AND THE TRANSACTION OVERSIGHT MANAGER
Section 6.01 Liabilities of the Depositor. The Depositor shall be
liable in accordance herewith only to the extent of the obligations specifically
and respectively imposed upon and undertaken by it herein.
Section 6.02 Merger or Consolidation of the Depositor. The Depositor
will keep in full effect its existence, rights and franchises as a corporation
or federally chartered savings bank, as the case may be, under the laws of the
United States or under the laws of one of the states thereof and will each
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
Any Person into which the Depositor may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the Depositor
shall be a party, or any person succeeding to the business of the Depositor,
shall be the successor of the Depositor, as the case may be, hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
Section 6.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers, employees or agents
shall be under any liability to the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor or any such Person against any breach of
representations or warranties made by it herein or protect the Depositor or any
such Person from any liability which would otherwise be imposed by reasons of
willful misfeasance, bad faith or gross negligence in the performance of duties
or by reason of reckless disregard of obligations and duties hereunder. The
Depositor and any director, officer, employee or agent of the Depositor may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor
and any director, officer, employee or agent of the Depositor shall be
indemnified by the Trust Fund and held harmless against any loss, liability or
expense incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense related to any specific Mortgage Loan or Mortgage Loans (except as
any such loss, liability or expense shall be otherwise reimbursable pursuant to
this Agreement) and any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. The Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its respective
duties hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that the Depositor may in its discretion undertake
any such action (or direct the Trustee to undertake such actions for the benefit
of the Certificateholders) that it may deem necessary or desirable in respect of
this Agreement and the rights and duties of the parties hereto and interests of
the Trustee and the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund, and the Depositor shall be
entitled to be reimbursed therefor out of the Distribution Account.
Section 6.04 Servicing Compliance Review. Promptly upon receipt from
the Servicer of its annual statement described in Section 6.04 of the Master
Seller's Warranties and Servicing Agreement and the accountant's report
described in Section 6.05 of the Master Seller's Warranties and Servicing
Agreement, the Trustee shall furnish a copy thereof to the Depositor. Promptly
after the Depositor's receipt thereof, the Depositor shall review the same and,
if applicable, consult with the Servicer as to the nature of any defaults by the
Servicer in the fulfillment of any of the Servicer's obligations under the
Master Seller's Warranties and Servicing Agreement.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. If an Event of Default described in
Section 10.01 of the Master Seller's Warranties and Servicing Agreement shall
occur, then, and in each and every such case, so long as such Event of Default
shall not have been remedied, the Trustee may, or at the direction of
Certificateholders entitled to a majority of the Voting Rights, the Trustee
shall, by notice in writing to the Servicer (with a copy to each Rating Agency),
terminate all of the rights and obligations of the Servicer under this Agreement
and in and to the Mortgage Loans and the proceeds thereof, other than its rights
as a Certificateholder hereunder; provided, however, that the Trustee shall not
be required to give written notice to the Servicer of the occurrence of an Event
of Default described in clauses (i) and (ii) of Section 10.01 of the Master
Seller's Warranties and Servicing Agreement unless and until a Responsible
Officer of the Trustee has actual knowledge of the occurrence of such an Event
of Default. On and after the receipt by the Servicer of such written notice, all
authority and power of the Servicer hereunder, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee. The
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise.
Except as described in this Section 7.01 and notwithstanding Section
11.02 of the Master Seller's Warranties and Servicing Agreement, the Trustee
shall not terminate the Servicer.
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time the Trustee gives, and the Servicer receives a notice of termination
pursuant to Section 7.01, the Trustee shall, subject to and to the extent
provided in Section 7.03, and subject to the rights of the Depositor to appoint
a successor, Servicer pursuant to this Section 7.02, be the successor to the
Servicer in its capacity as servicer under the Master Seller's Warranties and
Servicing Agreement and the transactions set forth or provided for herein and in
the Master Seller's Warranties and Servicing Agreement and shall be subject to
all the responsibilities, duties and liabilities relating thereto placed on the
Servicer by the terms and provisions of the Master Seller's Warranties and
Servicing Agreement and applicable law including the obligation to make Monthly
Advances or Servicing Advances pursuant to the Master Seller's Warranties and
Servicing Agreement. As compensation therefor, the Trustee shall be entitled to
all funds relating to the Mortgage Loans that the Servicer would have been
entitled to charge to the Collection Account if the Servicer had continued to
act under the Master Seller's Warranties and Servicing Agreement including, if
the Servicer was receiving the Servicing Fee, the Servicing Fee and the income
on investments or gain related to the Collection Account (in addition to income
on investments or gain related to the Distribution Account for the benefit of
the Trustee). Notwithstanding the foregoing, if the Trustee has become the
successor to the Servicer in accordance with this Section 7.02, the Trustee may,
if it shall be unwilling to so act, or shall, if it is prohibited by applicable
law from making Monthly Advances and Servicing Advances pursuant to the Master
Seller's Warranties and Servicing Agreement or if it is otherwise unable to so
act, appoint, or petition a court of competent jurisdiction to appoint, any
established mortgage loan servicing institution the appointment of which does
not adversely affect the then current rating of the Certificates by each Rating
Agency, as the successor to the Servicer under the Master Seller's Warranties
and Servicing Agreement in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer under the Master
Seller's Warranties and Servicing Agreement. Any successor to the Servicer shall
be an institution which is a Xxxxxx Xxx- and Xxxxxxx Mac-approved
seller/servicer in good standing, which has a net worth of at least $30,000,000,
which is willing to service the Mortgage Loans and which executes and delivers
to the Depositor and the Trustee an agreement accepting such delegation and
assignment, containing an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer (other
than liabilities of the Servicer under Section 8.01 of the Master Seller's
Warranties and Servicing Agreement incurred prior to termination of the Servicer
under Section 7.01), with like effect as if originally named as a party to this
Agreement; provided, that each Rating Agency acknowledges that its rating of the
Certificates in effect immediately prior to such assignment and delegation will
not be qualified or reduced, as a result of such assignment and delegation.
Pending appointment of a successor to the Servicer hereunder, the Trustee,
unless the Trustee is prohibited by law from so acting, shall, subject to
Section 7.03, act in such capacity as hereinabove provided. In connection with
such appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it, the
Depositor, and such successor shall agree; provided, however, that no such
compensation shall be in excess of the Servicing Fee Rate and amounts paid to
the Servicer from investments. The Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession. Neither the Trustee nor any other successor to the Servicer
shall be deemed to be in default hereunder by reason of any failure to make, or
any delay in making, any distribution hereunder or any portion thereof or any
failure to perform, or any delay in performing, any duties or responsibilities
hereunder, in either case caused by the failure of the Servicer to deliver or
provide, or any delay in delivering or providing, any cash, information,
documents or records to it.
Any successor to the Servicer shall give notice to the Mortgagors of
such change of Servicer, in accordance with applicable federal and state law,
and shall, during the term of its service as Servicer, maintain in force the
policy or policies that the Servicer is required to maintain pursuant to the
Master Seller's Warranties and Servicing Agreement.
Notwithstanding anything to the contrary contained in this
Agreement, the Depositor shall have the right to appoint a successor to the
Servicer upon termination of the servicing pursuant to Section 7.01. Any such
successor Servicer shall be required to satisfy the requirements of a successor
Servicer under this Section 7.02.
Section 7.03 Trustee to Act as Servicer. In the event that the
Servicer shall for any reason no longer be the Servicer pursuant to Section 7.01
(including by reason of an Event of Default), the Trustee or its successor
shall, subject to the rights of the Depositor to appoint a successor Servicer
pursuant to Section 7.02, thereupon assume all of the rights and obligations of
the Servicer hereunder arising thereafter (except that the Trustee shall not be
(i) liable for investment losses of the predecessor Servicer pursuant to the
Master Seller's Warranties and Servicing Agreement or any acts or omissions of
the predecessor Servicer thereunder, (ii) obligated to effectuate repurchases or
substitutions of Mortgage Loans under the Master Seller's Warranties and
Servicing Agreement, including but not limited to repurchases or substitutions
pursuant to Section 3.03 of the Master Seller's Warranties and Servicing
Agreement, (iii) responsible for expenses of the predecessor Servicer pursuant
to Article II or Section 12.16 of the Master Seller's Warranties and Servicing
Agreement or (iv) deemed to have made any representations and warranties of the
Servicer under the Master Seller's Warranties and Servicing Agreement).
Section 7.04 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to the Servicer, the Trustee shall
give prompt written notice thereof to Certificateholders and to each Rating
Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders and each Rating Agency
notice of each such Event of Default hereunder known to the Trustee, unless such
Event of Default shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of an Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default has occurred and remains uncured, the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own bad faith or willful misfeasance; provided, however, that:
(a) unless an Event of Default of which the Trustee has actual
knowledge has occurred and is continuing, the duties and obligations of the
Trustee shall be determined solely by the express provisions of this Agreement,
the Trustee shall not be liable except for the performance of the duties and
obligations specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee, and the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming on their face to the requirements of
this Agreement which it believed in good faith to be genuine and to have been
duly executed by the proper authorities respecting any matters arising
hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights of Certificates relating to the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Agreement.
Section 8.02 Administration of the Servicer. The Trustee shall (i)
enforce the obligations of the Servicer to service the Mortgage Loans as set
forth in Section 7.01 and (ii) as successor Servicer under Section 7.02, make or
cause to be made Servicing Advances or Monthly Advances in accordance with the
Servicing Agreement in the event the Servicer fails to do so. Notwithstanding
the foregoing, the Trustee, as successor Servicer or otherwise shall not be
required to make any Nonrecoverable Servicing Advance or Nonrecoverable Monthly
Advance. The Trustee shall furnish to the Servicer any powers of attorney in
standard form used by the Trustee or other such documentation (as may be
provided from time to time and in form acceptable to the Trustee), necessary and
appropriate to enable the Servicer to service and administer the related
Mortgage Loans and REO Property.
The Trustee shall provide access to the Mortgage Loan documents in
possession of the Trustee regarding the related Mortgage Loans and REO Property
and the servicing thereof to the Certificateholders, the FDIC, and the
supervisory agents and examiners of the FDIC, such access being afforded only
upon reasonable prior written request and during normal business hours at the
office of the Trustee; provided, however, that, unless otherwise required by law
or any regulatory or administrative agency, the Trustee shall not be required to
provide access to such records and documentation if the provision thereof would
violate the legal right to privacy of any Mortgagor. The Trustee shall allow
representatives of the above entities to photocopy any of the records and
documentation and shall provide equipment for that purpose at the expense of the
Trust that covers the Trustee's actual costs.
Upon receipt of a Request for Release by the Servicer, the Trustee
shall release within five Business Days the related Mortgage File to the
Servicer and execute and deliver to the Servicer, without recourse, a request
for reconveyance, deed of reconveyance or release or satisfaction of mortgage or
such instrument releasing the lien of the Mortgage (furnished by such Servicer),
together with the Mortgage Note.
The Trustee shall execute and deliver to the Servicer, upon its
request, any court pleadings, requests for trustee's sale or other documents
necessary or desirable to (i) the foreclosure or trustee's sale with respect to
a Mortgaged Property; (ii) any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note or Mortgage; (iii) obtain a deficiency
judgment against the Mortgagor; or (iv) enforce any other rights or remedies
provided by the Mortgage Note or Mortgage or otherwise available at law or
equity.
Section 8.03 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
Opinion of Counsel, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(c) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing so to do by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not assured to the Trustee by the security afforded to it by the terms
of this Agreement, the Trustee may require indemnity satisfactory to the Trustee
against such cost, expense or liability as a condition to taking any such
action. The reasonable expense of every such examination shall be paid by the
Servicer or, if paid by the Trustee, shall be repaid by the Servicer upon demand
from the Servicer's own funds;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the investment
security and except with respect to the investment of funds in the Distribution
Account not made at the direction of the Depositor during the Trustee Float
Period);
(h) unless a Responsible Officer of the Trustee has actual knowledge
of the occurrence of an Event of Default described in Section 10.01 of the
Master Seller's Warranties and Servicing Agreement, the Trustee shall not be
deemed to have knowledge of an Event of Default until a Responsible Officer of
the Trustee shall have received written notice thereof except for failure by the
Servicer to remit funds on the Remittance Date to the Trustee or to make Monthly
Advances; and
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby.
Section 8.04 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document other than with respect to the Trustee's execution and
countersignature of the Certificates. The Trustee shall not be accountable for
the use or application by the Depositor or the Servicer of any funds paid to the
Depositor or the Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or the Servicer.
The Trustee shall have no responsibility for filing or recording any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become and remains the
successor Servicer) (ii) to see to any insurance (unless the Trustee shall have
become the successor Servicer), or (iii) to confirm or verify the contents of
any reports or certificates of the 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.
The Trustee executes the Certificates not in its individual capacity
but solely as Trustee of the Trust Fund created by this Agreement, in the
exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust Fund in the Certificates is made and intended not
as a personal undertaking or agreement by the Trustee but is made and intended
for the purpose of binding only the Trust Fund.
Section 8.05 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
Section 8.06 Trustee's Fees and Expenses. As compensation for its
activities under this Agreement, the Trustee may withdraw from the Distribution
Account on each Distribution Date the Trustee Fee for the Distribution Date and,
during the Trustee Float Period, any interest or investment income earned on
funds deposited in the Distribution Account. The Trustee and any director,
officer, employee, or agent of the Trustee shall be indemnified by the Trust
Fund and held harmless against any loss, liability, or expense (including
reasonable attorneys' fees) incurred in connection with any claim or legal
action relating to
(a) this Agreement,
(b) the Certificates, or
(c) the performance of any of the Trustee's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any breach of the
Servicer's obligations in connection with the Master Seller's Warranties and
Servicing Agreement for which the Servicer has performed its obligation to
indemnify the Trustee pursuant to the Master Seller's Warranties and Servicing
Agreement, (ii) resulting from any breach of the Responsible Party's obligations
in connection with the Master Seller's Warranties and Servicing Agreement for
which the Responsible Party has performed its obligation to indemnify the
Trustee pursuant to the Master Seller's Warranties and Servicing Agreement, or
(iii) incurred because of willful misfeasance, bad faith, or negligence in the
performance of any of the Trustee's duties under this Agreement. This indemnity
shall survive the termination of this Agreement or the resignation or removal of
the Trustee under this Agreement. Without limiting the foregoing, except as
otherwise agreed upon in writing by the Depositor and the Trustee, and except
for any expense, disbursement, or advance arising from the Trustee's negligence,
bad faith, or willful misfeasance, the Trust Fund shall pay or reimburse the
Trustee, for all reasonable expenses, disbursements, and advances incurred or
made by the Trustee in accordance with this Agreement with respect to:
(A) the reasonable compensation, expenses, and disbursements of its
counsel not associated with the closing of the issuance of the Certificates,
(B) the reasonable compensation, expenses, and disbursements of any
accountant, engineer, or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage them to perform services
under this Agreement, and
(C) printing and engraving expenses in connection with preparing any
Definitive Certificates.
Except as otherwise provided in this Agreement or a separate letter
agreement between the Trustee and the Depositor, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
paying agent under this Agreement or for any other expenses.
Section 8.07 Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times be a corporation or association organized and doing
business under the laws of a state or the United States of America, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000, subject to supervision or examination by
federal or state authority and with a credit rating which would not cause any of
the Rating Agencies to reduce their respective then current ratings of the
Certificates (or having provided such security from time to time as is
sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.07
the combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with this Section 8.07, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.08. The
entity serving as Trustee may have normal banking and trust relationships with
the Depositor and its affiliates or the Servicer and its affiliates; provided,
however, that such entity cannot be an affiliate of the Depositor or the
Servicer other than the Trustee in its role as successor to the Servicer.
Section 8.08 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice of resignation to the Depositor, the Servicer and each Rating
Agency not less than 60 days before the date specified in such notice, when,
subject to Section 8.09, such resignation is to take effect, and acceptance by a
successor trustee in accordance with Section 8.09 meeting the qualifications set
forth in Section 8.07. If no successor trustee meeting such qualifications shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice or resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.06 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor may remove the Trustee and appoint a
successor trustee by written instrument, in triplicate, one copy of which shall
be delivered to the Trustee, one copy to the Servicer and one copy to the
successor trustee.
The Holders of Certificates entitled to a majority of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to the Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. The
successor trustee shall notify each Rating Agency of any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.08 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.09.
Section 8.09 Successor Trustee. Any successor trustee appointed as
provided in Section 8.08 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee and the Servicer an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The Depositor, the
Servicer and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for more fully and
certainly vesting and confirming in the successor trustee all such rights,
powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.09 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.07 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.09, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 8.10 Merger or Consolidation of the Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.07
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding.
Section 8.11 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.11, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider appropriate. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request to do so, or in the case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.07 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.09.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.11, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this Agreement
to advance funds on behalf of the Servicer, shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or as
successor to the Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the applicable Trust
Fund or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.12 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in, and in
accordance with, the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of each REMIC described in the
Preliminary Statement and that in such capacity it shall:
(a) prepare and file, in a timely manner, a U.S. Real Estate
Mortgage Investment Conduit (REMIC) Income Tax Return (Form 1066 or any
successor form adopted by the Internal Revenue Service) and prepare and file
with the Internal Revenue Service and applicable state or local tax authorities
income tax or information returns for each taxable year with respect to each
REMIC described in the Preliminary Statement containing such information and at
the times and in the manner as may be required by the Code or state or local tax
laws, regulations, or rules, and furnish to Certificateholders the schedules,
statements or information at such times and in such manner as may be required
thereby;
(b) within thirty days of the Closing Date, the Trustee will apply
for an employer identification number from the Internal Revenue Service via Form
SS-4 or any other acceptable method for all tax entities and shall also furnish
to the Internal Revenue Service, on Form 8811 or as otherwise may be required by
the Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) make an election that each of the Lower Tier REMIC and the Upper
Tier REMIC be treated as a REMIC on the federal tax return for its first taxable
year (and, if necessary, under applicable state law);
(d) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any original
issue discount using the prepayment assumption (as described in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee (a "Non-Permitted Transferee"), or an agent (including a broker,
nominee or other middleman) of a Non-Permitted Transferee, or a pass-through
entity in which a Non-Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so as
to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of either Trust
REMIC created hereunder;
(h) pay, from the sources specified in the last paragraph of this
Section 8.12, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on either Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings);
(i) cause federal, state or local income tax or information returns
to be signed by the Trustee or such other person as may be required to sign such
returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to each of the Trust REMICs, including
the income, expenses, assets, and liabilities thereof on a calendar year basis
and on the accrual method of accounting and the fair market value and adjusted
basis of the assets determined at such intervals as may be required by the Code,
as may be necessary to prepare the foregoing returns, schedules, statements or
information; and
(k) as and when necessary and appropriate, represent each Trust
REMIC in any administrative or judicial proceedings relating to an examination
or audit by any governmental taxing authority, request an administrative
adjustment as to any taxable year of each Trust REMIC, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of either Trust REMIC, and otherwise act on
behalf of each Trust REMIC in relation to any tax matter or controversy
involving it.
The Trustee shall treat the rights of the Class P Certificateholders
to receive Prepayment Premiums, the rights of the Class X Certificateholders to
receive amounts in the Excess Reserve Fund Account (subject to the obligation to
pay Basis Risk Carry Forward Amounts) and the rights of the Principal
Certificateholders to receive Basis Risk Carry Forward Amounts as the beneficial
ownership interests in a grantor trust and not as an obligations of any REMIC
created hereunder, for federal income tax purposes. The Trustee shall file or
cause to be filed with the Internal Revenue Service Form 1041 or such other form
as may be applicable and shall furnish or cause to be furnished, to the Class P
Certificateholders, the Class X Certificateholders and the Principal
Certificateholders, the respective amounts described above that are received, in
the time or times and in the manner required by the Code.
To enable the Trustee to perform its duties under this Agreement,
the Depositor shall provide to the Trustee within ten days after the Closing
Date all information or data that the Trustee requests in writing and determines
to be relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption, and projected
cash flows of the Certificates and the Mortgage Loans. Moreover, the Depositor
shall provide information to the Trustee concerning the value, if any, to each
Class of Certificates of the right to receive Basis Risk Carry Forward Amounts
from the Excess Reserve Fund Account. Thereafter, the Depositor shall provide to
the Trustee promptly upon written request therefor any additional information or
data that the Trustee may, from time to time, reasonably request to enable the
Trustee to perform its duties under this Agreement. The Depositor hereby
indemnifies the Trustee for any losses, liabilities, damages, claims, or
expenses of the Trustee arising from any errors or miscalculations of the
Trustee that result from any failure of the Depositor to provide, or to cause to
be provided, accurate information or data to the Trustee on a timely basis.
If any tax is imposed on "prohibited transactions" of either Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Lower Tier REMIC as defined in Section 860G(c) of
the Code, on any contribution to either Trust REMIC after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed, including
any minimum tax imposed on either Trust REMIC pursuant to Sections 23153 and
24874 of the California Revenue and Taxation Code, if not paid as otherwise
provided for herein, the tax shall be paid by (i) the Trustee if such tax arises
out of or results from negligence of the Trustee in the performance of any of
its obligations under this Agreement, (ii) the Servicer, in the case of any such
minimum tax, and otherwise if such tax arises out of or results from a breach by
the Servicer of any of its obligations under the Master Seller's Warranties and
Servicing Agreement, (iii) a Responsible Party if such tax arises out of or
results from that Responsible Party's obligation to repurchase a Mortgage Loan
pursuant to the Master Seller's Warranties and Servicing Agreement, or (iv) in
all other cases, or if the Trustee, the Servicer, or the Responsible Party fails
to honor its obligations under the preceding clause (i), (ii), or (iii), any
such tax will be paid with amounts otherwise to be distributed to the
Certificateholders, as provided in Section 4.01(a).
For as long as each Trust REMIC shall exist, the Trustee shall act
as specifically required herein, and the Trustee shall comply with any
directions of the Depositor or the Servicer stating that such directions are
being given to assure such continuing treatment. In particular, the Trustee
shall not (a) sell or permit the sale of all or any portion of the Mortgage
Loans or of any investment of deposits in an Account (the maturity of any such
investments shall not be considered a sale hereunder) unless such sale is as a
result of a purchase or repurchase of the Mortgage Loans pursuant to this
Agreement and (b) accept any contribution to either Trust REMIC after the
Startup Day without receipt of a REMIC Opinion.
Section 8.13 Periodic Filings. (a) The Trustee shall reasonably
cooperate with the Depositor in connection with the Trust's satisfying the
reporting requirements under the Exchange Act. The Trustee shall prepare on
behalf of the Trust any Forms 8-K and 10-K customary for similar securities as
required by the Exchange Act and the Rules and Regulations of the Securities and
Exchange Commission thereunder, and the Trustee shall sign and file (via the
Securities and Exchange Commission's Electronic Data Gathering and Retrieval
System) such Forms on behalf of the Depositor, if an officer of the Depositor
signs the Certification pursuant to paragraph (b) of this Section 8.13, or
otherwise on behalf of the Trust. In the event the Trustee is signing on behalf
of the Depositor pursuant to the preceding sentence, the Depositor hereby grants
to the Trustee a limited power of attorney to execute and file each such
document on behalf of the Depositor. Such power of attorney shall continue until
the earlier of either (i) receipt by the Trustee from the Depositor of written
termination of such power of attorney and (ii) the termination of the Trust.
Notwithstanding the foregoing, the Trustee shall prepare such Form 10-K to be
signed by the Depositor and the Depositor shall sign such form unless the
Securities and Exchange Commission has indicated that it will accept a
Certification signed by the Depositor where the related Form 10-K is signed by
the Trustee on behalf of the Depositor.
(b) Each Form 8-K shall be filed by the Trustee within 15 days after
each Distribution Date, including a copy of the statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior to
March 30th of each year (or such earlier date as may be required by the Exchange
Act and the Rules and Regulations of the Securities and Exchange Commission),
the Trustee shall file a Form 10-K, in substance as required by applicable law
or applicable Securities and Exchange Commission staff's interpretations. Such
Form 10-K shall include as exhibits the Servicer's annual statement of
compliance described under Section 6.04 of the Master Seller's Warranties and
Servicing Agreement (upon which the Trustee may rely in delivering its
certification hereunder) and the accountant's report described under Section
6.05 of the Master Seller's Warranties and Servicing Agreement, in each case to
the extent they have been timely delivered to the Trustee. If they are not so
timely delivered, the Trustee shall file an amended Form 10-K including such
documents as exhibits reasonably promptly after they are delivered to the
Trustee. The Trustee shall have no liability with respect to any failure to
properly prepare or file such periodic reports resulting from or relating to the
Trustee's inability or failure to obtain any information not resulting from its
own negligence, willful misconduct or bad faith. The Form 10-K shall also
include a certification in the form attached hereto as Exhibit J, with such
changes as may be necessary or appropriate as a result of changes promulgated by
the Securities and Exchange Commission (the "Certification"), which shall,
except as described below, be signed by the senior officer of the Depositor in
charge of securitization.
(c) In the event the Certification is to be signed by an officer of
the Depositor, the Trustee shall sign a certification (in the form attached
hereto as Exhibit K with such changes as may be necessary or appropriate as a
result of changes promulgated by the Securities and Exchange Commission) for the
benefit of the Depositor and its officers, directors and Affiliates in respect
of items 1 through 3 of the Certification; provided, however, that the Trustee
shall not undertake an analysis of the accountant's report attached as an
exhibit to the Form 10-K. Such certification shall be delivered to the Depositor
by March 20th of each year (or if not a Business Day, the immediately preceding
Business Day). The Certification attached hereto as Exhibit J shall be delivered
to the Trustee for filing by March 25th of each year (or if not a Business Day,
the immediately preceding Business Day). In addition, the Trustee shall
indemnify and hold harmless the Depositor and its officers, directors and
Affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon a breach of the Trustee's obligations
under this Section 8.13(c) or the Trustee's negligence, bad faith or willful
misconduct in connection therewith. If the indemnification provided for herein
is unavailable or insufficient to hold harmless the Depositor, then the Trustee
agrees in connection with a breach of the Trustee's obligations under this
Section 8.13(c) or the Trustee's negligence, bad faith or willful misconduct in
connection therewith that it shall contribute to the amount paid or payable by
the Depositor as a result of the losses, claims, damages or liabilities of the
Depositor in such proportion as is appropriate to reflect the relative fault of
the Depositor on the one hand and the Trustee on the other.
(d) Upon any filing with the Securities and Exchange Commission, the
Trustee shall promptly deliver to the Depositor a copy of any such executed
report, statement or information.
(e) Prior to January 30 of the first year in which the Trustee is
able to do so under applicable law, the Trustee shall file a Form 15 Suspension
Notification with respect to the Trust.
Section 8.14 Tax Classification of the Excess Reserve Fund Account.
For federal income tax purposes, the Trustee shall treat the Excess Reserve Fund
Account as beneficially owned by the holder of the Class X Certificates and
shall treat such portion of the Trust Fund as a grantor trust under subpart E,
Part I of subchapter J of the Code. The Trustee shall treat the rights that each
Class of Principal Certificates has to receive payments of Basis Risk Carry
Forward Amounts from the Excess Reserve Fund Account as rights to receive
payments under an interest rate cap contract written by the Class X
Certificateholders in favor of each Class. Accordingly, each Class of LIBOR
Certificates will comprise three components--a regular interest in the Upper
Tier REMIC, an interest in an interest rate cap contract and the Class X
Certificates will be comprised of two components--a regular interest in the
Upper Tier REMIC and ownership of the Excess Reserve Fund Account. The Trustee
shall allocate the issue price for a Class of Certificates between the two
components for purposes of determining the issue price of the Upper Tier Regular
Interest component based on information received from the Depositor.
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 9.03, the obligations and responsibilities of
the Depositor and the Trustee created hereby with respect to the Trust Fund
shall terminate upon the earlier of (a) the purchase, on or after the Optional
Termination Date, by the Servicer or any other Eligible Party (at the direction
of Majority Class X Certificateholder) of all Mortgage Loans (and REO
Properties) at the price equal to the sum of (i) 100% of the unpaid principal
balance of each Mortgage Loan (other than in respect of REO Property) plus
accrued and unpaid interest thereon at the applicable Mortgage Interest Rate,
(ii) the lesser of (x) the appraised value of any REO Property as determined by
the higher of two appraisals completed by two independent appraisers selected by
the Majority Class X Certificateholder, at its expense, plus accrued and unpaid
interest on the related mortgage loans at the applicable mortgage rate and (y)
the unpaid principal balance of each Mortgage Loan related to any REO Property,
in each case plus accrued and unpaid interest thereon at the applicable Mortgage
Interest Rate and (iii) the sum of all outstanding Basis Risk Carry Forward
Amounts ("Termination Price") and (b) the later of (i) the maturity or other
liquidation (or any Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all REO Property and (ii) the
distribution to Certificateholders of all amounts required to be distributed to
them pursuant to this Agreement. In no event shall the trusts created hereby
continue beyond the expiration of 21 years from the death of the survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. James's, living on the date hereof.
Section 9.02 Final Distribution on the Certificates. If, on any
Remittance Date, the Servicer notifies the Trustee that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than the
funds in the Collection Account, the Trustee shall promptly send a Notice of
Final Distribution to the applicable Certificateholders. If the Majority Class X
Certificateholder elects to direct the Servicer or other Eligible Party to
terminate the Trust Fund pursuant to clause (a) of Section 9.01, at least 20
days prior to the date the Notice of Final Distribution is to be mailed to the
affected Certificateholders, the Majority Class X Certificateholder shall enter
into an agreement with the Servicer or such other Eligible Party ("Optional
Termination Agreement"), which, among other things, shall require the Servicer
or such other Eligible Party to notify the Trustee of the date the Majority
Class X Certificateholder intends to terminate the Trust Fund and of the
applicable repurchase price of the Mortgage Loans and REO Properties.
A Notice of Final Distribution, specifying the Distribution Date on
which Certificateholders may surrender their Certificates for payment of the
final distribution and cancellation, shall be given promptly by the Trustee by
letter to Certificateholders mailed not later than the 15th day of the month of
such final distribution. Any such Notice of Final Distribution shall specify (a)
the Distribution Date upon which final distribution on the Certificates will be
made upon presentation and surrender of Certificates at the office therein
designated, (b) the amount of such final distribution, (c) the location of the
office or agency at which such presentation and surrender must be made, and (d)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Trustee will give such Notice
of Final Distribution to each Rating Agency at the time such Notice of Final
Distribution is given to Certificateholders.
In the event the Servicer purchases the Mortgage Loans (and REO
Properties) pursuant to Section 9.01(a) prior to the Remittance Date, the
Optional Termination Agreement shall require the Majority Class X
Certificateholder to remit to the Servicer the applicable Termination Price on
the Business Day immediately preceding the Remittance Date of the related month,
and shall require the Servicer to remit such funds to the Trustee on such
Remittance Date. In the event the Servicer purchases the Mortgage Loans (and REO
Properties) pursuant to Section 9.01(a) after the Remittance Date or in the
event such Eligible Party purchases the Mortgage Loans (and REO Properties)
pursuant to Section 9.01(a), the Optional Termination Agreement shall require
the Majority Class X Certificateholder to remit the applicable Termination Price
in immediately available funds to the Servicer or such other Eligible Party one
Business Day after such Notice of Final Determination is given, and shall
require the Servicer or such Eligible Party to remit such funds to the Trustee
at least two Business Days prior to the applicable Distribution Date. The
Servicer or such Eligible Party shall be entitled to reasonably rely on a
representation from the Majority Class X Certificateholder that it is the
Majority Class X Certificateholder and is entitled under this Agreement to
direct the Servicer or such Eligible Party to terminate the Trust Fund. The
Majority Class X Certificateholder shall be obligated to reimburse the Servicer
or such Eligible Party for its reasonable out-of-pocket expenses incurred in
connection with its termination of the Trust Fund at the direction of the
Majority Class X Certificateholder and shall indemnify and hold harmless the
Servicer or such Eligible Party for any losses, liabilities or expenses
resulting from any claims directly resulting from or relating to the its
termination of the Trust Fund at the direction of the Majority Class X
Certificateholder, except to the extent such losses, liabilities or expenses
arise out of or result from the Servicer's or such Eligible Party's negligence,
bad faith or willful misconduct. Upon such final deposit with respect to the
Trust Fund and the receipt by the Trustee of a Request for Release therefor, the
Trustee shall promptly release to the Majority Class X Certificateholder as the
Servicer's or other Eligible Party's designee (as shall be provided in the
Optional Termination Agreement) the Custodial Files for the Mortgage Loans. The
Servicer or any such Eligible Party is an intended third-party beneficiary with
respect to its rights to reimbursement and indemnification under this Section
9.02.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Certificateholders of each Class (after
reimbursement of all amounts due the Depositor and the Trustee hereunder), in
each case on the final Distribution Date and in the order set forth in Section
4.01, in proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount up to an amount equal to (i) as
to each Class of Regular Certificates (except the Class X Certificate), the
Certificate Balance thereof plus for each such Class and the Class X Certificate
accrued interest thereon in the case of an interest-bearing Certificate and all
other amounts to which such Classes are entitled pursuant to Section 4.01, (ii)
as to the Residual Certificates, the amount, if any, which remains on deposit in
the Distribution Account (other than the amounts retained to meet claims) after
application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for cancellation,
the Class R Certificateholders shall be entitled to all unclaimed funds and
other assets of the Trust Fund which remain subject hereto.
Section 9.03 Additional Termination Requirements. In the event the
Majority Class X Certificateholder directs the Servicer or other Eligible Party
to purchase the Mortgage Loans as provided in Section 9.01, the Trust Fund shall
be terminated in accordance with the following additional requirements, unless
the Trustee has been supplied with an Opinion of Counsel, at the expense of the
Majority Class X Certificateholder, to the effect that the failure to comply
with the requirements of this Section 9.03 will not (i) result in the imposition
of taxes on "prohibited transactions" on either Trust REMIC as defined in
Section 860F of the Code, or (ii) cause either Trust REMIC to fail to qualify as
a REMIC at any time that any Certificates are outstanding:
(a) The Trustee shall sell all of the assets of the Trust Fund to
the Majority Class X Certificateholder, as the Servicer's or such Eligible
Party's designee (as shall be provided in the Optional Termination Agreement),
and, by the next Distribution Date after such sale, shall distribute to the
Certificateholders the proceeds of such sale in complete liquidation of each of
the Trust REMICs; and
(b) The Trustee shall attach a statement to the final federal income
tax return for each of the Trust REMICs stating that pursuant to Treasury
Regulations Section 1.860F-1, the first day of the 90-day liquidation period for
each such REMIC was the date on which the Trustee sold the assets of the Trust
Fund to the Servicer or the Depositor, as the case may be.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment. This Agreement may be amended from time to
time by the Depositor and the Trustee (and the Trustee may request an amendment
or consent to any amendment of the Master Seller's Warranties and Servicing
Agreement as directed by Depositor) without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision herein or in the Master Seller's Warranties and Servicing
Agreement, as applicable, or to supplement any provision herein which may be
inconsistent with any other provision herein, (iii) to add to the duties of the
Depositor or the Trustee (or with respect to the Master Seller's Warranties and
Servicing Agreement, of the Servicer), (iv) to add any other provisions with
respect to matters or questions arising hereunder or under the Master Seller's
Warranties and Servicing Agreement or (v) to modify, alter, amend, add to or
rescind any of the terms or provisions contained in this Agreement or in the
Master Seller's Warranties and Servicing Agreement; provided, that any action
pursuant to clause (iv) or (v) above shall not, as evidenced by an Opinion of
Counsel (which Opinion of Counsel shall not be an expense of the Trustee or the
Trust Fund), adversely affect in any material respect the interests of any
Certificateholder; provided, further, that the amendment shall not be deemed to
adversely affect in any material respect the interests of the Certificateholders
if the Person requesting the amendment obtains a letter from each Rating Agency
stating that the amendment would not result in the downgrading or withdrawal of
the respective ratings then assigned to the Certificates; it being understood
and agreed that any such letter in and of itself will not represent a
determination as to the materiality of any such amendment and will represent a
determination only as to the credit issues affecting any such rating. The
Trustee and the Depositor also may at any time and from time to time amend this
Agreement (and if necessary, the Depositor shall direct the Trustee to request
that the Servicer amend the Master Seller's Warranties and Servicing Agreement),
but without the consent of the Certificateholders to modify, eliminate or add to
any of its provisions to such extent as shall be necessary or helpful to (i)
maintain the qualification of each Trust REMIC under the REMIC Provisions, (ii)
avoid or minimize the risk of the imposition of any tax on either Trust REMIC
pursuant to the Code that would be a claim at any time prior to the final
redemption of the Certificates or (iii) comply with any other requirements of
the Code; provided, that the Trustee has been provided an Opinion of Counsel,
which opinion shall be an expense of the party requesting such opinion but in
any case shall not be an expense of the Trustee or the Trust Fund, to the effect
that such action is necessary or helpful to, as applicable, (i) maintain such
qualification, (ii) avoid or minimize the risk of the imposition of such a tax
or (iii) comply with any such requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor and the Trustee (and the Trustee shall consent to any amendment to the
Master Seller's Warranties and Servicing Agreement as directed by the Depositor)
with the consent of the Holders of Certificates evidencing Percentage Interests
aggregating not less than 662/3% of each Class of Certificates affected thereby
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or the Master Seller's
Warranties and Servicing Agreement or of modifying in any manner the rights of
the Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
clause (i), without the consent of the Holders of Certificates of such Class
evidencing, as to such Class, Percentage Interests aggregating not less than
662/3%, or (iii) reduce the aforesaid percentages of Certificates the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement or the Master
Seller's Warranties and Servicing Agreement unless (i) it shall have first
received an Opinion of Counsel, which opinion shall not be an expense of the
Trustee or the Trust Fund, to the effect that such amendment will not cause the
imposition of any tax on either Trust REMIC or the Certificateholders or cause
either Trust REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding and (ii) the party seeking such amendment shall
have provided written notice to the Rating Agencies (with a copy of such notice
to the Trustee) of such amendment, stating the provisions of the Agreement to be
amended.
Notwithstanding the foregoing provisions of this Section 10.01, with
respect to any amendment that significantly modifies the permitted activities of
the Trustee (or the Servicer under the Master Seller's Warranties and Servicing
Agreement), any Certificate beneficially owned by the Depositor or any of its
Affiliates or by the Responsible Party or any of its Affiliates shall be deemed
not to be outstanding (and shall not be considered when determining the
percentage of Certificateholders consenting or when calculating the total number
of Certificates entitled to consent) for purposes of determining if the
requisite consents of Certificateholders under this Section 10.01 have been
obtained.
Promptly after the execution of any amendment to this Agreement or
the Master Seller's Warranties and Servicing Agreement requiring the consent of
Certificateholders, the Trustee shall furnish written notification of the
substance or a copy of such amendment to each Certificateholder and each Rating
Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 10.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment which modifies its obligations or liabilities without its consent and
in all cases without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee or the Trust Fund), satisfactory to the Trustee that
(i) such amendment is permitted and is not prohibited by this Agreement or the
Master Seller's Warranties and Servicing Agreement and that all requirements for
amending this Agreement or the Master Seller's Warranties and Servicing
Agreement have been complied with; and (ii) either (A) the amendment does not
adversely affect in any material respect the interests of any Certificateholder
or (B) the conclusion set forth in the immediately preceding clause (A) is not
required to be reached pursuant to this Section 10.01.
Notwithstanding the Trustee's consent to, or the request for, any
amendment of the Master Seller's Warranties and Servicing Agreement pursuant to
the terms of this Section 10.01, the Master Seller's Warranties and Servicing
Agreement cannot be amended without the consent of the Servicer. The Trustee
shall not be responsible for any failure by the Servicer to consent to any
amendment to the Master Seller's Warranties and Servicing Agreement.
Section 10.02 Recordation of Agreement; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation shall be
effected by the Trustee at the expense of the Trust, but only if an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders is delivered to the Trustee.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. It is, further, not the intention of the
parties that such conveyances be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, such assets are held to be the
property of the Depositor, as the case may be, or if for any other reason this
Agreement is held or deemed to create a security interest in either such assets,
then (i) this Agreement shall be deemed to be a security agreement within the
meaning of the Uniform Commercial Code of the State of New York and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The Depositor for the benefit of the Certificateholders shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Trust Fund, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement. The Depositor shall arrange for
filing any Uniform Commercial Code continuation statements in connection with
any security interest granted or assigned to the Trustee for the benefit of the
Certificateholders.
Section 10.05 Notices. (a) The Trustee shall use its best efforts to
promptly provide notice to each Rating Agency with respect to each of the
following of which it has actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Event of Default that has not been cured;
(iii) The resignation or termination of the Servicer or the Trustee
and the appointment of any successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant to
this Agreement, any Assignment Agreement or the Master Seller's Warranties
and Servicing Agreement; and
(v) The final payment to Certificateholders.
(b) In addition, the Trustee shall promptly furnish to each Rating
Agency copies of the following:
(i) Each report to Certificateholders described in Section 4.02;
(ii) The Servicer's annual statement of compliance and the
accountant's report described in Sections 6.04 and 6.05, respectively, of
the Master Seller's Warranties and Servicing Agreement; and
(iii) Any notice of a purchase of a Mortgage Loan pursuant to this
Agreement and the Master Seller's Warranties and Servicing Agreement.
All directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when delivered to (a) in the case of the
Depositor or GS Mortgage Securities Corp. or Xxxxxxx, Xxxxx & Co., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Principal Finance Group/Xxxxxxxxxxx
Xxxxxxx and Asset Management Group/Senior Asset Manager, or such other address
as may be hereafter furnished to the Trustee by the Depositor in writing, (b) in
the case of the Trustee to the Corporate Trust Office, Deutsche Bank National
Trust Company, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000,
Attention: Trust Administration-GS04W1, or such other address as the Trustee may
hereafter furnish to the Depositor, the Responsible Party and the Servicer, (c)
in the case of the Servicer, the address listed in the Master Seller's
Warranties and Servicing Agreement, or such address as may be furnished to the
Trustee and the Depositor in writing, (d) in the case of the Credit Risk
Manager, the address listed in the Credit Risk Management Agreement, or such
address as may be furnished to the Trustee and the Depositor, and (e) in the
case of each of the Rating Agencies, the address specified therefor in the
definition corresponding to the name of such Rating Agency. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
Section 10.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 10.07 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 10.07, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 10.08 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificate holders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 10.09 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW)
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
* * * * * * *
IN WITNESS WHEREOF, the Depositor and the Trustee have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
solely as Trustee and not in its
individual capacity
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Associate
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Associate
[Signature Page to the Trust Agreement]
SCHEDULE I
Mortgage Loan Schedule
[Available Upon Request]
EXHIBIT A
FORM OF CLASS A-1A, CLASS X-0X, XXXXX X-0X, XXXXX X-0X, CLASS A-2C, CLASS
A-2D, CLASS M-1, CLASS M-2, CLASS M-3, CLASS B-1, CLASS B-2, CLASS B-3 AND
CLASS B-4 CERTIFICATES
[To be added to the Class B-4 Certificates while they remain Private
Certificates: IF THIS CERTIFICATE IS A PHYSICAL CERTIFICATE, NEITHER THIS
CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER (THE "TRANSFEROR LETTER")
IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE
TRUSTEE RECEIVES A RULE 144A LETTER (THE "144A LETTER") IN THE FORM OF EXHIBIT I
TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF
COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE
MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.]
[IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL
BE DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.]
[Neither this Certificate nor any interest herein may be transferred unless the
Transferee delivers to the Trustee either a representation letter to the effect
that such transferee is not an employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or a plan
subject to SECtion 4975 of the code, or a plan subject to applicable federal,
state or local law ("SIMILAR LAW") materially similar to the foregoing
provisions of ERISA or the code or a person investing on behalf of or with plan
assets of such a plan, or, if the transferee is an insurance company, a
representation letter that it is using the assets of its general account and
that the purchase and holding of this Certificate are covered under Sections I
and III of prohibited transaction class exemption 95-60 or an opinion of counsel
satisfactory to the Trustee, to the effect that the Purchase or holding of this
certificate will not CONSTITUTE OR result in A NON-EXEMPT prohibited transaction
WITHIN THE MEANING oF erisa, SECTION 4975 OF the code or ANY similar law and
will not subject the trustee to any obligation in addition to those expressly
undertaken in this agreement or to any liability. notwithstanding anything else
to the contrary herein, any purported transfer of this certificate to or on
behalf of an employee benefit plan subject to title I of erisa, section 4975 of
the code or similar law without the representation letter or opinion of counsel
satisfactory to the trustee as described above shall be void AND OF NO EFFECT.]
[In the event that a transfer of a Private Certificate which is a Book-Entry
Certificate is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer will be deemed to
have made as of the transfer date each of the certifications set forth in the
Transferor Certificate in respect of such Certificate and the transferee will be
deemed to have made as of the transfer date each of the certifications set forth
in the Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate.]
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER
ASSETS.
Certificate No. :
Cut-off Date : November 1, 2004
First Distribution Date : December 27, 2004
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate
Balances of all
Certificates of this Class : Class Principal Amount
Class A-1A $145,492,000
Class A-1B $36,373,000
Class A-2A $42,349,000
Class A-2B $27,782,000
Class A-2C $13,777,000
Class A-2D $100,000,000
Class M-1 $31,321,000
Class M-2 $16,426,000
Class M-3 $4,381,000
Class B-1 $4,381,000
Class B-2 $4,380,000
Class B-3 $4,381,000
Class B-4 $4,380,000
CUSIP : Class CUSIP No.
Class A-1A 36242D KE 2
Class X-0X 00000X XX 9
Class A-2A 36242D KG 7
Class A-2B 36242D KH 5
Class A-2C 36242D KJ 1
Class A-2D 36242D LP 6
Class M-1 36242D KK 8
Class M-2 36242D KL 6
Class M-3 36242D KM 4
Class B-1 36242D KN 2
Class B-2 36242D KP 7
Class B-3 36242D KQ 5
Class B-4 36242D KA 0
ISIN : Class ISIN No.
Class A-1A US36242DKE21
Class A-1B US36242DKF95
Class A-2A US36242DKG78
Class A-2B US36242DKH51
Class A-2C US36242DKJ18
Class A-2D US36242DLP68
Class M-1 US36242DKK80
Class M-2 US36242DKL63
Class M-3 US36242DKM47
Class B-1 US36242DKN20
Class B-2 US36242DKP77
Class B-3 US36242DKQ50
Class B-4 US36242DKA09
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2004-WF
Mortgage Pass-Through Certificates, Series 2004-WF
[Class A-1A][Class A-1B][Class A-2A][Class A-2B][Class A-2C][Class A-2D]
[Class M-1][Class M-2][Class M-3][Class B-1][Class B-2][Class B-3][Class B-4]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Trust Agreement dated as of the Cut-off Date
specified above (the "Agreement") between GS Mortgage Securities Corp., as
depositor (the "Depositor"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as
Trustee
By:
-------------------------------------
Authenticated:
By:
-------------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2004-WF
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2004-WF Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes, or such other location specified in the notice to Certificateholders
of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor and the Trustee with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Majority Class X Certificateholder will have the
option to direct the Servicer or another Person specified in the Agreement to
repurchase, in whole, from the Trust Fund all remaining Mortgage Loans and all
property acquired in respect of the Mortgage Loans at a purchase price
determined and in the manner as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_______________________________________________,
_____________________________________________________________________________,
for the account of___________________________________________________________,
account number ______________, or, if mailed by check, to____________________.
Applicable statements should be mailed to____________________________________,
_____________________________________________________________________________.
This information is provided by__________________________________,
the assignee named above, or_________________________________________________,
as its agent.
EXHIBIT B
FORM OF CLASS P CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (ii) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE, OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
WITHOUT THE REPRESENTATION LETTER SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. : P-1
Cut-off Date : November 1, 2004
First Distribution Date : December 27, 2004
Percentage Interest of
this Certificate
("Denomination") : 100%
CUSIP : 36242D KC 6
ISIN US36242DKC64
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2004-WF
Mortgage Pass-Through Certificates, Series 2004-WF
Class P
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that [__________] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Trust Agreement dated as of the Cut-off Date, (the
"Agreement") between GS Mortgage Securities Corp., as depositor (the
"Depositor") and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Trustee for such purpose.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Trust Agreement) and
deliver either (i) a Rule 144A Letter, in either case substantially in the form
attached to the Agreement, or (ii) a written Opinion of Counsel to the Trustee
that such transfer may be made pursuant to an exemption, describing the
applicable exemption and the basis therefor, from the 1933 Act or is being made
pursuant to the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA, Section 4975 of the Code or any materially
similar provisions of applicable federal, state or local law ("Similar Law"), or
a person acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Trustee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
By:
-------------------------------------
Authenticated:
By:
-------------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2004-WF
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2004-WF Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor and the Trustee and the Holders of Certificates affected by
such amendment evidencing the requisite Percentage Interest, as provided in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Majority Class X Certificateholder will have the
option to direct the Servicer or another Person specified in the Agreement to
repurchase, in whole, from the Trust Fund all remaining Mortgage Loans and all
property acquired in respect of the Mortgage Loans at a purchase price
determined and in the manner as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________.
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ______________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number ______________, or, if mailed by check, to ___________________.
Applicable statements should be mailed to ___________________________________,
_____________________________________________________________________________.
This information is provided by _________________________________,
the assignee named above, or ________________________________________________,
as its agent.
EXHIBIT C
FORM OF CLASS R CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN TWO "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS OF
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING ON
BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. In the event that such
representation is violated, or any attempt IS MADE to transfer to a plan or
arrangement subject to Section 406 of ERISA, a plan subject to Section 4975 of
the Code OR A PLAN SUBJECT TO SIMILAR LAW, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement,
such attempted transfer or acquisition shall be void and of no effect.
Certificate No. : R-1
Cut-off Date : November 1, 2004
First Distribution Date : December 27, 2004
Percentage Interest of :
this Certificate
("Denomination") 100%
CUSIP : 36242D KD 4
ISIN : US36242DKD48
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2004-WF
Mortgage Pass-Through Certificates, Series 2004-WF
Class R
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate is distributable
monthly as set forth herein. This Class R Certificate has no Certificate Balance
and is not entitled to distributions in respect of principal or interest. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that [__________] is the registered owner of the
Percentage Interest specified above of any monthly distributions due to the
Class R Certificates pursuant to a Trust Agreement dated as of the Cut-Off Date
specified above (the "Agreement") between GS Mortgage Securities Corp., as
depositor (the "Depositor"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class R
Certificate at the offices designated by the Trustee for such purposes.
No transfer of a Class R Certificate shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, a plan or arrangement subject to
Section 4975 of the Code or a plan subject to Similar Law, or a person acting on
behalf of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer, which representation letter shall not be an
expense of the Trustee or the Trust Fund. In the event that such representation
is violated, or any attempt is made to transfer to a plan or arrangement subject
to Section 406 of ERISA or a plan subject to Section 4975 of the Code or a plan
subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement, such attempted
transfer or acquisition shall be void and of no effect.
Each Holder of this Class R Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class R Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R Certificate shall be a
Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee, (ii) no Ownership
Interest in this Class R Certificate may be registered on the Closing Date or
thereafter transferred, and the Trustee shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered to
the Trustee under Section 5.02(b) of the Agreement, the Trustee shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of this Class R
Certificate, (C) not to cause income with respect to the Class R Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person and (D) not to Transfer the Ownership Interest in this Class R
Certificate or to cause the Transfer of the Ownership Interest in this Class R
Certificate to any other Person if it has actual knowledge that such Person is
not a Permitted Transferee and (iv) any attempted or purported Transfer of the
Ownership Interest in this Class R Certificate in violation of the provisions
herein shall be absolutely null and void and shall vest no rights in the
purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as
Trustee
By:
-------------------------------------
Authenticated:
By:
-------------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2004-WF
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2004-WF Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor and the Trustee with the consent the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Majority Class X Certificateholder will have the
option to direct the Servicer or another Person specified in the Agreement to
repurchase, in whole, from the Trust Fund all remaining Mortgage Loans and all
property acquired in respect of the Mortgage Loans at a purchase price
determined and in the manner as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________.
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_______________________________________________,
_____________________________________________________________________________,
for the account of___________________________________________________________,
account number ______________, or, if mailed by check, to____________________.
Applicable statements should be mailed to____________________________________,
_____________________________________________________________________________.
This information is provided by__________________________________,
the assignee named above, or_________________________________________________,
as its agent.
EXHIBIT D
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
DIRECT OR INDIRECT INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND
CERTAIN OTHER ASSETS.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN, OR IF THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I
AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION
WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND
WILL NOT SUBJECT THE TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY
UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE
TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF
THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER OR OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : X-1
Cut-off Date : November 1, 2004
First Distribution Date : December 27, 2004
Percentage Interest of this
Certificate ("Denomination") : -
CUSIP : 36242D KB 8
ISIN : US36242DKB81
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2004-WF
Mortgage Pass-Through Certificates, Series 2004-WF
Class X
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that [__________] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Trust Agreement dated as of the Cut-off Date
specified above (the "Agreement") between GS Mortgage Securities Corp., as
depositor (the "Depositor"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Trustee for such purposes.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Trust Agreement) and
deliver either (i) a Rule 144A Letter, in either case substantially in the form
attached to the Agreement, or (ii) a written Opinion of Counsel to the Trustee
that such transfer may be made pursuant to an exemption, describing the
applicable exemption and the basis therefor, from the 1933 Act or is being made
pursuant to the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code or any materially similar provisions of applicable federal, state or local
law ("Similar Law") or a person acting on behalf of or investing plan assets of
any such plan, which representation letter shall not be an expense of the
Trustee, or (ii) if the transferee is an insurance company, a representation
letter that it is purchasing such Certificates with the assets of its general
account and that the purchase and holding of such Certificates are covered under
Sections I and III of PTCE 95-60, or (iii) in the case of a Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA, or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments) or a plan subject to Similar
Law, or a trustee of any such plan or any other person acting on behalf of any
such plan or arrangement or using such plan's or arrangement's assets, an
Opinion of Counsel satisfactory to the Trustee, which Opinion of Counsel shall
not be an expense of the Trustee, the Depositor or the Trust Fund, addressed to
the Trustee and the Depositor to the effect that the purchase or holding of such
Certificate will not constitute or result in a non-exempt prohibited transaction
within the meaning of ERISA, Section 4975 of the Code or any Similar Law and
will not subject the Trustee to any obligation in addition to those expressly
undertaken in this Agreement or to any liability.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as
Trustee
By:
-------------------------------------
Authenticated:
By:
-------------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2004-WF
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2004-WF Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor and the Trustee with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Majority Class X Certificateholder will have the
option to direct the Servicer or another Person specified in the Agreement to
repurchase, in whole, from the Trust Fund all remaining Mortgage Loans and all
property acquired in respect of the Mortgage Loans at a purchase price
determined and in the manner as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto______________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________.
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_______________________________________________,
_____________________________________________________________________________,
for the account of___________________________________________________________,
account number ______________, or, if mailed by check, to____________________.
Applicable statements should be mailed to____________________________________,
_____________________________________________________________________________.
This information is provided by__________________________________,
the assignee named above, or_________________________________________________,
as its agent.
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Originator]
_____________________
_____________________
Re: Trust Agreement, dated as of November 1, 2004, between
GS Mortgage Securities Corp., as Depositor, and Deutsche Bank
National Trust Company, as Trustee, GSAMP Trust, 2004-WF
-------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Trust
Agreement (the "Trust Agreement"), the undersigned, as Trustee, for each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
listed in the attached schedule of exceptions), it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Trust Agreement. The Trustee makes no representations as to: (i) the validity,
legality, sufficiency, enforceability, recordability or genuineness of any of
the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan or the
perfection or priority of any Mortgage. Notwithstanding anything herein to the
contrary, the Trustee has made no determination and makes no representations as
to whether (i) any endorsement is sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee thereof, in and to
that Mortgage Note or (ii) any assignment is in recordable form or sufficient to
effect the assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as Trustee
By: ___________________________________
Name: _________________________________
Title: ________________________________
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Originator]
_____________________
_____________________
Re: Trust Agreement, dated as of November 1, 2004, between GS Mortgage
Securities Corp., as Depositor, and Deutsche Bank
National Trust Company, as Trustee, GSAMP Trust,
2004-WF
Gentlemen:
In accordance with Section 2.02 of the above-captioned Trust Agreement
(the "Trust Agreement"), the undersigned, as Trustee, hereby certifies that as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the attached Document Exception Report)
it has received:
(a) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(b) the original of any guaranty executed in connection with the
Mortgage Note (if any);
(c) the related original Mortgage and evidence of its recording or,
in certain limited circumstances, (i) a copy of the Mortgage together with
an Officer's Certificate (or certified by the title company, escrow agent,
or closing attorney) stating that the Mortgage has been dispatched for
recordation and the original recorded Mortgage or a copy of such Mortgage
certified by the appropriate or (ii) a copy of the Mortgage certified by
the appropriate public recording office or by the title insurance company
to be a true and complete copy of the recorded original;
(d) the originals of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon, or certified
true copies of any document sent for recordation;
(e) the mortgage assignment(s), showing a complete chain of
assignment from the originator of the related Mortgage Loan to the last
endorsee or, in certain limited circumstances, (i) a copy of the
intervening mortgage assignment together with and Officer's Certificate
(or certified by the title company, escrow agent, or closing attorney)
stating that such intervening mortgage assignment has been dispatched for
recordation and the original intervening mortgage assignment or a copy of
such intervening mortgage assignment will be promptly delivered upon
receipt by the Responsible Party or (ii) a copy of the intervening
mortgage assignment certified by the appropriate public recording office
to be a true and complete copy of the recorded original;
(f) a mortgage assignment in recordable form, which, if acceptable
for recording in the relevant jurisdiction, may be included in a blanket
assignment or assignments, of each Mortgage from the last endorsee in
blank;
(g) the originals or certified true copies of any document sent for
recordation of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon;
(h) the original policy of primary mortgage guaranty insurance or
certificate of insurance, if applicable, or the electronic form of such
policy as identified by certificate number, if applicable;
(i) an original title insurance policy or evidence of title;
(j) the original of any security agreement, chattel mortgage or
equivalent executed in connection with the Mortgage; and
(k) original powers of attorney with respect to each Mortgage Loan,
if applicable.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items 2, 4, 8, 9 and 18 of
the Mortgage Loan Schedule accurately reflects information set forth in the
Custodial File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Trust Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability,
recordability or genuineness of any of the documents contained in each Mortgage
File of any of the Mortgage Loans identified on the Mortgage Loan Schedule, or
(ii) the collectability, insurability, effectiveness or suitability of any such
Mortgage Loan or the perfection or priority of any Mortgage. Notwithstanding
anything herein to the contrary, the Trustee has made no determination and makes
no representations as to whether (i) any endorsement is sufficient to transfer
all right, title and interest of the party so endorsing, as noteholder or
assignee thereof, in and to that Mortgage Note or (ii) any assignment is in
recordable form or sufficient to effect the assignment of and transfer to the
assignee thereof, under the Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as Trustee
By: ___________________________________
Name: _________________________________
Title: ________________________________
EXHIBIT G
RESIDUAL TRANSFER AFFIDAVIT
GSAMP Trust 2004-WF,
Mortgage Pass-Through Certificates, Series 2004-WF
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and
says as follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in a Class R Certificate (the
"Certificate") issued pursuant to the Trust Agreement (the "Agreement"), between
GS Mortgage Securities Corp., as depositor (the "Depositor"), and Deutsche Bank
National Trust Company, as Trustee. 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 5.02(c) of
the Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit H to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee has historically paid its debts as they have come
due, intends to pay its debts as they come due in the future, and understands
that the taxes payable with respect to the Certificate may exceed the cash flow
with respect thereto in some or all periods and intends to pay such taxes as
they become due. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check one of the following:
The present value of the anticipated tax liabilities associated with
holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on such
Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates
losses.
For purposes of this calculation, (i) the Transferee is
assumed to pay tax at the highest rate currently specified in Section 11(b) of
the Code (but the tax rate in Section 55(b)(1)(B) of the Code may be used in
lieu of the highest rate specified in Section 11(b) of the Code if the
Transferee has been subject to the alternative minimum tax under Section 55 of
the Code in the preceding two years and will compute its taxable income in the
current taxable year using the alternative minimum tax rate) and (ii) present
values are computed using a discount rate equal to the short-term Federal rate
prescribed by Section 1274(d) of the Code for the month of the transfer and the
compounding period used by the Transferee.
The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to
which income from the Certificate will only be taxed in the
United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Certificate only to another
"eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii)
and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury
Regulations; and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and
reinvestment assumptions, tax rates and other factors specific
to the Transferee) that it has determined in good faith.
None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any federal, state or local law that is substantially similar to
Title I of ERISA or Section 4975 of the Code, and the Transferee is not acting
on behalf of or investing plan assets of such a plan.
IN WITNESS WHEREOF, the Transferee has caused this instrument to
be executed on its behalf, pursuant to authority of its Board of Directors,
by its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ____ day of __________________, 20__.
_______________________________________
Print Name of Transferee
By:____________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
_____________________________________
[Assistant] Secretary
Personally appeared before me the above-named __________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ___________ of the Transferee, and acknowledged that he executed the same
as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of ________ , 20__.
_______________________________________
NOTARY PUBLIC
My Commission expires the __ day
of _________, 20__
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Deutsche Bank National Trust Company,
as Trustee,
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Re: GSAMP Trust 2004-WF, Mortgage Pass-Through Certificates
Series 2004-WF, Class ___
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (C) we have no
reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
_______________________________________
Print Name of Transferor
By:____________________________________
Authorized Officer
EXHIBIT I
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Deutsche Bank National Trust Company,
as Trustee,
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Re: GSAMP Trust 2004-WF, Mortgage Pass-Through Certificates,
Series 2004-WF, Class ___
--------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either we are not an employee benefit plan that
is subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code"), or a plan subject to
any federal, state or local law materially similar to the foregoing provisions
of ERISA or the Code, nor are we acting on behalf of any such plan or
arrangement nor using the assets of any such plan or arrangement to effect such
acquisition or, with respect to a Class B-4 Certificate or a Class X
Certificate, the purchaser is an insurance company that is purchasing this
certificate with funds contained in an "insurance company general account" (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60")) and that the purchase and holding of such Certificates are
covered under Sections I and III of PTCE 95-60, (e) we have not, nor has anyone
acting on our behalf offered, transferred, pledged, sold or otherwise disposed
of the Certificates, any interest in the Certificates or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Certificates, any interest in the Certificates or any other
similar security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Securities Act or
that would render the disposition of the Certificates a violation of Section 5
of the Securities Act or require registration pursuant thereto, nor will act,
nor has authorized or will authorize any person to act, in such manner with
respect to the Certificates and (f) we are a "qualified institutional buyer" as
that term is defined in Rule 144A under the Securities Act and have completed
either of the forms of certification to that effect attached hereto as Annex 1
or Annex 2. We are aware that the sale to us is being made in reliance on Rule
144A. We are acquiring the Certificates for our own account or for resale
pursuant to Rule 144A and further, we understand that such Certificates may be
resold, pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
ANNEX 1 TO EXHIBIT I
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $____________(1) in securities (except
for the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or
territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is
attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
-----------------
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case,
Buyer must own and/or invest on a discretionary basis at least $10,000,000
in securities.
____ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
_______________________________________
Print Name of Transferee
By:____________________________________
Name:
Title:
Date:__________________________________
ANNEX 2 TO EXHIBIT I
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
____ The Buyer owned $____________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies that
owned in the aggregate $________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
_______________________________________
Print Name of Transferee
By:____________________________________
Name:
Title:
IF AN ADVISER:
_______________________________________
Print Name of Buyer
Date:__________________________________
EXHIBIT J
FORM CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
-----------------------
GSAMP Trust 2004-WF (the "Trust")
Mortgage Pass-Through Certificates
Series 2004-WF
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K (the "Annual Report"), and
all reports on Form 8-K containing distribution reports (collectively with
this Annual Report, the "Reports") filed in respect of periods included in
the year covered by this Annual Report, of the Trust;
2. Based on my knowledge, the information in the Reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this Annual Report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to the Trustee by the Servicer under the Master Seller's
Warranties and Servicing Agreement for inclusion in the Reports is
included in the Reports;
4. Based on my knowledge and upon the annual compliance statement included in
this Annual Report and required to be delivered to the Trustee in
accordance with the terms of the Master Seller's Warranties and Servicing
Agreement, and except as disclosed in the Reports, the Servicer has
fulfilled its obligations under the Master Seller's Warranties and
Servicing Agreement; and
5. The Reports disclose all significant deficiencies relating to the
Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a
review in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar procedure, as set forth in the Master Seller's
Warranties and Servicing Agreement, that is included in the Reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: the Trustee
and the Servicer.
Date: _________________________
_______________________________
[Signature] [Title]
EXHIBIT K
FORM OF TRUSTEE CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAMP Trust 2004-WF (the "Trust") Mortgage Pass-Through Certificates
Series 2004-WF, issued pursuant to the Trust Agreement, dated as of
November 1, 2004 (the "Trust Agreement"), among GS Mortgage
Securities Corp., as depositor (the "Depositor") and Deutsche Bank
National Trust Company, as trustee (the "Trustee")
I, [identify the certifying individual], a [title] of Deutsche Bank
National Trust Company, certify to the Depositor and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed the annual report on Form 10 K (the "Annual
Report") for the fiscal year [___], and all reports on Form 8
K containing distribution reports filed in respect of periods
included in the year covered by the Annual Report
(collectively with the Annual Report, the "Reports"), of the
Trust;
2. Based on my knowledge, the information in the Reports, taken
as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under
which such statements were made, not misleading as of the last
day of the period covered by the Annual Report; and
3. Based on my knowledge, the distribution or servicing
information required to be provided to the Trustee by Xxxxx
Fargo Bank, N.A., as Servicer, under the Master Seller's
Warranties and Servicing Agreement for inclusion in the
Reports is included in the Reports.
Date: _________________________
_______________________________
[Signature] [Title]
EXHIBIT L
MASTER SELLER'S WARRANTIES AND SERVICING AGREEMENT,
DATED AS OF SEPTEMBER 1, 2004,
BETWEEN XXXXX FARGO BANK, N.A.
AND XXXXXXX XXXXX MORTGAGE COMPANY
================================================================================
Xxxxxxx Sachs Mortgage Company
Purchaser
and
XXXXX FARGO BANK, N.A.
Company
MASTER SELLER'S WARRANTIES AND SERVICING AGREEMENT
Dated as of September 1, 2004
Adjustable and Fixed Rate
Subprime Mortgage Loans
================================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES; BOOKS AND
RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF DOCUMENTS
Section 2.01 Conveyance of Mortgage Loans; Possession of Mortgage
Files; Maintenance of Servicing Files..........................
Section 2.02 Books and Records; Transfers of Mortgage Loans..................
Section 2.03 Custodial Agreement; Delivery of Documents......................
Section 2.04 Mortgage Schedule...............................................
Section 2.05 Examination of Files............................................
Section 2.06 Purchase Price..................................................
ARTICLE III
REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH
Section 3.01 Company Representations and Warranties..........................
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans.................................................
Section 3.03 Repurchase......................................................
Section 3.04 First Payment Default...........................................
Section 3.05 Prepayment in Full Premium Recapture............................
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Company to Act as Servicer......................................
Section 4.02 Liquidation of Mortgage Loans...................................
Section 4.03 Collection of Mortgage Loan Payments............................
Section 4.04 Establishment of Custodial Account..............................
Section 4.05 Permitted Withdrawals From Custodial Account....................
Section 4.06 Establishment of and Deposits to Escrow Account.................
Section 4.07 Permitted Withdrawals From Escrow Account.......................
Section 4.08 Payment of Taxes, Insurance and Other Charges...................
Section 4.09 Protection of Accounts..........................................
Section 4.10 Maintenance of Hazard Insurance.................................
Section 4.11 Maintenance of Mortgage Impairment Insurance....................
Section 4.12 Maintenance of Fidelity Bond and Errors and Omissions
Insurance......................................................
Section 4.13 Inspections.....................................................
Section 4.14 Restoration of Mortgaged Property...............................
Section 4.15 Maintenance of PMI Policy; Claims...............................
Section 4.16 Title, Management and Disposition of REO Property...............
Section 4.17 Real Estate Owned Reports.......................................
Section 4.18 Liquidation Reports.............................................
Section 4.19 Reports of Foreclosures and Abandonments of Mortgaged
Property.......................................................
Section 4.20 Notification of Adjustments.....................................
Section 4.21 Confidentiality/Protection of Customer Information..............
Section 4.22 Fair Credit Reporting Act.......................................
ARTICLE V
PAYMENTS TO PURCHASER
Section 5.01 Remittances.....................................................
Section 5.02 Statements to Purchaser.........................................
Section 5.03 Monthly Advances by Company.....................................
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 Transfers of Mortgaged Property.................................
Section 6.02 Satisfaction of Mortgages and Release of Mortgage Files.........
Section 6.03 Servicing Compensation..........................................
Section 6.04 Annual Statement as to Compliance...............................
Section 6.05 Annual Independent Public Accountants' Servicing Report.........
Section 6.06 Right to Examine Company Records................................
Section 6.07 Compliance with REMIC Provisions................................
Section 6.08 Compliance with Xxxxx-Xxxxx-Xxxxxx Act of 1999..................
ARTICLE VII
COMPANY TO COOPERATE
Section 7.01 Provision of Information........................................
Section 7.02 Financial Statements; Servicing Facility........................
ARTICLE VIII
THE COMPANY
Section 8.01 Indemnification; Third Party Claims.............................
Section 8.02 Merger or Consolidation of the Company..........................
Section 8.03 Limitation on Liability of Company and Others...................
Section 8.04 Limitation on Resignation and Assignment by Company.............
ARTICLE IX
REMOVAL OF MORTGAGE LOANS FROM AGREEMENT
Section 9.01 Removal of Mortgage Loans from Inclusion Under this
Agreement......................................................
ARTICLE X
DEFAULT
Section 10.01 Events of Default...............................................
Section 10.02 Waiver of Defaults..............................................
ARTICLE XI
TERMINATION
Section 11.01 Termination.....................................................
Section 11.02 Termination Without Cause.......................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Successor to Company............................................
Section 12.02 Amendment.......................................................
Section 12.03 Governing Law...................................................
Section 12.04 Duration of Agreement...........................................
Section 12.05 Notices.........................................................
Section 12.06 Closing.........................................................
Section 12.07 Closing Documents...............................................
Section 12.08 Severability of Provisions......................................
Section 12.09 Relationship of Parties.........................................
Section 12.10 Execution; Successors and Assigns...............................
Section 12.11 Recordation of Assignments of Mortgage..........................
Section 12.12 Assignment by Purchaser.........................................
Section 12.13 Solicitation of Mortgagor.......................................
Section 12.14 Further Agreements..............................................
Section 12.15 Waivers.........................................................
Section 12.16 Costs...........................................................
Section 12.17 Mandatory Delivery..............................................
Section 12.18 Intention of the Parties........................................
EXHIBITS
Exhibit A Form of Assignment and Conveyance Agreement
Exhibit A-1 Data File Elements
Exhibit B Contents of Each Mortgage Loan File
Exhibit C Items to be included in Monthly Remittance Advice
Exhibit D Underwriting Guidelines
Exhibit E Custodial Agreement
Exhibit F Form of Opinion of Counsel
Exhibit F Form of Assignment, Assumption and Recognition Agreement
Exhibit G Form of Company's Officer's Certificate
Exhibit H Form of Annual Certification
Exhibit I Form of Indemnification Agreement
Exhibit J Form of Assignment, Assumption and Recognition Agreement
This is a Master Seller's Warranties and Servicing Agreement for
adjustable and fixed rate residential first mortgage loans, dated and effective
as of September 1, 2004, and is executed between Xxxxxxx Xxxxx Mortgage Company,
as purchaser (the "Purchaser"), and Xxxxx Fargo Bank, N.A., as seller and
servicer (the "Company").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Purchaser desires to purchase from time to time from
the Company and the Company has agreed, from time to time, to sell to the
Purchaser certain first-lien adjustable and fixed rate residential mortgage
loans (the "Mortgage Loans") which shall be delivered in pools of whole loans
(each, a "Mortgage Loan Package") on various dates as provided herein (each, a
"Closing Date";
WHEREAS, each of the Mortgage Loans is secured by a mortgage, deed
of trust or other security instrument creating a first lien on a residential
dwelling located in the jurisdiction indicated on the related Mortgage Loan
Schedule for the related Mortgage Loan; and
WHEREAS, the Purchaser and the Company wish to prescribe the manner
of purchase of the Mortgage Loans and the conveyance, servicing and control of
the Mortgage Loans.
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Purchaser and the
Company agree as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
content otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan
purchased pursuant to this Agreement, the Mortgage Interest Rate of which is
adjusted on each Adjustment Date.
Adjustment Date: As to each Adjustable Rate Mortgage Loan, the date
on which the Mortgage Interest Rate is adjusted in accordance with the terms of
the related Mortgage Note and Mortgage.
Agency: Xxxxxx Xxx, Xxxxxxx Mac or GNMA, or any of them as
applicable.
Agency Transfer: Any sale or transfer of some or all of the Mortgage
Loans by the Purchaser to an Agency which sale or transfer is not a Pass-Through
Transfer or Whole Loan Transfer.
Agreement: This Master Seller's Warranties and Servicing Agreement
and all exhibits hereto, amendments hereof and supplements hereto.
ALTA: The American Land Title Association or any successor thereto.
Appraised Value: With respect to any Mortgage Loan, the lesser of
(i) the value set forth on the appraisal made in connection with the origination
of the related Mortgage Loan as the value of the related Mortgaged Property, or
(ii) the purchase price paid for the Mortgaged Property, provided, however, that
in the case of a refinanced Mortgage Loan, such value shall be based solely on
the appraisal made in connection with the refinance of such Mortgage Loan.
Assignment of Mortgage or Assignment: An assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to reflect the sale of the Mortgage to the Purchaser or its designated assignee,
or if the related Mortgage has been recorded in the name of MERS or its
designee, such actions as are necessary to cause the Purchaser to be shown as
the owner of the related Mortgage on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages maintained by
MERS.
BPO: A broker price opinion.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in the states where the
parties are located are authorized or obligated by law or executive order to be
closed.
Closing Date: The date or dates on which the Purchaser from time to
time shall purchase and the Company from time to time shall sell the Mortgage
Loans listed on the related Mortgage Loan Schedule with respect to the related
Mortgage Loan Package.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time or any successor statute thereto, and applicable U.S. Department of
the Treasury regulations issued pursuant thereto.
Company: Xxxxx Fargo Bank, N.A., or its successor in interest or
assigns, or any successor to the Company under this Agreement appointed as
herein provided.
Company Certification: The certification delivered by the Company in
a form substantially similar to Exhibit H of this Agreement.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage
Loan purchased pursuant to this Agreement which contains a provision whereby the
Mortgagor is permitted to convert the Adjustable Rate Mortgage Loan to a Fixed
Rate Mortgage Loan in accordance with the terms of the related Mortgage Note.
Covered Loan: A Mortgage Loan categorized as "Covered" pursuant to
the Standard & Poor's Glossary for File Format for LEVELS(R) Version 5.6,
Appendix E, as revised from time to time and in effect on each related Closing
Date.
Custodial Account: The separate account or accounts created and
maintained pursuant to Section 4.04.
Custodial Agreement: That certain Custodial Agreement, dated as of
the date hereof, by any among the Purchaser and Deutsche Bank National Trust
Company attached hereto as Exhibit E.
Custodian: The custodian under the Custodial Agreement, or its
successor in interest or assigns, or any successor to the Custodian under the
Custodial Agreement as provided therein.
Cut-off Date: The date or dates designated as such on the related
Mortgage Loan Schedule with respect to the related Mortgage Loan Package.
Data File: The electronic data file prepared by the Company and
delivered to the Purchaser including the data fields set forth on Exhibit A-1
with respect to each Mortgage Loan.
Deleted Mortgage Loan: A Mortgage Loan which is repurchased by the
Company in accordance with the terms of this Agreement and which is, in the case
of a substitution pursuant to Section 3.03, replaced or to be replaced with a
Qualified Substitute Mortgage Loan.
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: The first day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to each Remittance Date, the period
commencing on the second day of the month preceding the month of the Remittance
Date and ending on the first day of the month of the Remittance Date.
Errors and Omissions Insurance Policy: An errors and omissions
insurance policy to be maintained by the Company pursuant to Section 4.12.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 4.06.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other related
document.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 10.01.
Xxxxxx Xxx: The entity formerly known as Federal National Mortgage
Association (FNMA), or any successor thereto.
Xxxxxx Mae Guides: The Xxxxxx Xxx Selling Guide and the Xxxxxx Mae
Servicing Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Fidelity Bond: A fidelity bond to be maintained by the Company
pursuant to Section 4.12.
First Remittance Date: The date or dates designated as such on the
related Mortgage Loan Schedule with respect to the related Mortgage Loan
Package.
Fitch: Fitch, Inc., or its successor in interest.
Fixed Rate Mortgage Loan: A Mortgage Loan purchased pursuant to this
Agreement, the Mortgage Interest Rate of which is fixed for the term of such
Mortgage Loan.
Xxxxxxx Mac: The entity also known as the Federal Home Loan Mortgage
Corporation (FHLMC), or any successor thereto.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which is
added to the Index in accordance with the terms of the related Mortgage Note to
determine on each Adjustment Date the Mortgage Interest Rate for such Mortgage
Loan.
High Cost Loan: A Mortgage Loan classified as (a) a "high cost" loan
under the Home Ownership and Equity Protection Act of 1994 ("HOEPA"), (b) a
"high cost home," "threshold," "covered," (excluding New Jersey "Covered Home
Loans" as that term is defined in clause (1) of the definition of that term in
the New Jersey Home Ownership Security Act of 2002), "high risk home,"
"predatory" or similar loan under any other applicable state, federal or local
law or (c) a Mortgage Loan categorized as "High Cost" pursuant to the Standard &
Poor's Glossary for File Format for LEVELS(R) Version 5.6, Appendix E, as
revised from time to time and in effect on each related Closing Date.
Home Loan: A Mortgage Loan categorized as "Home Loan" pursuant to
the Standard & Poor's Glossary for File Format for LEVELS(R) Version 5.6,
Appendix E, as revised from time to time and in effect on each related Closing
Date.
Index: With respect to any Adjustable Rate Mortgage Loan, the index
identified on the related Mortgage Loan Schedule and set forth in the related
Mortgage Note for the purpose of calculating the interest therein.
Interim Funder: With respect to each MERS Designated Mortgage Loan,
the Person named on the MERS(R) System as the interim funder pursuant to the
MERS Procedures Manual.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Investor: With respect to each MERS Mortgage Loan, the Person named
on the MERS System as the investor pursuant to the MERS Procedures Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the amount per annum set forth on the Mortgage Loan Schedule.
Liquidation Proceeds: Cash (other than Insurance Proceeds or
Condemnation Proceeds) received in connection with the liquidation of a
defaulted Mortgage Loan, whether through the sale or assignment of such Mortgage
Loan, trustee's sale, foreclosure sale, sale of REO Property, or otherwise, or
the sale of the related Mortgaged Property if the Mortgaged Property is acquired
in satisfaction of the Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio of the original loan amount of the Mortgage Loan at its origination
(unless otherwise indicated) to the Appraised Value of the Mortgaged Property.
LPMI Policy: A PMI Policy for which the Company pays all premiums
from its own funds, without reimbursement.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS System.
MERS Procedure Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
MERS Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
MIN: The Mortgage Identification Number for any MERS Mortgage Loan.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Monthly Advance: The portion of each Monthly Payment that is
delinquent with respect to each Mortgage Loan at the close of business on the
Determination Date required to be advanced by the Company pursuant to Section
5.03 on the Business Day immediately preceding the Remittance Date of the
related month.
Monthly Payment: The scheduled monthly payment of principal and
interest payments of interest on a Mortgage Loan.
Monthly Remittance Advice: Has the meaning assigned to such term in
Section 5.02.
Moody's: Xxxxx'x Investors Service, Inc., and any successor thereto.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien on an unsubordinated estate in fee
simple in real property securing the Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit B annexed hereto, and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Impairment Insurance Policy: A mortgage impairment or
blanket hazard insurance policy as described in Section 4.11.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note in accordance with the provisions of the Mortgage Note.
Mortgage Loan: An individual mortgage loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the related Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage File, the Servicing File, the Monthly
Payments, Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, REO Disposition Proceeds and all other rights, benefits,
proceeds and obligations arising from or in connection with such Mortgage Loan.
Mortgage Loan Documents: With respect to a Mortgage Loan, the
documents listed as 1-10 on Exhibit B hereto.
Mortgage Loan Package: Each pool of Mortgage Loans, which shall be
purchased by the Purchaser from the Company from time to time on each Closing
Date.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest remitted to the Purchaser, which shall be equal to
the related Mortgage Interest Rate minus the Servicing Fee Rate.
Mortgage Loan Schedule: A schedule of Mortgage Loans included in
each Mortgage Loan Package, such schedule setting forth the following
information with respect to each Mortgage Loan: (1) the Company's Mortgage Loan
number; (2) the address, city, state and zip code of the Mortgaged Property; (3)
a code indicating whether the Mortgaged Property is a single family residence,
two-family residence, three-family residence, four-family residence, planned
unit development; (4) the Gross Margin; (5) the current Mortgage Interest Rate;
(6) the Servicing Fee Rate; (7) the current Monthly Payment; (8) the original
term to maturity; (9) the scheduled maturity date (and, if different, the stated
maturity date indicated on the Mortgage Note on its date of origination); (10)
the principal balance of the Mortgage Loan as of the related Cut-off Date after
deduction of payments of principal due on or before the related Cut-off Date
whether or not collected; (11) the Loan-to-Value Ratio; (12) the Adjustment
Date; (13) the Lifetime Rate Cap under the terms of the Mortgage Note; (14)
whether the Mortgage Loan is convertible or not; and (15) a code indicating the
mortgage guaranty insurance company.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage and riders thereto.
Mortgaged Property: The real property securing repayment of the debt
evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President or
an Assistant Vice President and certified by the Treasurer or the Secretary or
one of the Assistant Treasurers or Assistant Secretaries of the Company, and
delivered to the Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Company, reasonably acceptable to the Purchaser.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a trust to be formed as part of a publicly
issued or privately placed mortgage-backed securities transaction.
Periodic Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum amount by
which the Mortgage Interest Rate therein may increase or decrease on an
Adjustment Date above or below the Mortgage Interest Rate previously in effect.
The Periodic Rate Cap for each Adjustable Rate Mortgage Loan is the rate set
forth on the Mortgage Loan Schedule.
Periodic Rate Floor: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may decrease on an Adjustment
Date below the Mortgage Interest Rate previously in effect. The Periodic Rate
Floor for each Adjustable Rate Mortgage Loan is the rate set forth on the
Mortgage Loan Schedule.
Person: Any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
PMI Policy: A policy of primary mortgage guaranty insurance
evidenced by an electronic form and certificate number issued by a Qualified
Insurer, as required by this Agreement with respect to certain Mortgage Loans.
Prepayment Penalty: Payments assessed pursuant to the Underwriting
Guidelines and due pursuant to the terms of the Mortgage Loan Documents as the
result of a Principal Prepayment of the Mortgage Loan, not otherwise due thereon
in respect of principal or interest, which are intended to be a disincentive to
prepayment.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street Journal.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
including any Prepayment Penalty or premium thereon and which is not accompanied
by an amount of interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Principal Prepayment Period: The calendar month preceding the month
in which the related Remittance Date occurs.
Purchase Price: The purchase price for a Mortgage Loan Package
specified in the related Purchase Price and Terms Letter.
Purchase Price and Terms Letter: Those certain agreements setting
forth the general terms and conditions of the transaction consummated herein and
identifying the Mortgage Loans to be purchased from time to time hereunder,
between the Company and the Purchaser.
Purchaser: Xxxxxxx Xxxxx Mortgage Company, or its successor in
interest or any successor to the Purchaser under this Agreement as herein
provided.
Qualified Depository: A federal or state chartered depository
institution, the deposits in which are insured by the FDIC to the applicable
limits and the short-term unsecured debt obligations of which (or, in the case
of a depository institution that is a subsidiary of a holding company, the
short-term unsecured debt obligations of such holding company) are rated A-1 by
Standard & Poor's and Prime-1 by Moody's (or a comparable rating if another
rating agency is specified by the Purchaser by written notice to the Company) at
the time any deposits are held on deposit therein; provided however, that in the
event any of the Mortgage Loans are subject to a Pass-Through Transfer, the
Company agrees that the holding company or other entity which maintains any
accounts subject to this definition, shall satisfy the rating requirements
established by any Rating Agency which rates securities issued as part of the
Pass-Through Transfer.
Qualified Insurer: A mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by Xxxxxx Xxx or Xxxxxxx Mac.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by the Company for a Deleted Mortgage Loan which must, on the date
of such substitution, (i) have an outstanding principal balance, after deduction
of all scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the Stated Principal Balance of
the Deleted Mortgage Loan; (ii) have a Mortgage Loan Remittance Rate not less
than, and not more than 2% greater, than the Mortgage Loan Remittance Rate of
the Deleted Mortgage Loan; (iii) have a remaining term to maturity not greater
than and not more than one year less than that of the Deleted Mortgage Loan;
(iv) be of the same type as the Deleted Mortgage Loan (i.e., fixed rate or
adjustable rate with same Periodic Rate Cap, Lifetime Rate Cap, and Index); and
(v) comply with each representation and warranty set forth in Sections 3.01 and
3.02.
Rating Agency: Moody's, Standard & Poor's, Fitch (doing business as
"Fitch Ratings"), or any other nationally recognized statistical credit rating
agency rating any security issued in connection with any Pass-Through Transfer,
Agency Transfer or Whole Loan Transfer.
Reconstitution Date: The date on which any or all of the Mortgage
Loans serviced under this Agreement may be removed from this Agreement and
reconstituted as part of a Pass-Through Transfer, Agency Transfer or Whole Loan
Transfer pursuant to Section 9.01 hereof. The Reconstitution Date shall be such
date which the Purchaser shall designate. On such date, the Mortgage Loans
transferred shall cease to be covered by this Agreement and the Company's
servicing responsibilities may cease under this Agreement with respect to the
related transferred Mortgage Loans.
Record Date: The close of business of the last Business Day of the
month prior to the month of the related Remittance Date.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter
1, Subtitle A of the Code, and related provisions, regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance Advice Date: The 12th calendar day of each month (or if
such 12th day is not a Business Day, the first Business Day immediately
following) or the next succeeding business day.
Remittance Date: The 18th day (or if such 18th day is not a Business
Day, the first Business Day immediately following) of any month, beginning with
the First Remittance Date.
REO Disposition: The final sale by the Company of any REO Property.
REO Disposition Proceeds: All amounts received with respect to an
REO Disposition pursuant to Section 4.16.
REO Property: A Mortgaged Property acquired by the Company on behalf
of the Purchaser through foreclosure or by deed in lieu of foreclosure, as
described in Section 4.16.
Repurchase Price: Unless agreed otherwise by the Purchaser and the
Company (including without limitation as set forth in the related Purchase Price
and Terms Letter), a price equal to (i) the Stated Principal Balance of the
Mortgage Loan plus (ii) interest on such Stated Principal Balance at the
Mortgage Loan Remittance Rate from the date on which interest has last been paid
and distributed to the Purchaser to the last day of the month in which the
repurchase occurs, less amounts received or advanced in respect of such
repurchased Mortgage Loan which are being held in the Custodial Account for
distribution in the month of repurchase, to the extent such amounts are actually
paid to the Purchaser upon the repurchase of the related Mortgage Loan, plus
(iii) any costs and damages, including reasonable attorneys' fees and costs,
incurred by the trust in the applicable Pass-Through Transfer in connection with
any violation by the Mortgage Loan of any predatory or abusive lending law.
Securities Act of 1933 or the 1933 Act: The Securities Act of 1933,
as amended.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses other than Monthly Advances (including reasonable
attorney's fees and disbursements) incurred in the performance by the Company of
its servicing obligations, including, but not limited to, the cost of (a) the
preservation, restoration and protection of the Mortgaged Property, (b) any
enforcement or judicial proceedings, including foreclosures, (c) the management
and liquidation of any REO Property and (d) compliance with the obligations
under Section 4.08 (excluding the Company's obligation to pay the premiums on
LPMI Policies).
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to the Company, which shall, for a period of
one full month, be equal to one-twelfth of the product of (a) the Servicing Fee
Rate and (b) the outstanding principal balance of such Mortgage Loan. Such fee
shall be payable monthly, computed on the basis of the same principal amount and
period respecting which any related interest payment on a Mortgage Loan is
computed. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds, to the
extent permitted by Section 4.05) of such Monthly Payment collected by the
Company, or as otherwise provided under Section 4.05.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per
annum set forth in the related Purchase Price and Terms Letter.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Company consisting of originals of all documents in the Mortgage
File which are not delivered to the Custodian and copies of the Mortgage Loan
Documents listed in the Custodial Agreement the originals of which are delivered
to the Custodian pursuant to Section 2.03.
Servicing Officer: Any officer of the Company involved in or
responsible for the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Company to the
Purchaser upon request, as such list may from time to time be amended.
Standard & Poor's: Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies Inc., and any successor thereto.
Stated Principal Balance: As to each Mortgage Loan and as of any
date of determination, (i) the principal balance of the Mortgage Loan at the
related Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal or advances in lieu thereof,
including the principal portion of Liquidation Proceeds, Condemnation Proceeds,
and Insurance Proceeds.
Underwriting Guidelines: The Company's underwriting guidelines
attached hereto as Exhibit D.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a third party, which sale or transfer is not
a Pass-Through Transfer or Agency Transfer.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES; BOOKS AND
RECORDS; CUSTODIAL AGREEMENT; DELIVERY OF DOCUMENTS
Section 2.01 Conveyance of Mortgage Loans; Possession of Mortgage
Files; Maintenance of Servicing Files. The Company, simultaneously with the
delivery of the Mortgage Loan Schedule with respect to the related Mortgage Loan
Package to be purchased on each Closing Date, shall execute and deliver an
Assignment and Conveyance Agreement in the form attached hereto as Exhibit A
(the "Assignment and Conveyance").
The Company, simultaneously with the execution and delivery of each
Assignment and Conveyance, shall sell, transfer, assign, set over and convey to
the Purchaser, without recourse, but subject to the terms of this Agreement, all
the right, title and interest of the Company in and to the Mortgage Loans
included in such Mortgage Loan Package. Pursuant to Section 2.03, the Company
has delivered the Mortgage Loan Documents to the Custodian.
The contents of each Mortgage File not delivered to the Custodian
are and shall be held in trust by the Company for the benefit of the Purchaser
as the owner thereof. The Company shall maintain a Servicing File consisting of
a copy of the contents of each Mortgage File and the originals of the documents
in each Mortgage File not delivered to the Custodian. The possession of each
Servicing File by the Company is at the will of the Purchaser for the sole
purpose of servicing the related Mortgage Loan, and such retention and
possession by the Company is in a custodial capacity only. Upon the sale of the
Mortgage Loans in a Mortgage Loan Package, the ownership of each Mortgage Note,
the related Mortgage and the related Mortgage File and Servicing File shall vest
immediately in the Purchaser, and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or which come into the
possession of the Company shall vest immediately in the Purchaser and shall be
retained and maintained by the Company, in trust, at the will of the Purchaser
and only in such custodial capacity. The Company shall release its custody of
the contents of any Servicing File only in accordance with written instructions
from the Purchaser, unless such release is required as incidental to the
Company's servicing of the Mortgage Loans or is in connection with a repurchase
of any Mortgage Loan pursuant to Section 3.03 or 6.02. All such costs associated
with the release, transfer and re-delivery of any Mortgage Files and Servicing
Files between the parties shall be the responsibility of the party in possession
of such file or files.
In addition, in connection with the assignment of any MERS Mortgage
Loan, the Company agrees that it will cause the MERS System to indicate that
such Mortgage Loan has been assigned by the Company to the Purchaser in
accordance with this Agreement by including (or deleting, in the case of a
Mortgage Loan repurchased in accordance with this Agreement) in such computer
files the information required by the MERS System to identify the Purchaser as
the beneficial owner of such Mortgage Loan.
Section 2.02 Books and Records; Transfers of Mortgage Loans. From
and after the sale of the Mortgage Loans in a Mortgage Loan Package to the
Purchaser all rights arising out of the Mortgage Loans, including, but not
limited to, all funds received on or in connection with the Mortgage Loans,
shall be received and held by the Company in trust for the benefit of the
Purchaser as owner of the Mortgage Loans, and the Company shall retain record
title to the related Mortgages for the sole purpose of facilitating the
servicing and the supervision of the servicing of the Mortgage Loans.
The sale of each Mortgage Loan shall be reflected on the Company's
balance sheet and other financial statements as a sale of assets by the Company.
The Company shall be responsible for maintaining, and shall maintain, a complete
set of books and records for each Mortgage Loan which shall be marked clearly to
reflect the ownership of each Mortgage Loan by the Purchaser. In particular, the
Company shall maintain in its possession, available for inspection by the
Purchaser, or its designee, and shall deliver to the Purchaser upon demand,
evidence of compliance with all federal, state and local laws, rules and
regulations, and requirements of Xxxxxx Mae or Xxxxxxx Mac, including but not
limited to documentation as to the method used in determining the applicability
of the provisions of the Flood Disaster Protection Act of 1973, as amended, to
the Mortgaged Property, documentation evidencing insurance coverage and
eligibility of any condominium project for approval by Xxxxxx Mae or Xxxxxxx Mac
and records of periodic inspections as required by Section 4.13. To the extent
that original documents are not required for purposes of realization of
Liquidation Proceeds or Insurance Proceeds, documents maintained by the Company
may be in the form of microfilm or microfiche or such other reliable means of
recreating original documents, including but not limited to, optical imagery
techniques so long as the Company complies with the requirements of the Xxxxxx
Mae Selling and Servicing Guide, as amended from time to time.
The Company shall maintain with respect to each Mortgage Loan and
shall make available for inspection by any Purchaser or its designee the related
Servicing File during the time the Purchaser retains ownership of a Mortgage
Loan and thereafter in accordance with applicable laws and regulations.
The Company shall keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the Company
shall note transfers of Mortgage Loans. No transfer of a Mortgage Loan may be
made unless such transfer is in compliance with the terms hereof. For the
purposes of this Agreement, the Company shall be under no obligation to deal
with any Person with respect to this Agreement or the Mortgage Loans unless the
books and records show such Person as the owner of the Mortgage Loan. The
Purchaser may, subject to the terms of this Agreement, sell and transfer one or
more of the Mortgage Loans in any Mortgage Loan Package. The Purchaser also
shall advise the Company of the transfer. Upon receipt of notice of the
transfer, the Company shall xxxx its books and records to reflect the ownership
of the Mortgage Loans of such assignee, and shall release the previous Purchaser
from its obligations hereunder with respect to the Mortgage Loans sold or
transferred. Such notification of a transfer shall include a final loan schedule
which shall be received by the Company no fewer than five (5) Business Days
before the last Business Day of the month. If such notification is not received
as specified above, the Company's duties to remit and report as required by
Section 5 shall begin with the next Due Period.
Section 2.03 Custodial Agreement; Delivery of Documents. On or prior
to the date which is five (5) Business Days prior to the related Closing Date,
the Company shall deliver and release to the Custodian those Mortgage Loan
Documents as required by Exhibit B to this Agreement with respect to each
Mortgage Loan in the related Mortgage Loan Package.
The Custodian shall certify its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement, as
evidenced by the delivery of an Initial Certification of the Custodian in the
form annexed to the Custodial Agreement. The Company will be responsible for the
Custodian's fees and expenses with respect to the delivery of those Mortgage
Loan Documents required to be delivered pursuant to the Custodial Agreement. The
Company will be responsible for the fees and expenses related to the recording
of the initial Assignments of Mortgage (including any fees and expenses related
to any preparation and recording of any intervening or prior assignments of the
Mortgage Loans to the Company or to any prior owners of or mortgagees with
respect to the Mortgage Loans). The Purchaser will be responsible for the fees
and expenses of the Custodian.
The Company shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 4.01 or 6.01 within one
week of their execution, provided, however, that the Company shall provide the
Custodian with a certified true copy of any such document submitted for
recordation within ten (10) days of its execution, and shall provide the
original of any document submitted for recordation or a copy of such document
certified by the appropriate public recording office to be a true and complete
copy of the original within sixty days of its submission for recordation.
In the event the public recording office is delayed in returning any
original document, the Company shall deliver to the Custodian within 240 days of
its submission for recordation, a copy of such document and an Officer's
Certificate, which shall (i) identify the recorded document; (ii) state that the
recorded document has not been delivered to the Custodian due solely to a delay
by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian. The Company will be required to
deliver the document to the Custodian by the date specified in (iv) above. An
extension of the date specified in (iv) above may be requested from the
Purchaser, which consent shall not be unreasonably withheld.
Section 2.04 Mortgage Schedule. The Company shall provide the
Purchaser on or prior to the date which is two Business Days prior to the
related Closing Date, with certain information constituting a listing of the
Mortgage Loans, in each Mortgage Loan Package, to be purchased under this
Agreement (the "Mortgage Loan Schedule") and a Data File with respect to the
Mortgage Loans. The Mortgage Loan Schedule shall conform to the definition of
"Mortgage Loan Schedule" hereunder.
Section 2.05 Examination of Files. Prior to the related Closing
Date, the Seller shall (a) deliver to the Purchaser in escrow, for examination,
the Mortgage File for each Mortgage Loan in the related Mortgage Loan Package,
including a copy of the Assignment of Mortgage, pertaining to each Mortgage
Loan, or (b) make the Mortgage Files available to the Purchaser for examination
at the Seller's offices or such other location as shall otherwise be agreed upon
by the Purchaser and the Seller. Such examination may be made by the Purchaser,
or by any prospective purchaser of the Mortgage Loans from the Purchaser, at any
time before or after the related Closing Date upon prior reasonable notice to
the Seller. With respect to each Mortgage Loan in a Mortgage Loan Package, the
Purchaser may conduct a 100% due diligence review of the Mortgage Loan legal and
credit files for the purpose of ensuring conformity with the underwriting
guidelines, the terms of the related Purchase Price and Terms Letter and this
Agreement. In addition, the Purchaser is entitled to obtain BPO's or other
property evaluations on the Mortgaged Properties relating to the Mortgage Loan
included in the Mortgage Loan Package and to carry out any other due diligence
reviews as specified in the related Purchase Price and Terms Letter. The
Purchaser reserves the right to reject any Mortgage Loan which does not conform
to the Company's underwriting guidelines, the related Purchase Price and Terms
Letter and this Agreement. Any review performed by the Purchaser prior to the
related Closing Date does not limit the Purchaser's rights or Company's
obligations under the Agreement, thereafter. The Purchaser may conduct
additional due diligence reviews of the credit files after the related Closing
Date.
Section 2.06 Purchase Price. The purchase price for the Mortgage
Loans in each Mortgage Loan Package (the "Purchase Price") shall be the
percentage of par as stated in the related Purchase Price and Terms Letter,
multiplied by the aggregate scheduled principal balance, as of the related
Cut-off Date, of the Mortgage Loans listed on the related Mortgage Loan
Schedule, after application of scheduled payments of principal due on or before
the related Cut-off Date whether or not collected. The Purchase Price may be
adjusted as stated in the related Purchase Price and Terms Letter.
In addition to the Purchase Price as described above, the Purchaser
shall pay to the Seller, at closing, accrued interest on the aggregate scheduled
principal amount of the Mortgage Loans at the weighted average Mortgage Loan
Remittance Rate from the related Cut-off Date through the day prior to the
related Closing Date, inclusive.
The Purchaser shall be entitled to (1) all scheduled principal due
after the related Cut-off Date, (2) all other recoveries of principal collected
after the related Cut-off Date (provided, however, that all scheduled payments
of principal due on or before the related Cut-off Date and collected by the
Seller after the related Cut-off Date shall belong to the Seller), and (3) all
payments of interest on the Mortgage Loans at the Mortgage Loan Remittance Rate
(minus that portion of any such payment which is allocable to the period prior
to the related Cut-off Date). The principal balance of each Mortgage Loan as of
the related Cut-off Date is determined after application of payments of
principal due on or before the related Cut-off Date whether or not collected.
Therefore, payments of scheduled principal and interest prepaid for a Due Date
beyond the related Cut-off Date shall not be applied to the principal balance as
of the related Cut-off Date. Such prepaid amounts (minus interest at the
Servicing Fee Rate) shall be the property of the Purchaser. The Seller shall
deposit any such prepaid amounts into the Custodial Account, which account is
established for the benefit of the Purchaser for subsequent remittance by the
Seller to the Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH
Section 3.01 Company Representations and Warranties. The Company
hereby represents and warrants to the Purchaser that, as of the related Closing
Date:
(a) Due Organization and Authority. The Company is a national
banking association duly organized, validly existing and in good standing under
the laws of the United States and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good standing
in each state where a Mortgaged Property is located if the laws of such state
require licensing or qualification in order to conduct business of the type
conducted by the Company, and in any event the Company is in compliance with the
laws of any such state to the extent necessary to ensure the enforceability of
the related Mortgage Loan and the servicing of such Mortgage Loan in accordance
with the terms of this Agreement; the Company has the full power and authority
to execute and deliver this Agreement and to perform in accordance herewith; the
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Company and the
consummation of the transactions contemplated hereby have been duly and validly
authorized; this Agreement evidences the valid, binding and enforceable
obligation of the Company; and all requisite action has been taken by the
Company to make this Agreement valid and binding upon the Company in accordance
with its terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Company, who is in the business of selling and servicing loans,
and the transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Company pursuant to this Agreement are not subject to the bulk
transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition of the Mortgage Loans by the Company, the sale of the
Mortgage Loans to the Purchaser or the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement
will conflict with or result in a breach of any of the terms, articles of
incorporation or by-laws or any legal restriction or any agreement or instrument
to which the Company is now a party or by which it is bound, or constitute a
default or result in the violation of any law, rule, regulation, order, judgment
or decree to which the Company or its property is subject, or impair the ability
of the Purchaser to realize on the Mortgage Loans, or impair the value of the
Mortgage Loans;
(d) Ability to Service. The Company is an approved seller/servicer
of conventional residential mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac, with
the facilities, procedures, and experienced personnel necessary for the sound
servicing of mortgage loans of the same type as the Mortgage Loans. The Company
is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act
and is in good standing to sell mortgage loans to and service mortgage loans for
Xxxxxx Mae or Xxxxxxx Mac, and no event has occurred, including but not limited
to a change in insurance coverage, which would make the Company unable to comply
with Xxxxxx Mae or Xxxxxxx Mac eligibility requirements or which would require
notification to either Xxxxxx Mae or Xxxxxxx Mac;
(e) Reasonable Servicing Fee. The Company acknowledges and agrees
that the Servicing Fee represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by the Company, for
accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement;
(f) Ability to Perform. The Company does not believe, nor does it
have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement. The Company is solvent and the sale of the
Mortgage Loans will not cause the Company to become insolvent. The sale of the
Mortgage Loans is not undertaken to hinder, delay or defraud any of the
Company's creditors;
(g) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Company which, either in any one
instance or in the aggregate, may result in any material adverse change in the
business, operations, financial condition, properties or assets of the Company,
or in any material impairment of the right or ability of the Company to carry on
its business substantially as now conducted, or in any material liability on the
part of the Company, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be contemplated
herein, or that might prohibit its entering into this Agreement, or which would
be likely to impair materially the ability of the Company to perform under the
terms of this Agreement;
(h) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company with
this Agreement or the sale of the Mortgage Loans as evidenced by the
consummation of the transactions contemplated by this Agreement, or if required,
such approval has been obtained prior to the related Closing Date;
(i) Selection Process. The Mortgage Loans were selected from among
the outstanding fixed and adjustable rate one- to four-family mortgage loans in
the Company's mortgage banking portfolio at the related Closing Date as to which
the representations and warranties set forth in Section 3.02 could be made and
such selection was not made in a manner so as to affect adversely the interests
of the Purchaser;
(j) No Untrue Information. Neither this Agreement nor any statement,
report or other document furnished or to be furnished pursuant to this Agreement
or in connection with the transactions contemplated hereby contains any untrue
statement of fact or omits to state a fact necessary to make the statements
contained therein not misleading;
(k) Sale Treatment. The Company has determined that the disposition
of the Mortgage Loans pursuant to this Agreement and the related Assignment and
Conveyance will be afforded sale treatment for accounting and tax purposes;
(l) No Material Change. There has been no material adverse change in
the business, operations, financial condition or assets of the Company since the
date of the Company's most recent financial statements;
(m) No Brokers' Fees. The Company has not dealt with any broker,
investment banker, agent or other Person that may be entitled to any commission
or compensation in the connection with the sale of the Mortgage Loans; and
(n) Fair Consideration. The consideration received by the Company
upon the sale of the Mortgage Loans under this Agreement constitutes fair
consideration and reasonably equivalent value of the Mortgage Loans.
(o) MERS Status. The Company is a member of MERS in good standing.
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans. As to each Mortgage Loan, the Company hereby represents and
warrants to the Purchaser that as of the related Closing Date:
(a) Mortgage Loans as Described. The information set forth in the
related Mortgage Loan Schedule attached to the related Assignment and Conveyance
as Exhibit A and the information contained on the related Data File delivered to
the Purchaser is true and correct; provided however, with respect to the
Prepayment Penalty Period, the ability to assess such penalty is limited to the
requirements of state law and the Mortgage Loan Documents, as set forth in the
Underwriting Guidelines;
(b) Payments Current. All payments required to be made up to the
related Cut-off Date for the Mortgage Loan under the terms of the Mortgage Note
have been made and credited. No payment under any Mortgage Loan has been 30 days
delinquent more than one time within twelve months prior to the related Closing
Date;
(c) No Outstanding Charges. There are no defaults in complying with
the terms of the Mortgages, and all taxes, governmental assessments, insurance
premiums, leasehold payments, water, sewer and municipal charges, which
previously became due and owing have been paid, or an escrow of funds has been
established in an amount sufficient to pay for every such item which remains
unpaid and which has been assessed but is not yet due and payable. The Company
has not advanced funds, or induced, or solicited directly or indirectly, the
payment of any amount required under the Mortgage Loan, except for interest
accruing from the date of the Mortgage Note or date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the day which precedes by one
month the Due Date of the first installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and
Mortgage have not been impaired, waived, altered or modified in any respect,
except by a written instrument which has been recorded, if necessary, to protect
the interests of the Purchaser and maintain the lien priority of the Mortgage
and which has been delivered to the Custodian. The substance of any such waiver,
alteration or modification has been approved by the issuer of any related PMI
Policy and the title insurer, to the extent required by the policy, and its
terms are reflected on the related Mortgage Loan Schedule. No Mortgagor has been
released, in whole or in part, except in connection with an assumption agreement
approved by the issuer of any related PMI Policy and the title insurer, to the
extent required by the policy, and which assumption agreement is part of the
Mortgage Loan File delivered to the Custodian and the terms of which are
reflected in the Mortgage Loan Schedule. No Mortgage Loan has been modified so
as to restructure the payment obligations or re-age the Mortgage Loan;
(e) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto;
(f) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in whole
or in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission;
(g) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and related documents are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its terms
(including without limitation, any provisions therein relating to prepayment
charges). All parties to the Mortgage Note and the Mortgage and any other
related document had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note, the Mortgage and any other related
document, and the Mortgage Note, the Mortgage and any other related document
have been duly and properly executed by such parties;
(h) No Fraud. All the documents executed in connection with the
Mortgage Loan including, but not limited to, the Mortgage Note and the Mortgage
are free of fraud and any misrepresentation, are signed by the persons they
purport to be signed by, and witnessed or, as appropriate, notarized by the
persons whose signatures appear as witnesses or notaries, and each such document
constitutes the valid and binding legal obligation of the signatories and is
enforceable in accordance with its terms. No error, omission, misrepresentation,
negligence, fraud or similar occurrence with respect to a Mortgage Loan has
taken place on the part of the Company, the Mortgagor, or, to the best of the
Company's knowledge, any appraiser, any builder, or any developer, or any other
party involved in the origination of the Mortgage Loan or in the application of
any insurance in relation to such Mortgage Loan;
(i) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity, predatory and abusive lending or disclosure laws
applicable to the Mortgage Loan, including without limitation, any provisions
relating to prepayment charges, have been complied with, the consummation of the
transactions contemplated hereby will not involve the violation of any such laws
or regulations, and the Company shall maintain in its possession, available for
the Purchaser's inspection, and shall deliver to the Purchaser upon demand,
evidence of compliance with all such requirements. All inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including, but not limited to, certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities;
(j) Location and Type of Mortgaged Property. The Mortgaged Property
is located in the state identified in the Mortgage Loan Schedule and consists of
a contiguous parcel of real property with a detached single family residence
erected thereon, or a two- to four-family dwelling, or an individual condominium
unit in a condominium project, or an individual unit in a planned unit
development or a townhouse, provided, however, that any condominium project or
planned unit development shall conform with the applicable Xxxxxx Mae or Xxxxxxx
Mac requirements, or the Underwriting Guidelines, regarding such dwellings, and
no residence or dwelling is a mobile home or a manufactured dwelling that does
not constitute real property. As of the respective appraisal date for each
Mortgaged Property, any Mortgaged Property being used for commercial purposes
conforms to the Underwriting Guidelines and since the date of such appraisal, no
portion of the Mortgaged Property has been used for commercial purposes outside
of the Underwriting Guidelines;
(k) Valid First Lien. The Mortgage is a valid, subsisting and
enforceable first lien on the Mortgaged Property, including all buildings on the
Mortgaged Property and all installations and mechanical, electrical, plumbing,
heating and air conditioning systems located in or annexed to such buildings,
and all additions, alterations and replacements made at any time with respect to
the foregoing. The lien of the Mortgage is subject only to:
(1) the lien of current real property taxes and assessments
not yet due and payable;
(2) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy delivered
to the originator of the Mortgage Loan and (i) referred to or otherwise
considered in the appraisal made for the originator of the Mortgage Loan
and (ii) which do not adversely affect the Appraised Value of the
Mortgaged Property set forth in such appraisal; and
(3) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by the mortgage or the use, enjoyment,
value or marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting and enforceable first lien and first priority security interest on
the property described therein and the Company has full right to sell and assign
the same to the Purchaser;
(l) Full Disbursement of Proceeds. The proceeds of the Mortgage Loan
have been fully disbursed, except for escrows established or created due to
seasonal weather conditions, as allowed under the Underwriting Guidelines, and
there is no requirement for future advances thereunder. All costs, fees and
expenses incurred in making or closing the Mortgage Loan and the recording of
the Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(m) Consolidation of Future Advances. Any future advances made prior
to the related Cut-off Date, have been consolidated with the outstanding
principal amount secured by the Mortgage, and the secured principal amount, as
consolidated, bears a single interest rate and single repayment term reflected
on the related Mortgage Loan Schedule. The lien of the Mortgage securing the
consolidated principal amount is expressly insured as having first lien priority
by a title insurance policy, an endorsement to the policy insuring the
mortgagee's consolidated interest or by other title evidence acceptable to
Xxxxxx Mae or Xxxxxxx Mac; the consolidated principal amount does not exceed the
original principal amount of the Mortgage Loan; the Company shall not make
future advances after the related Cut-off Date;
(n) Ownership. The Company is the sole owner of record and holder of
the Mortgage Loan and the related Mortgage Note and the Mortgage are not
assigned or pledged, and the Company has good and marketable title thereto and
has full right and authority to transfer and sell the Mortgage Loan to the
Purchaser. The Company is transferring the Mortgage Loan free and clear of any
and all encumbrances, liens, pledges, equities, participation interests, claims,
charges or security interests of any nature encumbering such Mortgage Loan;
(o) Origination/Doing Business. The Mortgage Loan was originated by
a savings and loan association, a savings bank, a commercial bank, a credit
union, an insurance company, or similar institution which is supervised and
examined by a federal or state authority or by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of
the National Housing Act. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (2) organized under the
laws of such state, or (3) qualified to do business in such state, or (4)
federal savings and loan associations or national banks having principal offices
in such state, or (5) not doing business in such state;
(p) LTV, PMI Policy. No Mortgage Loan has a LTV greater than 100%.
The original LTV of the Mortgage Loan either was not more than 80% or the excess
over 78% is and will be insured as to payment defaults by a PMI Policy until
terminated pursuant to the Homeowners Protection Act of 1998, 12 USC ss.4901, et
seq. All provisions of any PMI Policy or LPMI Policy have been and are being
complied with, such policy is in full force and effect, and all premiums due
thereunder have been paid. The Qualified Insurer has a claims paying ability
acceptable to Xxxxxx Mae or Xxxxxxx Mac. Any Mortgage Loan subject to a PMI
Policy obligates the Mortgagor thereunder to maintain the PMI Policy and to pay
all premiums and charges in connection therewith. The Mortgage Interest Rate for
the Mortgage Loan as set forth on the Mortgage Loan Schedule is net of any such
insurance premium;
(q) Title Insurance. The Mortgage Loan is covered by an ALTA
lender's title insurance policy (or in the case of any Mortgage Loan secured by
a Mortgaged Property located in a jurisdiction where such policies are generally
not available, an opinion of counsel of the type customarily rendered in such
jurisdiction in lieu of title insurance) or other generally acceptable form of
policy of insurance acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued by a title
insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in
the jurisdiction where the Mortgaged Property is located, insuring the Company,
its successors and assigns, as to the first priority lien of the Mortgage in the
original principal amount of the Mortgage Loan, subject only to the exceptions
contained in clauses (1), (2) and (3) of Paragraph (k) of this Section 3.02,
and, with respect to Adjustable Rate Mortgage Loans, against any loss by reason
of the invalidity or unenforceability of the lien resulting from the provisions
of the Mortgage providing for adjustment to the Mortgage Interest Rate and
Monthly Payment. The Company is the sole insured of such lender's title
insurance policy, and such lender's title insurance policy is in full force and
effect and will be in force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such lender's
title insurance policy, and no prior holder of the Mortgage, including the
Company, has done, by act or omission, anything which would impair the coverage
of such lender's title insurance policy;
(r) No Defaults. There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note or related
documents and no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration, and neither the Company nor its predecessors
have waived any default, breach, violation or event of acceleration;
(s) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under the law could give rise to such liens) affecting the
related Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage which are not insured against
by the title insurance policy referenced in Paragraph (q) above;
(t) Location of Improvements; No Encroachments. Except as insured
against by the title insurance policy referenced in Paragraph (q) above, all
improvements which were considered in determining the Appraised Value of the
Mortgaged Property lay wholly within the boundaries and building restriction
lines of the Mortgaged Property and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or being part of
the Mortgaged Property is in violation of any applicable zoning law or
regulation;
(u) Payment Terms. Principal payments on the Mortgage Loan commenced
no more than sixty (60) days after the proceeds of the Mortgage Loan were
disbursed. The Mortgage Loans have an original term to maturity of not more than
30 years, with interest payable in arrears on the first day of each month. As to
each Adjustable Rate Mortgage Loan on each applicable Adjustment Date, the
Mortgage Interest Rate will be adjusted to equal the sum of the Index plus the
applicable Gross Margin, rounded up or down to the nearest multiple of 0.125%
indicated by the Mortgage Note; provided that the Mortgage Interest Rate will
not increase or decrease by more than the Periodic Rate Cap on any Adjustment
Date, and will in no event exceed the Lifetime Rate Cap or be lower than the
Periodic Rate Floor listed on the related Mortgage Loan Schedule for such
Mortgage Loan. Each Mortgage Note requires a monthly payment which is
sufficient, during the period prior to the first adjustment to the Mortgage
Interest Rate, to fully amortize the outstanding principal balance as of the
first day of such period over the then remaining term of such Mortgage Note and
to pay interest at the related Mortgage Interest Rate. As to each Adjustable
Rate Mortgage Loan, if the related Mortgage Interest Rate changes on an
Adjustment Date, the then outstanding principal balance will be reamortized over
the remaining life of such Mortgage Loan. No Mortgage Loan contains terms or
provisions which would result in negative amortization;
(v) Customary Provisions. The Mortgage and related Mortgage Note
contain customary and enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security provided thereby, including,
(i) in the case of a Mortgage designated as a deed of trust, by trustee's sale,
and (ii) otherwise by judicial foreclosure and upon the exercise of such rights
and remedies under the law, the holder of the Mortgage and Mortgage Note will be
able to deliver good and merchantable title to the Mortgaged Property. There is
no homestead or other exemption available to a Mortgagor which would interfere
with the right to sell the Mortgaged Property at a trustee's sale or the right
to foreclose the Mortgage;
(w) Occupancy of the Mortgaged Property. As of the date of
origination the Mortgaged Property was lawfully occupied under applicable law;
(x) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral, pledged account or other security except the
lien of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in (k) above;
(y) Deeds of Trust. In the event the Mortgage constitutes a deed of
trust, a trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in the Mortgage, and no
fees or expenses are or will become payable by the Mortgagee to the trustee
under the deed of trust, except in connection with a trustee's sale after
default by the Mortgagor;
(z) Acceptable Investment. The Company has no knowledge of any
circumstances or conditions with respect to the Mortgage Loan, the Mortgaged
Property, the Mortgagor or the Mortgagor's credit standing that can reasonably
be expected to cause private institutional investors to regard the Mortgage Loan
as an unacceptable investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value or marketability of the Mortgage Loan;
(aa) Transfer of Mortgage Loans. As to any Mortgage Loan which is
not a MERS Mortgage Loan, the Assignment of Mortgage upon the insertion of the
name of the assignee and recording information is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(bb) Mortgaged Property Undamaged. The Mortgaged Property is
undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
tornado or other casualty so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the premises
were intended;
(cc) Collection Practices; Escrow Deposits. The origination and
collection practices used with respect to the Mortgage Loan have been in
accordance with Accepted Servicing Practices, and have been in all material
respects legal and proper. With respect to escrow deposits and Escrow Payments,
all such payments are in the possession of the Company and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. All Escrow Payments have been collected in
full compliance with state and federal law. No escrow deposits or Escrow
Payments or other charges or payments due the Company have been capitalized
under the Mortgage Note;
(dd) No Condemnation. There is no proceeding pending or to the best
of the Company's knowledge threatened for the total or partial condemnation of
the related Mortgaged Property;
(ee) The Appraisal. The Mortgage Loan File contains an appraisal of
the related Mortgaged Property by an appraiser licensed in the state where the
Mortgaged Property is located, and who had no interest, direct or indirect, in
the Mortgaged Property or in any loan made on the security thereof; and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and the appraiser both satisfy the applicable
requirements of Title XI of the Financial Institution Reform, Recovery, and
Enforcement Act of 1989 and the regulations promulgated thereunder, all as in
effect on the date the Mortgage Loan was originated; (ff) Insurance. The
Mortgaged Property securing each Mortgage Loan is insured by an insurer
acceptable to Xxxxxx Xxx or Xxxxxxx Mac against loss by fire and such hazards as
are covered under a standard extended coverage endorsement and such other
hazards as are customary in the area where the Mortgaged Property is located
pursuant to insurance policies conforming to the requirements of Section 4.10,
in an amount which is not less than the lesser of 100% of the insurable value of
the Mortgaged Property and the outstanding principal balance of the Mortgage
Loan, but in no event less than the minimum amount necessary to fully compensate
for any damage or loss on a replacement cost basis. If the Mortgaged Property is
a condominium unit, it is included under the coverage afforded by a blanket
policy for the project. If the improvements on the Mortgaged Property are in an
area identified in the Federal Register by the Federal Emergency Management
Agency as having special flood hazards, a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
is in effect with a generally acceptable insurance carrier, in an amount
representing coverage not less than the least of (A) the outstanding principal
balance of the Mortgage Loan, (B) the full insurable value and (C) the maximum
amount of insurance which was available under the Flood Disaster Protection Act
of 1973, as amended. All individual insurance policies contain a standard
mortgagee clause naming the Company and its successors and assigns as mortgagee,
and all premiums thereon have been paid. The Mortgage obligates the Mortgagor
thereunder to maintain a hazard insurance policy at the Mortgagor's cost and
expense, and on the Mortgagor's failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at such Mortgagor's cost and
expense, and to seek reimbursement therefor from the Mortgagor. The hazard
insurance policy is the valid and binding obligation of the insurer, is in full
force and effect, and will be in full force and effect and inure to the benefit
of the Purchaser upon the consummation of the transactions contemplated by this
Agreement. The Company has not acted or failed to act so as to impair the
coverage of any such insurance policy or the validity, binding effect and
enforceability thereof;
(gg) Servicemember's Civil Relief Act. The Mortgagor has not
notified the Company, and the Company has no knowledge of any relief requested
or allowed to the Mortgagor under the Servicemember's Civil Relief Act, as
amended;
(hh) Balloon Payments, Graduated Payments or Contingent Interests.
The Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature. If a
Mortgage Loan has a balloon payment feature, the Mortgage Note is payable in
monthly payments based on a fifteen or thirty year amortization schedule and a
final monthly payment substantially greater than the preceding monthly payment
which is sufficient to amortize the remaining principal of the Mortgage Loan;
(ii) No Construction Loans. No Mortgage Loan was made in connection
with (i) the construction or rehabilitation of a Mortgage Property or (ii)
facilitating the trade-in or exchange of a Mortgaged Property other than a
construction-to-permanent loan which has converted to a permanent Mortgage Loan;
(jj) Underwriting. Each Mortgage Loan was underwritten in accordance
with the Underwriting Guidelines of the Company attached as Exhibit D; and the
Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx Mac or Xxxxxx Mae;
(kk) No Bankruptcy. No Mortgagor was a debtor in any state or
federal bankruptcy or insolvency proceeding at the time the Mortgage Loan was
originated and as of the related Closing Date, the Company has not received
notice that any Mortgagor is a debtor under any state or federal bankruptcy or
insolvency proceeding;
(ll) Interest Rate Adjustments. With respect to any Adjustable Rate
Mortgage Loan all interest rate adjustments have been made in accordance with
the terms of the related Mortgage Note and all applicable laws;
(mm) The Mortgagor. The Mortgagor is one or more natural persons
and/or trustees for an Illinois land trust or a trustee under a "living trust"
and such "living trust" is in compliance with the Underwriting Guidelines;
(nn) No Additional Payments. There is no obligation on the part of
the Company or any other party to make payments in addition to those made by the
Mortgagor;
(oo) Single Premium Credit Life Insurance. No Mortgagor was required
to purchase any credit life, disability, accident or health insurance product as
a condition of obtaining the extension of credit. No Mortgagor was required to
obtain a prepaid single premium credit life, disability, accident or health
insurance policy in connection with the origination of the Mortgage Loan; No
proceeds from any Mortgage Loan were used to purchase single premium credit
insurance policies as part of the origination of, or as a condition to closing,
such Mortgage Loan;
(pp) Delivery of Mortgage Files. The Mortgage, Mortgage Note,
Assignment of Mortgage and any other documents required to be delivered by the
Company hereunder have been delivered to the Custodian. The Company is in
possession of a complete Mortgage File in compliance with Exhibit B, except for
such documents the originals of which have been delivered to the Custodian;
(qq) No Buydowns. No Mortgage Loan contains provisions pursuant to
which Monthly payments are (a) paid or partially paid with funds deposited in
any separate account established by the Company, the Mortgagor or anyone on
behalf of the Mortgagor, (b) paid by any source other than the Mortgagor or (c)
contains any other similar provisions which may constitute a "buydown"
provision;
(rr) Interest Calculation. Interest on each Mortgage Loan is
calculated on the basis of a 360-day year consisting of twelve 30-day months;
(ss) Violation of Environmental Laws. There is no pending action or
proceeding directly involving any Mortgaged Property of which the Company is
aware in which compliance with any environmental law, rule or regulation is an
issue; and to the best of the Company's knowledge, nothing further remains to be
done to satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(tt) Servicing. From and after the date of origination, each
Mortgage Loan has been serviced in accordance with the terms of all federal,
state and local laws and regulations and the terms of the Mortgage Note and
Accepted Servicing Practices in all respects;
(uu) High Cost Mortgage Loan. No Mortgage Loan is a High Cost Loan
or Covered Loan;
(vv) Due on Sale. The Mortgage contains an enforceable provision, to
the extent allowed under applicable law, for the acceleration of the payment of
the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent of
the mortgagee.
(ww) Prepayment Penalty. No Mortgage Loan originated on or after
October 1, 2002 will impose a prepayment premium for a term in excess of three
years after its origination. No Mortgage Loan originated prior to October 1,
2002, will impose a prepayment premium for a term in excess of five years after
its origination;
(xx) No Leaseholds. No Mortgage Loan is secured by a mortgage on a
leasehold estate in the Mortgaged Property.
(yy) Conversion. Any Adjustable Rate Mortgage Loan is not a
Convertible Mortgage Loan;
(zz) Anti-Money Laundering Laws. With respect to each Mortgage Loan,
the Company has complied with all applicable anti-money laundering laws and
regulations (the "Anti-Money Laundering Laws"), and has established an
anti-money laundering compliance program as required by the applicable
Anti-Money Laundering Laws, and maintains, and will maintain, sufficient
information to identify the applicable Mortgagor for purposes of the Anti-Money
Laundering Laws;
(aaa) No Arbitration. With respect to any Mortgage Loan originated
on or after August 1, 2004, neither the related Mortgage nor the related
Mortgage Note requires the Mortgagor to submit to arbitration to resolve any
dispute arising out of or relating in any way to the Mortgage Loan transaction;
(bbb) Fair Credit Reporting Act. The Company, in its capacity as
servicer for each Mortgage Loan, has fully furnished, in accordance with the
Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (e.g., favorable and unfavorable) on its borrower credit
files to Equifax, Experian and Trans Union Credit Information Company (three of
the credit repositories), on a monthly basis;
(ccc) Tax Service Contract; Flood Certification Contract. Each
Mortgage Loan shall have a tax service contract and, if applicable, a flood
insurance contract which shall have a term of the life of the Mortgage Loan.
Each such tax service and flood insurance contract shall be fully transferable
without penalty, premium or cost to the Purchaser or its designee, unless, with
respect to tax service contract, the Company is terminated pursuant to Section
11.02 hereof;
(ddd) Recordation. Each original Mortgage has been, or is in the
process of being duly recorded in the appropriate recording office, and all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded, are in the process of being recorded or will
be recorded (in the event the original mortgage has not been returned by the
applicable recording office), in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
Company;
Section 3.03 Repurchase. It is understood and agreed that the
representations and warranties set forth in Sections 3.01 and 3.02 shall survive
the sale of the Mortgage Loans to the Purchaser and the delivery of the Mortgage
Loan Documents to the Custodian and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment of Mortgage or the examination or failure to examine any Mortgage
File. Upon discovery by either the Company or the Purchaser of a breach of any
of the foregoing representations and warranties which materially and adversely
affects the value of the Mortgage Loans or the interest of the Purchaser (or
which materially and adversely affects the interests of Purchaser in the related
Mortgage Loan in the case of a representation and warranty relating to a
particular Mortgage Loan), the party discovering such breach shall give prompt
written notice to the other.
Notwithstanding the above sentence, within 30 days of the earlier of
either discovery by, or notice to, the Company of any breach of the
representations or warranties set forth in clauses (oo), (uu), (ww), (bbb) or
(aaa) of Subsection 3.02, the Company shall repurchase such Mortgage Loan at the
Repurchase Price.
Within 90 days of the earlier of either discovery by or notice to
the Company of any breach of a representation or warranty which materially and
adversely affects the value of the Mortgage Loans, the Company shall use its
best efforts promptly to cure such breach in all material respects and, if such
breach cannot be cured, the Company shall, at the Purchaser's option, repurchase
such Mortgage Loan at the Repurchase Price. In the event that a breach shall
involve any representation or warranty set forth in Section 3.01, and such
breach cannot be cured within 90 days of the earlier of either discovery by or
notice to the Company of such breach, all of the Mortgage Loans shall, at the
Purchaser's option, be repurchased by the Company at the Repurchase Price.
However, if the breach shall involve a representation or warranty set forth in
Section 3.02 and the Company discovers or receives notice of any such breach
within 120 days of the related Closing Date, the Company shall, if the breach
cannot be cured, at the Purchaser's option and provided that the Company has a
Qualified Substitute Mortgage Loan, rather than repurchase the Mortgage Loan as
provided above, remove such Mortgage Loan (a "Deleted Mortgage Loan") and
substitute in its place a Qualified Substitute Mortgage Loan or Loans, provided
that any such substitution shall be effected not later than 120 days after the
related Closing Date. If the Company has no Qualified Substitute Mortgage Loan,
it shall repurchase the deficient Mortgage Loan within 90 days of the written
notice of the breach or the failure to cure, whichever is later. Any repurchase
of a Mortgage Loan or Loans pursuant to the foregoing provisions of this Section
3.03 shall be accomplished by deposit in the Custodial Account of the amount of
the Repurchase Price for distribution to Purchaser on the next scheduled
Remittance Date, after deducting therefrom any amount received in respect of
such repurchased Mortgage Loan or Loans and being held in the Custodial Account
for future distribution.
At the time of repurchase or substitution, the Purchaser and the
Company shall arrange for the reassignment of the Deleted Mortgage Loan to the
Company (at the cost of the Company) and the delivery to the Company of any
documents held by the Custodian relating to the Deleted Mortgage Loan. If the
Company repurchases a Mortgage Loan that is a MERS Mortgage Loan, the Company
shall cause MERS to designate on the MERS System the removal of the Purchaser as
beneficial holder with respect to the Mortgage Loan. In the event of a
repurchase or substitution, the Company shall, simultaneously with such
reassignment, give written notice to the Purchaser that such repurchase or
substitution has taken place, amend the related Mortgage Loan Schedule to
reflect the withdrawal of the Deleted Mortgage Loan from this Agreement, and, in
the case of substitution, identify a Qualified Substitute Mortgage Loan and
amend the related Mortgage Loan Schedule to reflect the addition of such
Qualified Substitute Mortgage Loan to this Agreement. In connection with any
such substitution, the Company shall be deemed to have made as to such Qualified
Substitute Mortgage Loan the representations and warranties set forth in this
Agreement except that all such representations and warranties set forth in this
Agreement shall be deemed made as of the date of such substitution. The Company
shall effect such substitution by delivering to the Custodian for such Qualified
Substitute Mortgage Loan the documents required by Section 2.03, with the
Mortgage Note endorsed as required by Section 2.03. No substitution will be made
in any calendar month after the Determination Date for such month. The Company
shall deposit in the Custodial Account the Monthly Payment less the Servicing
Fee due on such Qualified Substitute Mortgage Loan or Loans in the month
following the date of such substitution. Monthly Payments due with respect to
Qualified Substitute Mortgage Loans in the month of substitution shall be
retained by the Company. With respect to any Deleted Mortgage Loan,
distributions to Purchaser shall include the Monthly Payment due on any Deleted
Mortgage Loan in the month of substitution, and the Company shall thereafter be
entitled to retain all amounts subsequently received by the Company in respect
of such Deleted Mortgage Loan.
For any month in which the Company substitutes a Qualified
Substitute Mortgage Loan for a Deleted Mortgage Loan, the Company shall
determine the amount (if any) by which the aggregate principal balance of all
Qualified Substitute Mortgage Loans as of the date of substitution is less than
the aggregate Stated Principal Balance of all Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be distributed by the Company in the month of
substitution pursuant to Section 5.01. Accordingly, on the date of such
substitution, the Company shall deposit from its own funds into the Custodial
Account an amount equal to the amount of such shortfall.
In addition to such repurchase or substitution obligation, the
Company shall indemnify the Purchaser and its successors and assigns and hold it
harmless against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and other costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from a breach of the representations and warranties
contained in this Agreement. It is understood and agreed that the obligations of
the Company set forth in this Section 3.03 to cure, substitute for or repurchase
a defective Mortgage Loan and to indemnify the Purchaser as provided in this
Section 3.03 constitute the sole remedies of the Purchaser respecting a breach
of the foregoing representations and warranties.
Any cause of action against the Company relating to or arising out
of the breach of any representations and warranties made in Sections 3.01 and
3.02 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by
the Purchaser or notice thereof by the Company to the Purchaser, (ii) failure by
the Company to cure such breach or repurchase such Mortgage Loan as specified
above, and (iii) demand upon the Company by the Purchaser for compliance with
this Agreement.
Section 3.04 First Payment Default. The Company shall repurchase any
Mortgage Loan for which the first scheduled Monthly Payment due on such Mortgage
Loan after the related Cut-off Date is not made within 45 days of the date such
payment is due, at a price equal to (i) the purchase price set forth in the
related Purchase Price and Terms Letter, together with any adjustments as
provided therein, plus (ii) interest on such Stated Principal Balance at the
Mortgage Loan Remittance Rate from the date on which interest has last been paid
and distributed to the Purchaser to the last day of the month in which the
repurchase occurs, less amounts received or advanced in respect of such
repurchased Mortgage Loan which are being held in the Custodial Account for
distribution in the month of repurchase to the extent such amounts are actually
paid to the Purchaser.
Section 3.05 Prepayment in Full Premium Recapture. With respect to
any Mortgage Loan which prepays in full on or prior to the ninetieth (90th) day
following the related Closing Date, the Company shall pay the Purchaser, (a)
with respect to any Mortgage Loan with no prepayment penalty, the difference
between the Purchase Price (as adjusted) for such Mortgage Loan and the
outstanding principal balance of such Mortgage Loan as of the related Cut-off
Date, and (b) with respect to any Mortgage Loan with a prepayment penalty, an
amount equal to the excess, if any, of (i) the difference between the Purchase
Price (as adjusted) for such Mortgage Loan and the outstanding principal balance
of such Mortgage Loan as of the related Cut-off Date, over (ii) the amount of
the prepayment penalty which was actually received by the Purchaser or was
permitted to be collected by Purchaser. Upon receipt by the Purchaser of the
Monthly Remittance Advice each month, the Purchaser or its designee shall xxxx
the Company for any amount payable pursuant to this section.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Company to Act as Servicer. The Company, as an
independent contractor, shall service and administer the Mortgage Loans and
shall have full power and authority, acting alone or through the utilization of
a third party servicing provider, to do any and all things in connection with
such servicing and administration which the Company may deem necessary or
desirable, consistent with the terms of this Agreement and with Accepted
Servicing Practices. The Company shall be responsible for any and all acts of a
third party servicing provider, and the Company's utilization of a third party
servicing provider shall in no way relieve the liability of the Company under
this Agreement.
Consistent with the terms of this Agreement, the Company may waive,
modify or vary any term of any Mortgage Loan or consent to the postponement of
strict compliance with any such term or in any manner grant indulgence to any
Mortgagor if in the Company's reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially adverse to the
Purchaser, provided, however, the Company shall not make any future advances
with respect to a Mortgage Loan. Unless the Mortgagor is in default with respect
to the Mortgage Loan or such default is, in the judgment of the Company,
imminent, the Company shall not permit any modification with respect to any
Mortgage Loan that would change the Mortgage Interest Rate, defer or forgive the
payment of principal (except for actual payments of principal) or change the
final maturity date on such Mortgage Loan. The Company shall request written
consent from the Purchaser to permit such a modification and the Purchaser shall
provide written consent or notify the Company of its objection to such
modification within three (3) Business Days of its receipt of the Company's
request. In the event of any such modification which permits the deferral of
interest or principal payments on any Mortgage Loan, the Company shall, on the
Business Day immediately preceding the Remittance Date in any month in which any
such principal or interest payment has been deferred, deposit in the Custodial
Account from its own funds, in accordance with Section 5.03, the difference
between (a) such month's principal and one month's interest at the Mortgage Loan
Remittance Rate on the unpaid principal balance of such Mortgage Loan and (b)
the amount paid by the Mortgagor. The Company shall be entitled to reimbursement
for such advances to the same extent as for all other advances made pursuant to
Section 5.03. Without limiting the generality of the foregoing, the Company
shall continue, and is hereby authorized and empowered, to execute and deliver
on behalf of itself and the Purchaser, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Properties. If reasonably required by the Company, the Purchaser shall
furnish the Company with any powers of attorney and other documents necessary or
appropriate to enable the Company to carry out its servicing and administrative
duties under this Agreement.
The Company is authorized and empowered by the Purchaser, in its own
name, when the Company believes it appropriate in its reasonable judgment to
register any Mortgage Loan on the MERS System, or cause the removal from MERS
registration of any Mortgage Loan on the MERS System, to execute and deliver, on
behalf of the Purchaser, any and all instruments of assignment and other
comparable instruments with respect to such assignment or re-recording of a
Mortgage in the name of MERS, solely as nominee for the Purchaser and its
successors and assigns.
In servicing and administering the Mortgage Loans, the Company shall
employ procedures (including collection procedures) and exercise the same care
that it customarily employs and exercises in servicing and administering
mortgage loans for its own account, giving due consideration to Accepted
Servicing Practices where such practices do not conflict with the requirements
of this Agreement, and the Purchaser's reliance on the Company.
Notwithstanding anything to the contrary contained herein, the
Company shall not waive a Prepayment Penalty except under the following
circumstances: (i) such waiver would, in the reasonable judgment of the Company,
maximize recovery of total proceeds taking into account the value of such
Prepayment Penalty and the related Mortgage Loan and, if such waiver is made in
connection with a refinancing of the related Mortgage Loan, such refinancing is
related to a default or a reasonably foreseeable default; or (ii) the Company
obtains a written Opinion of Counsel, which may be in-house counsel for the
Company, opining that any Prepayment Penalty or charge is not legally
enforceable in the circumstances under which the related Principal Prepayment
occurs. In the event the Company waives any Prepayment Penalty, other than as
set forth in (i) and (ii) above, the Company shall deposit the amount of any
such Prepayment Penalty in the Custodial Account for distribution to the
Purchaser on the next Remittance Date.
Section 4.02 Liquidation of Mortgage Loans. In the event that any
payment due under any Mortgage Loan and not postponed pursuant to Section 4.01
is not paid when the same becomes due and payable, or in the event the Mortgagor
fails to perform any other covenant or obligation under the Mortgage Loan and
such failure continues beyond any applicable grace period, the Company shall
take such action as (1) the Company would take under similar circumstances with
respect to a similar mortgage loan held for its own account for investment, (2)
shall be consistent with Accepted Servicing Practices, (3) the Company shall
determine prudently to be in the best interest of Purchaser, and (4) is
consistent with any related PMI Policy. In the event that any payment due under
any Mortgage Loan is not postponed pursuant to Section 4.01 and remains
delinquent for a period of 90 days or any other default continues for a period
of 90 days beyond the expiration of any grace or cure period, the Company shall
commence foreclosure proceedings. In such connection, the Company shall from its
own funds make all necessary and proper Servicing Advances, provided, however,
that the Company shall not be required to expend its own funds in connection
with any foreclosure or towards the restoration or preservation of any Mortgaged
Property, unless it shall determine (a) that such preservation, restoration
and/or foreclosure will increase the proceeds of liquidation of the Mortgage
Loan to Purchaser after reimbursement to itself for such expenses and (b) that
such expenses will be recoverable by it either through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
Custodial Account pursuant to Section 4.05) or through Insurance Proceeds
(respecting which it shall have similar priority).
The Company acknowledges and agrees that it shall take and initiate
any legal actions with respect to any Mortgage Loans and REO Properties,
including, without limitation, any foreclosure actions, acceptance of
deeds-in-lieu of foreclosure, and any collection actions with respect to any
Mortgage Loans or REO Properties on behalf of the Purchaser, but only in the
name of the Company and without reference to the Purchaser. Except as otherwise
required by law or with the consent of the Purchaser, under no circumstances
shall any such action be taken in the name of, or with any reference to, the
Purchaser. The Company shall provide prior written notice to the Purchaser if
the Company is required by applicable law to take any legal actions with respect
to the Mortgage Loan or REO Properties in the name of, or with reference to, the
Purchaser.
Notwithstanding the foregoing, all actions must be approved by the
Purchaser relating to any Mortgaged Property that is determined to be
contaminated by hazardous or toxic substances or wastes.
Notwithstanding Company's representation set forth in Section
3.02(uu), in the event that any Mortgage Loan is a High Cost Loan which is in
default, but prior to the commencement of any loss mitigation procedures or
foreclosure proceedings, the Company shall (A) review the related Mortgage File
to determine whether or not the Mortgage File contains the disclosure documents
required by HOEPA, whether or not such documents were executed by the related
Mortgagor(s), and whether or not such documents were executed three or more days
in advance of closing and (B) inform the Purchaser if such timely and executed
disclosure documents are not in the Servicing File.
Further, prior to the commencement of any loss mitigation procedures
with respect to any such High Cost Loan, the Company shall notify those
servicing personnel involved in loss mitigation related to the Mortgage Loan as
to whether or not any such disclosure documentation is defective or missing.
In addition, once the Company determines to commence a foreclosure
proceeding with respect to any such High Cost Loan, but prior to such
commencement, the Company and its outside counsel shall review the Mortgage File
to determine whether or not the requirements of HOEPA shall have been satisfied
in connection with the origination, underwriting, servicing and sale of such
High Cost Loan, including whether or not required and accurate disclosures were
made to and acknowledged by the related Mortgagor(s). Finally, the Company shall
notify the Purchaser within 3 Business Days if at any time the Mortgagor asserts
a claim or defense based on HOEPA, whether in a written notice, as a defense to
a foreclosure proceeding, or otherwise.
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure, in
the event the Company has reasonable cause to believe that a Mortgaged Property
is contaminated by hazardous or toxic substances or wastes, or if the Purchaser
otherwise requests an environmental inspection or review of such Mortgaged
Property, such an inspection or review is to be conducted by a qualified
inspector. The cost for such inspection or review shall be borne by the
Purchaser. Upon completion of the inspection or review, the Company shall
promptly provide the Purchaser with a written report of the environmental
inspection.
After reviewing the environmental inspection report, the Purchaser
shall determine how the Company shall proceed with respect to the Mortgaged
Property. In the event (a) the environmental inspection report indicates that
the Mortgaged Property is contaminated by hazardous or toxic substances or
wastes and (b) the Purchaser directs the Company to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, the Company shall be reimbursed for
all reasonable costs associated with such foreclosure or acceptance of a deed in
lieu of foreclosure and any related environmental clean up costs, as applicable,
from the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse the Company, the Company shall be entitled to be
reimbursed from amounts in the Custodial Account pursuant to Section 4.05
hereof. In the event the Purchaser directs the Company not to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Company shall be
reimbursed for all Servicing Advances made with respect to the related Mortgaged
Property from the Custodial Account pursuant to Section 4.05 hereof.
Section 4.03 Collection of Mortgage Loan Payments. Continuously from
the date hereof until the principal and interest on all Mortgage Loans are paid
in full, the Company shall proceed diligently to collect all payments due under
each of the Mortgage Loans when the same shall become due and payable and shall
take special care in ascertaining and estimating Escrow Payments and all other
charges that will become due and payable with respect to the Mortgage Loan and
the Mortgaged Property, to the end that the installments payable by the
Mortgagors will be sufficient to pay such charges as and when they become due
and payable.
Section 4.04 Establishment of Custodial Account. The Company shall
segregate and hold all funds collected and received in connection with a
Mortgage Loan separate and apart from any of its own funds and general assets
and shall establish and maintain one or more Custodial Accounts, in the form of
time deposit or demand accounts, titled "Xxxxx Fargo Bank, N.A., in trust for
the Purchaser and/or subsequent purchasers of Mortgage Loans, and various
Mortgagors - P & I." The Custodial Account shall be established with a Qualified
Depository. Upon request of the Purchaser and within ten (10) days thereof, the
Company shall provide the Purchaser with written confirmation of the existence
of such Custodial Account. The Custodial Account shall at all times be insured
to the fullest extent allowed by applicable law. Funds deposited in the
Custodial Account may be drawn on by the Company in accordance with Section
4.05.
The Company shall deposit in the Custodial Account within one
Business Day of the Company's receipt, and retain therein, the following
collections received by the Company and payments made by the Company after the
related Cut-off Date, or received by the Company prior to the related Cut-off
Date but allocable to a period subsequent thereto, other than payments of
principal and interest due on or before the related Cut-off Date:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds including amounts required to be
deposited pursuant to Section 4.10 (other than proceeds to be held in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with Section 4.14),
Section 4.11 and Section 4.15;
(v) all Condemnation Proceeds which are not applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 4.14;
(vi) any amount required to be deposited in the Custodial Account
pursuant to Sections 4.01, 5.01, 5.03, 6.01 or 6.02;
(vii) any amounts payable in connection with the repurchase of any
Mortgage Loan pursuant to Section 3.03 and all amounts required to be
deposited by the Company in connection with a shortfall in principal
amount of any Qualified Substitute Mortgage Loan pursuant to Section 3.03;
(viii) with respect to each Principal Prepayment an amount (to be
paid by the Company out of its funds, to the extent that such
contributions do not exceed the Servicing Fee Rate collected in such
calendar month) which, when added to all amounts allocable to interest
received in connection with the Principal Prepayment, equals one month's
interest on the amount of principal so prepaid at the Mortgage Loan
Remittance Rate;
(ix) any amounts required to be deposited by the Company pursuant to
Section 4.11 in connection with the deductible clause in any blanket
hazard insurance policy; and
(x) any amounts received with respect to or related to any REO
Property and all REO Disposition Proceeds pursuant to Section 4.16.
The foregoing requirements for deposit into the Custodial Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges,
assumption fees and similar fees and charges, to the extent permitted by
Sections 4.01 and 6.01, need not be deposited by the Company into the Custodial
Account. Any interest paid on funds deposited in the Custodial Account by the
depository institution shall accrue to the benefit of the Company and the
Company shall be entitled to retain and withdraw such interest from the
Custodial Account pursuant to Section 4.05.
Section 4.05 Permitted Withdrawals From Custodial Account. The
Company shall, from time to time, withdraw funds from the Custodial Account for
the following purposes:
(i) to make payments to the Purchaser in the amounts and in the
manner provided for in Section 5.01;
(ii) to reimburse itself for Monthly Advances of the Company's funds
made pursuant to Section 5.03, the Company's right to reimburse itself
pursuant to this subclause (ii) being limited to amounts received on the
related Mortgage Loan which represent late payments of principal and/or
interest respecting which any such advance was made, it being understood
that, in the case of any such reimbursement, the Company's right thereto
shall be prior to the rights of Purchaser, except that, where the Company
is required to repurchase a Mortgage Loan pursuant to Section 3.03 or
6.02, the Company's right to such reimbursement shall be subsequent to the
payment to the Purchaser of the Repurchase Price pursuant to such sections
and all other amounts required to be paid to the Purchaser with respect to
such Mortgage Loan;
(iii) to reimburse itself for unreimbursed Servicing Advances, and
for any unpaid Servicing Fees, the Company's right to reimburse itself
pursuant to this subclause (iii) with respect to any Mortgage Loan being
limited to related Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds and such other amounts as may be collected by the Company from
the Mortgagor or otherwise relating to the Mortgage Loan, it being
understood that, in the case of any such reimbursement, the Company's
right thereto shall be prior to the rights of Purchaser, except that where
the Company is required to repurchase a Mortgage Loan pursuant to Section
3.03 or 6.02, in which case the Company's right to such reimbursement
shall be subsequent to the payment to the Purchaser of the Repurchase
Price pursuant to such sections and all other amounts required to be paid
to the Purchaser with respect to such Mortgage Loan;
(iv) to pay itself interest on funds deposited in the Custodial
Account;
(v) to reimburse itself for expenses incurred and reimbursable to it
pursuant to Section 8.01;
(vi) to pay any amount required to be paid pursuant to Section 4.16
related to any REO Property, it being understood that, in the case of any
such expenditure or withdrawal related to a particular REO Property, the
amount of such expenditure or withdrawal from the Custodial Account shall
be limited to amounts on deposit in the Custodial Account with respect to
the related REO Property;
(vii) to reimburse itself for any Servicing Advances or REO expenses
after liquidation of the Mortgaged Property not otherwise reimbursed
above;
(viii) to remove funds inadvertently placed in the Custodial Account
by the Company; and
(ix) to clear and terminate the Custodial Account upon the
termination of this Agreement.
In the event that the Custodial Account is interest bearing, on each
Remittance Date, the Company shall withdraw all funds from the Custodial Account
except for those amounts which, pursuant to Section 5.01, the Company is not
obligated to remit on such Remittance Date. The Company may use such withdrawn
funds only for the purposes described in this Section 4.05.
Section 4.06 Establishment of and Deposits to Escrow Account. The
Company shall segregate and hold all funds collected and received pursuant to a
Mortgage Loan constituting Escrow Payments separate and apart from any of its
own funds and general assets and shall establish and maintain one or more Escrow
Accounts, in the form of time deposit or demand accounts, titled, "Xxxxx Fargo
Bank, N.A., in trust for the Purchaser and/or subsequent purchasers of
Residential Mortgage Loans, and various Mortgagors - T & I." The Escrow Accounts
shall be established with a Qualified Depository, in a manner which shall
provide maximum available insurance thereunder. Upon request of the Purchaser
and within ten (10) days thereof, the Company shall provide the Purchaser with
written confirmation of the existence of such Escrow Account. Funds deposited in
the Escrow Account may be drawn on by the Company in accordance with Section
4.07.
The Company shall deposit in the Escrow Account or Accounts within
two (2) Business Days of the Company's receipt, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage Loans,
for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds which are to be applied to the restoration or repair of any
Mortgaged Property.
The Company shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 4.07. The Company shall be entitled to retain any interest paid on funds
deposited in the Escrow Account by the depository institution, other than
interest on escrowed funds required by law to be paid to the Mortgagor. To the
extent required by law, the Company shall pay interest on escrowed funds to the
Mortgagor notwithstanding that the Escrow Account may be non-interest bearing or
that interest paid thereon is insufficient for such purposes.
Section 4.07 Permitted Withdrawals From Escrow Account. Withdrawals
from the Escrow Account or Accounts may be made by the Company only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, mortgage insurance premiums, condominium charges, fire and
hazard insurance premiums or other items constituting Escrow Payments for
the related Mortgage;
(ii) to reimburse the Company for any Servicing Advances made by the
Company pursuant to Section 4.08 with respect to a related Mortgage Loan,
but only from amounts received on the related Mortgage Loan which
represent late collections of Escrow Payments thereunder;
(iii) to refund to any Mortgagor any funds found to be in excess of
the amounts required under the terms of the related Mortgage Loan;
(iv) for transfer to the Custodial Account and application to reduce
the principal balance of the Mortgage Loan in accordance with the terms of
the related Mortgage and Mortgage Note;
(v) for application to the restoration or repair of the Mortgaged
Property in accordance with the procedures outlined in Section 4.14;
(vi) to pay to the Company, or any Mortgagor to the extent required
by law, any interest paid on the funds deposited in the Escrow Account;
(vii) to remove funds inadvertently placed in the Escrow Account by
the Company; and
(viii) to clear and terminate the Escrow Account on the termination
of this Agreement.
The Company shall be entitled to retain any interest paid on funds
deposited in the Escrow Account by the depository institution other than
interest on escrowed funds required by law to be paid to the Mortgagor and, to
the extent required by law, the Company shall pay interest on escrowed funds to
the Mortgagor notwithstanding that the Escrow Account is non-interest bearing or
that interest paid thereon is insufficient for such purposes. If Company elects
or is required by law to deposit a Mortgagor's escrow funds into an
interest-bearing account, the Company shall remain obligated to pay the
Mortgagor's taxes and insurance premiums when due, even if the Mortgagor's
escrow funds are not withdrawable on demand.
Section 4.08......Payment of Taxes, Insurance and Other Charges. With respect to
each Mortgage Loan, the Company shall maintain accurate records reflecting the
status of ground rents, taxes, assessments, water rates, sewer rents, and other
charges which are or may become a lien upon the Mortgaged Property and the
status of PMI Policy premiums and fire and hazard insurance coverage and shall
obtain, from time to time, all bills for the payment of such charges (including
renewal premiums) and shall effect payment thereof prior to the applicable
penalty or termination date, employing for such purpose deposits of the
Mortgagor in the Escrow Account (excluding the payment of LPMI Policy premiums,
which are to be paid from the Company's own funds without reimbursement), which
shall have been estimated and accumulated by the Company in amounts sufficient
for such purposes, as allowed under the terms of the Mortgage. The Company
assumes full responsibility for the timely payment of all such bills and shall
effect timely payment of all such charges irrespective of each Mortgagor's
faithful performance in the payment of same or the making of the Escrow
Payments, and the Company shall make advances from its own funds to effect such
payments.
Section 4.09 Protection of Accounts. The Company may transfer the
Custodial Account or the Escrow Account to a different Qualified Depository from
time to time, and shall notify the Purchaser of any such change.
Section 4.10 Maintenance of Hazard Insurance. The Company shall
cause to be maintained for each Mortgage Loan hazard insurance such that all
buildings upon the Mortgaged Property are insured by an insurer acceptable to
Xxxxxx Mae or Xxxxxxx Mac against loss by fire, hazards of extended coverage and
such other hazards as are customary in the area where the Mortgaged Property is
located or as required by the Xxxxxx Mae Guides or Xxxxxxx Xxx Xxxxxxx' &
Servicers' Guide, in an amount which is at least equal to the lesser of (i) the
maximum insurable value of the improvements securing such Mortgage Loan and (ii)
the greater of (a) the outstanding principal balance of the Mortgage Loan and
(b) an amount such that the proceeds thereof shall be sufficient to prevent the
Mortgagor or the loss payee from becoming a co-insurer. In the event a hazard
insurance policy shall be in danger of being terminated, or in the event the
insurer shall cease to be acceptable to Xxxxxx Mae or Xxxxxxx Mac, the Company
shall notify the Purchaser and the related Mortgagor, and shall use its best
efforts, as permitted by applicable law, to obtain from another qualified
insurer a replacement hazard insurance policy substantially and materially
similar in all respects to the original policy. In no event, however, shall a
Mortgage Loan be without a hazard insurance policy at any time, subject only to
Section 4.11 hereof.
If upon origination of the Mortgage Loan, the related Mortgaged
Property was located in an area identified by the Flood Emergency Management
Agency as having special flood hazards (and such flood insurance has been made
available) a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier acceptable to Xxxxxx Mae or Xxxxxxx Mac in an
amount representing coverage equal to the lesser of (i) the aggregate unpaid
principal balance of the Mortgage Loan, (ii) the minimum amount required, under
the terms of coverage, to compensate for any damage or loss on a replacement
cost basis (or the unpaid balance of the mortgage if replacement cost coverage
is not available for the type of building insured) and (iii) the maximum amount
of insurance which is available under the Flood Disaster Protection Act of 1973,
as amended. If at any time during the term of the Mortgage Loan, the Company
determines in accordance with the applicable law and pursuant to the Xxxxxx Mae
guide, that the Mortgaged Property is located in a special flood hazard area and
is not covered by flood insurance meeting the requirements of the Flood Disaster
Protection Act of 1973, as amended, the Company shall notify the related
Mortgagor that they must obtain such flood insurance coverage and if the
Mortgagor fails to provide proof of such coverage within forty-five (45) days of
such notice, the Company shall force place the required flood insurance on the
Mortgagor's behalf. If a Mortgage is secured by a unit in a condominium project,
the Company shall verify that the coverage required of the owner's association,
including hazard, flood, liability, and fidelity coverage, is being maintained
in accordance with then current Xxxxxx Xxx requirements, and secure from the
owner's association its agreement to notify the Company promptly of any change
in the insurance coverage or of any condemnation or casualty loss that may have
a material effect on the value of the Mortgaged Property as security.
In the event that any Purchaser or the Company shall determine that
the Mortgaged Property should be insured against loss or damage by hazards and
risks not covered by the insurance required to be maintained by the Mortgagor
pursuant to the terms of the Mortgage, the Company shall communicate and consult
with the Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the desirability of protection of the Mortgaged Property.
All policies required hereunder shall name the Company as loss payee
and shall be endorsed with standard or union mortgagee clauses, without
contribution, which shall provide for at least 30 days prior written notice of
any cancellation, reduction in amount or material change in coverage.
The Company shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent, provided, however,
that the Company shall not accept any such insurance policies from insurance
companies unless such companies are acceptable to Xxxxxx Mae and Xxxxxxx Mac and
are licensed to do business in the jurisdiction in which the Mortgaged Property
is located. The Company shall determine that such policies provide sufficient
risk coverage and amounts, that they insure the property owner, and that they
properly describe the property address.
Pursuant to Section 4.04, any amounts collected by the Company under
any such policies (other than amounts to be deposited in the Escrow Account and
applied to the restoration or repair of the related Mortgaged Property, or
property acquired in liquidation of the Mortgage Loan, or to be released to the
Mortgagor, in accordance with the Company's normal servicing procedures as
specified in Section 4.14) shall be deposited in the Custodial Account subject
to withdrawal pursuant to Section 4.05.
Section 4.11 Maintenance of Mortgage Impairment Insurance. In the
event that the Company shall obtain and maintain a blanket policy insuring
against losses arising from fire and hazards covered under extended coverage on
all of the Mortgage Loans, then, to the extent such policy provides coverage in
an amount equal to the amount required pursuant to Section 4.10 and otherwise
complies with all other requirements of Section 4.10, it shall conclusively be
deemed to have satisfied its obligations as set forth in Section 4.10. The
Company shall prepare and make any claims on the blanket policy as deemed
necessary by the Company in accordance with Accepted Servicing Practices. Any
amounts collected by the Company under any such policy relating to a Mortgage
Loan shall be deposited in the Custodial Account subject to withdrawal pursuant
to Section 4.05. Such policy may contain a deductible clause, in which case, in
the event that there shall not have been maintained on the related Mortgaged
Property a policy complying with Section 4.10, and there shall have been a loss
which would have been covered by such policy, the Company shall deposit in the
Custodial Account at the time of such loss the amount not otherwise payable
under the blanket policy because of such deductible clause, such amount to be
deposited from the Company's funds, without reimbursement therefor. Upon request
of the Purchaser, the Company shall cause to be delivered to such Purchaser a
certificate of insurance and a statement from the insurer thereunder that such
policy shall in no event be terminated or materially modified without 30 days'
prior written notice to such Purchaser.
Section 4.12 Maintenance of Fidelity Bond and Errors and Omissions
Insurance. The Company shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance Policy,
with broad coverage on all officers, employees or other Persons acting in any
capacity requiring such Persons to handle funds, money, documents or papers
relating to the Mortgage Loans ("Company Employees"). Any such Fidelity Bond and
Errors and Omissions Insurance Policy shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Company against losses,
including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such Company Employees. Such Fidelity Bond and Errors and
Omissions Insurance Policy also shall protect and insure the Company against
losses in connection with the release or satisfaction of a Mortgage Loan without
having obtained payment in full of the indebtedness secured thereby. No
provision of this Section 4.12 requiring such Fidelity Bond and Errors and
Omissions Insurance Policy shall diminish or relieve the Company from its duties
and obligations as set forth in this Agreement. The minimum coverage under any
such Fidelity Bond and Errors and Omissions Insurance Policy shall be at least
equal to the amounts acceptable to Xxxxxx Mae or Xxxxxxx Mac. Upon the request
of any Purchaser, the Company shall cause to be delivered to such Purchaser a
certificate of insurance for such Fidelity Bond and Errors and Omissions
Insurance Policy and a statement from the surety and the insurer that such
Fidelity Bond and Errors and Omissions Insurance Policy shall in no event be
terminated or materially modified without 30 days' prior written notice to the
Purchaser.
Section 4.13 Inspections. If any Mortgage Loan is delinquent, the
Company shall inspect the Mortgaged Property and shall conduct subsequent
inspections in accordance with Accepted Servicing Practices or as may be
required by the primary mortgage guaranty insurer. The Company shall produce a
report of each such inspection.
Section 4.14 Restoration of Mortgaged Property. The Company need not
obtain the approval of the Purchaser prior to releasing any Insurance Proceeds
or Condemnation Proceeds to the Mortgagor to be applied to the restoration or
repair of the Mortgaged Property if such release is in accordance with Accepted
Servicing Practices. For claims greater than $10,000, at a minimum the Company
shall comply with the following conditions in connection with any such release
of Insurance Proceeds or Condemnation Proceeds:
(i) the Company shall receive satisfactory independent verification
of completion of repairs and issuance of any required approvals with
respect thereto;
(ii) the Company shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to
requiring waivers with respect to mechanics' and materialmen's liens;
(iii) the Company shall verify that the Mortgage Loan is not in
default; and
(iv) pending repairs or restoration, the Company shall place the
Insurance Proceeds or Condemnation Proceeds in the Escrow Account.
If the Purchaser is named as an additional loss payee, the Company
is hereby empowered to endorse any loss draft issued in respect of such a claim
in the name of the Purchaser.
Section 4.15 Maintenance of PMI Policy; Claims. With respect to each
Mortgage Loan with an LTV of 80% or greater at the time of origination, the
Company shall, without any cost to the Purchaser maintain in full force and
effect a PMI Policy insuring that portion of the Mortgage Loan over 78% of value
until terminated pursuant to the Homeowners Protection Act of 1998, 12 USC
ss.4901, et seq. In the event that such PMI Policy shall be terminated other
than as required by law, the Company shall obtain from another Qualified Insurer
a comparable replacement policy, with a total coverage equal to the remaining
coverage of such terminated PMI Policy. If the insurer shall cease to be a
Qualified Insurer, the Company shall determine whether recoveries under the PMI
Policy or LPMI Policy are jeopardized for reasons related to the financial
condition of such insurer, it being understood that the Company shall in no
event have any responsibility or liability for any failure to recover under the
PMI Policy or LPMI Policy for such reason. If the Company determines that
recoveries are so jeopardized, it shall notify the Purchaser and the Mortgagor,
if required, and obtain from another Qualified Insurer a replacement insurance
policy. The Company shall not take any action which would result in noncoverage
under any applicable PMI Policy or LPMI Policy of any loss which, but for the
actions of the Company would have been covered thereunder. In connection with
any assumption or substitution agreement entered into or to be entered into
pursuant to Section 6.01, the Company shall promptly notify the insurer under
the related PMI Policy or LPMI Policy, if any, of such assumption or
substitution of liability in accordance with the terms of such PMI Policy or
LPMI Policy and shall take all actions which may be required by such insurer as
a condition to the continuation of coverage under such PMI Policy or LPMI
Policy. If such PMI Policy or LPMI Policy is terminated as a result of such
assumption or substitution of liability, the Company shall obtain a replacement
PMI Policy or LPMI Policy as provided above.
In connection with its activities as servicer, the Company agrees to
prepare and present, on behalf of itself and the Purchaser, claims to the
insurer under any PMI Policy or LPMI Policy in a timely fashion in accordance
with the terms of such PMI Policy or LPMI Policy and, in this regard, to take
such action as shall be necessary to permit recovery under any PMI Policy or
LPMI Policy respecting a defaulted Mortgage Loan. Pursuant to Section 4.04, any
amounts collected by the Company under any PMI Policy or LPMI Policy shall be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
4.05.
Any premiums payable on LPMI Policies will be paid from the
Company's own funds without reimbursement.
Section 4.16 Title, Management and Disposition of REO Property. In
the event that title to any Mortgaged Property is acquired in foreclosure or by
deed in lieu of foreclosure, the deed or certificate of sale shall be taken in
the name of the Company on behalf of the Purchaser and without reference to the
Purchaser except as otherwise required by law. The Person or Persons holding
such title other than the Purchaser shall acknowledge in writing that such title
is being held as nominee for the Purchaser.
The Company shall manage, conserve, protect and operate each REO
Property for the Purchaser solely for the purpose of its prompt disposition and
sale. The Company, either itself or through an agent selected by the Company,
shall manage, conserve, protect and operate the REO Property in the same manner
that it manages, conserves, protects and operates other foreclosed property for
its own account, and in the same manner that similar property in the same
locality as the REO Property is managed. The Company shall attempt to sell the
same (and may temporarily rent the same for a period not greater than one year,
except as otherwise provided below) on such terms and conditions as the Company
deems to be in the best interest of the Purchaser.
The Company shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within one year after title has been taken to such REO Property, unless (i) a
REMIC election has not been made with respect to the arrangement under which the
Mortgage Loans and the REO Property are held, and (ii) the Company determines
that a longer period is necessary for the orderly liquidation of such REO
Property. If a period longer than one year is permitted under the foregoing
sentence and is necessary to sell any REO Property, (i) the Company shall report
monthly to the Purchaser as to the progress being made in selling such REO
Property and (ii) if a purchase money mortgage is taken in connection with such
sale, such purchase money mortgage shall name the Company as mortgagee, and such
purchase money mortgage shall not be held pursuant to this Agreement.
The Company shall also maintain on each REO Property fire and hazard
insurance with extended coverage in amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in the amount
required above.
The disposition of REO Property shall be carried out by the Company
at such price, and upon such terms and conditions, as the Company deems to be in
the best interests of the Purchaser. The proceeds of sale of the REO Property
shall be promptly deposited in the Custodial Account. As soon as practical
thereafter the expenses of such sale shall be paid and the Company shall
reimburse itself for any related unreimbursed Servicing Advances, unpaid
Servicing Fees and unreimbursed advances made pursuant to Section 5.03. On the
Remittance Date immediately following the receipt of such sale proceeds, the net
cash proceeds of such sale remaining in the Custodial Account shall be
distributed to the Purchaser.
The Company shall withdraw from the Custodial Account funds
necessary for the proper operation management and maintenance of the REO
Property, including the cost of maintaining any hazard insurance pursuant to
Section 4.10 and the fees of any managing agent of the Company, or the Company
itself. The Company shall make monthly distributions on each Remittance Date to
the Purchaser of the net cash flow from the REO Property (which shall equal the
revenues from such REO Property net of the expenses described in this Section
4.16 and of any reserves reasonably required from time to time to be maintained
to satisfy anticipated liabilities for such expenses).
Section 4.17 Real Estate Owned Reports. Together with the statement
furnished pursuant to Section 5.02, the Company shall furnish to the Purchaser
on or before the Remittance Date each month a statement with respect to any REO
Property covering the operation of such REO Property for the previous month and
the Company's efforts in connection with the sale of such REO Property and any
rental of such REO Property incidental to the sale thereof for the previous
month. That statement shall be accompanied by such other information as the
Purchaser shall reasonably request.
Section 4.18 Liquidation Reports. Upon the foreclosure sale of any
Mortgaged Property or the acquisition thereof by the Purchaser pursuant to a
deed in lieu of foreclosure, the Company shall submit to the Purchaser a
liquidation report with respect to such Mortgaged Property.
Section 4.19 Reports of Foreclosures and Abandonments of Mortgaged
Property. Following the foreclosure sale or abandonment of any Mortgaged
Property, the Company shall report such foreclosure or abandonment as required
pursuant to Section 6050J of the Code. The Company shall file information
reports with respect to the receipt of mortgage interest received in a trade or
business and information returns relating to cancellation of indebtedness income
with respect to any Mortgaged Property as required by the Code. Such reports
shall be in form and substance sufficient to meet the reporting requirements
imposed by the Code.
Section 4.20 Notification of Adjustments. With respect to each
Adjustable Rate Mortgage Loan, the Company shall adjust the Mortgage Interest
Rate on the related Adjustment Date in compliance with the requirements of
applicable law and the related Mortgage and Mortgage Note. The Company shall
execute and deliver any and all necessary notices required under applicable law
and the terms of the related Mortgage Note and Mortgage regarding the Mortgage
Interest Rate adjustments. Upon the discovery by the Company or the receipt of
notice from the Purchaser that the Company has failed to adjust a Mortgage
Interest Rate in accordance with the terms of the related Mortgage Note, the
Company shall immediately deposit in the Custodial Account from its own funds
the amount of any interest loss or deferral caused the Purchaser thereby.
Section 4.21 Confidentiality/Protection of Customer Information.
Each party agrees that it shall comply with all applicable laws and regulations
regarding the privacy or security of Customer Information and shall maintain
appropriate administrative, technical and physical safeguards to protect the
security, confidentiality and integrity of Customer Information, including
maintaining security measures designed to meet the objectives of the Interagency
Guidelines Establishing Standards for Safeguarding Customer Information, 66 Fed.
Reg. 8616 (the "Interagency Guidelines"). For purposes of this Section,
"Customer Information" means any customer information (as that term is defined
in the Interagency Guidelines) as it pertains to a Mortgagor, that is disclosed
by one party to this Agreement to the other.
Section 4.22 Fair Credit Reporting Act. The Company, in its capacity
as servicer for each Mortgage Loan, agrees to fully furnish, in accordance with
the Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (e.g., favorable and unfavorable) on its borrower credit
files to Equifax, Experian and Trans Union Credit Information Company (three of
the credit repositories), on a monthly basis.
ARTICLE V
PAYMENTS TO PURCHASER
Section 5.01 Remittances. On each Remittance Date the Company shall
remit by wire transfer of immediately available funds to the Purchaser (a) all
amounts deposited in the Custodial Account as of the close of business on the
Determination Date (net of charges against or withdrawals from the Custodial
Account pursuant to Section 4.05), plus (b) all amounts, if any, which the
Company is obligated to distribute pursuant to Section 5.03, minus (c) any
amounts attributable to Principal Prepayments received after the applicable
Principal Prepayment Period which amounts shall be remitted on the following
Remittance Date, together with any additional interest required to be deposited
in the Custodial Account in connection with such Principal Prepayment in
accordance with Section 4.04 minus (d) any amounts attributable to Monthly
Payments collected but due on a Due Date or Dates subsequent to the first day of
the month of the Remittance Date.
All cash flows from prepayment penalties shall be passed through to
the Purchaser and shall not be waived by the Company, except pursuant to Section
4.01.
With respect to any remittance received by the Purchaser after the
second Business Day following the Business Day on which such payment was due,
the Company shall pay to the Purchaser interest on any such late payment at an
annual rate equal to the Prime Rate, adjusted as of the date of each change,
plus three percentage points, but in no event greater than the maximum amount
permitted by applicable law. Such interest shall be deposited in the Custodial
Account by the Company on the date such late payment is made and shall cover the
period commencing with the date such remittance is due and ending with the
Business Day on which such payment is made, both inclusive. Such interest shall
be remitted along with the distribution payable on the next succeeding
Remittance Date. The payment by the Company of any such interest shall not be
deemed an extension of time for payment or a waiver of any Event of Default by
the Company.
Section 5.02 Statements to Purchaser. Not later than the Remittance
Advice Date, the Company shall furnish to the Purchaser a monthly remittance
advice, with a trial balance report attached thereto, as to the remittance
period ending on the last day of the preceding month ("Monthly Remittance
Advice").
Section 5.03 Monthly Advances by Company. On the Business Day
immediately preceding each Remittance Date, the Company shall deposit in the
Custodial Account from its own funds or from amounts held for future
distribution an amount equal to all Monthly Payments (with interest adjusted to
the Mortgage Loan Remittance Rate) which were due on the Mortgage Loans during
the applicable Due Period and which were delinquent at the close of business on
the immediately preceding Determination Date or which were deferred pursuant to
Section 4.01. Any amounts held for future distribution and so used shall be
replaced by the Company by deposit in the Custodial Account on or before any
future Remittance Date if funds in the Custodial Account on such Remittance Date
shall be less than payments to the Purchaser required to be made on such
Remittance Date. The Company's obligation to make such Monthly Advances as to
any Mortgage Loan will continue through the last Monthly Payment due prior to
the payment in full of the Mortgage Loan, or through the last Remittance Date
prior to the Remittance Date for the distribution of all Liquidation Proceeds
and other payments or recoveries (including REO Disposition Proceeds, Insurance
Proceeds and Condemnation Proceeds) with respect to the Mortgage Loan, provided,
however, that such obligation shall cease if the Company determines, in its sole
reasonable opinion, that advances with respect to such Mortgage Loan are
non-recoverable by the Company from Liquidation Proceeds, REO Disposition
Proceeds, Insurance Proceeds, Condemnation Proceeds, or otherwise with respect
to a particular Mortgage Loan. In the event that the Company determines that any
such advances are non-recoverable, the Company shall provide the Purchaser with
a certificate signed by two officers of the Company evidencing such
determination.
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 Transfers of Mortgaged Property. The Company shall use
its best efforts to enforce any "due-on-sale" provision contained in any
Mortgage or Mortgage Note and to deny assumption by the Person to whom the
Mortgaged Property has been or is about to be sold whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
liable on the Mortgage and the Mortgage Note. When the Mortgaged Property has
been conveyed by the Mortgagor, the Company shall, to the extent it has
knowledge of such conveyance, exercise its rights to accelerate the maturity of
such Mortgage Loan under the "due-on-sale" clause applicable thereto, provided,
however, that the Company shall not exercise such rights if prohibited by law
from doing so or if the exercise of such rights would impair or threaten to
impair any recovery under the related PMI Policy, if any.
If the Company reasonably believes it is unable under applicable law
to enforce such "due-on-sale" clause, the Company shall enter into (i) an
assumption and modification agreement with the Person to whom such property has
been conveyed, pursuant to which such Person becomes liable under the Mortgage
Note and the original Mortgagor remains liable thereon or (ii) in the event the
Company is unable under applicable law to require that the original Mortgagor
remain liable under the Mortgage Note and the Company has the prior consent of
the primary mortgage guaranty insurer, a substitution of liability agreement
with the purchaser of the Mortgaged Property pursuant to which the original
Mortgagor is released from liability and the purchaser of the Mortgaged Property
is substituted as Mortgagor and becomes liable under the Mortgage Note. If an
assumption fee is collected by the Company for entering into an assumption
agreement the fee will be retained by the Company as additional servicing
compensation. In connection with any such assumption, neither the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage Loan,
the outstanding principal amount of the Mortgage Loan nor any other material
terms shall be changed without Purchaser's consent.
To the extent that any Mortgage Loan is assumable, the Company shall
inquire diligently into the credit worthiness of the proposed transferee, and
shall use the underwriting criteria for approving the credit of the proposed
transferee which are used with respect to underwriting mortgage loans of the
same type as the Mortgage Loan. If the credit worthiness of the proposed
transferee does not meet such underwriting criteria, the Company diligently
shall, to the extent permitted by the Mortgage or the Mortgage Note and by
applicable law, accelerate the maturity of the Mortgage Loan.
Section 6.02 Satisfaction of Mortgages and Release of Mortgage
Files. Upon the payment in full of any Mortgage Loan, or the receipt by the
Company of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Company shall notify the Purchaser in the
Monthly Remittance Advice as provided in Section 5.02, and may request the
release of any Mortgage Loan Documents.
If the Company satisfies or releases a Mortgage without first having
obtained payment in full of the indebtedness secured by the Mortgage or should
the Company otherwise prejudice any rights the Purchaser may have under the
mortgage instruments, upon written demand of the Purchaser, the Company shall
repurchase the related Mortgage Loan at the Repurchase Price by deposit thereof
in the Custodial Account within 2 Business Days of receipt of such demand by the
Purchaser. The Company shall maintain the Fidelity Bond and Errors and Omissions
Insurance Policy as provided for in Section 4.12 insuring the Company against
any loss it may sustain with respect to any Mortgage Loan not satisfied in
accordance with the procedures set forth herein.
Section 6.03 Servicing Compensation. As compensation for its
services hereunder, the Company shall be entitled to withdraw from the Custodial
Account the amount of its Servicing Fee. The Servicing Fee shall be payable
monthly and shall be computed on the basis of the unpaid Principal Balance and
for the period respecting which any related interest payment on a Mortgage Loan
is computed. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and payable solely from, the interest portion (including recoveries with
respect to interest from Liquidation Proceeds, to the extent permitted by
Section 4.05) of such Monthly Payments.
Additional servicing compensation in the form of assumption fees, to
the extent provided in Section 6.01, and late payment charges shall be retained
by the Company to the extent not required to be deposited in the Custodial
Account. The Company shall be required to pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled to
reimbursement thereof except as specifically provided for herein.
Section 6.04 Annual Statement as to Compliance. The Company shall
deliver to the Purchaser, on or before February 28th of each year beginning
February 28, 2005, an Officer's Certificate, stating that (i) a review of the
activities of the Company during the preceding calendar year and of performance
under this Agreement or similar agreements has been made under such officer's
supervision, and (ii) to the best of such officer's knowledge, based on such
review, the Company has fulfilled all its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof and the action being taken by the Company to cure such
default.
Section 6.05 Annual Independent Public Accountants' Servicing
Report. On or before February 28th of each year beginning February 28, 2005, the
Company, at its expense, shall cause a firm of independent public accountants
which is a member of the American Institute of Certified Public Accountants to
furnish a statement to each Purchaser to the effect that such firm has examined
certain documents and records relating to the servicing of the mortgage loans
similar in nature and that such firm is of the opinion that the provisions of
this or similar Agreements have been complied with, and that, on the basis of
such examination conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers, nothing has come to their attention
which would indicate that such servicing has not been conducted in compliance
therewith, except for (i) such exceptions as such firm shall believe to be
immaterial, and (ii) such other exceptions as shall be set forth in such
statement. By providing Purchaser a copy of a Uniform Single Attestation Program
Report from their independent public accountant's on an annual basis, Company
shall be considered to have fulfilled its obligations under this Section 6.05.
Section 6.06 Right to Examine Company Records. The Purchaser, or its
designee, shall have the right to examine and audit any and all of the books,
records, or other information of the Company, whether held by the Company or by
another on its behalf, with respect to or concerning this Agreement or the
Mortgage Loans, during business hours or at such other times as may be
reasonable under applicable circumstances, upon reasonable advance notice. The
Purchaser shall pay its own travel expenses associated with such examination.
Section 6.07 Compliance with REMIC Provisions. If a REMIC election
has been made with respect to the arrangement under which the Mortgage Loans and
REO Property are held, the Company shall not take any action, cause the REMIC to
take any action or fail to take (or fail to cause to be taken)any action that,
under the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of the REMIC as a REMIC or (ii) result in the imposition of
a tax upon the REMIC (including but not limited to the tax on "prohibited
transactions" as defined in Section 860F(a)(2) of the Code and the tax on
"contributions" to a REMIC set forth in Section 860G(d) of the Code) unless the
Company has received an Opinion of Counsel (at the expense of the party seeking
to take such action) to the effect that the contemplated action will not
endanger such REMIC status or result in the imposition of any such tax.
Section 6.08 Compliance with Xxxxx-Xxxxx-Xxxxxx Act of 1999. With
respect to each Mortgage Loan and the related Mortgagor, the Company shall
comply with Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999 and all applicable
regulations and guidelines promulgated thereunder.
ARTICLE VII
COMPANY TO COOPERATE
Section 7.01 Provision of Information. During the term of this
Agreement, the Company shall furnish to the Purchaser such periodic, special, or
other reports or information, and copies or originals of any documents contained
in the Servicing File for each Mortgage Loan provided for herein. All other
special reports or information not provided for herein as shall be necessary,
reasonable, or appropriate with respect to the Purchaser or any regulatory
agency will be provided at the Purchaser's expense. All such reports, documents
or information shall be provided by and in accordance with all reasonable
instructions and directions which the Purchaser may give.
The Company shall execute and deliver all such instruments and take
all such action as the Purchaser may reasonably request from time to time, in
order to effectuate the purposes and to carry out the terms of this Agreement.
Section 7.02 Financial Statements; Servicing Facility. In connection
with marketing the Mortgage Loans, the Purchaser may make available to a
prospective Purchaser a Consolidated Statement of Operations of the Company for
the most recently completed two fiscal years for which such a statement is
available, as well as a Consolidated Statement of Condition at the end of the
last two fiscal years covered by such Consolidated Statement of Operations. The
Company, upon request, also shall make available any comparable interim
statements to the extent any such statements have been prepared by or on behalf
of the Company (and are available upon request to members or stockholders of the
Company or to the public at large).
The Company also shall make available to Purchaser or prospective
purchasers a knowledgeable financial or accounting officer for the purpose of
answering questions respecting recent developments affecting the Company or the
financial statements of the Company, and to permit any prospective purchaser to
inspect the Company's servicing facilities for the purpose of satisfying such
prospective purchaser that the Company has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE VIII
THE COMPANY
Section 8.01 Indemnification; Third Party Claims. (a) The Company
shall indemnify the Purchaser and its successors and assigns and hold it
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that the Purchaser may sustain in any way
related to the failure of the Company to perform its duties and service the
Mortgage Loans in strict compliance with the terms of this Agreement.
(b) The Company immediately shall notify the Purchaser if a claim is
made by a third party with respect to this Agreement or the Mortgage Loans,
assume (with the prior written consent of the Purchaser) the defense of any such
claim and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or the Purchaser in respect of such claim. The Company shall follow
any written instructions received from the Purchaser in connection with such
claim. The Purchaser promptly shall reimburse the Company for all amounts
advanced by it pursuant to the preceding sentences except when the claim is in
any way related to the Company's indemnification pursuant to Section 3.03 or the
failure of the Company to perform its duties and service the Mortgage Loans in
strict compliance with the terms of this Agreement.
Section 8.02 Merger or Consolidation of the Company. The Company
shall keep in full effect its existence, rights and franchises and shall obtain
and preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform its
duties under this Agreement.
Any Person into which the Company may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Company shall be a party, or any Person succeeding to the business of the
Company, shall be the successor of the Company hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding, provided, however, that
the successor or surviving Person shall be an institution which is a Xxxxxx
Xxx/Xxxxxxx Mac-approved company in good standing. Furthermore, in the event the
Company transfers or otherwise disposes of all or substantially all of its
assets to an affiliate of the Company, such affiliate shall satisfy the
condition above, and shall also be fully liable to the Purchaser for all of the
Company's obligations and liabilities hereunder.
Section 8.03 Limitation on Liability of Company and Others. Neither
the Company nor any of the directors, officers, employees or agents of the
Company shall be under any liability to the Purchaser for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment, provided, however, that this provision
shall not protect the Company or any such Person against any breach of
warranties or representations made herein, or failure to perform its obligations
in strict compliance with any standard of care set forth in this Agreement or
any other liability which would otherwise be imposed under this Agreement. The
Company and any director, officer, employee or agent of the Company may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Company
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties to service the Mortgage Loans in
accordance with this Agreement and which in its opinion may involve it in any
expense or liability, provided, however, that the Company may, with the consent
of the Purchaser, undertake any such action which it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto. In such event, the Company shall be entitled to reimbursement from the
Purchaser of the reasonable legal expenses and costs of such action.
Section 8.04 Limitation on Resignation and Assignment by Company.
The Purchaser has entered into this Agreement with the Company and subsequent
purchasers will purchase the Mortgage Loans in reliance upon the independent
status of the Company, and the representations as to the adequacy of its
servicing facilities, personnel, records and procedures, its integrity,
reputation and financial standing, and the continuance thereof. Therefore, the
Company shall not assign this Agreement or the servicing rights hereunder or
delegate its rights or duties hereunder or any portion thereof (other than
pursuant to Section 4.01) or sell or otherwise dispose of all of its property or
assets without the prior written consent of the Purchaser, which consent shall
not be unreasonably withheld.
The Company shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Company and the Purchaser or upon
the determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Company. Any such
determination permitting the resignation of the Company shall be evidenced by an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Company's responsibilities and obligations hereunder in the manner provided in
Section 12.01.
Without in any way limiting the generality of this Section 8.04, in
the event that the Company either shall assign this Agreement or the servicing
responsibilities hereunder (other than pursuant to Section 4.01) or sell or
otherwise dispose of all or substantially all of its property or assets, without
the prior written consent of the Purchaser, then the Purchaser shall have the
right to terminate this Agreement upon notice given as set forth in Section
10.01, without any payment of any penalty or damages and without any liability
whatsoever to the Purchaser or any third party.
ARTICLE IX
REMOVAL OF MORTGAGE LOANS FROM AGREEMENT
Section 9.01 Removal of Mortgage Loans from Inclusion Under this
Agreement. The Purchaser and the Company agree that with respect to some or all
of the Mortgage Loans, the Purchaser, at its sole option, may effect Whole Loan
Transfers, Agency Transfers or Pass-Through Transfers, retaining the Company as
the servicer thereof or subservicer if a master servicer is employed, or as
applicable the "seller/servicer." From and after the Reconstitution Date, the
Mortgage Loans transferred may remain covered by this Agreement, insofar as the
Company shall continue to service such Mortgage Loan on behalf of the Purchaser
in accordance with the terms and provisions of this Agreement.
The Company shall cooperate with the Purchaser in connection with
each Whole Loan Transfer, Agency Transfer or Pass-Through Transfer in accordance
with this Section 9. In connection therewith the Company shall:
(a) make all representations and warranties with respect to the
Mortgage Loans as of the related Closing Date and with respect to the Company
itself as of the closing date of each Whole Loan Transfer, Agency Transfer or
Pass-Through Transfer;
(b) represent to the Purchaser, the depositor, the trustee, and the
initial purchaser of the securities issued in connection with any Pass-Through
Transfer that: (1) the Company has serviced the Mortgage Loans in accordance
with the terms of this Agreement, and has otherwise complied with all covenants
and obligations hereunder, and (2) the Company has taken no action that would,
nor omitted to take any required action the omission of which would, have the
effect of impairing the mortgage insurance or guarantee on the Mortgage Loans;
(c) negotiate in good faith and execute any seller/servicer
agreements required to effectuate the foregoing provided such agreements create
no greater obligation or cost on the part of the Company than otherwise set
forth in this Agreement;
(d) with respect to any Mortgage Loans that are subject to a
Pass-Through Transfer or other securitization (a "Securitization") in which the
filing of a Xxxxxxxx-Xxxxx certification directly with the Securities and
Exchange Commission is required, by February 28th of each year or in connection
with any additional Xxxxxxxx-Xxxxx certification required to be filed, upon
thirty (30) days written request, an officer of the Company shall execute and
deliver a Company Certification substantially in the form attached hereto as
Exhibit H, to the entity filing the Xxxxxxxx-Xxxxx certification directly with
the Securities and Exchange Commission (such as the Purchaser, any master
servicer, any trustee or any depositor) for the benefit of such entity and such
entity's affiliates and the officers, directors and agents of such entity and
such entity's affiliates, and shall indemnify such entity or persons arising out
of any breach of the Company's obligations or representations relating thereto
as provided in such Company Certification; and
(e) provide as applicable:
(i) any and all information and appropriate verification of
information which may be reasonably available to the Company, including
the Company's foreclosure and delinquency experience and the Company's
underwriting standards, whether through letters of its auditors and
counsel or otherwise, as the Purchaser shall request;
(ii) such additional representations, warranties, covenants,
opinions of counsel, letters from auditors, and certificates of public
officials or officers of the Company as are reasonably believed necessary
by the trustee, any rating agency, any Agency or the Purchaser, as the
case may be, in connection with such Whole Loan Transfers, Agency
Transfers or Pass-Through Transfers. The Purchaser shall pay all third
party costs associated with the preparation of such information. The
Company shall execute any seller/servicer agreements required within a
reasonable period of time after receipt of such seller/servicer agreements
which time shall be sufficient for the Company and Company's counsel to
review such seller/servicer agreements. Under this Agreement, the Company
shall retain a servicing fee for each Mortgage Loan, at the Servicing Fee
Rate; and
(iii) a representation and warranty as to the accuracy of any
information provided to the Purchaser by the Company for inclusion in any
prospectus supplement or offering memorandum prepared in connection with
any Pass-Through Transfers.
(f) indemnify the Purchaser, each Affiliate of the Purchaser
participating in any such Whole Loan Transfer or Pass-Through Transfer, and each
person who controls the Purchaser or such Affiliate, for any material
misstatements, omissions, or alleged material misstatements or omissions
contained in the information provided pursuant to (b) and (e) above; provided,
that the Purchaser shall provide indemnification to the Company, its successors
or assigns, with respect to any material misstatements, omissions or alleged
material misstatements or omissions contained in any information (other than the
information provided by, or derived from the information provided by, the
Company pursuant to (e) above) in any securitization offering materials. For
purposes of the previous sentence, "Purchaser" shall mean the Person then acting
as the Purchaser under this Agreement. The Purchaser agrees to execute an
Indemnification Agreement substantially in the form of Exhibit I attached
hereto.
In the event the Purchaser has elected to have the Company hold
record title to the Mortgages, prior to the Reconstitution Date the Company
shall prepare an Assignment of Mortgage in blank or to the trustee from the
Company acceptable to the trustee for each Mortgage Loan that is part of the
Whole Loan Transfers, Agency Transfers or Pass-Through Transfers. The Purchaser
shall pay all preparation and recording costs associated therewith if the
Assignments have been previously prepared and recorded in Purchaser's name. The
Company shall execute each Assignment of Mortgage, track such Assignments of
Mortgage to ensure they have been recorded and deliver them as required by the
trustee upon the Company's receipt thereof. Additionally, the Company shall
prepare and execute, at the direction of the Purchaser, any note endorsements in
connection with any and all seller/servicer agreements.
All Mortgage Loans not sold or transferred pursuant to Whole Loan
Transfers, Agency Transfers or Pass-Through Transfers shall remain subject to
this Agreement and shall continue to be serviced in accordance with the terms of
this Agreement and with respect thereto this Agreement shall remain in full
force and effect.
ARTICLE X
DEFAULT
Section 10.01 Events of Default. Each of the following shall
constitute an Event of Default on the part of the Company:
(i) any failure by the Company to remit to the Purchaser any payment
required to be made under the terms of this Agreement which continues
unremedied for a period of three (3) Business Days after the date upon
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Company by the Purchaser; or
(ii) failure by the Company duly to observe or perform in any
material respect any other of the covenants or agreements on the part of
the Company set forth in this Agreement or in the Custodial Agreement
which continues unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Company by the Purchaser or by the Custodian; or
(iii) failure by the Company to maintain its license to do business
in any jurisdiction where the Mortgaged Property is located if such
license is required; or
(iv) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, including bankruptcy,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Company and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(v) the Company shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Company or of or relating to all or substantially all of its property; or
(vi) the Company shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of
any applicable insolvency, bankruptcy or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations or cease its normal business operations for three
Business Days; or
(vii) the Company ceases to meet the qualifications of a Xxxxxx
Mae/Xxxxxxx Mac servicer; or
(viii) the Company attempts to assign its right to servicing
compensation hereunder or to assign this Agreement or the servicing
responsibilities hereunder in violation of Section 8.04.
In each and every such case, so long as an Event of Default shall
not have been remedied, in addition to whatever rights the Purchaser may have at
law or equity to damages, including injunctive relief and specific performance,
the Purchaser, by notice in writing to the Company, may terminate without cost
all the rights and obligations of the Company under this Agreement and in and to
the Mortgage Loans and the proceeds thereof.
Upon receipt by the Company of such written notice, all authority
and power of the Company under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the successor
appointed pursuant to Section 12.01. Upon written request from any Purchaser,
the Company shall prepare, execute and deliver to the successor entity
designated by the Purchaser any and all documents and other instruments, place
in such successor's possession all Mortgage Files, and do or cause to be done
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, including but not limited to the transfer and endorsement
or assignment of the Mortgage Loans and related documents, at the Company's sole
expense. The Company shall cooperate with the Purchaser and such successor in
effecting the termination of the Company's responsibilities and rights
hereunder, including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited by
the Company to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
Section 10.02 Waiver of Defaults. By a written notice, the Purchaser
may waive any default by the Company in the performance of its obligations
hereunder and its consequences. Upon any waiver of a past default, such default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent thereon
except to the extent expressly so waived.
ARTICLE XI
TERMINATION
Section 11.01 Termination. This Agreement shall terminate upon
either: (i) the later of the final payment or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan or the disposition of any REO
Property with respect to the last Mortgage Loan and the remittance of all funds
due hereunder; or (ii) mutual consent of the Company and the Purchaser in
writing.
Section 11.02 Termination Without Cause. The Purchaser may
terminate, at its sole option, any rights the Company may have hereunder,
without cause as provided in this Section 11.02. Any such notice of termination
shall be in writing and delivered to the Company by registered mail as provided
in Section 12.05.
The Company shall be entitled to receive, as such liquidated
damages, upon the transfer of the servicing rights, an amount equal to 2.50% of
the aggregate outstanding principal amount of the Mortgage Loans as of the
termination date paid by the Purchaser to the Company.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Successor to Company. Prior to termination of the
Company's responsibilities and duties under this Agreement pursuant to Sections
8.04, 10.01, 11.01 (ii) or pursuant to Section 11.02 the Purchaser shall, (i)
succeed to and assume all of the Company's responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor having the
characteristics set forth in Section 8.02 and which shall succeed to all rights
and assume all of the responsibilities, duties and liabilities of the Company
under this Agreement prior to the termination of Company's responsibilities,
duties and liabilities under this Agreement. In connection with such appointment
and assumption, the Purchaser may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor shall
agree. In the event that the Company's duties, responsibilities and liabilities
under this Agreement should be terminated pursuant to the aforementioned
sections, the Company shall discharge such duties and responsibilities during
the period from the date it acquires knowledge of such termination until the
effective date thereof with the same degree of diligence and prudence which it
is obligated to exercise under this Agreement, and shall take no action
whatsoever that might impair or prejudice the rights or financial condition of
its successor. The resignation or removal of the Company pursuant to the
aforementioned sections shall not become effective until a successor shall be
appointed pursuant to this Section 12.01 and shall in no event relieve the
Company of the representations and warranties made pursuant to Sections 3.01 and
3.02 and the remedies available to the Purchaser under Section 3.03, it being
understood and agreed that the provisions of such Sections 3.01, 3.02, 3.03 and
8.01 shall be applicable to the Company notwithstanding any such sale,
assignment, resignation or termination of the Company, or the termination of
this Agreement.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Company and to the Purchaser an instrument
accepting such appointment, wherein the successor shall make the representations
and warranties set forth in Section 3.01, except for subsection (h) with respect
to the sale of the Mortgage Loans and subsections (i) and (k) thereof, whereupon
such successor shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Company, with like effect
as if originally named as a party to this Agreement. Any termination or
resignation of the Company or termination of this Agreement pursuant to Section
8.04, 10.01, 11.01 or 11.02 shall not affect any claims that any Purchaser may
have against the Company arising out of the Company's actions or failure to act
prior to any such termination or resignation.
The Company shall deliver promptly to the successor servicer the
funds in the Custodial Account and Escrow Account and all Mortgage Files and
related documents and statements held by it hereunder and the Company shall
account for all funds and shall execute and deliver such instruments and do such
other things as may reasonably be required to more fully and definitively vest
in the successor all such rights, powers, duties, responsibilities, obligations
and liabilities of the Company.
Upon any transfer of servicing from the Company, the Company shall
convert all LPMI Policy premiums to single premium and pay such single premium
prior to the related transfer date.
Upon a successor's acceptance of appointment as such, the Company
shall notify by mail the Purchaser of such appointment in accordance with the
procedures set forth in Section 12.05.
Section 12.02 Amendment. This Agreement may be amended from time to
time by written agreement signed by the Company and the Purchaser.
Section 12.03 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section 12.04 Duration of Agreement. This Agreement shall continue
in existence and effect until terminated as herein provided. This Agreement
shall continue notwithstanding transfers of the Mortgage Loans by the Purchaser.
Section 12.05 Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, postage prepaid, addressed
as follows:
(i) if to the Company with respect to servicing issues:
Xxxxx Fargo Bank, N.A.
1 Home Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, MAC X2401-042
Fax: 515/000-0000
If to the Company with respect to all other issues:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxxx Xxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxx, MAC X3906-012
Fax: (000) 000-0000
In each case with a copy to:
Xxxxx Fargo Bank, N.A.
1 Home Campus
Xxx Xxxxxx, Xxxx 00000-0000
Attention: General Counsel MAC X2401-06T
or such other address as may hereafter be furnished to the Purchaser
in writing by the Company;
(ii) if to Purchaser:
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxx
Fax: (000) 000-0000
or such other address as may hereafter be furnished to the Company
in writing by the Purchaser.
Section 12.06 Closing. The closing for the purchase and sale of the
Mortgage Loans, shall take place on the related Closing Date. At the Purchaser's
option, the Closing shall be either: by telephone, confirmed by letter or wire
as the parties shall agree; or conducted in person, at such place as the parties
shall agree.
The closing shall be subject to each of the following conditions:
(a) all of the representations and warranties of the Company under
this Agreement and under the Seller's Warranties and Servicing Agreement
shall be true and correct as of the Closing Date and no event shall have
occurred which, with notice or the passage of time, would constitute a
default under this Agreement or an Event of Default under the Seller's
Warranties and Servicing Agreement;
(b) the Purchaser shall have received, or the Purchaser's attorneys
shall have received in escrow, all Closing Documents as specified in
Section 12.07 of this Agreement, in such forms as are agreed upon and
acceptable to the Purchaser, duly executed by all signatories other than
the Purchaser as required pursuant to the respective terms thereof;
(c) the Company shall have delivered and released to the Custodian
under the Seller's Warranties and Servicing Agreement all documents
required pursuant to the related Custodial Agreement; and
(d) all other terms and conditions of this Agreement and the
Seller's Warranties and Servicing Agreement shall have been complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Company on the Closing Date the Purchase Price, plus accrued interest pursuant
to Section 2.05 of this Agreement, by wire transfer of immediately available
funds to the account designated by the Company.
Section 12.07 Closing Documents. With respect to the initial Closing
Date, the Closing Documents shall consist of fully executed originals of the
following documents:
1. the Seller's Warranties and Servicing Agreement, dated as of the
initial Cut-off Date, in three counterparts;
2. an Opinion of Counsel of the Company, in the form of Exhibit E
hereto; and
3. an Officers Certificate of the Company, in the form of Exhibit G
hereto.
As of each Closing Date, with respect to the Mortgage Loans in the
related Mortgage Loan Package, the Closing Documents shall consist of fully
executed originals of the following documents:
1. an Assignment and Conveyance, executed by the Company;
2. the related Mortgage Loan Schedule; and
3. a Receipt and Certification, as required under the Custodial
Agreement.
Section 12.08 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 12.09 Relationship of Parties. Nothing herein contained
shall be deemed or construed to create a partnership or joint venture between
the parties hereto and the services of the Company shall be rendered as an
independent contractor and not as agent for the Purchaser.
Section 12.10 Execution; Successors and Assigns. This Agreement may
be executed in one or more counterparts and by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed to be an
original; such counterparts, together, shall constitute one and the same
agreement. Subject to Section 8.04, this Agreement shall inure to the benefit of
and be binding upon the Company and the Purchaser and their respective
successors and assigns. The parties agree that this Agreement and signature
pages thereof may be transmitted between them by facsimile and that faxed
signatures may constitute original signatures and that a faxed signature page
containing the signature (faxed or original) is binding on the parties.
Section 12.11 Recordation of Assignments of Mortgage. To the extent
permitted by applicable law, each of the Assignments of Mortgage is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public recording
office or elsewhere, such recordation to be effected at the Company's expense in
the event recordation is either necessary under applicable law or requested by
the Purchaser at its sole option.
Section 12.12 Assignment by Purchaser. The Purchaser shall have the
right, without the consent of the Company to assign, in whole or in part, its
interest under this Agreement with respect to some or all of the Mortgage Loans,
and designate any person to exercise any rights of the Purchaser hereunder, by
executing an Assignment, Assumption and Recognition Agreement substantially in
the form attached hereto as (a) with respect to a Whole Loan Transfer, Exhibit J
and (b) with respect to a Pass-through Transfer or Agency Transfer, Exhibit F,
and the assignee or designee shall accede to the rights and obligations
hereunder of the Purchaser with respect to such Mortgage Loans. All references
to the Purchaser in this Agreement shall be deemed to include its assignee or
designee.
Section 12.13 Solicitation of Mortgagor. Neither party shall, after
the related Closing Date, take any action to solicit the refinancing of any
Mortgage Loan. It is understood and agreed that neither (i) promotions
undertaken by either party or any affiliate of either party which are directed
to the general public at large, including, without limitation, mass mailings
based upon commercially acquired mailing lists, newspaper, radio, television
advertisements nor (ii) serving the refinancing needs of a Mortgagor who,
without solicitation, contacts either party in connection with the refinance of
such Mortgage or Mortgage Loan, shall constitute solicitation under this
Section.
Section 12.14 Further Agreements. The Purchaser and the Company each
agree to execute and deliver to the other such additional documents, instruments
or agreements as may be necessary or appropriate to effectuate the purposes of
this Agreement
Section 12.15 Waivers. Any of the Company or the Purchaser may upon
consent of all parties, by written notice to the others:
(a) Waive compliance with any of the terms, conditions or covenants
required to be complied with by the others hereunder; and
(b) Waive or modify performance of any of the obligations of the
others hereunder.
The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other subsequent
breach.
Section 12.16 Costs. The Purchaser shall pay any commissions due its
salesmen, the legal fees and expenses of its attorneys and the costs and
expenses associated with the Custodian. The Company shall be responsible for
reasonable costs and expenses associated with any preparation and recording of
the initial Assignments of Mortgage. All other costs and expenses incurred in
connection with the transfer and delivery of the Mortgage Loans, including fees
for title policy endorsements and continuations and the Company's attorney fees,
shall be paid by the Company.
Section 12.17 Mandatory Delivery. The sale and delivery on the
related Closing Date of the Mortgage Loans described on the related Mortgage
Loan Schedule is mandatory, it being specifically understood and agreed that
each Mortgage Loan is unique and identifiable on the date hereof and that an
award of money damages would be insufficient to compensate the Purchaser for the
losses and damages incurred by the Purchaser (including damages to prospective
purchasers of the Mortgage Loans) in the event of the Company's failure to
deliver the Mortgage Loans on or before the related Closing Date. All rights and
remedies of the Purchaser under this Agreement are distinct from, and cumulative
with, any other rights or remedies under this Agreement or afforded by law or
equity and all such rights and remedies may be exercised concurrently,
independently or successively.
Section 12.18 Intention of the Parties. It is the intention of the
parties that the Purchaser is purchasing, and the Company is selling, an
undivided 100% ownership interest in the Mortgage Loans and not a debt
instrument of the Company or another security. Accordingly, the parties hereto
each intend to treat the transaction for Federal income tax purposes as a sale
by the Company, and a purchase by the Purchaser, of the Mortgage Loans. The
Purchaser shall have the right to review the Mortgage Loans and the related
Mortgage Loan Files to determine the characteristics of the Mortgage Loans which
shall affect the Federal income tax consequences of owning the Mortgage Loans
and the Company shall cooperate with all reasonable requests made by the
Purchaser in the course of such review.
[Intentionally Blank - Next Page Signature Page]
IN WITNESS WHEREOF, the Company and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
XXXXXXX SACHS MORTGAGE COMPANY, XXXXX FARGO BANK, N.A.
Purchaser Company
By:____________________________________ By:____________________________________
Name: Name:
Title: Title:
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of _______________, 200__ before me, a Notary
Public in and for said State, personally appeared _______________________, known
to me to be ____________________ of Xxxxx Fargo Bank, N.A., the national banking
association that executed the within instrument and also known to me to be the
person who executed it on behalf of said bank, and acknowledged to me that such
bank executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office
seal the day and year in this certificate first above written.
_______________________________________
Notary Public
[SEAL]
My commission expires:
_______________________________________
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of _______________, 200__ before me, a Notary
Public in and for said State, personally appeared _______________________, known
to me to be ____________________ of Xxxxx Fargo Bank, N.A., the national banking
association that executed the within instrument and also known to me to be the
person who executed it on behalf of said bank, and acknowledged to me that such
bank executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office
seal the day and year in this certificate first above written.
_______________________________________
Notary Public
[SEAL]
My commission expires:
_______________________________________
EXHIBIT A
ASSIGNMENT AND CONVEYANCE AGREEMENT
On this ___ day of __________, ____, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Xxxxx Fargo Bank, N.A. ("Company"), as (i) the Seller under that certain
Purchase Price and Terms Letter, dated as of ___________, _____ (the "PPTL"),
(ii) the Company under that certain Master Seller's Warranties and Servicing
Agreement, dated as of September 1, 2004 (the "Purchase Agreement" and, together
with the PPTL, the "Agreements") does hereby sell, transfer, assign, set over
and convey to Xxxxxxx Xxxxx Mortgage Company ("Purchaser") as the Purchaser
under the Agreements, and the Purchaser hereby accepts from the Company, without
recourse, but subject to the terms of the Agreements, all right, title and
interest of, in and to the Mortgage Loans listed on the Mortgage Loan Schedule
attached hereto as Exhibit A (the "Mortgage Loans"). Pursuant to Section 2.03 of
the Purchase Agreement, the Company has delivered the Mortgage File to the
Custodian.
In accordance with Article 2 of the Purchase Agreement, the
Purchaser accepts the Mortgage Loans listed on Exhibit A attached hereto.
Notwithstanding the foregoing the Purchaser does not waive any rights or
remedies it may have under the Agreements.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
XXXXX FARGO BANK, N.A.
By:____________________________________
Name:
Title:
Accepted and Agreed:
XXXXXXX XXXXX MORTGAGE COMPANY
By: Xxxxxxx Sachs Real Estate
Funding Corp., its General Partner
By:__________________________________
Name:
Title:
EXHIBIT A
Mortgage Loan Schedule
[Available Upon Request]
EXHIBIT A-1
DATA FILE
Loan Number Convertible
Channel Index
Property City Periodic Rate Cap
Property State Relo Indicator
Property Zip Temp Buydown
Property County Servicing Fee
Note Date Master Service Fee
First Payment Date Company Name
Last Payment Date ECS Raw Score
Maturity Date ECS Score Code
Original Loan Amount FICO Raw Score
Purchase Price FICO Score Code
Appraised Value ECS Version Number
Current Balance Leasehold Indicator
Sale Balance No Ratio Indicator
Current Interest Rate Alt A Indicator
Current PANDI Citizen Type Code
Product Type Program Code
Remaining Term Credit Grade
LTV Lien Status
MI Code Terminal Digit
Property Type Prepayment Penalty Period (years)
Occupancy Code
Purpose Code
Stream Code Company Code
Conforming Loan Term Number
Client Name Loan MI Certificate Number
LEX Number Loan MI Coverage Percent
Employer Name Borrower Last Name
Subsidy Code Borrower First Name
Initial Interest Rate Property Address
Rate Change Date Pledged Asset Indicator
Margin Loan Effect LTV Percent
Rate Cap Timesaver Indicator
Max Interest Rate Interest Only Indicator
EXHIBIT B
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include each
of the following items, which shall be available for inspection by the Purchaser
and any prospective Purchaser, and which shall be retained by the Company in the
Servicing File or delivered to the Custodian pursuant to Sections 2.01 and 2.03
of the Master Seller's Warranties and Servicing Agreement to which this Exhibit
is attached (the "Agreement"):
1. The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of ____________ without recourse" and
signed in the name of the Company by an authorized officer (in the
event that the Mortgage Loan was acquired by the Company in a
merger, the signature must be in the following form: "[Company],
successor by merger to [name of predecessor]"; and in the event that
the Mortgage Loan was acquired or originated by the Company while
doing business under another name, the signature must be in the
following form: "[Company], formerly known as [previous name]").
2. The original of any guarantee executed in connection with the
Mortgage Note.
3. The original Mortgage, with evidence of recording thereon or a
certified true and correct copy of the Mortgage sent for
recordation. If in connection with any Mortgage Loan, the Company
cannot deliver or cause to be delivered the original Mortgage with
evidence of recording thereon on or prior to the related Closing
Date because of a delay caused by the public recording office where
such Mortgage has been delivered for recordation or because such
Mortgage has been lost or because such public recording office
retains the original recorded Mortgage, the Company shall deliver or
cause to be delivered to the Custodian, a photocopy of such
Mortgage, together with (i) in the case of a delay caused by the
public recording office, an Officer's Certificate of the Company
stating that such Mortgage has been dispatched to the appropriate
public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such
public recording office to be a true and complete copy of the
original recorded Mortgage will be promptly delivered to the
Custodian upon receipt thereof by the Company; or (ii) in the case
of a Mortgage where a public recording office retains the original
recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such Mortgage
certified by such public recording office or by the title insurance
company that issued the title policy to be a true and complete copy
of the original recorded Mortgage.
4. the originals or certified true copies of any document sent for
recordation of all assumption, modification, consolidation or
extension agreements, with evidence of recording thereon.
5. The original Assignment of Mortgage for each Mortgage Loan, in form
and substance acceptable for recording (except for the insertion of
the name of the assignee and recording information). The Assignment
of Mortgage must be duly recorded only if recordation is either
necessary under applicable law or commonly required by private
institutional mortgage investors in the area where the Mortgaged
Property is located or on direction of the Purchaser. If the
Assignment of Mortgage is to be recorded, the Mortgage shall be
assigned to the Purchaser. If the Assignment of Mortgage is not to
be recorded, the Assignment of Mortgage shall be delivered in blank.
If the Mortgage Loan was acquired by the Company in a merger, the
Assignment of Mortgage must be made by "[Company], successor by
merger to [name of predecessor]." If the Mortgage Loan was acquired
or originated by the Company while doing business under another
name, the Assignment of Mortgage must be by "[Company], formerly
know as [previous name]."
6. Originals or certified true copies of documents sent for recordation
of all intervening assignments of the Mortgage with evidence of
recording thereon, or if any such intervening assignment has not
been returned from the applicable recording office or has been lost
or if such public recording office retains the original recorded
assignments of mortgage, the Company shall deliver or cause to be
delivered to the Custodian, a photocopy of such intervening
assignment, together with (i) in the case of a delay caused by the
public recording office, an Officer's Certificate of the Company
stating that such intervening assignment of mortgage has been
dispatched to the appropriate public recording office for
recordation and that such original recorded intervening assignment
of mortgage or a copy of such intervening assignment of mortgage
certified by the appropriate public recording office or by the title
insurance company that issued the title policy to be a true and
complete copy of the original recorded intervening assignment of
mortgage will be promptly delivered to the Custodian upon receipt
thereof by the Company; or (ii) in the case of an intervening
assignment where a public recording office retains the original
recorded intervening assignment or in the case where an intervening
assignment is lost after recordation in a public recording office, a
copy of such intervening assignment certified by such public
recording office to be a true and complete copy of the original
recorded intervening assignment.
7. The electronic form of PMI Policy as identified by certificate
number.
8. The original mortgagee policy of title insurance or other evidence
of title such as a copy of the title commitment or copy of the
preliminary title commitment.
9. Any security agreement, chattel mortgage or equivalent executed in
connection with the Mortgage.
10. Original power of attorney, if applicable.
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items to the extent in the possession of the Company or in
the possession of the Company's agent(s):
11. The original hazard insurance policy and, if required by law, flood
insurance policy, in accordance with Section 4.10 of the Agreement.
12. Residential loan application.
13. Mortgage Loan closing statement.
14. Verification of employment and income, unless originated under the
Company's Limited Documentation program, Xxxxxx Xxx Timesaver Plus.
15. Verification of acceptable evidence of source and amount of down
payment.
16. Credit report on the Mortgagor.
17. Residential appraisal report.
18. Photograph of the Mortgaged Property.
19. Survey of the Mortgage property, if required by the title company or
applicable law.
20. Copy of each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title policy,
i.e. map or plat, restrictions, easements, sewer agreements, home
association declarations, etc.
21. All required disclosure statements.
22. If available, termite report, structural engineer's report, water
potability and septic certification.
23. Sales contract, if applicable.
24. Evidence of payment of taxes and insurance premiums, insurance claim
files, correspondence, current and historical computerized data
files, and all other processing, underwriting and closing papers and
records which are customarily contained in a mortgage loan file and
which are required to document the Mortgage Loan or to service the
Mortgage Loan.
25. Amortization schedule, if available.
26. Payment history for any Mortgage Loan that has been closed for more
than 90 days.
In the event an Officer's Certificate of the Company is delivered to
the Custodian because of a delay caused by the public recording office in
returning any recorded document, the Company shall deliver to the Custodian,
within 240 days of the related Closing Date, an Officer's Certificate which
shall (i) identify the recorded document, (ii) state that the recorded document
has not been delivered to the Custodian due solely to a delay caused by the
public recording office, (iii) state the amount of time generally required by
the applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will be
delivered to the Custodian. The Company shall be required to deliver to the
Custodian the applicable recorded document by the date specified in (iv) above.
An extension of the date specified in (iv) above may be requested from the
Purchaser, which consent shall not be unreasonably withheld.
EXHIBIT C
ITEMS TO BE INCLUDED IN MONTHLY REMITTANCE ADVICE
On the related Closing Date, the Company shall deliver to the
Purchaser an initial set-up report (the "Initial Set-up Report"), dated as of
the related Cut-off Date, which shall set forth certain information regarding
the Mortgage Pool. Such information shall include, without limitation, the
principal balance of each Mortgage Loan, the interest rate, delinquency status
and any other information requested by the Purchaser. For each month after the
related Closing Date, the Company shall provide a monthly remittance advice
report (the "Monthly Remittance Advice Reports") to the Purchaser, which shall
set forth for each Mortgage Loan, the trial balance, interest rate, delinquency,
foreclosure and related default information, and such other information as may
be requested by the Purchaser. The Initial Set-up Report and the Monthly
Remittance Advice Reports will be delivered in an Excel format or in such other
electronic format as agreed to by the parties. Each Initial Set-up Report and
Monthly Remittance Advice Report shall contain only such information as is
readily available to the Company and is mutually agreed to by Company and the
Purchaser.
EXHIBIT D
UNDERWRITING GUIDELINES
EXHIBIT E
CUSTODIAL AGREEMENT
EXHIBIT F
FORM OF MASTER OPINION OF COUNSEL
Re: Xxxxx Fargo Bank, N.A. to
-------------------------
Xxxxxxx Xxxxx Mortgage Company
------------------------------
Dear Sir/Madam:
I am @ of Xxxxx Fargo Bank, N.A. and have acted as counsel to Xxxxx
Fargo Bank, N.A. (the "Company"), with respect to certain matters in connection
with the sale by the Company of the mortgage loans (the "Mortgage Loans")
pursuant to that certain Master Seller's Warranties and Servicing Agreement (the
"Seller's Warranties and Servicing Agreement") by and between the Company and
Xxxxxxx Sachs Mortgage Company (the "Purchaser"), dated as of September 1, 2004,
(the "Agreements"), which sale is in the form of whole Mortgage Loans.
Capitalized terms not otherwise defined herein have the meanings set forth in
the Seller's Warranties and Servicing Agreement.
I have examined the following documents:
1. the Seller's Warranties and Servicing Agreement;
2. the Custodial Agreement;
3. the form of endorsement of the Mortgage Notes; and
4. such other documents, records and papers as I have deemed
necessary and relevant as a basis for this opinion.
To the extent I have deemed necessary and proper, I have relied upon
the representations and warranties of the Company contained in the Seller's
Warranties and Servicing Agreement. I have assumed the authenticity of all
documents submitted to me as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
documents.
Based upon the foregoing, it is my opinion that:
1. The Company is a national banking association duly organized,
validly existing and in good standing under the laws of the United States.
2. The Company has the power to engage in the transactions
contemplated by the Seller's Warranties and Servicing Agreement and the
Custodial Agreement and all requisite power, authority and legal right to
execute and deliver the Seller's Warranties and Servicing Agreement, the
Custodial Agreement and the Mortgage Loans, and to perform and observe the terms
and conditions of such instruments.
3. Each person who, as an officer or attorney-in-fact of the
Company, signed (a) the Seller's Warranties and Servicing Agreement, (b) the
Custodial Agreement, and (c) any other document delivered prior hereto or on the
date hereof in connection with the sale and servicing of the Mortgage Loans in
accordance with the Seller's Warranties and Servicing Agreement was, at the
respective times of such signing and delivery, and is, as of the date hereof,
duly elected or appointed, qualified and acting as such officer or
attorney-in-fact, and the signatures of such persons appearing on such documents
are their genuine signatures.
4. Each of the Seller's Warranties and Servicing Agreement, the
Custodial Agreement, and the Mortgage Loans, has been duly authorized, executed
and delivered by the Company and is a legal, valid and binding agreement
enforceable in accordance with its terms, subject to the effect of insolvency,
liquidation, conservatorship and other similar laws administered by the Federal
Deposit Insurance Corporation affecting the enforcement of contract obligations
of insured banks and subject to the application of the rules of equity,
including those respecting the availability of specific performance, none of
which will materially interfere with the realization of the benefits provided
thereunder or with the Purchaser's ownership of the Mortgage Loans.
5. The Company has been duly authorized to allow any of its officers
to execute any and all documents by original or facsimile signature in order to
complete the transactions contemplated by the Seller's Warranties and Servicing
Agreement and the Custodial Agreement in order to execute the endorsements to
the Mortgage Notes and the assignments of the Mortgages, and the original or
facsimile signature of the officer at the Company executing the Seller's
Warranties and Servicing Agreement, the Custodial Agreement, the endorsements to
the Mortgage Notes and the assignments of the Mortgages represents the legal and
valid signature of said officer of the Company.
6. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with the Seller's
Warranties and Servicing Agreement, the Custodial Agreement or the sale and
delivery of the Mortgage Loans or the consummation of the transactions
contemplated by the Seller's Warranties and Servicing Agreement and the
Custodial Agreement; or (ii) any required consent, approval, authorization or
order has been obtained by the Company.
7. Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of the Seller's Warranties and Servicing Agreement
and the Custodial Agreement, will conflict with or results in or will result in
a breach of or constitutes or will constitute a default under the charter or
by-laws of the Company, the terms of any indenture or other agreement or
instrument to which the Company is a party or by which it is bound or to which
it is subject, or violates any statute or order, rule, regulations, writ,
injunction or decree of any court, governmental authority or regulatory body to
which the Company is subject or by which it is bound.
8. There is no action, suit, proceeding or investigation pending or,
to the best of my knowledge, threatened against the Company which, in my
opinion, either in any one instance or in the aggregate, may result in any
material adverse change in the business, operations, financial condition,
properties or assets of the Company or in any material impairment of the right
or ability of the Company to carry on its business substantially as now
conducted or in any material liability on the part of the Company or which would
draw into question the validity of the Seller's Warranties and Servicing
Agreement, and the Custodial Agreement, or of any action taken or to be taken in
connection with the transactions contemplated thereby, or which would be likely
to impair materially the ability of the Company to perform under the terms of
the Seller's Warranties and Servicing Agreement and the Custodial Agreement.
9. For purposes of the foregoing, I have not regarded any legal or
governmental actions, investigations or proceedings to be "threatened" unless
the potential litigant or governmental authority has manifested to the legal
department of the Company or an employee of the Company responsible for the
receipt of process a present intention to initiate such proceedings; nor have I
regarded any legal or governmental actions, investigations or proceedings as
including those that are conducted by state or federal authorities in connection
with their routine regulatory activities. The sale of each Mortgage Note and
Mortgage as and in the manner contemplated by the Seller's Warranties and
Servicing Agreement is sufficient fully to transfer all right, title and
interest of the Company thereto as noteholder and mortgagee, apart from the
rights to service the Mortgage Loans pursuant to the Seller's Warranties and
Servicing Agreement.
10. The form of endorsement that is to be used with respect to the
Mortgage Loans is legally valid and sufficient to duly endorse the Mortgage
Notes to the Purchaser. Upon the completion of the endorsement of the Mortgage
Notes and the completion of the assignments of the Mortgages, and the recording
thereof, the endorsement of the Mortgage Notes, the delivery to the Custodian of
the completed assignments of the Mortgages, and the delivery of the original
endorsed Mortgage Notes to the Custodian would be sufficient to permit the
entity to which such Mortgage Note is initially endorsed at the Purchaser's
direction, and to whom such assignment of Mortgages is initially assigned at the
Purchaser's direction, to avail itself of all protection available under
applicable law against the claims of any present or future creditors of the
Company, and would be sufficient to prevent any other sale, transfer,
assignment, pledge or hypothecation of the Mortgages and the Mortgage Notes by
the Company from being enforceable.
This opinion is given to you for your sole benefit, and no other
person or entity is entitled to rely hereon except that the purchaser or
purchasers to which you initially and directly resell the Mortgage Loans may
rely on this opinion as if it were addressed to them as of its date.
Sincerely,
EXHIBIT F
FORM OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this _____ day
of __________________, 200__, among Xxxxx Fargo Bank, N.A., a __________________
________ (the "Servicer"), _________________________ a ________________________
(the "Assignee"), and _____________________________, a ________________________
(the "Assignor).
WHEREAS, Xxxxxxx Sachs Mortgage Company and the Servicer have
entered into a certain Master Seller's Warranties and Servicing Agreement dated
as of August 1, 2004 (the "Servicing Agreement"), pursuant to which the Servicer
sold certain mortgage loans listed on the mortgage loan schedule attached as an
exhibit to the Servicing Agreement;
WHEREAS, the Assignee has agreed on certain terms and conditions to
purchase from the Assignor certain mortgage loans (the "Mortgage Loans"), which
Mortgage Loans are subject to the provisions of the Servicing Agreement and are
listed on the mortgage loan schedule attached as Exhibit 1 hereto (the "Mortgage
Loan Schedule");
WHEREAS, pursuant to a Trust Agreement, dated as of [______ __],
200__ (the "Trust Agreement"), between GS Mortgage Securities Corp., as
Depositor, and [______], as Trustee (the "Trustee"), the Assignee will transfer
the Mortgage Loans to the Trustee, together with the Assignee's rights in the
Sale and Servicing Agreement;
NOW THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption.
(a) The Assignor hereby assigns to the Assignee all of its
right, title and interest in and to the Mortgage Loans and Servicing
Agreement, to the extent relating to the Mortgage Loans (other than the
rights of the Assignor to indemnification thereunder), and the Assignee
hereby assumes all of the Assignor's obligations under the Servicing
Agreement, to the extent relating to the Mortgage Loans from and after the
date hereof, and the Servicer hereby acknowledges such assignment and
assumption and hereby agrees to the release of the Assignor from any
obligations under the Servicing Agreement from and after the date hereof,
to the extent relating to the Mortgage Loans. Notwithstanding the
foregoing, it is understood that the Assignor is not released from
liability for any breaches of the representations and warranties made in
Section 3.6 of the Servicing Agreement, and the Assignee is not
undertaking any such liability hereunder.
(b) The Assignor represents and warrants to the Assignee that
the Assignor has not taken any action which would serve to impair or
encumber the Assignor's ownership interest in the Mortgage Loans since the
date of the Servicing Agreement.
(c) The Servicer and the Assignor shall have the right to
amend, modify or terminate the Servicing Agreement without the joinder of
the Assignee with respect to mortgage loans not conveyed to the Assignee
hereunder, provided, however, that such amendment, modification or
termination shall not affect or be binding on the Assignee.
2. Accuracy of Servicing Agreement.
The Servicer and the Assignor represent and warrant to the Assignee
that (i) attached hereto as Exhibit 2 is a true, accurate and complete copy of
the Servicing Agreement, (ii) the Servicing Agreement is in full force and
effect as of the date hereof, (iii) the Servicing Agreement has not been amended
or modified in any respect and (iv) no notice of termination has been given to
the Servicer under the Servicing Agreement.
3. Recognition of Purchaser.
From and after the date hereof, the Servicer shall note the transfer
of the Mortgage Loans to the Assignee in its books and records, shall recognize
the Assignee as the owner of the Mortgage Loans and shall service the Mortgage
Loans for the benefit of the Assignee pursuant to the Servicing Agreement, the
terms of which are incorporated herein by reference. It is the intention of the
Assignor, Servicer and Assignee that the Servicing Agreement shall be binding
upon and inure to the benefit of the Servicer and the Assignee and their
successors and assigns.
4. Representations and Warranties of the Assignee. The Assignee
hereby represents and warrants to the Assignor as follows:
(a) Decision to Purchase. The Assignee represents and warrants
that it is a sophisticated investor able to evaluate the risks and merits
of the transactions contemplated hereby, and that it has not relied in
connection therewith upon any statements or representations of the
Assignor or the Servicer other than those contained in the Servicing
Agreement or this Agreement.
(b) Authority. The Assignee hereto represents and warrants
that it is duly and legally authorized to enter into this Agreement and to
perform its obligations hereunder and under the Servicing Agreement.
(c) Enforceability. The Assignee hereto represents and
warrants that this Agreement has been duly authorized, executed and
delivered by it and (assuming due authorization, execution and delivery
thereof by each of the other parties hereto) constitutes its legal, valid
and binding obligation, enforceable in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
5. Representations and Warranties of the Assignor. The Assignor
hereby represents and warrants to the Assignee as follows:
(a) The Assignor has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the
State of New York with full power and authority (corporate and other) to
enter into and perform its obligations under the Servicing Agreement and
this Assignment Agreement.
(b) This Assignment Agreement has been duly executed and
delivered by the Assignor, and, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a legal, valid,
and binding agreement of the Assignor, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting creditors'
rights generally and to general principles of equity regardless of whether
enforcement is sought in a proceeding in equity or at law.
(c) The execution, delivery and performance by the Assignor of
this Assignment Agreement and the consummation of the transactions
contemplated thereby do not require the consent or approval of, the giving
of notice to, the registration with, or the taking of any other action in
respect of, any state, federal or other governmental authority or agency,
except such as has been obtained, given, effected or taken prior to the
date thereof.
(d) The execution and delivery of this Assignment Agreement
have been duly authorized by all necessary corporate action on the part of
the Assignor; neither the execution and delivery by the Assignor of this
Assignment Agreement, nor the consummation by the Assignor of the
transactions therein contemplated, nor compliance by the Assignor with the
provisions thereof, will conflict with or result in a breach of, or
constitute a default under, any of the provisions of the governing
documents of the Assignor or any law, governmental rule or regulation or
any material judgment, decree or order binding on the Assignor or any of
its properties, or any of the provisions of any material indenture,
mortgage, deed of trust, contract or other instrument to which the
Assignor is a party or by which it is bound.
(e) There are no actions, suits or proceedings pending or, to
the knowledge of the Assignor, threatened, before or by any court,
administrative agency, arbitrator or governmental body (A) with respect to
any of the transactions contemplated by this Assignment Agreement or (B)
with respect to any other matter that in the judgment of the Assignor will
be determined adversely to the Assignor and will if determined adversely
to the Assignor materially adversely affect its ability to perform its
obligations under this Assignment Agreement.
(f) Except for the sale to the Assignee, the Assignor has not
assigned or pledged any Mortgage Note or the related Mortgage or any
interest or participation therein.
(g) The Assignor has not satisfied, canceled, or subordinated
in whole or in part, or rescinded the Mortgage, and the Assignor has not
released the Mortgaged Property from the lien of the Mortgage, in whole or
in part, nor has the Assignor executed an instrument that would effect any
such release, cancellation, subordination, or rescission. The Assignor has
not released any Mortgagor, in whole or in part, except in connection with
an assumption agreement or other agreement approved by the related Federal
Insurer, to the extent such approval was required.
It is understood and agreed that the representations and warranties
set forth in this Section 5 shall survive delivery of the respective Mortgage
Files to the Custodian and shall inure to the benefit of the Assignee and its
assigns notwithstanding any restrictive or qualified endorsement or assignment.
Upon the discovery by the Assignor or the Assignee and its assigns of a breach
of the foregoing representations and warranties, the party discovering such
breach shall give prompt written notice to the other parties to this Assignment
Agreement, and in no event later than two (2) Business Days from the date of
such discovery. It is understood and agreed that the obligations of the Assignor
set forth in Section 6 to repurchase a Mortgage Loan constitute the sole
remedies available to the Assignee and its assigns on their behalf respecting a
breach of the representations and warranties contained in this Section 5. It is
further understood and agreed that the Assignor shall be deemed not to have made
the representations and warranties in this Section 5 with respect to, and to the
extent of, representations and warranties made, as to the matters covered in
this Section 5, by the Servicer in the Servicing Agreement (or any officer's
certificate delivered pursuant thereto).
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in this
Section 5, and no other affiliate of the Assignor has made any representations
or warranties of any kind to the Assignee.
6. Repurchase of Mortgage Loans.
Upon discovery or notice of any breach by the Assignor of any
representation, warranty, or covenant under this Assignment Agreement that
materially and adversely affects the value of any Mortgage Loan or the interest
of the Assignee therein (it being understood that any such defect or breach
shall be deemed to have materially and adversely affected the value of the
related Mortgage Loan or the interest of the Assignee therein if the Assignee
incurs a loss as a result of such defect or breach), the Assignee promptly shall
request that the Assignor cure such breach and, if the Assignor does not cure
such breach in all material respects within 60 days from the date on which it is
notified of the breach, the Assignee may enforce the Assignor's obligation
hereunder to purchase such Mortgage Loan from the Assignee. Notwithstanding the
foregoing, however, if such breach is a Qualification Defect, such cure or
repurchase must take place within 75 days of the Defect Discovery Date.
In the event the Servicer has breached a representation or warranty
under the Servicing Agreement that is substantially identical to a
representation or warranty breached by the Assignor hereunder, the Assignee
shall first proceed against the Servicer. If the Servicer does not within 60
days after notification of the breach, take steps to cure such breach (which may
include certifying to progress made and requesting an extension of the time to
cure such breach, as permitted under the Servicing Agreement) or purchase, or
substitute for the Mortgage Loan, the Trustee shall be entitled to enforce the
obligations of the Assignor hereunder to cure such breach or to purchase the
Mortgage Loan from the Trust. In such event, the Assignor shall succeed to the
rights of the Assignee to enforce the obligations of the Servicer to cure such
breach or repurchase such Mortgage Loan under the terms of the related Servicing
Agreement with respect to such Mortgage Loan
Except as specifically set forth herein, the Assignee shall have no
responsibility to enforce any provision of this Assignment Agreement, to oversee
compliance hereof, or to take notice of any breach or default thereof.
7. Continuing Effect.
Except as contemplated hereby, the Servicing Agreement shall remain
in full force and effect in accordance with its terms.
8. Governing Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
9. Notices.
Any notices or other communications permitted or required hereunder
or under the Servicing Agreement shall be in writing and shall be deemed
conclusively to have been given if personally delivered at or mailed by
registered mail, postage prepaid, and return receipt requested or transmitted by
telex, telegraph or telecopier and confirmed by a similar mailed writing, to:
(i) in the case of the Servicer, [_________________, ____________________] or
such address as may hereafter be furnished by the Servicer; (ii) in the case of
the Assignee, _______________, _______________, Attention: ________________, or
such other address as may hereafter be furnished by the Assignee, and (iii) in
the case of the Assignor, __________________, Attention: _________________, or
such other address as may hereafter be furnished by the Assignor.
10. Counterparts.
This Agreement may be executed in counterparts, each of which when
so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same instrument.
11. Definitions.
Any capitalized term used but not defined in this Agreement has the
same meaning as in the Servicing Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
ASSIGNEE:
By:____________________________________
Name:
Title:
ASSIGNOR:
By:____________________________________
Name:
Title:
Acknowledged by:
SERVICER:
By:____________________________________
Name:
Title:
EXHIBIT G
FORM OF COMPANY OFFICER'S CERTIFICATE
I, ______________________, hereby certify that I am a duly elected
[Vice President] of Xxxxx Fargo Bank, N.A., a national banking association
organized under the laws of the United States (the "Company") and further as
follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy
of the articles of association of the Company which is in full force and effect
on the date hereof.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy
of the bylaws of the Company which are in effect on the date hereof.
3. The execution and delivery by the Company of the Master Seller's
Warranties and Servicing Agreement, dated as of September 1, 2004 (the "Sale and
Servicing Agreement") and the Custodial Agreement, dated as of _________ (the
"Custodial Agreement" and, together with the Sale and Servicing Agreement, the
"Agreements") are in the ordinary course of business of the Company.
4. A true and correct copy of the resolution of the Mortgage Banking
Committee of the Board of Directors of the Company authorizing the Company to
enter into the Agreements is attached hereto as Exhibit 3.
5. Each person who, as an officer or representative of the Company,
signed (a) the Sale and Servicing Agreement, or (b) any other document delivered
prior hereto or on the date hereof in connection with any transaction described
in the Agreements was, at the respective times of such signing and delivery a
duly elected or appointed, qualified and acting officer or representative of the
Company and the signatures of such persons appearing on such documents are their
genuine signatures.
6. No proceedings for dissolution, merger, consolidation,
liquidation, conservatorship or receivership of the Company or for the sale of
all or substantially all of its assets is pending, or to my knowledge
threatened, and no such proceeding is contemplated by the Company.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Dated:______
By:____________________________________
Title: Vice President
I, __________________ the Secretary of __________________________,
hereby certify that _______________________ is a duly elected and acting Vice
President of the Company and that the signature appearing above is his genuine
signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:
By:____________________________________
Title: Secretary
EXHIBIT H
FORM OF ANNUAL CERTIFICATION
I, ______________________, Vice President of Xxxxx Fargo Bank, N.A.
(the "Servicer"), certify to __________________, and its officers, directors,
agents and affiliates (in its role as ____________, the "____________"), and
with the knowledge and intent that they will rely upon this certification, that:
(i) Based on my knowledge, the information relating to the Mortgage
Loans and the servicing thereof submitted by the Servicer to the
___________ which is used in connection with preparation of the reports on
Form 8-K and the annual report on Form 10-K filed with the Securities and
Exchange Commission with respect to each transaction listed on the
attached Exhibit A, taken as a whole, does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading as of the date of this certification;
(ii) The servicing information required to be provided to the
_____________ by the Servicer under the relevant servicing agreements has
been provided to the ______________;
(iii) I am responsible for reviewing the activities performed by the
Servicer under the relevant servicing agreements and based upon the review
required by the relevant servicing agreements, and except as disclosed in
the Annual Statement of Compliance, the Annual Independent Public
Accountant's Servicing Report and all servicing reports, officer's
certificates and other information relating to the servicing of the
Mortgage Loans submitted to the ___________, the Servicer has, as of the
date of this certification fulfilled its obligations under the relevant
servicing agreements; and
(iv) I have disclosed to the ___________ all significant
deficiencies relating to the Servicer's compliance with the minimum
servicing standards in accordance with a review conducted in compliance
with the Uniform Single Attestation Program for Mortgage Bankers or
similar standard as set forth in the relevant servicing agreements.
(v) The Servicer shall indemnify and hold harmless the ___________
and its officers, directors, agents and affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments and other costs and expenses arising out of or
based upon a breach by the Servicer or any of its officers, directors,
agents or affiliates of its obligations under this Certification or the
negligence, bad faith or willful misconduct of the Servicer in connection
therewith. If the indemnification provided for herein is unavailable or
insufficient to hold harmless the ___________, then the Servicer agrees
that it shall contribute to the amount paid or payable by the ___________
as a result of the losses, claims, damages or liabilities of the
___________ in such proportion as is appropriate to reflect the relative
fault of the ___________ on the one hand and the Servicer on the other in
connection with a breach of the Servicer's obligations under this
Certification or the Servicer's negligence, bad faith or willful
misconduct in connection therewith.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Servicer.
Dated:
By:____________________________________
Name:
Title:
EXHIBIT I
FORM OF INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AND CONTRIBUTION AGREEMENT dated [_______],
200__ ("Agreement") between GS Mortgage Securities Corp., a Delaware corporation
(the "Depositor"), Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership ("GSMC"), and Xxxxx Fargo Bank, N.A., a national banking
association(the "Xxxxx Fargo").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Xxxxx Fargo, GSMC and the Depositor are parties to the
Assignment, Assumption and Recognition Agreement dated as of _____, 20___ (the
"Assignment Agreement");
WHEREAS, GSMC will sell certain Mortgage Loans to the Depositor
pursuant to the Assignment Agreement and such Mortgage Loans are and will
continue to be serviced by Xxxxx Fargo pursuant to the Servicing Agreement (as
defined herein); and
WHEREAS, as an inducement to the Depositor to enter into the
Assignment Agreement, to the Underwriter[s] to enter into the Underwriting
Agreement (as defined herein), and to the Initial Purchaser[s] to enter into the
Certificate Purchase Agreement (as defined herein), the parties hereto wish to
provide for indemnification and contribution on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms. The following terms shall have
the meanings set forth below, unless the context clearly indicates otherwise:
1933 Act: The Securities Act of 1933, as amended.
1934 Act: The Securities Exchange Act of 1934, as amended.
Agreement: This Indemnification and Contribution Agreement, as
the same may be amended in accordance with the terms hereof.
Certificate Purchase Agreement: The Purchase Agreement, dated as
of [______], 200___, [among] the Depositor and the Initial Purchaser[s]
relating to the Privately Offered Certificates.
Xxxxx Fargo Information: All information in the Prospectus
Supplement contained under the headings ["The Mortgage Loan Pool--Underwriting
Guidelines" and "The Servicers--Xxxxx Fargo Bank, N.A. (including the table
immediately following the second paragraph thereof)].
Initial Purchaser: Xxxxxxx, Xxxxx & Co., a New York limited
partnership, and its successors and assigns.
Offering Circular: The offering circular, dated [_______],
200___, relating to the private offering of the Privately Offered
Certificates.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Privately Offered Certificates: [__________________], issued
pursuant to the Pooling and Servicing Agreement.
Prospectus Supplement: The prospectus supplement, dated [______],
200___, relating to the public offering of the Publicly Offered Certificates.
Publicly Offered Certificates: [______________________________],
issued pursuant to the Pooling and Servicing Agreement.
Servicing Agreement: The Master Seller's Warranties and Servicing
Agreement, dated as of September 1, 2004, between Xxxxx Fargo Bank, N.A. and
GSMC.
Underwriters: Xxxxxxx, Xxxxx & Co., a New York limited
partnership [, and [____________], a [___________] corporation], and their
successors and assigns.
Underwriting Agreement: The Underwriting Agreement, dated as of
[________], 200__, [among] the Depositor and the Underwriter[s], relating to
the Publicly Offered Certificates.
Other Terms. Capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Pooling and Servicing
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Each party hereto represents and warrants that:
(a) it has all requisite organizational power and authority to
execute, deliver and perform its obligations under this Agreement;
(b) this Agreement has been duly authorized, executed and delivered
by such party; and
(c) assuming the due authorization, execution and delivery by each
other party hereto, this Agreement constitutes the legal, valid and
binding obligation of such party.
ARTICLE III
INDEMNIFICATION
Section 3.01 Indemnification by Xxxxx Fargo. (a) Xxxxx Fargo shall
indemnify and hold harmless the Depositor, GSMC, [each of] the Underwriter[s],
the Initial Purchaser[s], their respective affiliates and their respective
directors, officers, partners and each Person, if any, that controls the
Depositor, GSMC, such Underwriter or the Initial Purchaser, or such affiliate,
within the meaning of either the 1933 Act or the 1934 Act (collectively, the "GS
Indemnified Parties") against any and all losses, claims, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses to which each such GS
Indemnified Party may become subject, under the 1933 Act, the 1934 Act or
otherwise, to the extent that such losses, claims, damages, penalties, fines,
forfeitures, fees, costs, judgments or expenses arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the Prospectus Supplement or any amendment or supplement thereto (provided
that such Xxxxx Fargo Information in such amendment or supplement was approved
by Xxxxx Fargo), or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission relates to information
set forth in the Xxxxx Fargo Information, and Xxxxx Fargo shall in each case
reimburse each GS Indemnified Party for any legal or other expenses reasonably
incurred by such GS Indemnified Party in connection with investigating or
defending any such loss, claim, damage, liability, penalty, fine, forfeiture, or
action. Xxxxx Fargo's liability under this Section 3.01(a) shall be in addition
to any other liability that Xxxxx Fargo may otherwise have.
(b) GSMC shall indemnify and hold harmless Xxxxx Fargo, its
affiliates and its respective directors, officers, partners and each Person, if
any, that controls Xxxxx Fargo or such affiliate, within the meaning of either
the 1933 Act or the 1934 Act (collectively, the "Xxxxx Fargo Indemnified
Parties"), against any and all losses, claims, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses to which each such Xxxxx Fargo
Indemnified Party may become subject, under the 1933 Act, the 1934 Act or
otherwise, to the extent that such losses, claims, damages, penalties, fines,
forfeitures, fees, costs, judgments or expenses arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the Prospectus Supplement or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
to the extent that such untrue statement or alleged untrue statement or omission
or alleged omission relates to information other than that set forth in the
Xxxxx Fargo Information, and GSMC shall in each case reimburse such Xxxxx Fargo
Indemnified Party for any legal or other expenses reasonably incurred by such
Xxxxx Fargo Indemnified Party, , in connection with investigating or defending
any such loss, claim, damage, liability, penalty, fine, forfeiture, or action.
GSMC's liability under this Section 3.01(b) shall be in addition to any other
liability that GSMC may otherwise have.
(c) If the indemnification provided for in this Section 3.01 shall
for any reason be unavailable to an indemnified party under this Section 3.01,
then the party which would otherwise be obligated to indemnify with respect
thereto, on the one hand, and the parties which would otherwise be entitled to
be indemnified, on the other hand, shall contribute to the losses claims,
damages, penalties, fines, forfeitures, costs, fees, judgments and expenses of
the nature contemplated herein and incurred by the parties hereto in such
proportions that are appropriate to reflect the relative fault of the Depositor,
GSMC, the Underwriter[s], and the Initial Purchaser[s], on one hand, and Xxxxx
Fargo, on the other hand, in connection with the applicable misstatements or
omissions or alleged misstatements or omissions as well as any other relevant
equitable considerations. Notwithstanding the foregoing, no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) with respect to the misstatement or omission or alleged misstatement or
omission at issue shall be entitled to contribution from any Person that was not
guilty of such fraudulent misrepresentation with respect to the misstatement or
omission or alleged misstatement or omission at issue.
Section 3.02 Notification; Procedural Matters. Promptly after
receipt by an indemnified party under Section 3.01 of notice of any claim or the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against any indemnifying party under Section 3.01, notify
the indemnifying party (or other contributing party) in writing of the claim or
the commencement of such action; provided, however, that the failure to notify
the indemnifying party (or other contributing party) shall not relieve it from
any liability which it may have under Section 3.01 except to the extent it has
been materially prejudiced by such failure; and provided further, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under
Section 3.01. In case any such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that, by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, the indemnifying
party elects to assume the defense thereof, it may participate with counsel
reasonably satisfactory to such indemnified party; provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall reasonably have
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of such counsel, the indemnifying party shall not be
liable to such indemnified party under this paragraph for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof, unless (i) the indemnified party shall have employed separate
counsel (plus any local counsel) in connection with the assertion of legal
defenses in accordance with the proviso to the immediately preceding sentence,
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party shall have authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party. No party shall be
liable for contribution with respect to any action or claim settled without its
consent, which consent shall not be unreasonably withheld. In no event shall the
indemnifying party be liable for the fees and expenses of more than one counsel
representing the indemnified parties (in addition to any local counsel) separate
from its own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
ARTICLE IV
GENERAL
Section 4.01 Survival. This Agreement and the obligations of the
parties hereunder shall survive the purchase and sale of the Publicly Offered
Certificates and the Privately Offered Certificates.
Section 4.02 Successors. This Agreement shall inure to the benefit
of and be binding upon the parties hereto, each indemnified party and their
respective successors and assigns, and no other Person shall have any right or
obligation hereunder.
Section 4.03 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to principles of conflict of laws.
Section 4.04 Miscellaneous. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
Section 4.05 Notices. All communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered to (a) in the
case of the Depositor, GSMC, the Underwriter[s], or the Initial Purchaser[s], GS
Mortgage Securities Corp., Xxxxxxx Sachs Mortgage Company or Xxxxxxx, Xxxxx &
Co. c/o Goldman, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Structured Products Group/Xxxxxxxxxxx X. Xxxxxxx, and (b) in the case
of Xxxxx Fargo: Xxxxx Xxxxx Xxxx, X.X., 0 Xxxx Xxxxxx, Xxx Xxxxxx, XX,
00000-0000, Attention: Chief Counsel, MAC X2401-06.
Section 4.06 Submission To Jurisdiction; Waivers. Each of the
parties hereto hereby irrevocably and unconditionally:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH THE OTHER PARTIES HERETO SHALL
HAVE BEEN NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO XXX IN ANY OTHER JURISDICTION.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Agreement by
their duly authorized officers as of the date first above written.
GS MORTGAGE SECURITIES CORP.
By:____________________________________
Name:
Title:
XXXXXXX XXXXX MORTGAGE COMPANY, a New
York limited partnership
By: Xxxxxxx Sachs Real Estate
Funding Corp., its general partner
By:____________________________________
Name:
Title
XXXXX FARGO BANK, N.A.
By:____________________________________
Name:
Title
EXHIBIT J
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
____________, 2004
ASSIGNMENT AND ASSUMPTION, dated ___________________, 200__ among
_________________, a _________________ corporation having an office at
_________________ ("Assignor") and _________________, having an office at
_________________ ("Assignee") and Xxxxx Fargo Bank, N.A. (the "Company"),
having an xxxxxx xx 0 Xxxx Xxxxxx, Xxx Xxxxxx, XX 00000-0000:
For and in consideration of the sum of one dollar ($1.00) and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledge, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. The Assignor hereby grants, transfers and assigns to Assignee all
of the right, title and interest of Assignor, as Purchaser, in, to and under
that certain Master Seller's Warranties and Servicing Agreement, (the "Seller's
Warranties and Servicing Agreement"), dated as of _________________, by and
between _________________ (the "Purchaser"), and _________________ (the
"Company"), and the Mortgage Loans delivered thereunder by the Company to the
Assignor, and that certain Custodial Agreement, (the "Custodial Agreement"),
dated as of _________________, by and among the Company, the Purchaser and
_________________ (the "Custodian").
2. The Assignor warrants and represents to, and covenants with, the
Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans with
the full right to transfer the Mortgage Loans free from any and all claims
and encumbrances whatsoever;
b. The Assignor has not received notice of, and has no
knowledge of, any offsets, counterclaims or other defenses available to
the Company with respect to the Seller's Warranties and Servicing
Agreement or the Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver under,
or agreed to any amendment or other modification of, the Seller's
Warranties and Servicing Agreement, the Custodial Agreement or the
Mortgage Loans, including without limitation the transfer of the servicing
obligations under the Seller's Warranties and Servicing Agreement. The
Assignor has no knowledge of, and has not received notice of, any waivers
under or amendments or other modifications of, or assignments of rights or
obligations under, the Seller's Warranties and Servicing Agreement or the
Mortgage Loans; and
d. Neither the Assignor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage
Loans, any interest in the Mortgage Loans or any other similar security
to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Mortgage Loans, any interest in the Mortgage Loans or
any other similar security from, or otherwise approached or negotiated
with respect to the Mortgage Loans, any interest in the Mortgage Loans or
any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other
manner, or taken any other action which would constitute a distribution of
the Mortgage Loans under the Securities Act of 1933 (the "33 Act") or
which would render the disposition of the Mortgage Loans a violation of
Section 5 of the 33 Act or require registration pursuant thereto.
3. That Assignee warrants and represent to, and covenants with, the
Assignor and the Company pursuant to Section 12.10 of the Seller's Warranties
and Servicing Agreement that:
a. The Assignee agrees to be bound, as Purchaser, by all of
the terms, covenants and conditions of the Seller's Warranties and
Servicing Agreement, the Mortgage Loans and the Custodial Agreement, and
from and after the date hereof, the Assignee assumes for the benefit of
each of the Company and the Assignor all of the Assignor's obligations as
purchaser thereunder;
b. The Assignee understands that the Mortgage Loans have not
been registered under the 33 Act or the securities laws of any state;
c. The purchase price being paid by the Assignee for the
Mortgage Loans are in excess of $250,000.00 and will be paid by cash
remittance of the full purchase price within 60 days of the sale;
d. The Assignee is acquiring the Mortgage Loans for investment
for its own account only and not for any other person. In this connection,
neither the Assignee nor any person authorized to act therefor has offered
to sell the Mortgage Loans by means of any general advertising or general
solicitation within the meaning of Rule 502(c) of US Securities and
Exchange Commission Regulation D, promulgated under the 1933 Act;
e. The Assignee considers itself a substantial sophisticated
institutional investor having such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks
of investment in the Mortgage Loans;
f. The Assignee has been furnished with all information
regarding the Mortgage Loans that it has requested from the Assignor or
the Company;
g. Neither the Assignee nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage
Loans, any interest in the Mortgage Loans or any other similar security
to, or solicited any offer to buy or accepted a transfer, pledge or other
disposition of the Mortgage Loans, any interest in the Mortgage Loans or
any other similar security from, or otherwise approached or negotiated
with respect to the Mortgage Loans, any interest in the Mortgage Loans or
any other similar security with, any person in any manner which would
constitute a distribution of the Mortgage Loans under the 33 Act or which
would render the disposition of the Mortgage Loans a violation of Section
5 of the 33 Act or require registration pursuant thereto, nor will it act,
nor has it authorized or will it authorize any person to act, in such
manner with respect to the Mortgage Loans; and
h. Either (1) the Assignee is not an employee benefit plan
("Plan") within the meaning of section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") or a plan (also "Plan")
within the meaning of section 4975(e)(1) of the Internal Revenue Code of
1986 ("Code"), and the Assignee is not directly or indirectly purchasing
the Mortgage Loans on behalf of, investment manager of, as named fiduciary
of, as Trustee of, or with assets of, a Plan; or (2) the Assignee's
purchase of the Mortgage Loans will not result in a prohibited transaction
under section 406 of ERISA or section 4975 of the Code.
i. The Assignee's address for purposes of all notices and
correspondence related to the Mortgage Loans and the Seller's Warranties
and Servicing Agreements is:
__________________________________
__________________________________
__________________________________
Attention: _________________
The Assignee's wire transfer instructions for purposes of all
remittances and payments related to the Mortgage Loans and the Seller's
Warranties and Servicing Agreement is:
__________________________________
__________________________________
__________________________________
Attention: _________________
4. From and after the date hereof, the Company shall note the
transfer of the Mortgage Loans to the Assignee in its books and records, the
Company shall recognize the Assignee as the owner of the Mortgage Loans and the
Company shall service the Mortgage Loans for the benefit of the Assignee
pursuant to the Seller's Warranties and Servicing Agreement, the terms of which
are incorporated herein by reference. It is the intention of the Assignor, the
Company and the Assignee that the Seller's Warranties and Servicing Agreement
shall be binding upon and inure to the benefit of the Company and the Assignee
and their respective successors and assigns.
[Signatures Follow]
IN WITNESS WHEREOF, the parties have caused this Assignment,
Assumption and Recognition Agreement to be executed by their duly authorized
officers as of the date first above written.
ASSIGNOR ASSIGNEE
By:____________________________________ By:___________________________________
Name: Name:
Its: Its:
Tax Payer Identification No.: Tax Payer Identification No.:
____________________________________ ____________________________________
Acknowledged this ___ day of ________________, 2002_
XXXXX FARGO BANK, N.A.,
Company
By:____________________________________
Name:
Its:
EXHIBIT M
FORM OF REQUEST FOR RELEASE
(for Trustee)
In connection with the administration of the Mortgage Loans held by
you as the Trustee on behalf of the Certificateholders, we request the release,
and acknowledge receipt, of the (Custodial File/[specify documents]) for the
Mortgage Loan described below, for the reason indicated.
Mortgagor's Name, Address & Zip Code:
-------------------------------------
Mortgage Loan Number:
---------------------
Send Custodial File to:
-----------------------
Reason for Requesting Documents (check one)
-------------------------------------------
_______ 1. Mortgage Loan Paid in Full. (The Company hereby certifies
that all amounts received in connection therewith have been
credited to the Collection Account as provided in the Trust
Agreement.)
_______ 2. Mortgage Loan Repurchase Pursuant to Section 2.05 of the
Trust Agreement, the Master Seller's Warranties and Servicing
Agreement, the Depositor Assignment Agreement or the Purchase
Assignment Agreement. (The Company hereby certifies that the
repurchase price has been credited to the Collection Account
as provided in the Trust Agreement.)
_______ 3. Mortgage Loan Liquidated by _________________. (The Company
hereby certifies that all proceeds of foreclosure, insurance,
condemnation or other liquidation have been finally received
and credited to the Collection Account pursuant to the Pooling
and Servicing Agreement.)
_______ 4. Mortgage Loan in Foreclosure.
_______ 5. Other (explain).
If box 1, 2 or 3 above is checked, and if all or part of the
Custodial File was previously released to us, please release to us our previous
request and receipt on file with you, as well as any additional documents in
your possession relating to the specified Mortgage Loan.
If box 4 or 5 above is checked, upon our return of all of the above
documents to you as the Trustee, please acknowledge your receipt by signing in
the space indicated below, and returning this form, if requested.
XXXXX FARGO BANK, N.A.
By:_____________________________________
Name:
Title:
Date:
