EXHIBIT 4
GS MORTGAGE SECURITIES CORP.,
Depositor,
OCWEN LOAN SERVICING, LLC,
Servicer,
XXXXX FARGO BANK, N.A.,
Master Servicer and Securities Administrator,
DEUTSCHE BANK NATIONAL TRUST COMPANY
Custodian,
and
LASALLE BANK NATIONAL ASSOCIATION,
Trustee
------------------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2005
------------------------------------------------------------
GSAMP TRUST 2005-AHL2
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-AHL2
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans...............................
Section 2.02 Acceptance by the Custodian of the Mortgage Loans..........
Section 2.03 Representations, Warranties and Covenants of the
Servicer and the Custodian..............................
Section 2.04 [Reserved].................................................
Section 2.05 Execution and Delivery of Certificates.....................
Section 2.06 REMIC Matters..............................................
Section 2.07 Representations and Warranties of the Depositor............
Section 2.08 Enforcement of Purchaser and Responsible Party
Obligations.............................................
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans.........................
Section 3.02 Subservicing Agreements between the Servicer and
Subservicer.............................................
Section 3.03 Successor Subservicers.....................................
Section 3.04 Liability of the Servicer..................................
Section 3.05 No Contractual Relationship between Subservicers, the
Trustee and the Master Servicer.........................
Section 3.06 Assumption or Termination of Subservicing Agreements by
Master Servicer.........................................
Section 3.07 Collection of Certain Mortgage Loan Payments...............
Section 3.08 Subservicing Accounts......................................
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.........................................
Section 3.10 Collection Account.........................................
Section 3.11 Withdrawals from the Collection Account....................
Section 3.12 Investment of Funds in the Collection Account and the
Distribution Account....................................
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions
and Fidelity Coverage...................................
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption Agreements..
Section 3.15 Realization upon Defaulted Mortgage Loans..................
Section 3.16 Release of Mortgage Files..................................
Section 3.17 Title, Conservation and Disposition of REO Property........
Section 3.18 Notification of Adjustments................................
Section 3.19 Access to Certain Documentation and Information
Regarding the Mortgage Loans............................
Section 3.20 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Trustee.....................
Section 3.21 Servicing Compensation.....................................
Section 3.22 Annual Statement as to Compliance..........................
Section 3.23 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.........................
Section 3.24 Master Servicer to Act as Servicer.........................
Section 3.25 Compensating Interest......................................
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act...................
Section 3.27 Excess Reserve Fund Account; Distribution Account..........
Section 3.28 Optional Purchase of Delinquent Mortgage Loans.............
Section 3.29 Back-up Certification......................................
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances...................................................
Section 4.02 Priorities of Distribution.................................
Section 4.03 Monthly Statements to Certificateholders...................
Section 4.04 Certain Matters Relating to the Determination of LIBOR.....
Section 4.05 Allocation of Applied Realized Loss Amounts................
Section 4.06 Supplemental Interest Trust................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates...........................................
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates................................
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates..........
Section 5.04 Persons Deemed Owners......................................
Section 5.05 Access to List of Certificateholders' Names and Addresses..
Section 5.06 Maintenance of Office or Agency............................
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.01 Respective Liabilities of the Depositor and the Servicer...
Section 6.02 Merger or Consolidation of the Depositor or the Servicer...
Section 6.03 Limitation on Liability of the Depositor, the Servicer
and Others..............................................
Section 6.04 Limitation on Resignation of the Servicer..................
Section 6.05 Additional Indemnification by the Servicer; Third Party
Claims..................................................
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default..........................................
Section 7.02 Master Servicer to Act; Appointment of Successor Servicer..
Section 7.03 Notification to Certificateholders.........................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIAN
Section 8.01 Duties of the Trustee......................................
Section 8.02 Certain Matters Affecting the Custodian and the Trustee....
Section 8.03 Trustee and Custodian Not Liable for Certificates or
Mortgage Loans..........................................
Section 8.04 Trustee May Own Certificates...............................
Section 8.05 Trustee's and Custodian's Fees, Indemnification and
Expenses................................................
Section 8.06 Eligibility Requirements for the Trustee...................
Section 8.07 Resignation and Removal of the Trustee.....................
Section 8.08 Successor Trustee..........................................
Section 8.09 Merger or Consolidation of the Trustee.....................
Section 8.10 Appointment of Co-Trustee or Separate Trustee..............
Section 8.11 Tax Matters................................................
Section 8.12 Periodic Filings...........................................
Section 8.13 Tax Treatment of Upper-Tier Carry Forward Amounts and
Basis Risk Carry Forward Amounts........................
Section 8.14 Custodial Responsibilities.................................
Section 8.15 Limitations on Custodial Responsibilities..................
ARTICLE IX
ADMINISTRATION OF THE MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of Servicer's
Obligations.............................................
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance...............................................
Section 9.03 Representations and Warranties of the Master Servicer......
Section 9.04 Master Servicer Events of Default..........................
Section 9.05 Waiver of Default..........................................
Section 9.06 Successor to the Master Servicer...........................
Section 9.07 Compensation of the Master Servicer........................
Section 9.08 Merger or Consolidation....................................
Section 9.09 Resignation of the Master Servicer.........................
Section 9.10 Assignment or Delegation of Duties by the Master Servicer..
Section 9.11 Limitation on Liability of the Master Servicer.............
Section 9.12 Indemnification; Third Party Claims........................
Section 9.13 Annual Statement as to Compliance..........................
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator.........................
Section 10.02 Certain Matters Affecting the Securities Administrator.....
Section 10.03 Securities Administrator Not Liable for Certificates or
Mortgage Loans..........................................
Section 10.04 Securities Administrator May Own Certificates..............
Section 10.05 Securities Administrator's Fees and Expenses...............
Section 10.06 Eligibility Requirements for Securities Administrator......
Section 10.07 Resignation and Removal of Securities Administrator........
Section 10.08 Successor Securities Administrator.........................
Section 10.09 Merger or Consolidation of Securities Administrator........
Section 10.10 Assignment or Delegation of Duties by the Securities
Administrator...........................................
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the Mortgage
Loans...................................................
Section 11.02 Final Distribution on the Certificates.....................
Section 11.03 Additional Termination Requirements........................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment..................................................
Section 12.02 Recordation of Agreement; Counterparts.....................
Section 12.03 Governing Law..............................................
Section 12.04 Intention of Parties.......................................
Section 12.05 Notices....................................................
Section 12.06 Severability of Provisions.................................
Section 12.07 Assignment; Sales; Advance Facilities......................
Section 12.08 Limitation on Rights of Certificateholders.................
Section 12.09 Inspection and Audit Rights................................
Section 12.10 Certificates Nonassessable and Fully Paid..................
Section 12.11 Waiver of Jury Trial.......................................
Section 12.12 Limitation of Damages......................................
Section 12.13 Rights of the Swap Provider................................
Section 12.14 No Solicitation............................................
SCHEDULES
Exhibit I Mortgage Loan Schedule
Exhibit II Representations and Warranties of Ocwen, as Servicer
Exhibit III Representations and Warranties of Deutsche Bank National Trust
Company, as Custodian
EXHIBITS
Exhibit A-1 Form of Class A, Class M and Class B Certificates
Exhibit B Form of Class P Certificate
Exhibit C-1 Form of Class R-1 Certificate
Exhibit C-2 Form of Class R-2 Certificate
Exhibit C-3 Form of Class R-3 Certificate
Exhibit D Form of Class C Certificate
Exhibit E Form of Class X Certificate
Exhibit F Form of Initial Certification of Custodian
Exhibit G Form of Document Certification and Exception Report of Custodian
Exhibit H Form of Residual Transfer Affidavit
Exhibit I Form of Transferor Certificate
Exhibit J Form of Rule 144A Letter
Exhibit K Form of Investment Letter (Non-Rule 144A)
Exhibit L Form of Request for Release
Exhibit M Contents of Each Mortgage File
Exhibit N-1 Servicer Reporting Requirements
Exhibit N-2 Standard File Layout
Exhibit N-3 Standard File Layout for Delinquency Reporting
Exhibit N-4 Form 332
Exhibit O Form of Certification to be provided with Form 10-K
Exhibit P Form of Back-Up Certification
Exhibit Q Responsible Party Agreements
THIS POOLING AND SERVICING AGREEMENT, dated as of December 1, 2005,
is among GS MORTGAGE SECURITIES CORP., a Delaware corporation (the "Depositor"),
OCWEN LOAN SERVICING, LLC, a Delaware limited liability company (the
"Servicer"), XXXXX FARGO BANK, N.A., a national banking association, as master
servicer (in such capacity, the "Master Servicer") and as securities
administrator (in such capacity, the "Securities Administrator"), DEUTSCHE BANK
NATIONAL TRUST COMPANY, a national banking association, as custodian (the
"Custodian"), and LASALLE BANK NATIONAL ASSOCIATION, a national banking
association, as trustee (the "Trustee").
W I T N E S S E T H:
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Securities Administrator shall elect that five segregated asset
pools within the Trust Fund (exclusive of (i) the Prepayment Premiums, (ii) the
Interest Rate Swap Agreement, (iii) the Supplemental Interest Trust, (iv) the
Excess Reserve Fund Account, and (v) the right of the LIBOR Certificates to
receive Upper-Tier Carry Forward Amounts and, without duplication, Basis Risk
Carry Forward Amounts and the obligation to pay Class IO Shortfalls) be treated
for federal income tax purposes as comprising five REMICs (each, a "Trust REMIC"
or, in the alternative, Pooling-Tier REMIC-1, Pooling-Tier REMIC-2, the
Lower-Tier REMIC, the Upper-Tier REMIC and the Class X REMIC, respectively). The
Class X Interest and each Class of LIBOR Certificates, other than the right of
each Class of LIBOR Certificates to receive Upper-Tier Carry Forward Amounts
and, without duplication, Basis Risk Carry Forward Amounts and the obligation to
pay Class IO Shortfalls, represents ownership of a regular interest in a REMIC
for purposes of the REMIC Provisions.
The Class R-3 Certificates represent ownership of the sole class of
residual interest in the Class X REMIC. The Class R-2 Certificates represent
ownership of the sole class of residual interest in Pooling-Tier REMIC-1 for
purposes of the REMIC Provisions. The Class R-1 Certificates represent ownership
of the sole class of residual interest in each of Pooling-Tier REMIC-2, the
Lower-Tier REMIC and the Upper-Tier REMIC for purposes of the REMIC Provisions.
The Start-up Day for each REMIC described herein is the Closing
Date. The latest possible maturity date for each Certificate is the latest date
referenced in Section 2.06.
The Class X REMIC shall hold as assets the Class UT-X Interest and
the Class UT-IO Interest as set out below. The Upper-Tier REMIC shall hold as
assets the several classes of uncertificated Lower-Tier Regular Interests, set
out below. The Lower-Tier REMIC shall hold as assets the several classes of
uncertificated Pooling-Tier REMIC-2 Regular Interests. Pooling-Tier REMIC-2
shall hold as assets the several classes of uncertificated Pooling-Tier REMIC-1
Regular Interests. Pooling-Tier REMIC-1 shall hold as assets the assets of the
Trust Fund (exclusive of (i) the Prepayment Premiums, (ii) the Interest Rate
Swap Agreement, (iii) the Supplemental Interest Trust, (iv) the Excess Reserve
Fund Account, and (v) the right of the LIBOR Certificates to receive Upper-Tier
Carry Forward Amounts and, without duplication, Basis Risk Carry Forward Amounts
and the obligation to pay Class IO Shortfalls).
For federal income tax purposes, each Class of LIBOR Certificates,
the Class X Certificates and the Class P Certificates represent beneficial
ownership of portions of the Trust Fund which shall be treated as a grantor
trust as more fully described in Section 8.11.
Pooling-Tier REMIC-1
Pooling-Tier REMIC-1 shall issue the following interests in
Pooling-Tier REMIC-1, and each such interest is hereby designated as a regular
interest in the Pooling-Tier REMIC-1. Pooling-Tier REMIC-1 Interests with an "I"
in their designation shall relate to Loan Group I and Pooling-Tier REMIC-1
Interests with a "II" in their designation shall relate to Loan Group II.
Pooling-Tier REMIC-1 shall also issue the Class R-2 Certificates. The Class R-2
Certificates are hereby designated as the sole class of residual interest in
Pooling-Tier REMIC-1. The Class R-2 Certificates shall have a $100 Class
Certificate Balance and shall have no interest rate.
Initial
Pooling-Tier
Pooling-Tier REMIC-1 Pooling-Tier REMIC-1 REMIC-1 Principal
Interest Interest Rate Amount
-------------------- -------------------- -----------------
Class PT1-I-1 (1) $7,759,029.65
Class PT1-I-2A (2) $1,350,320.92
Class PT1-I-2B (3) $1,350,320.92
Class PT1-I-3A (2) $1,664,284.10
Class PT1-I-3B (3) $1,664,284.10
Class PT1-I-4A (2) $1,975,495.42
Class PT1-I-4B (3) $1,975,495.42
Class PT1-I-5A (2) $2,280,797.23
Class PT1-I-5B (3) $2,280,797.23
Class PT1-I-6A (2) $2,576,915.40
Class PT1-I-6B (3) $2,576,915.40
Class PT1-I-7A (2) $2,860,503.42
Class PT1-I-7B (3) $2,860,503.42
Class PT1-I-8A (2) $3,128,192.59
Class PT1-I-8B (3) $3,128,192.59
Class PT1-I-9A (2) $3,376,646.56
Class PT1-I-9B (3) $3,376,646.56
Class PT1-I-10A (2) $3,602,624.32
Class PT1-I-10B (3) $3,602,624.32
Class PT1-I-11A (2) $3,803,047.90
Class PT1-I-11B (3) $3,803,047.90
Class PT1-I-12A (2) $3,580,486.81
Class PT1-I-12B (3) $3,580,486.81
Class PT1-I-13A (2) $3,371,043.56
Class PT1-I-13B (3) $3,371,043.56
Class PT1-I-14A (2) $3,173,941.00
Class PT1-I-14B (3) $3,173,941.00
Class PT1-I-15A (2) $2,988,447.52
Class PT1-I-15B (3) $2,988,447.52
Class PT1-I-16A (2) $2,813,875.68
Class PT1-I-16B (3) $2,813,875.68
Class PT1-I-17A (2) $2,649,578.73
Class PT1-I-17B (3) $2,649,578.73
Class PT1-I-18A (2) $2,494,947.90
Class PT1-I-18B (3) $2,494,947.90
Class PT1-I-19A (2) $2,349,411.72
Class PT1-I-19B (3) $2,349,411.72
Class PT1-I-20A (2) $2,212,431.41
Class PT1-I-20B (3) $2,212,431.41
Class PT1-I-21A (2) $2,083,501.25
Class PT1-I-21B (3) $2,083,501.25
Class PT1-I-22A (2) $1,962,145.15
Class PT1-I-22B (3) $1,962,145.15
Class PT1-I-23A (2) $20,467,258.35
Class PT1-I-23B (3) $20,467,258.35
Class PT1-I-24A (2) $ 359,898.02
Class PT1-I-24B (3) $ 359,898.02
Class PT1-I-25A (2) $ 342,288.49
Class PT1-I-25B (3) $ 342,288.49
Class PT1-I-26A (2) $ 325,555.40
Class PT1-I-26B (3) $ 325,555.40
Class PT1-I-27A (2) $ 309,654.43
Class PT1-I-27B (3) $ 309,654.43
Class PT1-I-28A (2) $ 294,543.21
Class PT1-I-28B (3) $ 294,543.21
Class PT1-I-29A (2) $ 280,182.28
Class PT1-I-29B (3) $ 280,182.28
Class PT1-I-30A (2) $ 266,532.93
Class PT1-I-30B (3) $ 266,532.93
Class PT1-I-31A (2) $ 253,559.76
Class PT1-I-31B (3) $ 253,559.76
Class PT1-I-32A (2) $ 241,228.49
Class PT1-I-32B (3) $ 241,228.49
Class PT1-I-33A (2) $ 229,506.62
Class PT1-I-33B (3) $ 229,506.62
Class PT1-I-34A (2) $ 218,363.62
Class PT1-I-34B (3) $ 218,363.62
Class PT1-I-35A (2) $ 662,755.25
Class PT1-I-35B (3) $ 662,755.25
Class PT1-I-36A (2) $ 191,579.42
Class PT1-I-36B (3) $ 191,579.42
Class PT1-I-37A (2) $ 179,225.07
Class PT1-I-37B (3) $ 179,225.07
Class PT1-I-38A (2) $ 167,972.01
Class PT1-I-38B (3) $ 167,972.01
Class PT1-I-39A (2) $ 146,781.23
Class PT1-I-39B (3) $ 146,781.23
Class PT1-I-40A (2) $ 139,791.98
Class PT1-I-40B (3) $ 139,791.98
Class PT1-I-41A (2) $ 133,145.39
Class PT1-I-41B (3) $ 133,145.39
Class PT1-I-42A (2) $ 126,824.14
Class PT1-I-42B (3) $ 126,824.14
Class PT1-I-43A (2) $ 120,811.53
Class PT1-I-43B (3) $ 120,811.53
Class PT1-I-44A (2) $ 115,091.63
Class PT1-I-44B (3) $ 115,091.63
Class PT1-I-45A (2) $ 109,650.02
Class PT1-I-45B (3) $ 109,650.02
Class PT1-I-46A (2) $ 104,472.26
Class PT1-I-46B (3) $ 104,472.26
Class PT1-I-47A (2) $ 99,545.16
Class PT1-I-47B (3) $ 99,545.16
Class PT1-I-48A (2) $ 94,856.10
Class PT1-I-48B (3) $ 94,856.10
Class PT1-I-49A (2) $ 90,393.26
Class PT1-I-49B (3) $ 90,393.26
Class PT1-I-50A (2) $ 86,145.08
Class PT1-I-50B (3) $ 86,145.08
Class PT1-I-51A (2) $ 82,101.26
Class PT1-I-51B (3) $ 82,101.26
Class PT1-I-52A (2) $ 78,251.15
Class PT1-I-52B (3) $ 78,251.15
Class PT1-I-53A (2) $ 74,585.50
Class PT1-I-53B (3) $ 74,585.50
Class PT1-I-54A (2) $ 71,095.05
Class PT1-I-54B (3) $ 71,095.05
Class PT1-I-55A (2) $ 79,621.76
Class PT1-I-55B (3) $ 79,621.76
Class PT1-I-56A (2) $ 178,476.91
Class PT1-I-56B (3) $ 178,476.91
Class PT1-I-57A (2) $ 166,779.93
Class PT1-I-57B (3) $ 166,779.93
Class PT1-I-58A (2) $ 155,887.89
Class PT1-I-58B (3) $ 155,887.89
Class PT1-I-59A (2) $ 145,743.25
Class PT1-I-59B (3) $ 145,743.25
Class PT1-I-60A (2) $ 136,480.22
Class PT1-I-60B (3) $ 136,480.22
Class PT1-I-61A (2) $ 602,530.53
Class PT1-I-61B (3) $ 602,530.53
Class PT1-II-1 (4) $17,794,903.30
Class PT1-II-2A (5) $3,096,846.08
Class PT1-II-2B (6) $3,096,846.08
Class PT1-II-3A (5) $3,816,893.90
Class PT1-II-3B (6) $3,816,893.90
Class PT1-II-4A (5) $4,530,630.58
Class PT1-II-4B (6) $4,530,630.58
Class PT1-II-5A (5) $5,230,814.27
Class PT1-II-5B (6) $5,230,814.27
Class PT1-II-6A (5) $5,909,936.10
Class PT1-II-6B (6) $5,909,936.10
Class PT1-II-7A (5) $6,560,321.08
Class PT1-II-7B (6) $6,560,321.08
Class PT1-II-8A (5) $7,174,243.41
Class PT1-II-8B (6) $7,174,243.41
Class PT1-II-9A (5) $7,744,051.44
Class PT1-II-9B (6) $7,744,051.44
Class PT1-II-10A (5) $8,262,312.18
Class PT1-II-10B (6) $8,262,312.18
Class PT1-II-11A (5) $8,721,966.60
Class PT1-II-11B (6) $8,721,966.60
Class PT1-II-12A (5) $8,211,541.69
Class PT1-II-12B (6) $8,211,541.69
Class PT1-II-13A (5) $7,731,201.44
Class PT1-II-13B (6) $7,731,201.44
Class PT1-II-14A (5) $7,279,163.50
Class PT1-II-14B (6) $7,279,163.50
Class PT1-II-15A (5) $6,853,749.98
Class PT1-II-15B (6) $6,853,749.98
Class PT1-II-16A (5) $6,453,384.32
Class PT1-II-16B (6) $6,453,384.32
Class PT1-II-17A (5) $6,076,583.27
Class PT1-II-17B (6) $6,076,583.27
Class PT1-II-18A (5) $5,721,950.60
Class PT1-II-18B (6) $5,721,950.60
Class PT1-II-19A (5) $5,388,175.78
Class PT1-II-19B (6) $5,388,175.78
Class PT1-II-20A (5) $5,074,023.09
Class PT1-II-20B (6) $5,074,023.09
Class PT1-II-21A (5) $4,778,332.75
Class PT1-II-21B (6) $4,778,332.75
Class PT1-II-22A (5) $4,500,012.85
Class PT1-II-22B (6) $4,500,012.85
Class PT1-II-23A (5) $46,939,914.65
Class PT1-II-23B (6) $46,939,914.65
Class PT1-II-24A (5) $ 825,395.48
Class PT1-II-24B (6) $ 825,395.48
Class PT1-II-25A (5) $ 785,009.51
Class PT1-II-25B (6) $ 785,009.51
Class PT1-II-26A (5) $ 746,633.60
Class PT1-II-26B (6) $ 746,633.60
Class PT1-II-27A (5) $ 710,166.07
Class PT1-II-27B (6) $ 710,166.07
Class PT1-II-28A (5) $ 675,509.79
Class PT1-II-28B (6) $ 675,509.79
Class PT1-II-29A (5) $ 642,574.22
Class PT1-II-29B (6) $ 642,574.22
Class PT1-II-30A (5) $ 611,270.57
Class PT1-II-30B (6) $ 611,270.57
Class PT1-II-31A (5) $ 581,517.74
Class PT1-II-31B (6) $ 581,517.74
Class PT1-II-32A (5) $ 553,237.01
Class PT1-II-32B (6) $ 553,237.01
Class PT1-II-33A (5) $ 526,353.88
Class PT1-II-33B (6) $ 526,353.88
Class PT1-II-34A (5) $ 500,798.38
Class PT1-II-34B (6) $ 500,798.38
Class PT1-II-35A (5) $1,519,972.75
Class PT1-II-35B (6) $1,519,972.75
Class PT1-II-36A (5) $ 439,371.08
Class PT1-II-36B (6) $ 439,371.08
Class PT1-II-37A (5) $ 411,037.43
Class PT1-II-37B (6) $ 411,037.43
Class PT1-II-38A (5) $ 385,229.49
Class PT1-II-38B (6) $ 385,229.49
Class PT1-II-39A (5) $ 336,630.27
Class PT1-II-39B (6) $ 336,630.27
Class PT1-II-40A (5) $ 320,601.02
Class PT1-II-40B (6) $ 320,601.02
Class PT1-II-41A (5) $ 305,357.61
Class PT1-II-41B (6) $ 305,357.61
Class PT1-II-42A (5) $ 290,860.36
Class PT1-II-42B (6) $ 290,860.36
Class PT1-II-43A (5) $ 277,070.97
Class PT1-II-43B (6) $ 277,070.97
Class PT1-II-44A (5) $ 263,952.87
Class PT1-II-44B (6) $ 263,952.87
Class PT1-II-45A (5) $ 251,472.98
Class PT1-II-45B (6) $ 251,472.98
Class PT1-II-46A (5) $ 239,598.24
Class PT1-II-46B (6) $ 239,598.24
Class PT1-II-47A (5) $ 228,298.34
Class PT1-II-47B (6) $ 228,298.34
Class PT1-II-48A (5) $ 217,544.40
Class PT1-II-48B (6) $ 217,544.40
Class PT1-II-49A (5) $ 207,309.24
Class PT1-II-49B (6) $ 207,309.24
Class PT1-II-50A (5) $ 197,566.42
Class PT1-II-50B (6) $ 197,566.42
Class PT1-II-51A (5) $ 188,292.24
Class PT1-II-51B (6) $ 188,292.24
Class PT1-II-52A (5) $ 179,462.35
Class PT1-II-52B (6) $ 179,462.35
Class PT1-II-53A (5) $ 171,055.50
Class PT1-II-53B (6) $ 171,055.50
Class PT1-II-54A (5) $ 163,050.45
Class PT1-II-54B (6) $ 163,050.45
Class PT1-II-55A (5) $ 182,605.74
Class PT1-II-55B (6) $ 182,605.74
Class PT1-II-56A (5) $ 409,321.59
Class PT1-II-56B (6) $ 409,321.59
Class PT1-II-57A (5) $ 382,495.57
Class PT1-II-57B (6) $ 382,495.57
Class PT1-II-58A (5) $ 357,515.61
Class PT1-II-58B (6) $ 357,515.61
Class PT1-II-59A (5) $ 334,249.75
Class PT1-II-59B (6) $ 334,249.75
Class PT1-II-60A (5) $ 313,005.78
Class PT1-II-60B (6) $ 313,005.78
Class PT1-II-61A (5) $1,381,852.47
Class PT1-II-61B (6) $1,381,852.47
Class PT1-R (7) $ 100.00
-------------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group I WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the product of
(i) 2 and (ii) the Pooling-Tier REMIC-1 Loan Group I WAC Rate, subject to
a maximum rate of 9.7200%.
(3) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling-Tier REMIC-1 Loan
Group I WAC Rate over (B) 9.7200%.
(4) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group II WAC Rate.
(5) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the product of
(i) 2 and (ii) the Pooling-Tier REMIC-1 Loan Group II WAC Rate, subject to
a maximum rate of 9.7200%.
(6) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling-Tier REMIC-1 Loan
Group II WAC Rate over (B) 9.7200%.
(7) The Class PT1-R Interest shall not bear interest.
On each Distribution Date, the Securities Administrator shall first
pay from the Trust Fund and charge as an expense of Pooling-Tier REMIC-1 all
expenses of the Trust for such Distribution Date. Such expense, other than
Servicing Fee and Master Servicing Fee, shall be allocated in the same manner as
Realized Losses.
On each Distribution Date, the interest distributable in respect of
the Mortgage Loans from the related Loan Group for such Distribution Date shall
be deemed to be distributed to the Pooling-Tier REMIC-1 Regular Interests at the
rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group I Mortgage Loans shall be
allocated to the Class R-2 Certificates pursuant to Section 4.02(a)(iii) until
its Class Certificate Balance is reduced to zero, then to the outstanding
Pooling-Tier REMIC-1 Regular Interest relating to Loan Group I with the lowest
numerical denomination (other than the Class PT1-1 Interest) until the
Pooling-Tier REMIC-1 Principal Amount of such interest is reduced to zero,
provided that, with respect to Pooling-Tier REMIC-1 Regular Interests relating
to Loan Group I with the same numerical denomination, such Realized Losses and
payments of principal shall be allocated pro rata between such Pooling-Tier
REMIC-1 Regular Interests, and then to the Class PT1-1 Interest until the
Pooling-Tier REMIC-1 Principal Amount of such interest is reduced to zero.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group II Mortgage Loans shall be
allocated to the outstanding Pooling-Tier REMIC-1 Regular Interest relating to
Loan Group II with the lowest numerical denomination (other than the Class
PT1-II-1 Interest) until the Pooling-Tier REMIC-1 Principal Amount of such
interest is reduced to zero, provided that, with respect to Pooling-Tier REMIC-1
Regular Interests relating to Loan Group II with the same numerical
denomination, such Realized Losses and payments of principal shall be allocated
pro rata between such Pooling-Tier REMIC-1 Regular Interests, and then to the
Class PT1-II-1 Interest until the Pooling-Tier REMIC-1 Principal Amount of such
interest is reduced to zero.
Pooling-Tier REMIC-2
Pooling-Tier REMIC-2 shall issue the following interests in
Pooling-Tier REMIC-2, and each such interest, other than the Class PT2-R
Interest, is hereby designated as a regular interest in Pooling-Tier REMIC-2.
Pooling-Tier REMIC-2 Interests with an "I" in their designation shall relate to
Loan Group I and Pooling Tier REMIC-2 Interests with a "II" in their designation
shall relate to Loan Group II. The Class PT2-R Interest is hereby designated as
the sole class of residual interest in Pooling-Tier REMIC-2 and shall be
represented by the Class R-1 Certificates.
Pooling-Tier Pooling-Tier Corresponding Corresponding Corresponding
Pooling-Tier REMIC-2 REMIC-2 REMIC-2 Initial Pooling-Tier REMIC-2 Pooling-Tier REMIC-1 Scheduled Crossover
Interest Interest Rate Principal Amount IO Regular Interest Distribution Date
-------------------- ------------- ---------------- -------------------- -------------------- --------------------
Class PT2-I-1 (1) $ 7,758,929.65 N/A N/A N/A
Class PT2-I-2A (2) $ 1,350,320.92 Class PT2-I-IO-2 N/A N/A
Class PT2-I-2B (3) $ 1,350,320.92 N/A N/A N/A
Class PT2-I-3A (2) $ 1,664,284.10 Class PT2-I-IO-3 N/A N/A
Class PT2-I-3B (3) $ 1,664,284.10 N/A N/A N/A
Class PT2-I-4A (2) $ 1,975,495.42 Class PT2-I-IO-4 N/A N/A
Class PT2-I-4B (3) $ 1,975,495.42 N/A N/A N/A
Class PT2-I-5A (2) $ 2,280,797.23 Class PT2-I-IO-5 N/A N/A
Class PT2-I-5B (3) $ 2,280,797.23 N/A N/A N/A
Class PT2-I-6A (2) $ 2,576,915.40 Class PT2-I-IO-6 N/A N/A
Class PT2-I-6B (3) $ 2,576,915.40 N/A N/A N/A
Class PT2-I-7A (2) $ 2,860,503.42 Class PT2-I-IO-7 N/A N/A
Class PT2-I-7B (3) $ 2,860,503.42 N/A N/A N/A
Class PT2-I-8A (2) $ 3,128,192.59 Class PT2-I-IO-8 N/A N/A
Class PT2-I-8B (3) $ 3,128,192.59 N/A N/A N/A
Class PT2-I-9A (2) $ 3,376,646.56 Class PT2-I-IO-9 N/A N/A
Class PT2-I-9B (3) $ 3,376,646.56 N/A N/A N/A
Class PT2-I-10A (2) $ 3,602,624.32 Class PT2-I-IO-10 N/A N/A
Class PT2-I-10B (3) $ 3,602,624.32 N/A N/A N/A
Class PT2-I-11A (2) $ 3,803,047.90 Class PT2-I-IO-11 N/A N/A
Class PT2-I-11B (3) $ 3,803,047.90 N/A N/A N/A
Class PT2-I-12A (2) $ 3,580,486.81 Class PT2-I-IO-12 N/A N/A
Class PT2-I-12B (3) $ 3,580,486.81 N/A N/A N/A
Class PT2-I-13A (2) $ 3,371,043.56 Class PT2-I-IO-13 N/A N/A
Class PT2-I-13B (3) $ 3,371,043.56 N/A N/A N/A
Class PT2-I-14A (2) $ 3,173,941.00 Class PT2-I-IO-14 N/A N/A
Class PT2-I-14B (3) $ 3,173,941.00 N/A N/A N/A
Class PT2-I-15A (2) $ 2,988,447.52 Class PT2-I-IO-15 N/A N/A
Class PT2-I-15B (3) $ 2,988,447.52 N/A N/A N/A
Class PT2-I-16A (2) $ 2,813,875.68 Class PT2-I-IO-16 N/A N/A
Class PT2-I-16B (3) $ 2,813,875.68 N/A N/A N/A
Class PT2-I-17A (2) $ 2,649,578.73 Class PT2-I-IO-17 N/A N/A
Class PT2-I-17B (3) $ 2,649,578.73 N/A N/A N/A
Class PT2-I-18A (2) $ 2,494,947.90 Class PT2-I-IO-18 N/A N/A
Class PT2-I-18B (3) $ 2,494,947.90 N/A N/A N/A
Class PT2-I-19A (2) $ 2,349,411.72 Class PT2-I-IO-19 N/A N/A
Class PT2-I-19B (3) $ 2,349,411.72 N/A N/A N/A
Class PT2-I-20A (2) $ 2,212,431.41 Class PT2-I-IO-20 N/A N/A
Class PT2-I-20B (3) $ 2,212,431.41 N/A N/A N/A
Class PT2-I-21A (2) $ 2,083,501.25 Class PT2-I-IO-21 N/A N/A
Class PT2-I-21B (3) $ 2,083,501.25 N/A N/A N/A
Class PT2-I-22A (2) $ 1,962,145.15 Class PT2-I-IO-22 N/A N/A
Class PT2-I-22B (3) $ 1,962,145.15 N/A N/A N/A
Class PT2-I-23A (2) $ 20,467,258.35 Class PT2-I-IO-23 N/A N/A
Class PT2-I-23B (3) $ 20,467,258.35 N/A N/A N/A
Class PT2-I-24A (2) $ 359,898.02 Class PT2-I-IO-24 N/A N/A
Class PT2-I-24B (3) $ 359,898.02 N/A N/A N/A
Class PT2-I-25A (2) $ 342,288.49 Class PT2-I-IO-25 N/A N/A
Class PT2-I-25B (3) $ 342,288.49 N/A N/A N/A
Class PT2-I-26A (2) $ 325,555.40 Class PT2-I-IO-26 N/A N/A
Class PT2-I-26B (3) $ 325,555.40 N/A N/A N/A
Class PT2-I-27A (2) $ 309,654.43 Class PT2-I-IO-27 N/A N/A
Class PT2-I-27B (3) $ 309,654.43 N/A N/A N/A
Class PT2-I-28A (2) $ 294,543.21 Class PT2-I-IO-28 N/A N/A
Class PT2-I-28B (3) $ 294,543.21 N/A N/A N/A
Class PT2-I-29A (2) $ 280,182.28 Class PT2-I-IO-29 N/A N/A
Class PT2-I-29B (3) $ 280,182.28 N/A N/A N/A
Class PT2-I-30A (2) $ 266,532.93 Class PT2-I-IO-30 N/A N/A
Class PT2-I-30B (3) $ 266,532.93 N/A N/A N/A
Class PT2-I-31A (2) $ 253,559.76 Class PT2-I-IO-31 N/A N/A
Class PT2-I-31B (3) $ 253,559.76 N/A N/A N/A
Class PT2-I-32A (2) $ 241,228.49 Class PT2-I-IO-32 N/A N/A
Class PT2-I-32B (3) $ 241,228.49 N/A N/A N/A
Class PT2-I-33A (2) $ 229,506.62 Class PT2-I-IO-33 N/A N/A
Class PT2-I-33B (3) $ 229,506.62 N/A N/A N/A
Class PT2-I-34A (2) $ 218,363.62 Class PT2-I-IO-34 N/A N/A
Class PT2-I-34B (3) $ 218,363.62 N/A N/A N/A
Class PT2-I-35A (2) $ 662,755.25 Class PT2-I-IO-35 N/A N/A
Class PT2-I-35B (3) $ 662,755.25 N/A N/A N/A
Class PT2-I-36A (2) $ 191,579.42 Class PT2-I-IO-36 N/A N/A
Class PT2-I-36B (3) $ 191,579.42 N/A N/A N/A
Class PT2-I-37A (2) $ 179,225.07 Class PT2-I-IO-37 N/A N/A
Class PT2-I-37B (3) $ 179,225.07 N/A N/A N/A
Class PT2-I-38A (2) $ 167,972.01 Class PT2-I-IO-38 N/A N/A
Class PT2-I-38B (3) $ 167,972.01 N/A N/A N/A
Class PT2-I-39A (2) $ 146,781.23 Class PT2-I-IO-39 N/A N/A
Class PT2-I-39B (3) $ 146,781.23 N/A N/A N/A
Class PT2-I-40A (2) $ 139,791.98 Class PT2-I-IO-40 N/A N/A
Class PT2-I-40B (3) $ 139,791.98 N/A N/A N/A
Class PT2-I-41A (2) $ 133,145.39 Class PT2-I-IO-41 N/A N/A
Class PT2-I-41B (3) $ 133,145.39 N/A N/A N/A
Class PT2-I-42A (2) $ 126,824.14 Class PT2-I-IO-42 N/A N/A
Class PT2-I-42B (3) $ 126,824.14 N/A N/A N/A
Class PT2-I-43A (2) $ 120,811.53 Class PT2-I-IO-43 N/A N/A
Class PT2-I-43B (3) $ 120,811.53 N/A N/A N/A
Class PT2-I-44A (2) $ 115,091.63 Class PT2-I-IO-44 N/A N/A
Class PT2-I-44B (3) $ 115,091.63 N/A N/A N/A
Class PT2-I-45A (2) $ 109,650.02 Class PT2-I-IO-45 N/A N/A
Class PT2-I-45B (3) $ 109,650.02 N/A N/A N/A
Class PT2-I-46A (2) $ 104,472.26 Class PT2-I-IO-46 N/A N/A
Class PT2-I-46B (3) $ 104,472.26 N/A N/A N/A
Class PT2-I-47A (2) $ 99,545.16 Class PT2-I-IO-47 N/A N/A
Class PT2-I-47B (3) $ 99,545.16 N/A N/A N/A
Class PT2-I-48A (2) $ 94,856.10 Class PT2-I-IO-48 N/A N/A
Class PT2-I-48B (3) $ 94,856.10 N/A N/A N/A
Class PT2-I-49A (2) $ 90,393.26 Class PT2-I-IO-49 N/A N/A
Class PT2-I-49B (3) $ 90,393.26 N/A N/A N/A
Class PT2-I-50A (2) $ 86,145.08 Class PT2-I-IO-50 N/A N/A
Class PT2-I-50B (3) $ 86,145.08 N/A N/A N/A
Class PT2-I-51A (2) $ 82,101.26 Class PT2-I-IO-51 N/A N/A
Class PT2-I-51B (3) $ 82,101.26 N/A N/A N/A
Class PT2-I-52A (2) $ 78,251.15 Class PT2-I-IO-52 N/A N/A
Class PT2-I-52B (3) $ 78,251.15 N/A N/A N/A
Class PT2-I-53A (2) $ 74,585.50 Class PT2-I-IO-53 N/A N/A
Class PT2-I-53B (3) $ 74,585.50 N/A N/A N/A
Class PT2-I-54A (2) $ 71,095.05 Class PT2-I-IO-54 N/A N/A
Class PT2-I-54B (3) $ 71,095.05 N/A N/A N/A
Class PT2-I-55A (2) $ 79,621.76 Class PT2-I-IO-55 N/A N/A
Class PT2-I-55B (3) $ 79,621.76 N/A N/A N/A
Class PT2-I-56A (2) $ 178,476.91 Class PT2-I-IO-56 N/A N/A
Class PT2-I-56B (3) $ 178,476.91 N/A N/A N/A
Class PT2-I-57A (2) $ 166,779.93 Class PT2-I-IO-57 N/A N/A
Class PT2-I-57B (3) $ 166,779.93 N/A N/A N/A
Class PT2-I-58A (2) $ 155,887.89 Class PT2-I-IO-58 N/A N/A
Class PT2-I-58B (3) $ 155,887.89 N/A N/A N/A
Class PT2-I-59A (2) $ 145,743.25 Class PT2-I-IO-59 N/A N/A
Class PT2-I-59B (3) $ 145,743.25 N/A N/A N/A
Class PT2-I-60A (2) $ 136,480.22 Class PT2-I-IO-60 N/A N/A
Class PT2-I-60B (3) $ 136,480.22 N/A N/A N/A
Class PT2-I-61A (2) $ 602,530.53 Class PT2-I-IO-61 N/A N/A
Class PT2-I-61B (3) $ 602,530.53 N/A N/A N/A
Class PT2-II-1 (5) $ 17,794,903.30 N/A N/A N/A
Class PT2-II-2A (6) $ 3,096,846.08 Class PT2-II-IO-2 N/A N/A
Class PT2-II-2B (7) $ 3,096,846.08 N/A N/A N/A
Class PT2-II-3A (6) $ 3,816,893.90 Class PT2-II-IO-3 N/A N/A
Class PT2-II-3B (7) $ 3,816,893.90 N/A N/A N/A
Class PT2-II-4A (6) $ 4,530,630.58 Class PT2-II-IO-4 N/A N/A
Class PT2-II-4B (7) $ 4,530,630.58 N/A N/A N/A
Class PT2-II-5A (6) $ 5,230,814.27 Class PT2-II-IO-5 N/A N/A
Class PT2-II-5B (7) $ 5,230,814.27 N/A N/A N/A
Class PT2-II-6A (6) $ 5,909,936.10 Class PT2-II-IO-6 N/A N/A
Class PT2-II-6B (7) $ 5,909,936.10 N/A N/A N/A
Class PT2-II-7A (6) $ 6,560,321.08 Class PT2-II-IO-7 N/A N/A
Class PT2-II-7B (7) $ 6,560,321.08 N/A N/A N/A
Class PT2-II-8A (6) $ 7,174,243.41 Class PT2-II-IO-8 N/A N/A
Class PT2-II-8B (7) $ 7,174,243.41 N/A N/A N/A
Class PT2-II-9A (6) $ 7,744,051.44 Class PT2-II-IO-9 N/A N/A
Class PT2-II-9B (7) $ 7,744,051.44 N/A N/A N/A
Class PT2-II-10A (6) $ 8,262,312.18 Class PT2-II-IO-10 N/A N/A
Class PT2-II-10B (7) $ 8,262,312.18 N/A N/A N/A
Class PT2-II-11A (6) $ 8,721,966.60 Class PT2-II-IO-11 N/A N/A
Class PT2-II-11B (7) $ 8,721,966.60 N/A N/A N/A
Class PT2-II-12A (6) $ 8,211,541.69 Class PT2-II-IO-12 N/A N/A
Class PT2-II-12B (7) $ 8,211,541.69 N/A N/A N/A
Class PT2-II-13A (6) $ 7,731,201.44 Class PT2-II-IO-13 N/A N/A
Class PT2-II-13B (7) $ 7,731,201.44 N/A N/A N/A
Class PT2-II-14A (6) $ 7,279,163.50 Class PT2-II-IO-14 N/A N/A
Class PT2-II-14B (7) $ 7,279,163.50 N/A N/A N/A
Class PT2-II-15A (6) $ 6,853,749.98 Class PT2-II-IO-15 N/A N/A
Class PT2-II-15B (7) $ 6,853,749.98 N/A N/A N/A
Class PT2-II-16A (6) $ 6,453,384.32 Class PT2-II-IO-16 N/A N/A
Class PT2-II-16B (7) $ 6,453,384.32 N/A N/A N/A
Class PT2-II-17A (6) $ 6,076,583.27 Class PT2-II-IO-17 N/A N/A
Class PT2-II-17B (7) $ 6,076,583.27 N/A N/A N/A
Class PT2-II-18A (6) $ 5,721,950.60 Class PT2-II-IO-18 N/A N/A
Class PT2-II-18B (7) $ 5,721,950.60 N/A N/A N/A
Class PT2-II-19A (6) $ 5,388,175.78 Class PT2-II-IO-19 N/A N/A
Class PT2-II-19B (7) $ 5,388,175.78 N/A N/A N/A
Class PT2-II-20A (6) $ 5,074,023.09 Class PT2-II-IO-20 N/A N/A
Class PT2-II-20B (7) $ 5,074,023.09 N/A N/A N/A
Class PT2-II-21A (6) $ 4,778,332.75 Class PT2-II-IO-21 N/A N/A
Class PT2-II-21B (7) $ 4,778,332.75 N/A N/A N/A
Class PT2-II-22A (6) $ 4,500,012.85 Class PT2-II-IO-22 N/A N/A
Class PT2-II-22B (7) $ 4,500,012.85 N/A N/A N/A
Class PT2-II-23A (6) $ 46,939,914.65 Class PT2-II-IO-23 N/A N/A
Class PT2-II-23B (7) $ 46,939,914.65 N/A N/A N/A
Class PT2-II-24A (6) $ 825,395.48 Class PT2-II-IO-24 N/A N/A
Class PT2-II-24B (7) $ 825,395.48 N/A N/A N/A
Class PT2-II-25A (6) $ 785,009.51 Class PT2-II-IO-25 N/A N/A
Class PT2-II-25B (7) $ 785,009.51 N/A N/A N/A
Class PT2-II-26A (6) $ 746,633.60 Class PT2-II-IO-26 N/A N/A
Class PT2-II-26B (7) $ 746,633.60 N/A N/A N/A
Class PT2-II-27A (6) $ 710,166.07 Class PT2-II-IO-27 N/A N/A
Class PT2-II-27B (7) $ 710,166.07 N/A N/A N/A
Class PT2-II-28A (6) $ 675,509.79 Class PT2-II-IO-28 N/A N/A
Class PT2-II-28B (7) $ 675,509.79 N/A N/A N/A
Class PT2-II-29A (6) $ 642,574.22 Class PT2-II-IO-29 N/A N/A
Class PT2-II-29B (7) $ 642,574.22 N/A N/A N/A
Class PT2-II-30A (6) $ 611,270.57 Class PT2-II-IO-30 N/A N/A
Class PT2-II-30B (7) $ 611,270.57 N/A N/A N/A
Class PT2-II-31A (6) $ 581,517.74 Class PT2-II-IO-31 N/A N/A
Class PT2-II-31B (7) $ 581,517.74 N/A N/A N/A
Class PT2-II-32A (6) $ 553,237.01 Class PT2-II-IO-32 N/A N/A
Class PT2-II-32B (7) $ 553,237.01 N/A N/A N/A
Class PT2-II-33A (6) $ 526,353.88 Class PT2-II-IO-33 N/A N/A
Class PT2-II-33B (7) $ 526,353.88 N/A N/A N/A
Class PT2-II-34A (6) $ 500,798.38 Class PT2-II-IO-34 N/A N/A
Class PT2-II-34B (7) $ 500,798.38 N/A N/A N/A
Class PT2-II-35A (6) $ 1,519,972.75 Class PT2-II-IO-35 N/A N/A
Class PT2-II-35B (7) $ 1,519,972.75 N/A N/A N/A
Class PT2-II-36A (6) $ 439,371.08 Class PT2-II-IO-36 N/A N/A
Class PT2-II-36B (7) $ 439,371.08 N/A N/A N/A
Class PT2-II-37A (6) $ 411,037.43 Class PT2-II-IO-37 N/A N/A
Class PT2-II-37B (7) $ 411,037.43 N/A N/A N/A
Class PT2-II-38A (6) $ 385,229.49 Class PT2-II-IO-38 N/A N/A
Class PT2-II-38B (7) $ 385,229.49 N/A N/A N/A
Class PT2-II-39A (6) $ 336,630.27 Class PT2-II-IO-39 N/A N/A
Class PT2-II-39B (7) $ 336,630.27 N/A N/A N/A
Class PT2-II-40A (6) $ 320,601.02 Class PT2-II-IO-40 N/A N/A
Class PT2-II-40B (7) $ 320,601.02 N/A N/A N/A
Class PT2-II-41A (6) $ 305,357.61 Class PT2-II-IO-41 N/A N/A
Class PT2-II-41B (7) $ 305,357.61 N/A N/A N/A
Class PT2-II-42A (6) $ 290,860.36 Class PT2-II-IO-42 N/A N/A
Class PT2-II-42B (7) $ 290,860.36 N/A N/A N/A
Class PT2-II-43A (6) $ 277,070.97 Class PT2-II-IO-43 N/A N/A
Class PT2-II-43B (7) $ 277,070.97 N/A N/A N/A
Class PT2-II-44A (6) $ 263,952.87 Class PT2-II-IO-44 N/A N/A
Class PT2-II-44B (7) $ 263,952.87 N/A N/A N/A
Class PT2-II-45A (6) $ 251,472.98 Class PT2-II-IO-45 N/A N/A
Class PT2-II-45B (7) $ 251,472.98 N/A N/A N/A
Class PT2-II-46A (6) $ 239,598.24 Class PT2-II-IO-46 N/A N/A
Class PT2-II-46B (7) $ 239,598.24 N/A N/A N/A
Class PT2-II-47A (6) $ 228,298.34 Class PT2-II-IO-47 N/A N/A
Class PT2-II-47B (7) $ 228,298.34 N/A N/A N/A
Class PT2-II-48A (6) $ 217,544.40 Class PT2-II-IO-48 N/A N/A
Class PT2-II-48B (7) $ 217,544.40 N/A N/A N/A
Class PT2-II-49A (6) $ 207,309.24 Class PT2-II-IO-49 N/A N/A
Class PT2-II-49B (7) $ 207,309.24 N/A N/A N/A
Class PT2-II-50A (6) $ 197,566.42 Class PT2-II-IO-50 N/A N/A
Class PT2-II-50B (7) $ 197,566.42 N/A N/A N/A
Class PT2-II-51A (6) $ 188,292.24 Class PT2-II-IO-51 N/A N/A
Class PT2-II-51B (7) $ 188,292.24 N/A N/A N/A
Class PT2-II-52A (6) $ 179,462.35 Class PT2-II-IO-52 N/A N/A
Class PT2-II-52B (7) $ 179,462.35 N/A N/A N/A
Class PT2-II-53A (6) $ 171,055.50 Class PT2-II-IO-53 N/A N/A
Class PT2-II-53B (7) $ 171,055.50 N/A N/A N/A
Class PT2-II-54A (6) $ 163,050.45 Class PT2-II-IO-54 N/A N/A
Class PT2-II-54B (7) $ 163,050.45 N/A N/A N/A
Class PT2-II-55A (6) $ 182,605.74 Class PT2-II-IO-55 N/A N/A
Class PT2-II-55B (7) $ 182,605.74 N/A N/A N/A
Class PT2-II-56A (6) $ 409,321.59 Class PT2-II-IO-56 N/A N/A
Class PT2-II-56B (7) $ 409,321.59 N/A N/A N/A
Class PT2-II-57A (6) $ 382,495.57 Class PT2-II-IO-57 N/A N/A
Class PT2-II-57B (7) $ 382,495.57 N/A N/A N/A
Class PT2-II-58A (6) $ 357,515.61 Class PT2-II-IO-58 N/A N/A
Class PT2-II-58B (7) $ 357,515.61 N/A N/A N/A
Class PT2-II-59A (6) $ 334,249.75 Class PT2-II-IO-59 N/A N/A
Class PT2-II-59B (7) $ 334,249.75 N/A N/A N/A
Class PT2-II-60A (6) $ 313,005.78 Class PT2-II-IO-60 N/A N/A
Class PT2-II-60B (7) $ 313,005.78 N/A N/A N/A
Class PT2-II-61A (6) $ 1,381,852.47 Class PT2-II-IO-61 N/A N/A
Class PT2-II-61B (7) $ 1,381,852.47 N/A N/A N/A
Class PT2-I-IO-2 (4) (4) N/A Class PT1-I-2A January 2006
Class PT2-I-IO-3 (4) (4) N/A Class PT1-I-3A February 2006
Class PT2-I-IO-4 (4) (4) N/A Class PT1-I-4A March 2006
Class PT2-I-IO-5 (4) (4) N/A Class PT1-I-5A April 2006
Class PT2-I-IO-6 (4) (4) N/A Class PT1-I-6A May 2006
Class PT2-I-IO-7 (4) (4) N/A Class PT1-I-7A June 2006
Class PT2-I-IO-8 (4) (4) N/A Class PT1-I-8A July 2006
Class PT2-I-IO-9 (4) (4) N/A Class PT1-I-9A August 2006
Class PT2-I-IO-10 (4) (4) N/A Class PT1-I-10A September 2006
Class PT2-I-IO-11 (4) (4) N/A Class PT1-I-11A October 2006
Class PT2-I-IO-12 (4) (4) N/A Class PT1-I-12A November 2006
Class PT2-I-IO-13 (4) (4) N/A Class PT1-I-13A December 2006
Class PT2-I-IO-14 (4) (4) N/A Class PT1-I-14A January 2007
Class PT2-I-IO-15 (4) (4) N/A Class PT1-I-15A February 2007
Class PT2-I-IO-16 (4) (4) N/A Class PT1-I-16A March 2007
Class PT2-I-IO-17 (4) (4) N/A Class PT1-I-17A April 2007
Class PT2-I-IO-18 (4) (4) N/A Class PT1-I-18A May 2007
Class PT2-I-IO-19 (4) (4) N/A Class PT1-I-19A June 2007
Class PT2-I-IO-20 (4) (4) N/A Class PT1-I-20A July 2007
Class PT2-I-IO-21 (4) (4) N/A Class PT1-I-21A August 2007
Class PT2-I-IO-22 (4) (4) N/A Class PT1-I-22A September 2007
Class PT2-I-IO-23 (4) (4) N/A Class PT1-I-23A October 2007
Class PT2-I-IO-24 (4) (4) N/A Class PT1-I-24A November 2007
Class PT2-I-IO-25 (4) (4) N/A Class PT1-I-25A December 2007
Class PT2-I-IO-26 (4) (4) N/A Class PT1-I-26A January 2008
Class PT2-I-IO-27 (4) (4) N/A Class PT1-I-27A February 2008
Class PT2-I-IO-28 (4) (4) N/A Class PT1-I-28A March 2008
Class PT2-I-IO-29 (4) (4) N/A Class PT1-I-29A April 2008
Class PT2-I-IO-30 (4) (4) N/A Class PT1-I-30A May 2008
Class PT2-I-IO-31 (4) (4) N/A Class PT1-I-31A June 2008
Class PT2-I-IO-32 (4) (4) N/A Class PT1-I-32A July 2008
Class PT2-I-IO-33 (4) (4) N/A Class PT1-I-33A August 2008
Class PT2-I-IO-34 (4) (4) N/A Class PT1-I-34A September 2008
Class PT2-I-IO-35 (4) (4) N/A Class PT1-I-35A October 2008
Class PT2-I-IO-36 (4) (4) N/A Class PT1-I-36A November 2008
Class PT2-I-IO-37 (4) (4) N/A Class PT1-I-37A December 2008
Class PT2-I-IO-38 (4) (4) N/A Class PT1-I-38A January 2009
Class PT2-I-IO-39 (4) (4) N/A Class PT1-I-39A February 2009
Class PT2-I-IO-40 (4) (4) N/A Class PT1-I-40A March 2009
Class PT2-I-IO-41 (4) (4) N/A Class PT1-I-41A April 2009
Class PT2-I-IO-42 (4) (4) N/A Class PT1-I-42A May 2009
Class PT2-I-IO-43 (4) (4) N/A Class PT1-I-43A June 2009
Class PT2-I-IO-44 (4) (4) N/A Class PT1-I-44A July 2009
Class PT2-I-IO-45 (4) (4) N/A Class PT1-I-45A August 2009
Class PT2-I-IO-46 (4) (4) N/A Class PT1-I-46A September 2009
Class PT2-I-IO-47 (4) (4) N/A Class PT1-I-47A October 2009
Class PT2-I-IO-48 (4) (4) N/A Class PT1-I-48A November 2009
Class PT2-I-IO-49 (4) (4) N/A Class PT1-I-49A December 2009
Class PT2-I-IO-50 (4) (4) N/A Class PT1-I-50A January 2010
Class PT2-I-IO-51 (4) (4) N/A Class PT1-I-51A February 2010
Class PT2-I-IO-52 (4) (4) N/A Class PT1-I-52A March 2010
Class PT2-I-IO-53 (4) (4) N/A Class PT1-I-53A April 2010
Class PT2-I-IO-54 (4) (4) N/A Class PT1-I-54A May 2010
Class PT2-I-IO-55 (4) (4) N/A Class PT1-I-55A June 2010
Class PT2-I-IO-56 (4) (4) N/A Class PT1-I-56A July 2010
Class PT2-I-IO-57 (4) (4) N/A Class PT1-I-57A August 2010
Class PT2-I-IO-58 (4) (4) N/A Class PT1-I-58A September 2010
Class PT2-I-IO-59 (4) (4) N/A Class PT1-I-59A October 2010
Class PT2-I-IO-60 (4) (4) N/A Class PT1-I-60A November 2010
Class PT2-I-IO-61 (4) (4) N/A Class PT1-I-61A December 2010
Class PT2-II-IO-2 (4) (4) N/A Class PT1-II-2A January 2006
Class PT2-II-IO-3 (4) (4) N/A Class PT1-II-3A February 2006
Class PT2-II-IO-4 (4) (4) N/A Class PT1-II-4A March 2006
Class PT2-II-IO-5 (4) (4) N/A Class PT1-II-5A April 2006
Class PT2-II-IO-6 (4) (4) N/A Class PT1-II-6A May 2006
Class PT2-II-IO-7 (4) (4) N/A Class PT1-II-7A June 2006
Class PT2-II-IO-8 (4) (4) N/A Class PT1-II-8A July 2006
Class PT2-II-IO-9 (4) (4) N/A Class PT1-II-9A August 2006
Class PT2-II-IO-10 (4) (4) N/A Class PT1-II-10A September 2006
Class PT2-II-IO-11 (4) (4) N/A Class PT1-II-11A October 2006
Class PT2-II-IO-12 (4) (4) N/A Class PT1-II-12A November 2006
Class PT2-II-IO-13 (4) (4) N/A Class PT1-II-13A December 2006
Class PT2-II-IO-14 (4) (4) N/A Class PT1-II-14A January 2007
Class PT2-II-IO-15 (4) (4) N/A Class PT1-II-15A February 2007
Class PT2-II-IO-16 (4) (4) N/A Class PT1-II-16A March 2007
Class PT2-II-IO-17 (4) (4) N/A Class PT1-II-17A April 2007
Class PT2-II-IO-18 (4) (4) N/A Class PT1-II-18A May 2007
Class PT2-II-IO-19 (4) (4) N/A Class PT1-II-19A June 2007
Class PT2-II-IO-20 (4) (4) N/A Class PT1-II-20A July 2007
Class PT2-II-IO-21 (4) (4) N/A Class PT1-II-21A August 2007
Class PT2-II-IO-22 (4) (4) N/A Class PT1-II-22A September 2007
Class PT2-II-IO-23 (4) (4) N/A Class PT1-II-23A October 2007
Class PT2-II-IO-24 (4) (4) N/A Class PT1-II-24A November 2007
Class PT2-II-IO-25 (4) (4) N/A Class PT1-II-25A December 2007
Class PT2-II-IO-26 (4) (4) N/A Class PT1-II-26A January 2008
Class PT2-II-IO-27 (4) (4) N/A Class PT1-II-27A February 2008
Class PT2-II-IO-28 (4) (4) N/A Class PT1-II-28A March 2008
Class PT2-II-IO-29 (4) (4) N/A Class PT1-II-29A April 2008
Class PT2-II-IO-30 (4) (4) N/A Class PT1-II-30A May 2008
Class PT2-II-IO-31 (4) (4) N/A Class PT1-II-31A June 2008
Class PT2-II-IO-32 (4) (4) N/A Class PT1-II-32A July 2008
Class PT2-II-IO-33 (4) (4) N/A Class PT1-II-33A August 2008
Class PT2-II-IO-34 (4) (4) N/A Class PT1-II-34A September 2008
Class PT2-II-IO-35 (4) (4) N/A Class PT1-II-35A October 2008
Class PT2-II-IO-36 (4) (4) N/A Class PT1-II-36A November 2008
Class PT2-II-IO-37 (4) (4) N/A Class PT1-II-37A December 2008
Class PT2-II-IO-38 (4) (4) N/A Class PT1-II-38A January 2009
Class PT2-II-IO-39 (4) (4) N/A Class PT1-II-39A February 2009
Class PT2-II-IO-40 (4) (4) N/A Class PT1-II-40A March 2009
Class PT2-II-IO-41 (4) (4) N/A Class PT1-II-41A April 2009
Class PT2-II-IO-42 (4) (4) N/A Class PT1-II-42A May 2009
Class PT2-II-IO-43 (4) (4) N/A Class PT1-II-43A June 2009
Class PT2-II-IO-44 (4) (4) N/A Class PT1-II-44A July 2009
Class PT2-II-IO-45 (4) (4) N/A Class PT1-II-45A August 2009
Class PT2-II-IO-46 (4) (4) N/A Class PT1-II-46A September 2009
Class PT2-II-IO-47 (4) (4) N/A Class PT1-II-47A October 2009
Class PT2-II-IO-48 (4) (4) N/A Class PT1-II-48A November 2009
Class PT2-II-IO-49 (4) (4) N/A Class PT1-II-49A December 2009
Class PT2-II-IO-50 (4) (4) N/A Class PT1-II-50A January 2010
Class PT2-II-IO-51 (4) (4) N/A Class PT1-II-51A February 2010
Class PT2-II-IO-52 (4) (4) N/A Class PT1-II-52A March 2010
Class PT2-II-IO-53 (4) (4) N/A Class PT1-II-53A April 2010
Class PT2-II-IO-54 (4) (4) N/A Class PT1-II-54A May 2010
Class PT2-II-IO-55 (4) (4) N/A Class PT1-II-55A June 2010
Class PT2-II-IO-56 (4) (4) N/A Class PT1-II-56A July 2010
Class PT2-II-IO-57 (4) (4) N/A Class PT1-II-57A August 2010
Class PT2-II-IO-58 (4) (4) N/A Class PT1-II-58A September 2010
Class PT2-II-IO-59 (4) (4) N/A Class PT1-II-59A October 2010
Class PT2-II-IO-60 (4) (4) N/A Class PT1-II-60A November 2010
Class PT2-II-IO-61 (4) (4) N/A Class PT1-II-61A December 2010
Class PT2-R (8) $100.00 N/A N/A N/A
-----------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group I WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to Loan Group I and having an "A" in
their class designation, provided that, on each Distribution Date on which
interest is distributable on the Corresponding Pooling-Tier REMIC-2 IO
Interest, this Pooling-Tier REMIC-2 Regular Interest shall bear interest
at a per annum rate equal to Swap LIBOR subject to a maximum rate equal to
the weighted average of the Pooling-Tier REMIC-1 Interest Rates on the
Pooling-Tier REMIC-1 Regular Interests relating to Loan Group I and having
an "A" in their class designation.
(3) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to Loan Group I and having a "B" in
their class designation.
(4) Each Pooling-Tier REMIC-2 IO is an interest-only interest and does not
have a principal balance but has a notional balance ("Pooling-Tier REMIC-2
IO Notional Balance") equal to the Pooling-Tier REMIC-2 Principal Amount
of the Corresponding Pooling-Tier REMIC-1 Regular Interest. From the
Closing Date through and including the Corresponding Actual Crossover
Distribution Date, each Pooling-Tier REMIC-2 IO Interest shall be entitled
to receive interest that accrues on the Corresponding Pooling-Tier REMIC-1
Regular Interest at a rate equal to the excess, if any, of (i) the
Pooling-Tier REMIC-1 Interest Rate for the Corresponding Pooling-Tier
REMIC-1 Regular Interest over (ii) Swap LIBOR. After the Corresponding
Actual Crossover Distribution Date, the Pooling-Tier REMIC-2 IO Interest
shall not accrue interest.
(5) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group II WAC Rate.
(6) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to Loan Group II and having an "A" in
their class designation, provided that, on each Distribution Date on which
interest is distributable on the Corresponding Pooling-Tier REMIC-2 IO
Interest, this Pooling-Tier REMIC-2 Regular Interest shall bear interest
at a per annum rate equal to Swap LIBOR subject to a maximum rate equal to
the weighted average of the Pooling-Tier REMIC-1 Interest Rates on the
Pooling-Tier REMIC-1 Regular Interests relating to Loan Group II and
having an "A" in their class designation.
(7) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to Loan Group II and having a "B" in
their class designation.
(8) The Class PT2-R Interest shall not bear interest.
On each Distribution Date, the interest distributable in respect of
the Mortgage Loans for such Distribution Date shall be distributed to the
Pooling-Tier REMIC-2 Regular Interests at the Pooling-Tier REMIC-2 Interest
Rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group I Mortgage Loans shall be
allocated to the Class R-1 Certificates in respect of the Class PT2-R Interest
pursuant to Section 4.02(a)(ii) until its Class Certificate Balance is reduced
to zero, then to the outstanding Pooling-Tier REMIC-2 Regular Interests (other
than the Pooling-Tier REMIC-2 IO Interests) relating to Loan Group I with the
lowest numerical denomination (other than the Class PT2-I-1 Interest) until the
Pooling-Tier REMIC-2 Principal Amount of such interest is reduced to zero,
provided that, for Pooling-Tier REMIC-2 Regular Interests relating to Loan Group
I with the same numerical denomination, such Realized Losses and payments of
principal shall be allocated pro rata between such Pooling-Tier REMIC-2 Regular
Interests, and then to the Class PT2-I-1 Interest until the Pooling-Tier REMIC-2
Principal Amount of such interest is reduced to zero.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group II Mortgage Loans shall be
allocated to the outstanding Pooling-Tier REMIC-2 Regular Interests (other than
the Pooling-Tier REMIC-2 IO Interests) relating to Loan Group II with the lowest
numerical denomination (other than the Class PT2-II-1 Interest) until the
Pooling-Tier REMIC-2 Principal Amount of such interest is reduced to zero,
provided that, for Pooling-Tier REMIC-2 Regular Interests relating to Loan Group
II with the same numerical denomination, such Realized Losses and payments of
principal shall be allocated pro rata between such Pooling-Tier REMIC-2 Regular
Interests, and then to the Class PT2-II-1 Interest until the Pooling-Tier
REMIC-2 Principal Amount of such interest is reduced to zero.
Lower-Tier REMIC
The Lower-Tier REMIC shall issue the following interests, and each
such interest, other than the Class LT-R Interest, is hereby designated as a
regular interest in the Lower-Tier REMIC. The Class LT-R Interest is hereby
designated as the sole class of residual interest in the Lower-Tier REMIC and
shall be represented by the Class R-1 Certificates.
Corresponding
Upper-Tier
Lower-Tier Regular Lower-Tier Initial Lower-Tier Principal REMIC Regular
Interest 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-M-4 (1) 1/2 initial Class Certificate M-4
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-M-5 (1) 1/2 initial Class Certificate M-5
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 Principal Balance
plus 1/2 Overcollateralized
Amount, less the Initial
Lower-Tier Principal Amounts
of the Class LT-Group I,
Class LT-Group II and Class
LT-3 Interests, less $50
Class LT-Group I (2) 0.001% aggregate Stated N/A
Principal Balance of Group I
Mortgage Loans(4)
Class LT-Group II (3) 0.001% aggregate Stated N/A
Principal Balance of
Group II Mortgage Loans(4)
Class LT-IO (5) (5) N/A
Class LT-3 (6) $100
Class LT-R (7) (7) N/A
-----------------------
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the weighted average of
the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling-Tier REMIC-2 IO Interests).
(2) The interest rate with respect to any Distribution Date for the Class
LT-Group I Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the weighted average
of the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling Tier REMIC-2 IO Interests)
relating to Loan Group I.
(3) The interest rate with respect to any Distribution Date for the Class
LT-Group II Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the weighted average
of the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling Tier REMIC-2 IO Interests)
relating to Loan Group II.
(4) For all Distribution Dates, the Lower-Tier Principal Amount of these
Lower-Tier Regular Interests shall be rounded to eight decimal places.
(5) This Lower-Tier Regular Interest is an interest-only interest and does not
have a Lower-Tier Principal Amount. On each Distribution Date, this
Lower-Tier Regular Interest shall be entitled to receive all interest
distributable on the Pooling-Tier REMIC-2 IO Interests.
(6) This Lower-Tier Regular Interest shall not be entitled to interest and
shall have a Lower-Tier Principal Amount at all times equal to the Class
Certificate Balance of the Class R-3 Certificates.
(7) The Class LT-R Interest does not have a principal amount or an interest
rate.
Each Lower-Tier Regular Interest is hereby designated as a regular
interest in the Lower-Tier REMIC. The Class LT-A-1, Class LT-A-2A, Class
LT-A-2B, Class LT-A-2C, Class LT-A-2D, Class LT-M-1, Class LT-M-2, Class LT-M-3,
Class LT-M-4, Class LT-M-5, 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").
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount shall be payable as a reduction of the Lower-Tier
Principal Amount of the LT-Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralized
Amount that is attributable to a reduction in the Class Certificate Balance of
its Corresponding Class) and shall be accrued and added to the Lower-Tier
Principal Amount of the Class LT-Accrual Interest. On each Distribution Date,
the increase in the Lower-Tier Principal Amount of the Class LT-Accrual Interest
shall not exceed interest accruals for such Distribution Date for the Class
LT-Accrual Interest. In the event that: (i) 50% of the increase in the
Overcollateralized Amount exceeds (ii) interest accruals on the Class LT-Accrual
Interest for such Distribution Date, the excess for such Distribution Date
(accumulated with all such excesses for all prior Distribution Dates) will be
added to any increase in the Overcollateralized Amount for purposes of
determining the amount of interest accrual on the Class LT-Accrual Interest
payable as principal on the LT-Accretion Directed Classes on the next
Distribution Date pursuant to the first sentence of this paragraph. All payments
of scheduled principal and prepayments of principal generated by the Mortgage
Loans and all Subsequent Recoveries allocable to principal shall be allocated
(i) 50% to the Class LT-Accrual Interest, the Class LT-Group I Interest and
Class LT-Group II Interest (and further allocated among these Lower-Tier Regular
Interests in the manner described below) and (ii) 50% to the LT-Accretion
Directed Classes (such principal payments and Subsequent Recoveries shall be
allocated among such LT-Accretion Directed Classes in an amount equal to 50% of
the principal amounts and Subsequent Recoveries allocated to their respective
Corresponding Classes), until paid in full. Notwithstanding the above, principal
payments allocated to the Class UT-X Interest that result in the reduction in
the Overcollateralized Amount shall be allocated to the Class LT-Accrual
Interest (until paid in full). Realized Losses shall be applied so that after
all distributions have been made on each Distribution Date (i) the Lower-Tier
Principal Amount of each of the LT-Accretion Directed Classes is equal to 50% of
the Class Certificate Balance of their Corresponding Class, and (ii) the Class
LT-Accrual Interest, the Class LT-Group I and the Class LT-Group II Interest
(and further allocated between these Lower-Tier Regular Interests in the manner
described below) is equal to 50% of the aggregate Stated Principal Balance of
the Mortgage Loans plus 50% of the Overcollateralized Amount. Any increase in
the Class Certificate Balance of a Class of LIBOR Certificates as a result of a
Subsequent Recovery shall increase the Lower-Tier Principal Amount of the
Corresponding Lower-Tier Regular Interest by 50% of such increase, and the
remaining 50% of such increase shall increase the Lower-Tier Principal Amount of
the Class LT-Accrual Interest. As among the Class LT-Accrual Interest, the Class
LT-Group I Interest and the Class LT-Group II Interest, all payments of
scheduled principal and prepayments of principal generated by the Mortgage
Loans, all Subsequent Recoveries and all Realized Losses, allocable to such
Lower-Tier Regular Interests shall be allocated (i) to the Class LT-Group I
Interest and the Class LT-Group II Interest, each from the related Loan Group so
that their respective Lower-Tier Principal Amounts (computed to at least eight
decimal places) are equal to 0.001% of the aggregate Stated Principal Balance of
the Mortgage Loans in the related Loan Group and (ii) the remainder to the Class
LT-Accrual Interest.
Upper-Tier REMIC
The Upper-Tier REMIC shall issue the following interests, and each
such interest, other than the Class UT-R Interest, is hereby designated as a
regular interest in the Upper-Tier REMIC. The Class UT-R Interest is hereby
designated as the sole class of residual interests in the Upper-Tier REMIC and
shall be represented by the Class R-1 Certificates.
Corresponding
Upper-Tier REMIC Upper-Tier Initial Principal Class of
Interest Interest Rate Upper-Tier Amount Certificates
----------------- ------------- ----------------- --------------
Class A-1A (1) $ 108,759,000 Class A-1A
Class A-1B (1) $ 27,190,000 Class A-1B
Class A-2A (2) $ 156,886,000 Class A-2A
Class A-2B (2) $ 65,607,000 Class A-2B
Class A-2C (2) $ 63,603,000 Class A-2C
Class A-2D (2) $ 25,693,000 Class A-2D
Class M-1 (3) $ 43,526,000 Class M-1
Class M-2 (3) $ 11,317,000 Class M-2
Class M-3 (3) $ 19,152,000 Class M-3
Class M-4 (3) $ 8,995,000 Class M-4
Class M-5 (3) $ 8,415,000 Class M-5
Class B-1 (3) $ 6,094,000 Class B-1
Class B-2 (3) $ 5,803,000 Class B-2
Class B-3 (3) $ 5,804,000 Class B-3
Class B-4 (3) $ 5,803,000 Class B-4
Class UT-IO (4) (4) N/A
Class UT-X (5) (5) N/A
Class UT-3 (6) $100 N/A
Class UT-R (7) (7) Class R-1
------------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the least of (i) the Pass-Through Rate
(determined without regard to the Loan Group I Cap or WAC Cap) for the
Corresponding Class of Certificates, (ii) the Lower-Tier Interest Rate for
the Class LT-Group I Interest (the "Upper-Tier REMIC Loan Group I Rate")
and (ii) the Upper-Tier REMIC WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the least of (i) the Pass-Through Rate
(determined without regard to the Loan Group II Cap or WAC Cap) for the
Corresponding Class of Certificates, (ii) the Lower-Tier Interest Rate for
the Class LT-Group II Interest (the "Upper-Tier REMIC Loan Group II Rate")
and (ii) the Upper-Tier REMIC WAC Rate.
(3) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the lesser of (i) the Pass-Through Rate
(determined without regard to the applicable WAC Cap) for the
Corresponding Class of Certificates and (ii) the Upper-Tier REMIC WAC
Rate.
(4) This interest is an interest-only interest and does not have a principal
balance. On each Distribution Date, the Class UT-IO Interest shall be
entitled to receive all interest distributable on the Class LT-IO
Interest.
(5) The Class UT-X Interest has an initial principal balance of $17,700,931.95
but will not accrue interest on such balance but will accrue interest on a
notional principal balance. As of any Distribution Date, the Class UT-X
Interest shall have a notional principal balance equal to the aggregate of
the Lower-Tier Principal Amounts of the Lower-Tier Regular Interests
(other than the Class LT-IO and Class LT-3 Interests) as of the first day
of the related Interest Accrual Period. With respect to any Interest
Accrual Period, the Class UT-X Interest shall bear interest at a rate
equal to the excess, if any, of the Upper-Tier REMIC WAC Rate over the
product of (i) 2 and (ii) the weighted average of the Lower-Tier Interest
Rates of the Lower-Tier REMIC Interests (other than the Class LT-IO and
Class LT-3 Interests), where the Lower-Tier Interest Rate on each of the
Class LT-Accrual Interest, Class LT-Group I Interest and Class LT-Group II
Interest is subject to a cap equal to zero and each LT Accretion Directed
Class is subject to a cap equal to the Upper-Tier Interest Rate on its
Corresponding Class of Upper-Tier Regular Interest. With respect to any
Distribution Date, interest that so accrues on the notional principal
balance of the Class UT-X Interest shall be deferred in an amount equal to
any increase in the Overcollateralized Amount on such Distribution Date.
Such deferred interest shall not itself bear interest.
(6) This Upper-Tier Regular Interest shall not be entitled to interest and
shall have a principal balance equal to the Class Certificate Balance of
the Class R-3 Certificates.
(7) The Class UT-R Interest does not have an interest rate or a principal
balance.
On each Distribution Date, interest distributable in respect of the
Lower-Tier Interests for such Distribution Date shall be deemed to be
distributed on the interests in the Upper-Tier REMIC at the rates shown above,
provided that the Class UT-IO Interest shall be entitled to receive interest
before any other interest in the Upper-Tier REMIC.
On each Distribution Date, all Realized Losses, Subsequent
Recoveries and all payments of principal shall be allocated to the Upper-Tier
Interests until the outstanding principal balance of each such interest equals
the outstanding Class Certificate Balance of the Corresponding Class of
Certificates as of such Distribution Date.
Class X REMIC
The Class X REMIC shall issue the following classes of interests.
The Class X Interest and the Class IO Interest shall each represent a regular
interest in the Class X REMIC and the Class R-3 Certificates shall represent
sole class of residual interest in the Class X REMIC.
Class X REMIC
Class X REMIC Designation Interest Rate Principal Amount
------------------------- ------------- ----------------
Class X Interest (1) (1)
Class IO Interest (2) (2)
Class R-3 Certificates (3) $100.00
------------
(1) The Class X Interest has an initial principal balance equal to the initial
principal balance of the Class UT-X Interest and is entitled to 100% of
the interest and principal on the Class UT-X Interest on each Distribution
Date.
(2) This interest is an interest-only interest and does not have a principal
balance. On each Distribution Date the Class IO Interest shall be entitled
to receive 100% of the interest distributable on the Class UT-IO Interest.
(3) The Class R-3 Certificates do not have an interest rate.
Certificates
Class Class Certificate
Class Designation Pass-Through Rate Balance
----------------- ----------------- -----------------
Class A-1A(20) (1) $ 108,759,000
Class A-1B(20) (2) $ 27,190,000
Class A-2A(20) (3) $ 156,886,000
Class A-2B(20) (4) $ 65,607,000
Class A-2C(20) (5) $ 63,603,000
Class A-2D(20) (6) $ 25,693,000
Class M-1(20) (7) $ 43,526,000
Class M-2(20) (8) $ 11,317,000
Class M-3(20) (9) $ 19,152,000
Class M-4(20) (10) $ 8,995,000
Class M-5(20) (11) $ 8,415,000
Class B-1(20) (12) $ 6,094,000
Class B-2(20) (13) $ 5,803,000
Class B-3(20) (14) $ 5,804,000
Class B-4(20) (15) $ 5,803,000
Class X (16) (16)
Class R-1 (17) $ 100
Class R-2 (18) $ 100
Class R-3 (19) $ 100
------------
(1) The Class A-1A Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group I Cap
and (3) the WAC Cap.
(2) The Class A-1B Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group I Cap
and (3) the WAC Cap.
(3) The Class A-2A Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(4) The Class A-2B Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(5) The Class A-2C Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(6) The Class A-2D Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(7) The Class M-1 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(8) The Class M-2 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(9) The Class M-3 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(10) The Class M-4 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(11) The Class M-5 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(12) The Class B-1 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(13) The Class B-2 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(14) The Class B-3 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(15) The Class B-4 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
the applicable Pass-Through Margin and (2) the WAC Cap.
(16) The Class X Certificates will represent beneficial ownership of (i) the
Class X Interest, (ii) the Class IO Interest, (iii) the right to receive
Class IO Shortfalls, (iv) amounts in the Supplemental Interest Trust,
including the Interest Rate Swap Agreement subject to the obligation to
pay Net Swap Payments and Upper-Tier Carry Forward Amounts and, without
duplication, Basis Risk Carry Forward Amounts and (v) amounts in the
Excess Reserve Fund Account, subject to the obligation to make payments
from the Excess Reserve Fund Account in respect of Basis Risk Carry
Forward Amounts. For federal income tax purposes, the Securities
Administrator will treat a Class X Certificateholder's obligation to make
payments of Basis Risk Carry Forward Amounts and, without duplication,
Upper-Tier Carry Forward Amounts to the LIBOR Certificates from the Excess
Reserve Fund Account and the Supplemental Interest Trust as payments made
pursuant to an interest rate cap contract written by the Class X
Certificateholders in favor of each Class of LIBOR Certificates. Such
rights of the Class X Certificateholders and LIBOR Certificateholders
shall be treated as held in a portion of the Trust Fund that is treated as
a grantor trust under subpart E, Part I of subchapter J of the Code.
(17) The Class R-1 Certificates do not have an interest rate. The Class R-1
Certificates represent ownership of the Class PT2-R Interest, the Class
LT-R Lower-Tier Interest and the Class UT-R Interest.
(18) The Class R-2 Certificates do not have an interest rate. The Class R-2
Certificates represent the residual interest in Pooling-Tier REMIC-1.
(19) The Class R-3 Certificates do not have an interest rate. The Class R-3
Certificates represent the residual interest in the Class X REMIC.
(20) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper-Tier Regular Interest but also the right to
receive payments from the Excess Reserve Fund Account and the Supplemental
Interest Trust. Each of these Certificates will also be subject to the
obligation to pay Class IO Shortfalls as described in Section 8.13. For
federal income tax purposes, any amount distributed on the LIBOR
Certificates on any such Distribution Date in excess of the amount
distributable on their Corresponding Class of Upper-Tier Regular Interest
on such Distribution Date shall be treated as having been paid from the
Excess Reserve Fund Account or the Supplemental Interest Trust, as
applicable, and any amount distributable on such Corresponding Class of
Upper-Tier Regular Interest on such Distribution Date in excess of the
amount distributable on LIBOR Certificates on such Distribution Date shall
be treated as having been paid to the Supplemental Interest Trust, all
pursuant to, and as further provided in, Section 8.13. The Securities
Administrator will treat a LIBOR Certificateholder's right to receive
payments from the Excess Reserve Fund Account and the Supplemental
Interest Trust as payments made pursuant to an interest rate cap contract
written by the Class X Certificateholders.
The minimum denomination for the LIBOR Certificates will be $25,000,
with integral multiples of $1 in excess thereof except that one Certificate in
each Class may be issued in a different amount. The minimum denomination for (a)
the Class R-1 Certificates will be $100, representing a 100% Percentage Interest
in the related Class, (b) the Class R-2 Certificates will be $100, representing
a 100% Percentage Interest in the related Class, (c) the Class R-3 Certificates
will be $100, representing a 100% Percentage Interest in the related Class, (d)
the Class P Certificates will be a 1% Percentage Interest in such Class, (e) the
Class C Certificates will be a 1% Percentage Interest in such Class, and (f) the
Class X Certificates will be a 1% Percentage Interest in such Class.
Set forth below are designations of Classes of Certificates to
the categories used herein:
Book-Entry Certificates...... All Classes of Certificates other than the
Physical Certificates.
Class A Certificates......... Class A-1A, Class X-0X, Xxxxx X-0X, Xxxxx X-0X,
Class A-2C and Class A-2D Certificates.
Class A-1 Certificates....... Class A-1A and Class A-1B Certificates.
Class A-2 Certificates....... Class A-2A, Class A-2B, Class A-2C and Class A-2D
Certificates.
Class R Certificates......... Class R-1, Class R-2 and Class R-3 Certificates.
Class B Certificates......... Class B-1, Class B-2, Class B-3 and Class B-4
Certificates.
Class M Certificates......... Class M-1, Class M-2, Class M-3, Class M-4 and
Class M-5 Certificates.
ERISA-Restricted
Certificates............... Class B-4, Class R, Class P, Class C and Class X
Certificates; and any Certificate with a rating
below the lowest applicable permitted rating under
the Underwriter's Exemption.
LIBOR Certificates........... Class A-1, Class X-0, Xxxxx X-0, Class M-1, Class
M-2, Class M-3, Class M-4, Class M-5, Class B-1,
Class B-2, Class B-3 and Class B-4 Certificates.
Offered Certificates......... All Classes of Certificates other than the Private
Certificates.
Physical Certificates........ Class P, Class X, Class C and Class R
Certificates.
Private Certificates......... Class B-2, Class B-3, Class B-4, Class P, Class C
and Class X Certificates.
Rating Agencies.............. Standard & Poor's and Xxxxx'x.
Regular Certificates......... All Classes of Certificates other than the Class
P, Class C and Class R Certificates.
Residual Certificates........ Class R Certificates.
Subordinated Certificates.... Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class B-1, Class B-2, Class B-3 and
Class B-4 Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices set forth in Section 3.01 of this Agreement.
Account: Any of the Collection Account, the Distribution Account,
any Escrow Account or the Excess Reserve Fund Account. Each Account shall be an
Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of LIBOR Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior to
such Distribution Date, as reduced by such Class's share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for such Distribution
Date allocated to such Class pursuant to Section 4.02.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan
purchased pursuant to the Purchase Agreement.
Adjusted Net Mortgage Interest Rate: As to each Mortgage Loan and at
any time, the per annum rate equal to the Mortgage Interest Rate less the
Expense Fee Rate.
Adjustment Date: As to any Adjustable Rate Mortgage Loan, the first
Due Date on which the related Mortgage Interest Rate adjusts as set forth in the
related Mortgage Note and each Due Date thereafter on which the Mortgage
Interest Rate adjusts as set forth in the related Mortgage Note.
Advance: Any P&I Advance or Servicing Advance.
Advance Facility: A financing or other facility as described in
Section 10.07.
Advance Reimbursement Amounts: As defined in Section 10.07.
Advancing Person: The Person to whom the Servicer's rights under
this Agreement to be reimbursed for any P&I Advances or Servicing Advances have
been assigned pursuant to Section 12.07.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Amount Held for Future Distribution: As to the Certificates on any
Distribution Date, the aggregate amount held in the Collection Account at the
close of business on the related Remittance Date on account of (i) Principal
Prepayments, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds
on the Mortgage Loans received after the end of the related Prepayment Period
and (ii) all Scheduled Payments on the Mortgage Loans due after the end of the
related Due Period.
Applied Realized Loss Amount: With respect to any Distribution Date,
the amount, if any, by which the aggregate Class Certificate Balance of the
LIBOR Certificates after distributions of principal on such Distribution Date
exceeds the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
Appraised Value: (i) In the case of a purchase, the least of the
sale price of the related Mortgaged Property, its appraised value or its review
appraisal value (as determined pursuant to the Underwriting Guidelines) at the
time of sale, or (ii) in the case of a refinancing or modification of a Mortgage
Loan, the appraised value of the related Mortgaged Property at the time of the
refinancing or modification.
Assignment, Assumption and Recognition Agreement: The Assignment,
Assumption and Recognition Agreement, dated as of December 28, 2005, by and
among the Responsible Party, the Purchaser and the Depositor.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form (other than the assignee's
name and recording information not yet returned from the recording office),
reflecting the sale of the Mortgage to the Trust.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Master Servicer (x) the sum of (i)
all scheduled installments of interest (net of the related Expense Fees) and
principal due on the Due Date on such Mortgage Loans in the related Due Period
and received on or prior to the related Determination Date, together with any
P&I Advances in respect thereof; (ii) all Condemnation Proceeds, Insurance
Proceeds and Liquidation Proceeds received during the related Prepayment Period
(in each case, net of unreimbursed expenses incurred in connection with a
liquidation or foreclosure and unreimbursed Advances, if any); (iii) all partial
or full prepayments on the Mortgage Loans received during the related Prepayment
Period together with all Compensating Interest paid by the Servicer in
connection therewith (excluding Prepayment Premiums); (iv) all amounts received
with respect to such Distribution Date as the Substitution Adjustment Amount or
the Repurchase Price in respect of a Deleted Mortgage Loan substituted for or a
Mortgage Loan repurchased by the Purchaser, the Responsible Party or the
Depositor, as applicable, as of such Distribution Date; (v) any Net Swap
Receipts for such Distribution Date; and (vi) the proceeds received with respect
to the termination of the Trust Fund pursuant to clause (a) of Section 11.01,
reduced by (y) all amounts in reimbursement for P&I Advances and Servicing
Advances previously made with respect to the Mortgage Loans, and other amounts
as to which the Servicer, the Depositor, the Master Servicer, the Securities
Administrator, the Custodian or the Trustee (or co-trustee) are entitled to be
paid or reimbursed pursuant to this Agreement.
Back-up Report Delivery Date: As defined in Section 4.03(f).
Back-up Reports: As defined in Section 4.03(f).
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the Principal Remittance Amount for such
Distribution Date over (ii) the Excess Overcollateralized Amount, if any, for
such Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of LIBOR
Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of LIBOR Certificates is
based upon a Loan Group Cap or the WAC Cap, the excess, if any, of (i) the
Accrued Certificate Interest Distribution Amount such Class of LIBOR
Certificates would otherwise be entitled to receive on such Distribution Date
had such Pass Through Rate not been subject to the Loan Group Cap or the WAC
Cap, over (ii) the Accrued Certificate Interest Distribution Amount payable on
such Class of Certificates on such Distribution Date taking into account (a)
with respect to the Class A-1 Certificates at the lesser of the WAC Cap and the
Loan Group I Cap, (b) with respect to the Class A-2 Certificates at the lesser
of the WAC Cap and the Loan Group II Cap, and (c) with respect to each other
Class of LIBOR Certificates, the WAC Cap, and (B) the Basis Risk Carry Forward
Amount for such Class of LIBOR Certificates for all previous Distribution Dates
not previously paid, together with interest thereon at a rate equal to the
applicable Pass Through Rate for such Class of LIBOR Certificates for such
Distribution Date (without giving effect to the WAC Cap, Loan Group I Cap or
Loan Group II Cap, as applicable).
Basis Risk Payment: For any Distribution Date, an amount equal to
the lesser of (i) the aggregate of the Basis Risk Carry Forward Amounts for such
Distribution Date and (ii) the Class X Distributable Amount (prior to any
reduction for Basis Risk Payments from the Excess Reserve Fund Account or any
Defaulted Swap Termination Payment).
Best's: Best's Key Rating Guide, as the same shall be amended from
time to time.
Book-Entry Certificates: As specified in the Preliminary Statement.
BPO: A broker's price opinion.
Business Day: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions, in (a) the States of New
York, Delaware, Florida, Maryland, Minnesota and California, (b) the State in
which the Servicer's servicing operations are located, or (c) any State in which
the Corporate Trust Office's operations are located, are authorized or obligated
by law or executive order to be closed.
Certificate: Any one of the Certificates executed by the Securities
Administrator in substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of LIBOR Certificates
or Residual Certificates, at any date, the maximum dollar amount of principal to
which the Holder thereof is then entitled hereunder, such amount being equal to
the Denomination thereof minus all distributions of principal previously made
with respect thereto and reduced by the amount of any Applied Realized Loss
Amounts previously allocated to such Class of Certificates pursuant to Section
4.05; provided, however, that immediately following the Distribution Date on
which a Subsequent Recovery is distributed, the Class Certificate Balances of
any Class or Classes of Certificates that have been previously reduced by
Applied Realized Loss Amounts will be increased, in order of seniority, by the
amount of the Subsequent Recovery distributed on such Distribution Date (up to
the amount of Applied Realized Loss Amounts allocated to such Class or Classes).
The Class X, Class C and Class P Certificates have no Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The Person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any Affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided, however,
that if any such Person (including the Depositor) owns 100% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires the
consent of the Holders of Certificates of a particular Class as a condition to
the taking of any action hereunder. The Securities Administrator is entitled to
rely conclusively on a certification of the Depositor or any Affiliate of the
Depositor in determining which Certificates are registered in the name of an
Affiliate of the Depositor.
Certification: As defined in Section 8.12(b).
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Certificate Group: The Class A-1 Certificate Group or the
Class A-2 Certificate Group, as applicable.
Class A Certificates: As specified in the Preliminary Statement.
Class A Principal Allocation Percentage: For any Distribution Date,
the percentage equivalent of a fraction, determined as follows: (A) with respect
to the Class A-1 Certificate Group, a fraction, the numerator of which is the
portion of the Principal Remittance Amount for such Distribution Date that is
attributable to the principal received or advanced on the Group I Mortgage Loans
and the denominator of which is the Principal Remittance Amount for such
Distribution Date; and (B) with respect to the Class A-2 Certificate Group, a
fraction, the numerator of which is the portion of the Principal Remittance
Amount for such Distribution Date that is attributable to the principal received
or advanced on the Group II Mortgage Loans and the denominator of which is the
Principal Remittance Amount for such Distribution Date.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class Certificate Balances of
the Class A Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) 54.30% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class A-1 Certificate Group: The Class A-1 Certificates.
Class A-1 Certificates: As specified in the Preliminary Statement.
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 Certificate Group: The Class A-2 Certificates.
Class A-2 Certificates: As specified in the Preliminary Statement.
Class A-2A Certificates: All Certificates bearing the class
designation of "Class A-2A."
Class A-2B Certificates: All Certificates bearing the class
designation of "Class A-2B."
Class A-2C Certificates: All Certificates bearing the class
designation of "Class A-2C."
Class A-2D Certificates: All Certificates bearing the class
designation of "Class A-2D."
Class B Certificates: As specified in the Preliminary Statement.
Class B-1 Certificates: All Certificates bearing the class
designation of "Class B-1."
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date) and (G) the Class
Certificate Balance of the Class B-1 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 87.90% and (y)
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class B-2 Certificates: All Certificates bearing the class
designation of "Class B-2."
Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date) and (H) 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) 89.90% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class 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 Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date), (H) the Class Certificate Balance of the Class B-2 Certificates (after
taking into account the distribution of the Class B-2 Principal Distribution
Amount on such Distribution Date) and (I) 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) 91.90% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class B-4 Certificates: All Certificates bearing the class
designation of "Class B-4."
Class B-4 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date), (H) the Class Certificate Balance of the Class B-2 Certificates (after
taking into account the distribution of the Class B-2 Principal Distribution
Amount on such Distribution Date), (I) the Class Certificate Balance of the
Class B-3 Certificates (after taking into account the distribution of the Class
B-3 Principal Distribution Amount on such Distribution Date) and (J) 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) 93.90% and (y)
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class C Certificates: All Certificates bearing the class designation
of "Class C."
Class Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class IO Interest: As specified in the Preliminary Statement.
Class IO Shortfalls: As defined in Section 8.13. For the avoidance
of doubt, the Class IO Shortfall for any Distribution Date shall equal the
amount payable to the Class X Certificates in respect of amounts due to the Swap
Provider on such Distribution Date (other than Defaulted Swap Termination
Payments) in excess of the amount payable on the Class X Interest on such
Distribution Date, all as further provided in Section 8.13.
Class LT-R Interest: The residual interest in the Lower-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class M Certificates: As specified in the Preliminary Statement.
Class M-1 Certificates: All Certificates bearing the class
designation of "Class M-1."
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), and (B) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 69.30% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date) and (C) the Class Certificate Balance of the
Class M-2 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 73.20% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class M-3 Certificates: All Certificates bearing the class
designation of "Class M-3."
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date) and (D) the Class
Certificate Balance of the Class M-3 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 79.80% and (y)
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class M-4 Certificates: All Certificates bearing the class
designation of "Class M-4."
Class M-4 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date) and (E) the Class Certificate Balance of the Class M-4 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 82.90% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-5 Certificates: All Certificates bearing the class
designation of "Class M-5."
Class M-5 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date) and (F) the Class Certificate Balance of the
Class M-5 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 85.80% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class P Certificates: All Certificates bearing the class designation
of "Class P."
Class PT1-R Interest: The residual interest in Pooling-Tier REMIC-1
as described in the Preliminary Statement and the related footnote thereto.
Class PT2-R Interest: The residual interest in Pooling-Tier REMIC-2
as described in the Preliminary Statement and the related footnote thereto.
Class R Certificates: As defined in the Preliminary Statement.
Class R-1 Certificates: All Certificates bearing the class
designation of "Class R-1."
Class R-2 Certificates: All Certificates bearing the class
designation of "Class R-2."
Class R-3 Certificates: All Certificates bearing the class
designation of "Class R-3."
Class UT-IO Interest: A regular interest in the Upper-Tier REMIC as
described in the Preliminary Statement and the related footnote thereto.
Class UT-R Interest: The residual interest in the Upper-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class UT-X Interest: A regular interest in the Upper-Tier REMIC as
described in the Preliminary Statement and the related footnote thereto.
Class X Certificates: All Certificates bearing the class designation
of "Class X."
Class X Distributable Amount: On any Distribution Date, (i) as a
distribution in respect of interest, the amount of interest that has accrued on
the Class UT-X Interest and not applied as an Extra Principal Distribution
Amount on such Distribution Date, plus any such accrued interest remaining
undistributed from prior Distribution Dates, plus, without duplication, (ii) as
a distribution in respect of principal, any portion of the principal balance of
the Class UT-X Interest which is distributable as an Overcollateralization
Reduction Amount, minus (iii) the sum of (A) any amounts paid from the Excess
Reserve Fund Account to pay Basis Risk Carry Forward Amounts and (B) any Swap
Termination Payment payable to the Swap Provider.
Class X Interest: The regular interest in the Class X REMIC
represented by the Class X Certificates as specified and described in the
Preliminary Statement and the related footnote thereto.
Class X REMIC: As defined in the Preliminary Statement.
Class X REMIC Regular Interest: Each of the Class X Interest and
Class IO Interest issued by the Class X REMIC.
Class X-R Interest: The residual interest in the Class X REMIC as
described in the Preliminary Statement and the related footnote thereto.
Closing Date: December 28, 2005.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: As defined in Section 3.10(a).
Compensating Interest: For any Distribution Date, the lesser of (a)
the Prepayment Interest Shortfall, if any, for such Distribution Date, with
respect to Principal Prepayments during the related Prepayment Period and (b)
the Servicing Fee payable to the Servicer for such Distribution Date.
Condemnation Proceeds: All awards, compensation and/or settlements
in respect of a Mortgaged Property, whether permanent or temporary, partial or
entire, by exercise of the power of eminent domain or condemnation, to the
extent not required to be released to a Mortgagor in accordance with the terms
of the related Mortgage Loan Documents.
Corporate Trust Office: With respect to the Securities
Administrator: (i) for certificate transfer purposes, the office of the
Securities Administrator at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, Attention: Corporate Trust Services, GSAMP 2005-AHL2, (ii) for
all other purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Client Manager GSAMP 05-AHL2 or (iii) at such other address as the
Securities Administrator may designate from time to time by notice to the
Depositor and the Certificateholders. With respect to the Trustee, the principal
office of the Trustee at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attention: Global Securities and Trust Services, or at such other address
as the Trustee may designate from time to time by notice to the Depositor and
the Certificateholders.
Corresponding Actual Crossover Distribution Date: For each
Pooling-Tier REMIC-2 IO Interest, the related Corresponding Scheduled Crossover
Distribution Date, unless on such date two times the aggregate Pooling-Tier
REMIC-2 IO Notional Balance of each other Pooling-Tier REMIC-2 IO Interest then
outstanding is less than the scheduled swap notional amount of the Interest Rate
Swap Agreement applicable for such Distribution Date, in which case the
Corresponding Actual Crossover Distribution Date for such Pooling-Tier REMIC-2
IO Interest shall be the first Distribution Date thereafter on which two times
the aggregate Pooling-Tier REMIC-2 IO Notional Balance of each other
Pooling-Tier REMIC-2 IO Interest then outstanding is greater than or equal to
the scheduled swap notional amount of the Interest Rate Swap Agreement.
Corresponding Class: The Class of interests in one Trust REMIC
created under this Agreement that corresponds to the Class of interests in the
other Trust REMIC or to a Class of Certificates in the manner set out below:
Upper-Tier and
Lower-Tier Class X REMIC Corresponding
Class Designation Regular Interest Class of Certificates
----------------- ---------------- ---------------------
Class LT-A-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-A-1 Class A-1 Class A-1
Class LT-A-2 Class A-2 Class A-2
Class LT-A-3 Class A-3 Class A-3
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-M-4 Class M-4 Class M-4
Class LT-M-5 Class M-5 Class M-5
Class LT-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
Corresponding Pooling-Tier REMIC-2 IO Interests: As described in the
Preliminary Statement.
Corresponding Scheduled Crossover Distribution Date: The
Distribution Date in the month and year specified in the Preliminary Statement
corresponding to a Pooling-Tier REMIC-2 IO Interest.
Cumulative Loss Percentage: As of any date of determination, the
percentage equivalent of a fraction, the numerator of which is the aggregate
amount of Realized Losses on the Mortgage Loans for the period from the Cut-off
Date to the date of determination and the denominator of which is the Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
Custodial File: With respect to each Mortgage Loan, any Mortgage
Loan Document which is delivered to the Custodian or which at any time comes
into the possession of the Custodian.
Custodian: Deutsche Bank National Trust Company, a national banking
association, and its successors in interest.
Cut-off Date: December 1, 2005.
Cut-off Date Pool Principal Balance: The aggregate Stated Principal
Balances of all Mortgage Loans as of the Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date (after
giving effect to payments of principal due on that date, whether or not
received).
Data File: As defined in Section 4.03(e).
Data File Delivery Date: As defined in Section 4.03(e).
Data Tape Information: The information provided by the Responsible
Party or the Servicer as of the Cut-off Date to the Depositor setting forth the
following information with respect to each Mortgage Loan: (1) the Responsible
Party's Mortgage Loan identifying number; (2) the Mortgagor's name; (3) the
street address of the Mortgaged Property including the city, state and zip code;
(4) a code indicating whether the Mortgaged Property is owner-occupied, a second
home or investment property; (5) the number and type of residential units
constituting the Mortgaged Property (i.e., a single family residence, a 2-4
family residence, a unit in a condominium project or a unit in a planned unit
development or a manufactured housing unit); (6) the original months to maturity
or the remaining months to maturity from the Cut-off Date, in any case based on
the original amortization schedule and, if different, the maturity expressed in
the same manner but based on the actual amortization schedule; (7) the
Loan-to-Value Ratio at origination; (8) the Mortgage Interest Rate as of the
Cut-off Date; (9) the date on which the Scheduled Payment was due on the
Mortgage Loan and, if such date is not consistent with the Due Date currently in
effect, such Due Date; (10) the stated maturity date; (11) the amount of the
Scheduled Payment as of the Cut-off Date; (12) the last payment date on which a
Scheduled Payment was actually applied to pay interest and the outstanding
principal balance; (13) the original principal amount of the Mortgage Loan; (14)
the principal balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after deduction of payments of principal due and collected on or
before the Cut-off Date; (15) with respect to Adjustable Rate Mortgage Loans,
the Adjustment Date; (16) with respect to Adjustable Rate Mortgage Loans, the
Gross Margin; (17) with respect to Adjustable Rate Mortgage Loans, the Lifetime
Rate Cap under the terms of the Mortgage Note; (18) with respect to Adjustable
Rate Mortgage Loans, a code indicating the type of Index; (19) with respect to
Adjustable Rate Mortgage Loans, the Periodic Mortgage Interest Rate Cap under
the terms of the Mortgage Note; (20) with respect to Adjustable Rate Mortgage
Loans, the Periodic Mortgage Interest Rate Floor under the terms of the Mortgage
Note; (21) the type of Mortgage Loan (i.e., fixed rate and adjustable rate);
(22) a code indicating the purpose of the loan (i.e., purchase, rate and term
refinance, equity take-out refinance); (23) a code indicating the documentation
style (i.e., full documentation, limited documentation or stated income); (24)
the loan credit classification (as described in the Underwriting Guidelines);
(25) whether such Mortgage Loan provides for a Prepayment Premium; (26) the
Prepayment Premium period of such Mortgage Loan, if applicable; (27) a
description of the Prepayment Premium, if applicable; (28) the Mortgage Interest
Rate as of origination; (29) the credit risk score (FICO score) at origination;
(30) the date of origination; (31) the Mortgage Interest Rate adjustment period;
(32) the Mortgage Interest Rate floor; (33) a code indicating whether the
Mortgage Loan has been modified; (34) the payment history; (35) the Due Date for
the first Scheduled Payment; (36) the original Scheduled Payment due; (37) with
respect to the related Mortgagor, the debt-to-income ratio; (38) the Appraised
Value of the Mortgaged Property; (39) the sales price of the Mortgaged Property
if the Mortgage Loan was originated in connection with the purchase of the
Mortgaged Property; (40) the Mortgage Interest Rate calculation method (i.e.,
30/360, simple interest, other); (41) a code indicating whether the Mortgage
Loan is a Section 32 Mortgage Loan; (42) a code indicating whether the Mortgage
Loan is assumable; (43) the date of the purchase of the Mortgage Loan; (44)
whether the Mortgage Loan is covered by PMI policy and name of insurer; (45)
with respect to each MERS Designated Mortgage Loan, the MERS identification
number; (46) a code indicating if the Mortgage Loan is an Interest Only Mortgage
Loan; and (47) a code indicating if a Mortgage Loan is or has had a 30 Day
Delinquency. With respect to the Mortgage Loans in the aggregate: (1) the number
of Mortgage Loans; (2) the current aggregate outstanding principal balance of
the Mortgage Loans; (3) the weighted average Mortgage Interest Rate of the
Mortgage Loans; and (4) the weighted average maturity of the Mortgage Loans.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the United
States Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which
became final and non appealable, except for such a reduction resulting from a
Deficient Valuation or any reduction that results in a permanent forgiveness of
principal.
Defaulted Swap Termination Payment: Any Swap Termination Payment
required to be paid by the Trust to the Swap Provider pursuant to the Interest
Rate Swap Agreement as a result of an Event of Default (as defined in the
Interest Rate Swap Agreement) with respect to which the Swap Provider is the
defaulting party or a Termination Event (as defined in the Interest Rate Swap
Agreement) (other than Illegality or a Tax Event that is not a Tax Event Upon
Merger (each as defined in the Interest Rate Swap Agreement )) with respect to
which the Swap Provider is the sole Affected Party (as defined in the Interest
Rate Swap Agreement).
Deficient Valuation: With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the United States
Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted Mortgage Loan: Any Mortgage Loan permitted to be removed
from the Trust Fund under the circumstances set forth in the Assignment
Agreement.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: GS Mortgage Securities Corp., a Delaware corporation, and
its successors in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust company,
including the Trustee and the Securities Administrator, that (a) is incorporated
under the laws of the United States of America or any State thereof, (b) is
subject to supervision and examination by federal or state banking authorities
and (c) has outstanding unsecured commercial paper or other short-term unsecured
debt obligations that are rated P-1 by Moody's, F1+ by Fitch and A-1 by Standard
& Poor's (in each case, to the extent they are designated as Rating Agencies in
the Preliminary Statement).
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to each Distribution Date, the 15th
day of the calendar month in which such Distribution Date occurs or, if such day
is not a Business Day, the immediately preceding Business Day.
Distribution Account: The separate Eligible Account created and
maintained by the Master Servicer pursuant to Section 3.27(b) in the name of the
Securities Administrator as paying agent for the benefit of the
Certificateholders and designated "Xxxxx Fargo Bank, N.A., as paying agent, in
trust for registered Holders of GSAMP Trust 2005-AHL2 Mortgage Pass-Through
Certificates, Series 2005-AHL2." Funds in the Distribution Account shall be held
in trust for the Certificateholders for the uses and purposes set forth in this
Agreement and may be invested in Permitted Investments.
Distribution Date: The 25th day of each calendar month after the
initial issuance of the Certificates or, if such day is not a Business Day, the
next succeeding Business Day, commencing in January 2006.
Document Certification and Exception Report: The report attached to
Exhibit G hereto.
Due Date: The day of the month on which the Scheduled Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
such Distribution Date occurs and ending on the first day of the calendar month
in which such Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a federal or
state-chartered depository institution or trust company that complies with the
definition of Eligible Institution, (ii) an account maintained with the
corporate trust department of a federal depository institution or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal
Regulation Section 11.10(b), which, in either case, has corporate trust powers
and is acting in its fiduciary capacity or (iii) any other account acceptable to
each Rating Agency. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with the
Securities Administrator.
Eligible Institution: A federal or state-chartered depository
institution or trust company the commercial paper, short-term debt obligations,
or other short-term deposits of which are rated at least "A-1+" by Standard &
Poor's if the amounts on deposit are to be held in the account for no more than
365 days (or at least "A-2" by Standard & Poor's if the amounts on deposit are
to be held in the account for no more than 30 days), or the long-term unsecured
debt obligations of which are rated at least "AA-" by Standard & Poor's if the
amounts on deposit are to be held in the account for no more than 365 days, and
the commercial paper, short-term debt obligations, or other short-term deposits
of which are rated at least "P-1" by Moody's and "F1+" by Fitch (or a comparable
rating if another Rating Agency is specified by the Depositor by written notice
to the Servicer, the Master Servicer, the Securities Administrator and the
Trustee) (in each case to the extent they are designated as Rating Agencies in
the Preliminary Statement).
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of Prohibited
Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.09(b).
Escrow Payments: As defined in Section 3.09(b).
Event of Default: As defined in Section 7.01.
Excess Overcollateralized Amount: With respect to any Distribution
Date, the excess, if any, of (a) the Overcollateralized Amount on such
Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Securities Administrator pursuant to Sections 3.27(a) in
the name of the Securities Administrator as paying agent for the benefit of the
Certificateholders and designated "Xxxxx Fargo Bank, N.A., as paying agent, in
trust for registered Holders of GSAMP Trust 2005-AHL2, Mortgage Pass-Through
Certificates, Series 2005-AHL2." Funds in the Excess Reserve Fund Account shall
be held in trust for the Regular Certificateholders for the uses and purposes
set forth in this Agreement. Amounts on deposit in the Excess Reserve Fund
Account shall not be invested.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal
to the sum of the Servicing Fee Rate and the Master Servicing Fee Rate.
Expense Fees: As to each Mortgage Loan, the sum of the Servicing Fee
and the Master Servicing Fee.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for such Distribution
Date and (y) the related Overcollateralization Deficiency for such Distribution
Date.
Xxxxxx Mae: The Federal National Mortgage Association and its
successors in interest.
Xxxxxx Xxx Guides: The Xxxxxx Mae Seller's Guide and the Xxxxxx Xxx
Servicer's Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, and its successors
in interest.
Final Recovery Determination: With respect to any defaulted Mortgage
Loan or any REO Property (other than a Mortgage Loan or REO Property purchased
by the Responsible Party, the Depositor or the Purchaser, as contemplated by
this Agreement), a determination made by the Servicer that all Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds and other payments or
recoveries which the Servicer, in its reasonable good faith judgment, expects to
be finally recoverable in respect thereof have been so recovered. The Servicer
shall maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for each Class of Certificates is the Distribution Date occurring in
December 2035.
Fitch: Fitch, Inc., and its successors in interest. If Fitch is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 12.05(b) the address for notices to Fitch shall be Fitch, Inc., Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: MBS Monitoring - GSAMP
Trust 2005-AHL2, or such other address as Fitch may hereafter furnish to the
Depositor, the Securities Administrator and the Trustee.
Fixed Rate Mortgage Loan: A fixed rate Mortgage Loan.
Forbearance: As defined in Section 3.07(a).
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, and its successors in interest.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note to be added
to the applicable Index to determine the Mortgage Interest Rate.
Group I Mortgage 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 25th Distribution Date, the aggregate amount of Realized
Losses incurred since the Cut-off Date through the last day of the related
Prepayment Period divided by the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date exceeds 1.35%, or (b) on or after the 25th
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.
Home Loan: A Mortgage Loan categorized as "Home Loan" pursuant to
Appendix E of Standard & Poor's Glossary.
Index: As to each Adjustable Rate Mortgage Loan, the index from time
to time in effect for the adjustment of the Mortgage Interest Rate set forth as
such on the related Mortgage Note.
Initial Certification: The Initial Certification submitted by the
Custodian, substantially in the form of Exhibit F.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements thereto
in effect, including any replacement policy or policies for any Insurance
Policies.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Accrual Period: With respect to each Class of LIBOR
Certificates, each Corresponding Class of Lower-Tier Regular Interests and each
Corresponding Class of Upper-Tier Regular Interests for any Distribution Date,
the period commencing on the immediately preceding Distribution Date (or, for
the initial Distribution Date, the Closing Date) and ending on the day
immediately preceding the current Distribution Date. For purposes of computing
interest accruals on each Class of LIBOR Certificates, each Corresponding Class
of Lower-Tier Regular Interest and each Corresponding Class of Upper-Tier
Regular Interest, each Interest Accrual Period has the actual number of days in
such period and each year is assumed to have 360 days.
Interest Only Mortgage Loan: A Mortgage Loan for which the related
Mortgage Note provides for Scheduled Payments of interest only for a period of
time as specified in the related Mortgage Note.
Interest Rate Swap Agreement: The interest rate swap agreement,
dated as of December 28, 2005, and the related confirmation, dated December 2,
2005, between Xxxxxxx Xxxxx Capital Markets, L.P. and Xxxxxxx Sachs Mortgage
Company or any other cap agreement or swap agreement (including any related
schedules) entered into by the Trustee on behalf of the Trust pursuant to
Section 2.01(d) hereof.
Interest Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans in a Loan Group, that portion of Available Funds
allocated to interest relating to the Mortgage Loans in such Loan Group and any
Net Swap Receipts attributable to such Loan Group for such Distribution Date,
net of any Net Swap Payments made from such Loan Group with respect to such
Distribution Date. For purposes of this Agreement, any Net Swap Payments or Net
Swap Receipts shall be allocated by the Securities Administrator between Loan
Groups based on the respective aggregate Stated Principal Balance of the
Mortgage Loans in each Loan Group.
Investment Account: As defined in Section 3.12(a).
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the investor pursuant to the MERS Procedures
Manual.
Investor Based Exemption: Any of Prohibited Transaction Class
Exemption ("PTCE") 84-14 (for transactions by independent "qualified
professional asset managers"), PTCE 91-38 (for transactions by bank collective
investment funds), XXXX 00-0 (for transactions by insurance company pooled
separate accounts), PTCE 95-60 (for transactions by insurance company general
accounts) or PTCE 96-23 (for transactions effected by "in-house asset
managers"), or any comparable exemption available under Similar Law.
Late Collections: With respect to any Mortgage Loan and any Due
Period, all amounts received after the Remittance Date immediately following
such Due Period, whether as late payments of Scheduled Payments or as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal and/or interest due (without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note) but delinquent for such Due Period and not previously recovered.
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Securities Administrator on the related
LIBOR Determination Date on the basis of the offered rate for one-month U.S.
dollar deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m.
(London time) on such date; provided, that if such rate does not appear on
Telerate Page 3750, the rate for such date will be determined on the basis of
the rates at which one-month U.S. dollar deposits are offered by the Reference
Banks at approximately 11:00 a.m. (London time) on such date to prime banks in
the London interbank market. In such event, the Securities Administrator shall
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations are provided, the rate
for that date will be the arithmetic mean of the quotations (rounded upwards if
necessary to the nearest whole multiple of 1/16%). If fewer than two quotations
are provided as requested, the rate for that date will be the arithmetic mean of
the rates quoted by major banks in New York City, selected by the Securities
Administrator (after consultation with the Depositor), at approximately 11:00
a.m. (New York City time) on such date for one-month U.S. dollar deposits of
leading European banks.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: With respect to any Interest Accrual
Period for the LIBOR Certificates, the second London Business Day preceding the
commencement of such Interest Accrual Period.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the amount per annum set forth on the Mortgage Loan Schedule.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated or
charged-off in the calendar month preceding the month of such Distribution Date
and as to which the Servicer has certified (in accordance with this Agreement)
that it has made a Final Recovery Determination.
Liquidation Event: With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made as to such Mortgage Loan; or (iii) such Mortgage Loan is
removed from coverage under this Agreement by reason of its being purchased,
sold or replaced pursuant to or as contemplated by this Agreement. With respect
to any REO Property, either of the following events: (i) a Final Recovery
Determination is made as to such REO Property; or (ii) such REO Property is
removed from coverage under this Agreement by reason of its being purchased
pursuant to this Agreement.
Liquidation Proceeds: The amounts, other than Insurance Proceeds,
Condemnation Proceeds or those received following the acquisition of REO
Property, received in connection with the liquidation of a defaulted Mortgage
Loan, whether through a trustee's sale, foreclosure sale or otherwise, including
any Subsequent Recoveries.
Loan Group: The Group I Mortgage Loans or the Group II Mortgage
Loans, as applicable.
Loan Group Cap: The Loan Group I Cap or the Loan Group II Cap, as
applicable.
Loan Group I Cap: With respect to the Group I Mortgage Loans as of
any Distribution Date, a per annum rate equal to the product of (i) 30 divided
by the actual number of days in the applicable Interest Accrual Period and (ii)
the sum of (A) the weighted average of the Mortgage Interest Rates for each
Group I Mortgage Loan (in each case, less the applicable Expense Fee Rate) then
in effect on the beginning of the related Due Period and (B) Net Swap Receipts,
if any, less Net Swap Payments if any, for that Distribution Date divided by the
Stated Principal Balance of the Mortgage Loans at the beginning of the related
Due Period, multiplied by 12.
Loan Group II Cap: With respect to the Group II Mortgage Loans as of
any Distribution Date, a per annum rate equal to the product of (i) 30 divided
by the actual number of days in the applicable Interest Accrual Period and (ii)
the sum of (A) the weighted average of the Mortgage Interest Rates for each
Group II Mortgage Loan (in each case, less the applicable Expense Fee Rate) then
in effect on the beginning of the related Due Period and (B) Net Swap Receipts,
if any, less Net Swap Payments if any, for that Distribution Date divided by the
Stated Principal Balance of the Mortgage Loans at the beginning of the related
Due Period, multiplied by 12.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, at
any time, the ratio (expressed as a percentage) of the principal balance of the
Mortgage Loan as of the date of determination, to the Appraisal Value of the
related Mortgaged Property.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lower-Tier Interest Rate: As described in the Preliminary Statement.
Lower-Tier Principal Amount: As described in the Preliminary
Statement.
Lower-Tier Regular Interest: Each of the Class LT-A-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-M-4, Class LT-M-5, Class LT-B-1,
Class LT-B-2, Class LT-B-3, Class LT-B-4, Class LT-IO, Class LT-3, Class
LT-Group I, Class LT-Group II and Class LT-Accrual Interests as described in the
Preliminary Statement.
Lower-Tier REMIC: As described in the Preliminary Statement.
Majority Class C Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class C Certificates.
Market Value Change Report: A report setting forth changes in
property value of the Mortgaged Properties in a format agreed upon by the
Servicer and the Depositor.
Master Servicer: Xxxxx Fargo, and if a successor master servicer is
appointed hereunder, such successor.
Master Servicer Event of Default: As defined in Section 9.04.
Master Servicing Fee: With respect to each Mortgage Loan and any
Distribution Date, an amount equal to the product of (i) one-twelfth of the
Master Servicing Fee Rate and (ii) the Stated Principal Balance of such Mortgage
Loan as of the first day of the calendar month preceding the month in which such
Distribution Date occurs. Such fee shall be payable monthly.
Master Servicing Fee Rate: With respect to each Mortgage Loan,
0.01575% per annum.
Master Servicing Officer: Any officer of the Master Servicer
involved in, or responsible for, the administration and master servicing of the
Mortgage Loans.
MERS: As defined in Section 2.01(b).
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Responsible Party has designated or will designate MERS as, and has taken or
will take such action as is necessary to cause MERS to be, the mortgagee of
record, as nominee for the Responsible Party, in accordance with MERS Procedures
Manual and (b) the Responsible Party has designated or will designate the Trust
as the Investor on the MERS(R) System.
MERS Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS(R) System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.03.
Moody's: Xxxxx'x Investors Service, Inc., and its successors in
interest. If Xxxxx'x is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 12.05(b) the address for notices to Moody's
shall be Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Mortgage Pass-Through Group, or such other address
as Moody's may hereafter furnish to the Depositor, the Securities Administrator
and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument identified
on the Mortgage Loan Schedule as securing a Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the Mortgage Loan Schedule, which Mortgage Loan includes,
without limitation, the Mortgage File, the Custodial File, the Servicing File,
the Scheduled Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition proceeds, Prepayment
Premiums and all other rights, benefits, proceeds and obligations arising from
or in connection with such Mortgage Loan, excluding replaced or repurchased
Mortgage Loans.
Mortgage Loan Documents: The mortgage loan documents pertaining to
each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Schedule I, such schedule setting forth the following information with
respect to each Mortgage Loan as of the Cut-off Date: (1) the Responsible Party
Mortgage Loan identifying number; (2) the Mortgagor's name; (3) the street
address of the Mortgaged Property including the city, state and zip code; (4) a
code indicating whether the Mortgaged Property is owner-occupied, a second home
or investment property; (5) the number and type of residential units
constituting the Mortgaged Property (i.e., a single family residence, a 2-4
family residence, a unit in a condominium project or a unit in a planned unit
development or a manufactured housing unit); (6) the original months to maturity
or the remaining months to maturity from the Cut-off Date, in any case based on
the original amortization schedule and, if different, the maturity expressed in
the same manner but based on the actual amortization schedule; (7) the
Loan-to-Value Ratio at origination; (8) the Mortgage Interest Rate as of the
Cut-off Date; (9) the date on which the Scheduled Payment was due on the
Mortgage Loan and, if such date is not consistent with the Due Date currently in
effect, such Due Date; (10) the stated maturity date; (11) the amount of the
Scheduled Payment as of the Cut-off Date; (12) the last payment date on which a
Scheduled Payment was actually applied to pay interest and the outstanding
principal balance; (13) the original principal amount of the Mortgage Loan; (14)
the principal balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after deduction of payments of principal due and collected on or
before the Cut-off Date; (15) with respect to Adjustable Rate Mortgage Loans,
the Adjustment Date; (16) with respect to Adjustable Rate Mortgage Loans, the
Gross Margin; (17) with respect to Adjustable Rate Mortgage Loans, the Lifetime
Rate Cap under the terms of the Mortgage Note; (18) with respect to Adjustable
Rate Mortgage Loans, a code indicating the type of Index; (19) with respect to
Adjustable Rate Mortgage Loans, the Periodic Mortgage Interest Rate Cap under
the terms of the Mortgage Note; (20) with respect to Adjustable Rate Mortgage
Loans, the Periodic Mortgage Interest Rate Floor under the terms of the Mortgage
Note; (21) the type of Mortgage Loan (i.e., fixed rate or adjustable rate); (22)
a code indicating the purpose of the loan (i.e., purchase, rate and term
refinance, equity take-out refinance); (23) a code indicating the documentation
style (i.e., full documentation, limited documentation or stated income); (24)
the loan credit classification (as described in the Underwriting Guidelines);
(25) whether such Mortgage Loan provides for a Prepayment Premium; (26) the
Prepayment Premium period of such Mortgage Loan, if applicable; (27) a
description of the Prepayment Premium, if applicable; (28) the Mortgage Interest
Rate as of origination; (29) the credit risk score (FICO score) at origination;
(30) the date of origination; (31) the date of the purchase of the Mortgage
Loan, if applicable; (32) the Mortgage Interest Rate adjustment period; (33) the
Mortgage Interest Rate floor; (34) a code indicating whether the Mortgage Loan
has been modified; (35) the payment history; (36) the Due Date for the first
Scheduled Payment; (37) the original Scheduled Payment due; (38) with respect to
the related Mortgagor, the debt-to-income ratio; (39) the Appraised Value of the
Mortgaged Property; (40) the sales price of the Mortgaged Property if the
Mortgage Loan was originated in connection with the purchase of the Mortgaged
Property; (41) the Mortgage Interest Rate calculation method (i.e., 30/360,
simple interest, other); (42) a code indicating whether the Mortgage Loan is a
Section 32 Mortgage Loan; (43) a code indicating whether the Mortgage Loan is
assumable; (44) whether the Mortgage Loan is covered by PMI policy and name of
insurer; (45) with respect to each MERS Designated Mortgage Loan, the MERS
identification number; (46) a code indicating whether the Mortgage Loan is a
Group I Mortgage Loan or a Group II Mortgage Loan; (47) a code indicating if a
Mortgage Loan is or has had a 30 Day Delinquency; (48) with respect to each MERS
Designated Mortgage Loan, the MERS identification number; (49) a code indicating
if the Mortgage Loan is an Interest Only Mortgage Loan; (50) a code indicating
whether such Mortgage Loan is a Home Loan; and (51) the Original Purchase Date.
With respect to the Mortgage Loans in the aggregate: (1) the number of Mortgage
Loans; (2) the current aggregate outstanding principal balance of the Mortgage
Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage Loans;
and (4) the weighted average maturity of the Mortgage Loans.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan, including all riders thereto.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the amount
remaining for distribution pursuant to Section 4.02(a)(iii) (before giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date, the
amount by which the sum of the Prepayment Interest Shortfalls for such
Distribution Date exceeds the sum of the Compensating Interest payments made
with respect to such Distribution Date.
Net Swap Payment: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) made by the Trust to the Swap
Provider on the related Fixed Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement).
Net Swap Receipt: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) made by the Swap Provider to the
Trust on the related Floating Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement), or any amount withdrawn from the reserve account
referred to in the third full paragraph of Section 4.06 that is required under
that paragraph be treated as a Net Swap Receipt for purposes of determining the
distributions from the Supplemental Interest Trust.
NIM Issuer: The entity established as the issuer of the NIM
Securities.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class X and Class P Certificates that are rated by one or
more Rating Agencies.
NIM Trustee: The trustee for the NIM Securities.
90+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which any portion of a Scheduled Payment is, as of the last day of the prior Due
Period, three months or more past due (without giving effect to any grace
period), including each Mortgage Loan in foreclosure, all REO Property and each
Mortgage Loan for which the Mortgagor has filed for bankruptcy.
Non-Permitted Transferee: As defined in Section 8.11(e).
Nonrecoverable P&I Advance: Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Property that, in the
good faith business judgment of the Servicer, the Master Servicer or any
successor Master Servicer including the Trustee, as applicable, will not or, in
the case of a proposed P&I Advance, would not be ultimately recoverable from
related late payments, Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds on such Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advances previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in the good faith business judgment of the Servicer, the Master Servicer
or any successor Master Servicer including the Trustee, as applicable, will not
or, in the case of a proposed Servicing Advance, would not, be ultimately
recoverable from related Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or otherwise.
Non-Rule 144A Investment Letter: As defined in Section 5.02(b).
Notice of Final Distribution: The notice to be provided pursuant to
Section 11.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Ocwen: Ocwen Loan Servicing, LLC, a Delaware limited liability
company, and its successors in interest.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by an officer of the
Servicer or the Master Servicer, as applicable, with responsibility for the
servicing of the Mortgage Loans and listed on a list delivered to the Trustee
and the Securities Administrator pursuant to this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for the Servicer or a Subservicer, reasonably acceptable to the
Trustee and the Securities Administrator; provided, that any Opinion of Counsel
relating to (a) qualification of any Trust REMIC as a REMIC or (b) compliance
with the REMIC Provisions, must (unless otherwise stated in such Opinion of
Counsel) be an opinion of counsel who (i) is in fact independent of the Servicer
or the Master Servicer, (ii) does not have any material direct or indirect
financial interest in the Servicer or the Master Servicer or in an Affiliate of
either and (iii) is not connected with the Servicer or the Master Servicer as an
officer, employee, director or person performing similar functions.
Optional Termination Date: The date determined as follows:
(i) the Servicer (at the direction of the Majority Class C
Certificateholder (as evidenced on the Certificate Register)), pursuant to
Section 11.01, shall cause the Optional Termination Date to occur on any
Distribution Date on which the aggregate Stated Principal Balance of the
Mortgage Loans, as of the last day of the related Due Period, is equal to
10% or less of the Cut-off Date Pool Principal Balance (provided, that if
the Depositor or an Affiliate of the Depositor is one of the Holders
constituting such majority, then there must be at least one other
unaffiliated Holder constituting such majority and the Class C
Certificates held by such Holder, or unaffiliated Holders in the
aggregate, must represent at least a 10% Percentage Interest in the Class
C Certificates); and
(ii) the Master Servicer or the Servicer, pursuant to Section 11.01,
individually, may, at their option, cause the Optional Termination Date to
occur on any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans, as of the last day of the related Due
Period, is equal to 5% or less of the Cut-off Date Pool Principal Balance.
Notwithstanding the foregoing, in the event that the Majority Class C
Certificateholder, the Master Servicer or the Servicer may cause the Optional
Termination Date to occur, the first to provide written notice to the Trustee
exercising such right shall be entitled to purchase the Mortgage Loans.
Original Purchase Date: For each Mortgage Loan, either of October
28, 2005 or November 8, 2005, as indicated as the Original Purchase Date for
such Mortgage Loan on the Mortgage Loan Schedule.
OTS: Office of Thrift Supervision, and any successor thereto.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore cancelled by the Securities
Administrator or delivered to the Securities Administrator for
cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Securities
Administrator pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Amount: As of any Distribution Date, the excess,
if any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over (b) the aggregate of the Class Certificate Balances
of the LIBOR Certificates and the Residual Certificates as of such Distribution
Date (after giving effect to the payment of the Principal Remittance Amount on
such Certificates on such Distribution Date).
Overcollateralization Deficiency: With respect to any Distribution
Date, the excess, if any, of (a) the Specified Overcollateralized Amount
applicable to such Distribution Date over (b) the Overcollateralized Amount
applicable to such Distribution Date.
Overcollateralization Floor: With respect to any Distribution Date,
0.50% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
Overcollateralization Reduction Amount: With respect to any
Distribution Date, an amount equal to the lesser of (a) the Excess
Overcollateralized Amount and (b) the Net Monthly Excess Cash Flow.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
P&I Advance: As to any Mortgage Loan or REO Property, any advance
made by the Servicer in respect of any Remittance Date representing the
aggregate of all payments of principal and interest, net of the Servicing Fee,
that were due during the related Due Period on the Mortgage Loans and that were
delinquent on the related Remittance Date, plus certain amounts representing
assumed payments not covered by any current net income on the Mortgaged
Properties acquired by foreclosure or deed in lieu of foreclosure as determined
pursuant to Section 4.01.
Pass-Through Margin: Except as set forth in the following sentence,
with respect to each Class of LIBOR Certificates, the following percentages:
Class A-1A Certificates, 0.240%; Class A-1B Certificates, 0.310%; Class A-2A
Certificates, 0.080%; Class A-2B Certificates, 0.150%; Class A-2C Certificates,
0.240%; Class A-2D Certificates, 0.350%; Class M-1 Certificates, 0.440%; Class
M-2 Certificates, 0.470%; Class M-3 Certificates, 0.640%; Class M-4
Certificates, 0.720%; Class M-5 Certificates, 1.650%; Class B-1 Certificates,
2.150%; Class B-2 Certificates, 1.800%; Class B-3 Certificates, 2.500%; and
Class B-4 Certificates, 2.500%. On the first possible Optional Termination Date,
the Pass-Through Margins shall increase to: Class A-1A Certificates, 0.480%;
Class A-1B Certificates, 0.620%; Class A-2A Certificates, 0.160%; Class A-2B
Certificates, 0.300%; Class A-2C Certificates, 0.480%; Class A-2D Certificates,
0.700%; Class M-1 Certificates, 0.660%; Class M-2 Certificates, 0.705%; Class
M-3 Certificates, 0.960%; Class M-4 Certificates, 1.080%; Class M-5
Certificates, 2.475%; Class B-1 Certificates, 3.225%; Class B-2 Certificates,
2.700%; Class B-3 Certificates, 3.750%; and Class B-4 Certificates, 3.750%.
Pass-Through Rate: For each Class of Regular Certificates, each
Pooling-Tier REMIC-1 Regular Interest, each Pooling-Tier REMIC-2 Regular
Interest, each Lower-Tier Regular Interest, each Upper-Tier Regular Interest,
and each Class X REMIC Regular Interest, the per annum rate set forth or
calculated in the manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Periodic Mortgage Interest Rate Cap: With respect to each Adjustable
Rate Mortgage Loan, the provision of each Mortgage Note which provides for an
absolute maximum amount by which the Mortgage Interest Rate therein may increase
or decrease on an Adjustment Date above or below the Mortgage Interest Rate
previously in effect. The Periodic Mortgage Interest Rate Cap for each
Adjustable Rate Mortgage Loan is the rate set forth on the Mortgage Loan
Schedule.
Periodic Mortgage Interest Rate Floor: With respect to each
Adjustable Rate Mortgage Loan, the provision of each Mortgage Note which
provides for an absolute minimum amount by which the Mortgage Interest Rate
therein may increase or decrease on an Adjustment Date above or below the
Mortgage Interest Rate previously in effect. The Periodic Mortgage Interest Rate
Floor for each Adjustable Rate Mortgage Loan is the rate set forth on the
Mortgage Loan Schedule.
Permitted Investments: Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued by the Servicer, the Trustee, the Securities Administrator or
any of their respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars and
issued by any Depository Institution and rated "P-1" by Moody's, "A-1+" by
Standard & Poor's and "F1+" by Fitch (in each case, to the extent they are
designated as Rating Agencies in the Preliminary Statement);
(iii) repurchase obligations with respect to any security described
in clause (i) above entered into with a Depository Institution (acting as
principal);
(iv) securities bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the United States
of America or any state thereof and that are rated by each Rating Agency
that rates such securities in its highest long-term unsecured rating
categories at the time of such investment or contractual commitment
providing for such investment;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 30 days after the date of acquisition
thereof) that is rated by each Rating Agency that rates such securities in
its highest short-term unsecured debt rating available at the time of such
investment;
(vi) units of money market funds, including money market funds
advised by the Depositor, the Securities Administrator or the Trustee or
an Affiliate thereof, that are rated, if rated by Moody's, at least "Aaa"
by Moody's, if rated by Standard & Poor's, at least "AAAm" or "AAAm-G" by
Standard & Poor's, and if rated by Fitch, at least "AA" by Fitch (in each
case, to the extent they are designated as Rating Agencies in the
Preliminary Statement); and
(vii) if previously confirmed in writing to the Securities
Administrator, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to the
Rating Agencies as a permitted investment of funds backing "Aaa" or "AAA"
rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
For investments in the Distribution Account (except during the Securities
Administrator Float Period), only the obligations or securities (or instruments
which invest in the obligations or securities) specified in clause (i) above
shall constitute Permitted Investments.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a U.S.
Person or a U.S. Person with respect to whom income from a Residual Certificate
is attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of such Person or any other U.S.
Person, (vi) an "electing large partnership" within the meaning of Section 775
of the Code and (vii) any other Person so designated by the Depositor based upon
an Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to such Person may cause any Trust REMIC to fail to qualify as a
REMIC at any time that the Certificates are outstanding. The terms "United
States," "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of Xxxxxxx Mac, a majority of its board
of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Plan: As defined in Section 5.02(b).
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans for such
Distribution Date that were Outstanding Mortgage Loans on the Due Date in the
related Due Period.
Pooling-Tier Interest Rate: As specified in the Preliminary
Statement.
Pooling-Tier REMIC-1: As described in the Preliminary Statement.
Pooling-Tier REMIC-1 Interest Rate: As described in the Preliminary
Statement.
Pooling-Tier REMIC-1 Loan Group I WAC Rate: With respect to the
Group I Mortgage Loans as of any Distribution Date, a per annum rate equal to
(a) the weighted average of the Mortgage Interest Rates for each such Mortgage
Loan (in each case, less than the applicable Expense Fee Rate) then in effect on
the beginning of the related Due Period on such Mortgage Loans, multiplied by
(b) 30 divided by the actual number of days in the related Interest Accrual
Period.
Pooling-Tier REMIC-1 Loan Group II WAC Rate: With respect to the
Group II Mortgage Loans as of any Distribution Date, a per annum rate equal to
(a) the weighted average of the Mortgage Interest Rates for each such Mortgage
Loan (in each case, less than the applicable Expense Fee Rate) then in effect on
the beginning of the related Due Period on such Mortgage Loans, multiplied by
(b) 30 divided by the actual number of days in the related Interest Accrual
Period.
Pooling-Tier REMIC-1 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-1 Regular Interest: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2: As described in the Preliminary Statement.
Pooling-Tier REMIC-2 Interest Rate: As described in the Preliminary
Statement.
Pooling-Tier REMIC-2 IO Interest: Any of the Pooling-Tier REMIC-2
Regular Interests with the designation "IO" in its name.
Pooling-Tier REMIC-2 IO Notional Balance: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2 Regular Interest: As described in the
Preliminary Statement.
Prepayment Interest Shortfall: With respect to any Remittance Date,
the sum of, for each Mortgage Loan that was, during the related Prepayment
Period, the subject of a Principal Prepayment that was applied by the Servicer
to reduce the outstanding principal balance of such Mortgage Loan on a date
preceding the Due Date in the succeeding Prepayment Period, an amount equal to
the product of (a) the Mortgage Interest Rate net of the Servicing Fee Rate for
such Mortgage Loan, (b) the amount of the Principal Prepayment for such Mortgage
Loan, (c) 1/360 and (d) the number of days commencing on the date on which such
Principal Prepayment was applied and ending on the last day of the related
Prepayment Period.
Prepayment Period: With respect to any Distribution Date, the
calendar month preceding the month in which such Distribution Date occurs.
Prepayment Premium: Any prepayment premium, penalty or charge
collected by the Servicer with respect to a Mortgage Loan from a Mortgagor in
connection with any voluntary Principal Prepayment pursuant to the terms of the
related Mortgage Note.
Principal Distribution Amount: For any Distribution Date, the sum of
(i) the Basic Principal Distribution Amount for such Distribution Date and (ii)
the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other recovery
of principal on a Mortgage Loan (including upon liquidation of a Mortgage Loan)
which is received in advance of its scheduled Due Date, excluding any Prepayment
Premium and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution Date,
the amount equal to the sum of the following amounts (without duplication) with
respect to the related Due Period: (i) each Scheduled Payment of principal on a
Mortgage Loan due during such Due Period and received by the Servicer on or
prior to the related Determination Date or advanced by the Servicer for the
related Remittance Date, (ii) all Principal Prepayments received during the
related Prepayment Period, (iii) all Liquidation Proceeds, Condemnation Proceeds
and Insurance Proceeds on the Mortgage Loans allocable to principal actually
collected by the Servicer during the related Prepayment Period, (iv) the portion
of the Repurchase Price allocable to principal with respect to each Deleted
Mortgage Loan, the repurchase obligation for which arose during the related
Prepayment Period, that was repurchased during the period from the prior
Distribution Date through the Remittance Date for the current Distribution Date,
(v) the portion of all Substitution Adjustment Amounts allocable to principal
with respect to the substitutions of Mortgage Loans that occur during the
calendar month in which such Distribution Date occurs, and (vi) the allocable
portion of the proceeds received with respect to the termination of the Trust
Fund pursuant to clause (a) of Section 11.01 (to the extent such proceeds relate
to principal).
Privacy Laws: Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, as
amended, and all applicable regulations promulgated thereunder.
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated December 21,
2005, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
Purchase Agreement: The Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of August 1, 2003, between the Purchaser and the Responsible
Party, as amended by Amendment No. 1 to Purchase Agreement, dated as of July 15,
2004, and as further amended by Amendment No. 2 to Purchase Agreement, dated as
of February 1, 2005.
Purchaser: Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors in interest, as purchaser of the Mortgage Loans
under the Purchase Agreement.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Securities Administrator. 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, the
Securities Administrator and the Trustee.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid principal
balance of such Liquidated Mortgage Loan together with accrued and unpaid
interest thereon exceeds (b) the Liquidation Proceeds with respect thereto net
of the expenses incurred by the Servicer in connection with the liquidation of
such Liquidated Mortgage Loan and net of the amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the related Interest Accrual Period;
provided, however, that for any Certificate issued in definitive form, the
Record Date shall be the close of business on the last Business Day of the month
preceding the month in which such applicable Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers Civil Relief Act, or any similar state
statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Opinion: As defined in Section 11.03.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, no later
than 12:00 PM, New York Time on the Business Day immediately preceding such
Distribution Date.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Imputed Interest: As to any REO Property, for any period, an
amount equivalent to interest (at the Mortgage Interest Rate net of the
Servicing Fee Rate that would have been applicable to the related Mortgage Loan
had it been outstanding) on the unpaid principal balance of the Mortgage Loan as
of the date of acquisition thereof (as such balance is reduced pursuant to
Section 3.15 by any income from the REO Property treated as a recovery of
principal).
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Reporting Date: The 12th day of each calendar month or the
immediately following Business Day if the 12th is not a Business Day.
Repurchase Price: With respect to any Mortgage Loan, (a) repurchased
by the Purchaser or the Depositor, an amount equal to the sum of (i) the unpaid
principal balance of such Mortgage Loan as of the date of repurchase, (ii)
interest on such unpaid principal balance of such Mortgage Loan at the Mortgage
Interest Rate from the last date through which interest has been paid and
distributed to the Securities Administrator to the date of repurchase, (iii) all
unreimbursed Servicing Advances and (iv) all expenses incurred by the Master
Servicer, the Servicer, the Trust or the Trustee, as the case may be, in respect
of a breach or defect, including, without limitation, (A) expenses arising out
of the Master Servicer's, Servicer's or Trustee's, as the case may be,
enforcement of the Purchaser's repurchase obligation, to the extent not included
in clause (iii), and (B) any costs and damages incurred by the Trust in
connection with any violation by such Mortgage Loan of any predatory lending law
or abusive lending law, and (b) repurchased by the Responsible Party, the
"Repurchase Price" as defined in the Assignment Agreement.
Request for Release: The Request for Release submitted by the
Servicer to the Custodian substantially in the form of Exhibit L.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, the
Securities Administrator or the Master Servicer, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer, any
associate assigned, with respect to the Trustee, to the Global Securities and
Trust Services Group (or successor group) or any other officer of the Trustee,
the Securities Administrator or the Master Servicer customarily performing
functions similar to those performed by any of the above designated officers who
at such time shall be officers to whom, with respect to a particular matter,
such matter is referred because of such officer's knowledge of and familiarity
with the particular subject and who shall have direct responsibility for the
administration of this Agreement.
Responsible Party: Accredited Home Lenders, Inc., a California
corporation, and its successors in interest.
Responsible Party Agreements: The Purchase Agreement and the
Assignment, Assumption and Recognition Agreement, as the case may be, copies of
which are attached hereto as Exhibit Q.
Rule 144A Letter: As defined in Section 5.02(b).
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: Xxxxx Fargo, and if a successor securities
administrator is appointed hereunder, such successor.
Securities Administrator Float Period: With respect to any
Distribution Date and the related amounts in the Distribution Account, the
period commencing on the Remittance Date and ending on such Distribution Date.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
Senior Specified Enhancement Percentage: As of any date of
determination, 45.70%.
Servicer: Ocwen and if a successor servicer is appointed hereunder,
such successor.
Servicer Delinquency Trigger: With respect to any Distribution Date,
a Delinquency Trigger exists if (i) the quotient (expressed as a percentage) of
(1) the rolling three-month average of the aggregate unpaid principal balance of
60+ Day Delinquent Mortgage Loans, divided by (2) the aggregate unpaid principal
balance of the Mortgage Loans as of the last day of the related Due Period,
equals or exceeds 45.00% of the Senior Enhancement Percentage as of the last day
of the prior Due Period.
Servicer Cumulative Loss Trigger: With respect to any Distribution
Date, a Servicer Cumulative Loss Trigger exists if the Cumulative Loss
Percentage exceeds the applicable percentages set forth below with respect to
such Distribution Date:
Distribution Date Occurring In Loss Percentage
------------------------------ ---------------
December 2005 through December 2008 1.85% for the first month, plus an
additional 1/12th of 0.55% for each month
thereafter
December 2008 through December 2009 3.50% for the first month, plus an
additional 1/12th of 1.70% for each month
thereafter
December 2009 and thereafter 5.20%
Servicer Remittance Report: As defined in Section 4.03(d).
Servicing Advances: The reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred prior to, on, or after the Cut-off Date
by the Servicer in the performance of its servicing obligations in connection
with a default, delinquency or other unanticipated event, including, but not
limited to, the cost of (i) the preservation, restoration, inspection and
protection of a Mortgaged Property, (ii) any enforcement, administrative or
judicial proceedings, including foreclosures and litigation, in respect of a
particular Mortgage Loan, (iii) the management (including reasonable fees in
connection therewith) and liquidation of any REO Property and (iv) the
performance of its obligations under Sections 3.01, 3.07, 3.09, 3.13 and 3.15.
Servicing Advances also include any reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred by the Servicer in connection with
executing and recording instruments of satisfaction, deeds of reconveyance or
Assignments of Mortgage in connection with any satisfaction or foreclosures in
respect of any Mortgage Loan to the extent not recovered from the Mortgagor or
otherwise payable under this Agreement and obtaining or correcting any legal
documentation required to be included in the Mortgage Files and necessary for
the Servicer to perform its obligations under this Agreement, including
correcting any outstanding title issues (i.e., any lien or encumbrance on the
Mortgaged Property that prevents the effective enforcement of the intended lien
position. The Servicer shall not be required to make any Nonrecoverable
Servicing Advances.
Servicing Fee: With respect to each Mortgage Loan and any
Distribution Date, an amount equal to the product of (i) one-twelfth of the
Servicing Fee Rate and (ii) the Stated Principal Balance of such Mortgage Loan
as of the first day of the calendar month preceding the month in which such
Distribution Date occurs. Such fee shall be payable monthly, and shall be pro
rated for any portion of a month during which the Mortgage Loan is serviced by
the Servicer under this Agreement. The Servicing Fee is payable solely from the
interest portion (including recoveries with respect to interest from Liquidation
Proceeds, Insurance Proceeds, Condemnation Proceeds and proceeds received with
respect to REO Properties, to the extent permitted by Section 3.11) of such
Scheduled Payment collected by the Servicer or as otherwise provided under
Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.50% per
annum.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer consisting of originals or copies of all documents in
the Mortgage File which are not delivered to the Custodian in the Custodial File
and copies of the Mortgage Loan Documents set forth in Exhibit M hereto.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Master Servicer and the Trustee by the Servicer on the Closing Date pursuant
to this Agreement, as such list may from time to time be amended.
Servicing Transfer Costs: All reasonable out-of-pocket costs and
expenses incurred by the Master Servicer in connection with the transfer of
servicing from a terminated Servicer, including, without limitation, any such
costs or expenses associated with the complete transfer of all servicing data
and the completion, correction or manipulation of such servicing data as may be
required by the Master Servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the Master Servicer (or any successor
Servicer appointed pursuant to Section 7.02) to service the Mortgage Loans
properly and effectively.
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which any portion of a Scheduled Payment is, as of the last day of the prior Due
Period, two months or more past due (without giving effect to any grace period),
each Mortgage Loan in foreclosure, all REO Property and each Mortgage Loan for
which the Mortgagor has filed for bankruptcy.
Specified Overcollateralized Amount: Prior to the Stepdown Date, an
amount equal to 3.05% of the Cut-off Date Pool Principal Balance. On and after
the Stepdown Date, an amount equal to 6.10% of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date, subject, until the
Class Certificate Balance of each Class of LIBOR Certificates has been reduced
to zero, to a minimum amount equal to the Overcollateralization Floor; provided,
however, that if, on any Distribution Date, a Trigger Event has occurred, the
Specified Overcollateralized Amount shall not be reduced to the applicable
percentage of the then current aggregate Stated Principal Balance of the
Mortgage Loans until the Distribution Date on which a Trigger Event is no longer
occurring; provided, further, that when the Class Certificate Balance of each
Class of LIBOR Certificates has been reduced to zero, the Specified
Overcollateralized Amount will thereafter equal zero.
Standard & Poor's: Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., and its successors in interest. If Standard &
Poor's is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 12.05(b) the address for notices to Standard & Poor's shall
be Standard & Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Mortgage Surveillance Group - GSAMP Trust 2005-AHL2, or such other
address as Standard & Poor's may hereafter furnish to the Depositor, the
Securities Administrator and the Trustee.
Standard & Poor's Glossary: Version 5.6(c) of the Standard & Poor's
LEVELS(R) Glossary.
Start-up Day: As defined in Section 2.06.
Stated Principal Balance: As to each Mortgage Loan and as of any
date of determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date, minus (ii) all amounts previously remitted to the Securities Administrator
with respect to the related Mortgage Loan representing payments or recoveries of
principal including advances in respect of Scheduled Payments of principal. For
purposes of any Distribution Date, the Stated Principal Balance of any Mortgage
Loan will give effect to any Scheduled Payments of principal received by the
Servicer on or prior to the related Determination Date or advanced by the
Servicer for the related Remittance Date and any unscheduled principal payments
and other unscheduled principal collections received during the related
Prepayment Period, and the Stated Principal Balance of any Mortgage Loan that
has prepaid in full or has become a Liquidated Mortgage Loan during the related
Prepayment Period shall be zero.
Stepdown Date: The earlier to occur of (a) the date on which the
aggregate Class Certificate Balances of the Class A Certificates have been
reduced to zero, and (b) the later to occur of (i) the Distribution Date in
January 2009, and (ii) the first Distribution Date on which the Senior
Enhancement Percentage is greater than or equal to the Senior Specified
Enhancement Percentage.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subsequent Recoveries: Amounts received with respect to any
Liquidated Mortgage Loan after it has become a Liquidated Mortgage Loan.
Subservicer: As defined in Section 3.02(a).
Subservicing Account: As defined in Section 3.08.
Subservicing Agreements: As defined in Section 3.02(a).
Substitute Mortgage Loan: As defined in the Assignment, Assumption
and Recognition Agreement.
Substitution Adjustment Amount: Any amount to be paid in connection
with a Substitute Mortgage Loan pursuant to the fourth full paragraph of Section
8 of the Assignment, Assumption and Recognition Agreement, and any additional
amounts required to be paid by the Purchaser in connection with such a
substitution.
Supplemental Interest Trust: The corpus of a trust created pursuant
to Section 4.06 of this Agreement, consisting of the Interest Rate Swap
Agreement, the Class IO Interest and the right to receive Class IO Shortfalls,
subject to the obligation to pay amounts specified in Section 4.06.
Swap LIBOR: With respect to any Distribution Date (and the related
Interest Accrual Period), the product of (i) USD-LIBOR-BBA (as used in the
Interest Rate Swap Agreement), (ii) two, and (iii) the quotient of (a) the
actual number of days in the Interest Accrual Period for the LIBOR Certificates
divided by (b) 30.
Swap Provider: Xxxxxxx Sachs Mitsui Marine Derivative Products,
L.P., a Delaware limited partnership, and its successors in interest, and any
successor swap provider under any replacement Interest Rate Swap Agreement.
Swap Termination Payment: Any payment payable by the Trust or the
Swap Provider upon termination of the Interest Rate Swap Agreement as a result
of an Event of Default (as defined in the Interest Rate Swap Agreement) or a
Termination Event (as defined in the Interest Rate Swap Agreement).
Tax Matters Person: The Holder of the (i) Class R-2, (ii) Class R-1
and (iii) Class R-3 Certificates designated as "tax matters person" of (i)
Pooling-Tier REMIC-1, (ii) Pooling-Tier REMIC-2, the Lower-Tier REMIC and the
Upper-Tier REMIC, and (iii) the Class X REMIC, respectively, in the manner
provided under Treasury Regulations Section 1.860F-4(d) and Treasury Regulations
Section 301.6231(a)(7)-1.
Tax Service Contract: As defined in Section 3.09(a).
Telerate Page 3750: The display page currently so designated on the
Bridge Telerate Service (or such other page as may replace that page on that
service for displaying comparable rates or prices).
Termination Price: As defined in Section 11.01.
30 Day Delinquency: The failure of the Mortgagor to make any
Scheduled Payment due under the Mortgage Note on a Due Date, which failure
continues unremedied for a period of one month after the following Due Date.
Total Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess if any, of (i) the interest collected on the Mortgage Loans
received by the Servicer on or prior to the related Determination Date or
advanced by the Servicer for the related Remittance Date (net of Expense Fees)
and plus any Net Swap Receipts and less any Net Swap Payments for such
Distribution Date, over (ii) the sum of the interest payable to the LIBOR
Certificates on such Distribution Date pursuant to Section 4.02(a)(i).
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transfer Date: For each Mortgage Loan, December 1, 2005.
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a Trigger
Event exists if (i) the quotient (expressed as a percentage) of (1) the rolling
three month average of the aggregate unpaid principal balance of 60+ Day
Delinquent Mortgage Loans, divided by (2) the aggregate unpaid principal balance
of the Mortgage Loans as of the last day of the related Due Period, equals or
exceeds 33.00% of the Senior Enhancement Percentage as of the last day of the
prior Due Period or (ii) the quotient (expressed as a percentage) of (x) the
aggregate amount of Realized Losses incurred since the Cut-off Date through the
last day of the related Prepayment Period divided by (y) the Cut-off Date Pool
Principal Balance, exceeds the applicable percentages set forth below with
respect to such Distribution Date:
Distribution Date Occurring In Loss Percentage
------------------------------ ---------------
January 2008 through December 2008 1.35% for the first month, plus an
additional 1/12th of 1.65% for each
month thereafter
January 2009 through December 2009 3.00% for the first month, plus an
additional 1/12th of 1.70% for each
month thereafter
January 2010 through December 2010 4.70% for the first month, plus an
additional 1/12th of 1.40% for each
month thereafter
January 2011 through December 2011 6.10% for the first month, plus an
additional 1/12th of 0.70% for each
month thereafter
January 2012 and thereafter 6.80%
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal received on or with
respect thereto after the related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or before the related Cut-off Date; (ii) the
Collection Account, the Excess Reserve Fund Account, the Distribution Account,
and all amounts deposited therein pursuant to the applicable provisions of this
Agreement; (iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure or otherwise; (iv) the Interest Rate
Swap Agreement; (v) the Trust's rights under the Responsible Party Agreements;
(vi) the Supplemental Interest Trust; and (vii) all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing.
Trust REMIC: Any of Pooling-Tier REMIC-1, Pooling-Tier REMIC-2, the
Lower-Tier REMIC, the Upper-Tier REMIC or the Class X REMIC, as applicable.
Trustee: LaSalle Bank National Association, a national banking
association, and its successors in interest and, if a successor trustee is
appointed hereunder, such successor.
U.S. Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of any
State thereof, including, for this purpose, the District of Columbia; (iii) a
partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any state
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control all substantial decisions of the
trust. Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
Underwriter's Exemption: Any exemption listed in footnote 1 of, and
amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002),
or any successor exemption.
Underwriting Guidelines: The underwriting guidelines attached to the
Purchase Agreement.
Unpaid Interest Amounts: As of any Distribution Date and any Class
of Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from prior Distribution Dates remaining unpaid immediately
prior to the current Distribution Date and (b) interest on such unpaid amount in
clause (a) at the applicable Pass-Through Rate (to the extent permitted by
applicable law).
Upper Tier Carry Forward Amount: With respect to each Class of LIBOR
Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Upper Tier Interest Rate for the Class of Corresponding
Upper Tier REMIC Regular Interest is based upon the Upper Tier REMIC Loan Group
I Rate or Upper Tier REMIC Loan Group II Rate, as and if applicable, or the
Upper Tier REMIC WAC Rate, the excess, if any, of (i) the amount of interest
such Class of Upper Tier Regular Interest would otherwise be entitled to receive
on such Distribution Date had such Upper Tier REMIC Regular Interest not been
subject to the Upper Tier REMIC Loan Group I Rate or Upper Tier REMIC Loan Group
II Rate, as and if applicable, or the Upper Tier REMIC WAC Rate, over (ii) the
amount of interest payable on such Class of Certificates on such Distribution
Date taking into account the Upper Tier REMIC Loan Group I Rate or Upper Tier
REMIC Loan Group II Rate, as and if applicable, or the Upper Tier REMIC WAC Rate
and (B) the Upper Tier Carry Forward Amount for such Class of Certificates for
all previous Distribution Dates not previously paid, together with interest
thereon at a rate equal to the applicable Upper Tier Interest Rate for such
Class of Certificates for such Distribution Date, without giving effect to the
Upper Tier REMIC Loan Group I Rate or Upper Tier REMIC Loan Group II Rate, as
and if applicable, or the Upper Tier REMIC WAC Rate.
Upper-Tier Interest Rate: As described in the Preliminary Statement.
Upper-Tier Regular Interest: As described in the Preliminary
Statement.
Upper-Tier REMIC: As described in the Preliminary Statement.
Upper-Tier REMIC Loan Group I Rate: As described in the Preliminary
Statement.
Upper-Tier REMIC Loan Group II Rate: As described in the Preliminary
Statement.
Upper-Tier REMIC WAC Rate: For any Distribution Date, the weighted
average of the Lower-Tier Interest Rates on the Lower-Tier Regular Interests
(other than the Class LT-IO and Class LT-3 Interests), as of the first day of
the related Interest Accrual Period, weighted on the basis of the Lower-Tier
Principal Amounts of such Lower-Tier Regular Interests as of the first day of
the related Interest Accrual Period.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any, and (c) the remaining Voting Rights shall be allocated
among Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date. The Class C
Certificates and the Residual Certificates shall have no Voting Rights.
WAC Cap: With respect to the Mortgage Loans as of any Distribution
Date, a per annum rate equal to the product of (i) 30 divided by the actual
number of days in the applicable Interest Accrual Period and (ii) the sum of (A)
the weighted average of the Adjusted Net Mortgage Interest Rates then in effect
at the beginning of the related Due Period on the Mortgage Loans and (B) Net
Swap Receipts, if any, for that Distribution Date less Net Swap Payments, if
any, for that Distribution Date divided by the Stated Principal Balance of the
Mortgage Loans at the beginning of the related Due Period, multiplied by 12.
Xxxxx Fargo: Xxxxx Fargo Bank, N.A., a national banking association,
and its successors in interest.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust,
hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered or caused to be delivered to the Custodian for
the benefit of the Certificateholders the following documents or instruments
with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _____________, without recourse" and signed
in the name of the last endorsee. To the extent that there is no room on
the face of any Mortgage Note for endorsement, the endorsement may be
contained on an allonge unless the Trustee is advised by the Responsible
Party that state law does not so allow. If the Mortgage Loan was acquired
by the Responsible Party in a merger, the endorsement must be by "[last
endorsee], successor by merger to [name of predecessor]". If the Mortgage
Loan was acquired or originated by the last endorsee while doing business
under another name, the endorsement must be by "[last endorsee], formerly
known as [previous name]";
(ii) the original Mortgage with evidence of recording thereon or a
certified true copy of such Mortgage submitted for recording. If in
connection with any Mortgage Loan, the Responsible Party cannot deliver or
cause to be delivered the original Mortgage with evidence of recording
thereon on or prior to the Closing Date because of a delay caused by the
public recording office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost or because such public
recording office retains the original recorded Mortgage, the Responsible
Party shall deliver or cause to be delivered to the Custodian, a photocopy
of such Mortgage, together with (A) in the case of a delay caused by the
public recording office, an officer's certificate of the Responsible
Party, or evidence of certification on the face of such photocopy of such
Mortgage, (or certified by the title company, escrow agent, or closing
attorney) stating that such Mortgage has been dispatched to the
appropriate public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such public
recording office to be a true and complete copy of the original recorded
Mortgage will be promptly delivered to the Custodian upon receipt thereof
by the Responsible Party; or (B) in the case of a Mortgage where a public
recording office retains the original recorded Mortgage or in the case
where a Mortgage is lost after recordation in a public recording office, a
copy of such Mortgage certified by such public recording office to be a
true and complete copy of the original recorded Mortgage;
(iii) the originals of all assumption, modification, consolidation
or extension agreements, if any, with evidence of recording thereon or a
certified true copy of such agreement submitted for recording;
(iv) except with respect to each MERS Designated Mortgage Loan, the
original Assignment of Mortgage for each Mortgage Loan endorsed in blank
and in recordable form. The Assignment of Mortgage must be duly recorded
only if recordation is either necessary under applicable law or commonly
required by private institutional mortgage investors in the area where the
Mortgaged Property is located as notified to the Custodian or on direction
of the Purchaser as provided in this Agreement. If the Assignment of
Mortgage is to be recorded, the Mortgage shall be assigned to the
Purchaser. If the Assignment of Mortgage is not to be recorded, the
Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan
was acquired by the Responsible Party in a merger, the Assignment of
Mortgage must be made by "[Accredited Home Lenders, Inc.], 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 "[Accredited Home Lenders,
Inc.], formerly known as [previous name]";
(v) the originals of all intervening Assignments of Mortgage (if
any) evidencing a complete chain of assignment from the originator to the
last endorsee (or to MERS with respect to each MERS Designated Mortgage
Loan) with evidence of recording thereon or a certified true copy of such
intervening Assignment of Mortgage submitted for recording, or if any such
intervening assignment has not been returned from the applicable recording
office or has been lost or if such public recording office retains the
original recorded Assignments of Mortgage, the Responsible Party shall
deliver or cause to be delivered to the Custodian, a photocopy of such
intervening assignment, together with (A) in the case of a delay caused by
the public recording office, an officer's certificate of the Responsible
Party, or evidence of certification on the face of such photocopy of such
intervening assignment, (or certified by the title company, escrow agent,
or closing attorney) stating that such intervening Assignment of Mortgage
has been dispatched to the appropriate public recording office for
recordation and that such original recorded intervening Assignment of
Mortgage or a copy of such intervening Assignment of Mortgage certified by
the appropriate public recording office to be a true and complete copy of
the original recorded intervening Assignment of Mortgage will be promptly
delivered to the Custodian upon receipt thereof by the Responsible Party;
or (B) in the case of an intervening Assignment where a public recording
office retains the original recorded intervening assignment or in the case
where an intervening assignment is lost after recordation in a public
recording office, a copy of such intervening assignment certified by such
public recording office to be a true and complete copy of the original
recorded intervening assignment;
(vi) the original mortgagee policy of title insurance or, in the
event such original title policy is unavailable, a copy of the related
policy binder, preliminary report or commitment for title; and
(vii) any security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage (if provided).
The Depositor shall use reasonable efforts to assist the Trustee,
the Master Servicer and the Servicer in enforcing the obligations of the
Purchaser under the Responsible Party Agreements.
Each Mortgage Loan for which a Mortgage Note is missing shall be
evidenced by a lost note affidavit as of the Closing Date. In the event one or
more lost note affidavits are provided to cover multiple missing Mortgage Notes
on the Closing Date, the Depositor shall use reasonable efforts to cause the
Responsible Party to deliver to the Custodian the applicable individual lost
note affidavits within ten (10) Business Days of the Closing Date. If the
Responsible Party fails to deliver the required individual lost note affidavits
within the specified period of time, the Trustee shall notify the Responsible
Party to take such remedial actions, including, without limitation, the
repurchase by the Responsible Party of such Mortgage Loan within 60 days of the
Closing Date.
The Depositor shall use reasonable efforts to cause the Purchaser
and the Responsible Party to deliver to the Custodian the applicable recorded
document promptly upon receipt from the respective recording office but in no
event later than 120 days from the Closing Date.
If any Mortgage has been recorded in the name of Mortgage Electronic
Registration System, Inc. ("MERS") or its designee, no Assignment of Mortgage in
favor of the Trustee will be required to be prepared or delivered and instead,
the Servicer shall take all reasonable actions as are necessary at the expense
of the Depositor to cause the Trust to be shown as the owner of the related
Mortgage Loan on the records of MERS for the purpose of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
The Depositor shall use reasonable efforts to cause the Purchaser
and Responsible Party, as applicable, to forward to the Custodian 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 Responsible Party Agreements. All such Mortgage Documents held by the
Custodian as to each Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall use reasonable
efforts to cause the Purchaser or Responsible Party to deliver to the Custodian
Assignments of Mortgages, in blank, for each applicable Mortgage Loan (except
with respect to each MERS Designated Mortgage Loan). The Depositor shall use
reasonable efforts to cause the Purchaser or Responsible Party to cause the
Assignments of Mortgage with completed recording information to be provided to
the Servicer in a reasonably acceptable manner. No later than thirty (30)
Business Days following the later of the Closing Date and the date of receipt by
the Servicer of the fully completed Assignments of Mortgages in recordable form,
the Servicer shall promptly submit or cause to be submitted for recording, at
the expense of the Responsible Party pursuant to the Purchase Agreement, at no
expense to the Trust Fund, the Trustee, the Servicer, the Master Servicer, the
Securities Administrator, the Custodian or the Depositor in the appropriate
public office for real property records, each Assignment of Mortgage referred to
in Section 2.01(b)(v). Notwithstanding the foregoing, however, for
administrative convenience and facilitation of servicing and to reduce closing
costs, the Assignments of Mortgage shall not be required to be completed and
submitted for recording with respect to any Mortgage Loan if the Trustee and
each Rating Agency has received an opinion of counsel, satisfactory in form and
substance to the Trustee and each Rating Agency, to the effect that the
recordation of such Assignments of Mortgage in any specific jurisdiction is not
necessary to protect the Trustee's interest in the related Mortgage Note or (ii)
if such Mortgage Loan is a MERS Designated Mortgage Loan. If the Assignment of
Mortgage is to be recorded, the Depositor shall use reasonable efforts to cause
the Purchaser to assign the Mortgage at the Purchaser's expense to "LaSalle Bank
National Association, as trustee under the Pooling and Servicing Agreement dated
as of December 1, 2005, GSAMP Trust 2005-AHL2." In the event that any such
assignment is lost or returned unrecorded because of a defect therein with
respect to any Mortgage Loan, and such defect is not cured, the Trustee shall
enforce the Purchaser's obligation to repurchase such Mortgage Loan pursuant to
the Responsible Party Agreements.
On or prior to the Closing Date, the Depositor shall deliver to the
Custodian, the Master Servicer and the Servicer a copy of the Data Tape
Information in electronic, machine readable medium in a form mutually acceptable
to the Depositor, the Custodian, the Master Servicer and the Trustee. Within ten
(10) Business Days of the Closing Date, the Depositor shall deliver a copy of
the complete Mortgage Loan Schedule to the Custodian, the Servicer and the
Trustee.
In the event, with respect to any Mortgage Loan, that such original
or copy of any document submitted for recordation to the appropriate public
recording office is not so delivered to the Custodian within 180 days of the
applicable Original Purchase Date as specified in the Purchase Agreement, the
Custodian shall notify the Depositor and the Depositor shall take or cause to be
taken such remedial actions under the Purchase Agreement as may be permitted to
be taken thereunder, including without limitation, if applicable, the repurchase
by the Responsible Party of such Mortgage Loan. The foregoing repurchase remedy
shall not apply in the event that the Responsible Party cannot deliver such
original or copy of any document submitted for recordation to the appropriate
public recording office within the specified period due to a delay caused by the
recording office in the applicable jurisdiction; provided, that the Responsible
Party shall instead deliver a recording receipt of such recording office or, if
such recording receipt is not available, an officer's certificate of an officer
of the Responsible Party confirming that such document has been accepted for
recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses the
original Mortgage or assignment after it has been recorded, the obligations of
the Responsible Party shall be deemed to have been satisfied upon delivery by
the Responsible Party to the Custodian prior to the Closing Date of a copy of
such Mortgage or assignment, as the case may be, certified (such certification
to be an original thereof) by the public recording office to be a true and
complete copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "GSAMP Trust 2005-AHL2" and
LaSalle Bank National Association is hereby appointed as Trustee in accordance
with the provisions of this Agreement.
(d) The Trust shall have the capacity, power and authority, and the
Trustee on behalf of the Trust is hereby authorized, to accept the sale,
transfer, assignment, set over and conveyance by the Depositor to the Trust of
all the right, title and interest of the Depositor in and to the Trust Fund
(including, without limitation, the Mortgage Loans, the Interest Rate Swap
Agreement and the Responsible Party Agreements) pursuant to Section 2.01(a). The
parties hereby acknowledge and agree that the execution and delivery of the
Interest Rate Swap Agreement by the Trustee on behalf of the Trust were
authorized and are hereby ratified and confirmed. Except as otherwise expressly
stated in this Agreement, the Trustee shall have no responsibility under or with
respect to the Interest Rate Swap Agreement. The Securities Administrator shall
perform those obligations of the Securities Adminsitrator set forth in the
Interest Rate Swap Agreement.
Section 2.02 Acceptance by the Custodian of the Mortgage Loans. The
Custodian acknowledges receipt of the documents identified in the Initial
Certification in the form annexed hereto as Exhibit F, and declares that it
holds and will hold such documents and the other documents delivered to it
pursuant to Section 2.01, and that it holds or will hold such other assets as
are included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders. The Custodian acknowledges that it
will maintain possession of the related Mortgage Notes in the State of
California unless otherwise permitted by the Rating Agencies.
Prior to and as a condition to the closing, the Custodian shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor, the Trustee, the Master Servicer and the Servicer an Initial
Certification prior to the Closing Date, or as the Depositor agrees to, on the
Closing Date, certifying receipt of a Mortgage Note and Assignment of Mortgage
for each Mortgage Loan with any exceptions thereon. The Custodian shall not be
responsible to verify the validity, sufficiency or genuineness of any document
in the Custodial File.
On the Closing Date, the Custodian shall ascertain that all
documents required to be reviewed by it are in its possession, and shall deliver
to the Depositor, the Trustee, the Master Servicer and the Servicer an Initial
Certification, in the form annexed hereto as Exhibit F, and shall deliver to the
Depositor, the Trustee, the Master Servicer and the Servicer a Document
Certification and Exception Report, in the form annexed hereto as Exhibit G,
within 90 days (or with respect to any Substitute Mortgage Loan delivered to the
Custodian, within 30 days after the receipt of the Mortgage File by the
Custodian) after the Closing Date to the effect that, as to each Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full
or any Mortgage Loan specifically identified in such certification as an
exception and not covered by such certification): (i) all documents required to
be reviewed by it are in its possession; (ii) such documents have been reviewed
by it and appear regular on their face and relate to such Mortgage Loan; (iii)
based on its examination and only as to the foregoing documents, the information
set forth in items (1), (2) and (13) of the Mortgage Loan Schedule and items
(1), (2) and (13) of the Data Tape Information respecting such Mortgage Loan is
correct; and (iv) each Mortgage Note has been endorsed as provided in Section
2.01 of this Agreement. The Custodian shall not be responsible to verify the
validity, sufficiency or genuineness of any document in the Custodial File.
The Custodian shall retain possession and custody of each Custodial
File in accordance with and subject to the terms and conditions set forth
herein. The Servicer shall promptly deliver to the Custodian, upon the execution
or receipt thereof, the originals of such other documents or instruments
constituting the Custodial File as come into the possession of the Servicer from
time to time.
The Depositor shall use reasonable efforts to cause the Responsible
Party to deliver to the Servicer copies of all trailing documents required to be
included in the Custodial File at the same time the original or certified copies
thereof are delivered to the Custodian, including but not limited to such
documents as the title insurance policy and any other Mortgage Loan Documents
upon return from the public recording office. The Depositor shall use reasonable
efforts to cause the Responsible Party to deliver such documents at the
Responsible Party's expense (pursuant to the Purchase Agreement) to the Servicer
and in no event shall the Servicer be responsible for any expenses relating to
such delivery obligation.
Section 2.03 Representations, Warranties and Covenants of the
Servicer and the Custodian. (a) The Servicer hereby makes the representations
and warranties set forth in Schedule II hereto to the Depositor, the Master
Servicer, the Securities Administrator, the Custodian and the Trustee as of the
Closing Date. The Custodian hereby makes the representations and warranties set
forth in Schedule III hereto to the Depositor, the Servicer, the Master
Servicer, the Securities Administrator and the Trustee as of the Closing Date.
(b) It is understood and agreed by the Servicer and the Custodian
that the representations and warranties set forth in this Section 2.03 shall
survive the transfer of the Mortgage Loans by the Depositor to the Trustee, and
shall inure to the benefit of the parties to whom the representations and
warranties were made notwithstanding any restrictive or qualified endorsement on
any Mortgage Note or Assignment of Mortgage or the examination or failure to
examine any Mortgage File. Upon discovery by any of the Depositor, the Master
Servicer, the Securities Administrator, the Trustee, the Custodian or the
Servicer of a breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the others.
(c) [Reserved].
(d) [Reserved].
(e) In connection with any repurchase or substitution of a Mortgage
Loan pursuant to this Section 2.03, Section 2.08, Section 3.28 or the
Responsible Party Agreements, the Servicer shall, based on information provided
by the Purchaser, amend the Mortgage Loan Schedule for the benefit of the
Certificateholders to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Substitute Mortgage Loan or Loans and the Servicer shall
deliver the amended Mortgage Loan Schedule to the Custodian. Upon any such
repurchase or any substitution and the deposit to the Collection Account of any
Substitution Adjustment Amount, the Custodian shall release the Mortgage File
held for the benefit of the Certificateholders relating to such Deleted Mortgage
Loan to the Purchaser, the Depositor or the Responsible Party, as applicable,
and shall execute and deliver at the direction of the Purchaser, the Depositor
or the Responsible Party, as applicable, such instruments of transfer or
assignment prepared by the Purchaser, the Depositor or the Responsible Party, as
applicable, in each case without recourse, as shall be necessary to vest title
in the Purchaser or its designee, the Depositor or the Responsible Party, as
applicable, or their respective designees, the Trustee's interest in any Deleted
Mortgage Loan repurchased or substituted for as described above in this Section
2.03(e).
(f) [Reserved].
(g) For any month in which the Purchaser or the Depositor, as
applicable, substitutes one or more Substitute Mortgage Loans for one or more
Deleted Mortgage Loans, the Servicer will determine the amount (if any) by which
the aggregate unpaid principal balance of all such Substitute Mortgage Loans as
of the date of substitution is less than the aggregate Stated Principal Balance
of all such Deleted Mortgage Loans (after application of the scheduled principal
portion of the Scheduled Payments due in the Due Period of substitution). The
Depositor shall remit, with respect to any Mortgage Loans for which the
Depositor is making a substitution, or shall use reasonable efforts to cause the
Purchaser to remit to the Servicer for deposit into the Collection Account on or
before the next Remittance Date any Substitution Adjustment Amount.
(h) In the event that a Mortgage Loan shall have been repurchased
pursuant to this Agreement or the Responsible Party Agreements, the proceeds
from such repurchase shall be deposited in the Collection Account by the
Servicer pursuant to Section 3.10 on or before the next Remittance Date and upon
such deposit of the Repurchase Price, and receipt of a Request for Release in
the form of Exhibit L hereto, the Custodian shall release within five Business
Days the related Custodial File held for the benefit of the Certificateholders
to such Person as directed by the Servicer, and the Trustee, upon receipt of a
copy of the Request for Release from the Servicer, shall execute and deliver at
such Person's direction such instruments of transfer or assignment prepared by
such Person, in each case without recourse, as shall be necessary to transfer
title from the Trustee. It is understood and agreed that the obligation under
this Agreement of any Person to cure, repurchase or replace any Mortgage Loan as
to which a breach has occurred and is continuing, together with any related
indemnification obligations, shall constitute the sole remedy against such
Persons respecting such breach available to Certificateholders, the Depositor,
the Servicer, the Master Servicer, the Securities Administrator, the Custodian
or the Trustee on their behalf.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Custodial Files to the Custodian
for the benefit of the Certificateholders.
Section 2.04 [Reserved]
Section 2.05 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, the Securities Administrator has
executed and delivered to or upon the order of the Depositor, the Certificates
in authorized Denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and future
Holders of the Certificates.
Section 2.06 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
For the avoidance of doubt, the Class C Certificates shall not represent a
regular or residual interest in any Trust REMIC. The "Start-up Day" for purposes
of the REMIC Provisions shall be the Closing Date. The "latest possible maturity
date" is the Distribution Date in December 2035, which is the Distribution Date
in the month following the month in which the latest maturity date of any
Mortgage Loan occurs. Amounts distributable to the Class X Certificates (prior
to any reduction for any Basis Risk Payment or Swap Termination Payment),
exclusive of any amounts received from the Swap Provider, shall be deemed paid
from the Upper-Tier REMIC to the Class X REMIC in respect of the Class UT-X
Interest and the Class UT-IO Interest and then from the Class X REMIC in respect
of the Class X Interest and the Class IO Interest to the Holders of the Class X
Certificates prior to distribution of any Basis Risk Payments to the LIBOR
Certificates.
For federal income tax purposes, any amount distributed on the LIBOR
Certificates on any Distribution Date in excess of the amount distributable on
their Corresponding Class of Upper-Tier Regular Interest on such Distribution
Date shall be treated as having been paid from the Excess Reserve Fund Account
or the Supplemental Interest Trust, as applicable, and any amount distributable
on such Corresponding Class of Upper-Tier Regular Interest on such Distribution
Date in excess of the amount distributable on the Corresponding Class of LIBOR
Certificates on such Distribution Date shall be treated as having been paid to
the Supplemental Interest Trust, all pursuant to and as further provided in
Section 8.13.
Section 2.07 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Trustee, the Master
Servicer, the Securities Administrator and the Servicer that as of the Closing
Date or as of such date specifically provided herein:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to convey
the Mortgage Loans and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite corporate action having been
taken, and, assuming the due authorization, execution and delivery hereof by the
other parties hereto, constitutes or will constitute the legal, valid and
binding agreement of the Depositor, enforceable against the Depositor in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(d) No consent, approval, authorization or order of or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been made on or prior to the
Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of trust, contract
or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound; (ii)
results or will result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Depositor of any court or governmental
authority having jurisdiction over the Depositor or its subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or encumbrance which
would have a material adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of each Mortgage Note and each
Mortgage as and in the manner contemplated by this Agreement is sufficient
either (i) fully to transfer to the Trustee, for the benefit of the
Certificateholders, all right, title, and interest of the Depositor thereto as
note holder and mortgagee or (ii) to grant to the Trustee, for the benefit of
the Certificateholders, the security interest referred to in Section 12.04.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.07 shall survive delivery of the
respective Custodial Files to the Custodian and shall inure to the benefit of
the Trustee.
Within 30 days of the earlier of either discovery by or notice to
the Depositor of a breach of the representations and warranties set forth in
clause (h) above that materially and adversely affects the value of any Mortgage
Loan or the interest of the Trustee or the Certificateholders therein, the
Depositor shall use its best efforts to promptly cure such breach in all
material respects and if such defect or breach cannot be remedied, the Depositor
shall repurchase such Mortgage Loan at the Repurchase Price or substitute a
Substitute Mortgage Loan for the defective Mortgage Loan. Any such repurchase
shall be conducted in the same manner as set forth in Section 2.03. The
obligations of the Depositor to cure such breach or to repurchase or replace any
Mortgage Loan constitute the sole remedies respecting a material breach of any
such representation or warranty to the Holders of the Certificates and the
Trustee.
Section 2.08 Enforcement of Purchaser and Responsible Party
Obligations. Upon discovery by any of the parties hereto of a breach of a
representation or warranty made by the Purchaser or Responsible Party pursuant
to the Responsible Party Agreements, the party discovering such breach shall
give prompt written notice thereof to the other parties to this Agreement and
the Responsible Party. The Trustee shall take such action, with the Depositor's
consent, with respect to such breach under the Responsible Party Agreements as
may be necessary or appropriate to enforce the rights of the Trust with respect
thereto.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans. (a) For and on
behalf of the Certificateholders, the Servicer shall service and administer the
Mortgage Loans in accordance with the terms of this Agreement and the respective
Mortgage Loans, to the extent consistent with such terms, in compliance with all
applicable federal, state and local laws, and in the same manner in which it
services and administers similar mortgage loans for its own portfolio, giving
due consideration to customary and usual standards of practice of mortgage
lenders and loan servicers administering similar mortgage loans but without
regard to:
(i) any relationship that the Servicer, any Subservicer or any
Affiliate of the Servicer or any Subservicer may have with the related
Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the
Servicer or any Affiliate of the Servicer;
(iii) the Servicer's obligation to make P&I Advances or Servicing
Advances; or
(iv) the Servicer's or any Subservicer's right to receive
compensation for its services hereunder or with respect to any particular
transaction.
To the extent consistent with the foregoing, the Servicer shall seek
to maximize the timely and complete recovery of principal and interest on the
Mortgage Notes. Subject only to the above-described servicing standards and the
terms of this Agreement and of the respective Mortgage Loans, the Servicer shall
have full power and authority, acting alone or through Subservicers as provided
in Section 3.02, to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, the Servicer in its own name
or in the name of a Subservicer is hereby authorized and empowered by the
Trustee when the Servicer believes it appropriate in its best judgment in
accordance with Accepted Servicing Practices, to execute and deliver any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Mortgage
Loans and the Mortgaged Properties and to institute foreclosure proceedings or
obtain a deed-in-lieu of foreclosure so as to convert the ownership of such
properties, and to hold or cause to be held title to such properties, on behalf
of the Trustee and in the name of the Trust. The Servicer shall service and
administer the Mortgage Loans in accordance with applicable state and federal
law and shall provide to the Mortgagors any reports required to be provided to
them thereby. The Servicer shall also comply in the performance of this
Agreement with all reasonable rules and requirements of each insurer under any
standard hazard insurance policy. Subject to Section 3.16, the Trustee shall
execute, at the written request of the Servicer, and furnish to the Servicer and
any Subservicer such documents as are necessary or appropriate to enable the
Servicer or any Subservicer to carry out their servicing and administrative
duties hereunder, and the Trustee hereby grants to the Servicer, and this
Agreement shall constitute, a power of attorney to carry out such duties
including a power of attorney to take title to Mortgaged Properties after
foreclosure on behalf of the Trustee and in the name of the Trust. The Trustee
shall execute any power of attorney furnished to it by the Servicer in favor of
the Servicer for the purposes described herein to the extent necessary or
desirable to enable the Servicer to perform its duties hereunder. The Trustee
shall not be liable for the actions of the Servicer or any Subservicers under
such powers of attorney. Notwithstanding anything contained herein to the
contrary, the Servicer shall not without the Trustee's written consent: (i) hire
or procure counsel to represent the Trustee without indicating its
representative capacity, and (ii) prepare, execute or deliver any government
filings, forms, permits, registrations or other documents which have the effect
of causing the Trustee to be registered to do business in any state.
(b) Subject to Section 3.09(b), in accordance with the standards of
the preceding paragraph, the Servicer shall advance or cause to be advanced
funds as necessary for the purpose of effecting the timely payment of taxes and
assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09(b), and further as provided in Section 3.11.
Any cost incurred by the Servicer or by Subservicers in effecting the timely
payment of taxes and assessments on a Mortgaged Property shall not be added to
the unpaid principal balance of the related Mortgage Loan, notwithstanding that
the terms of such Mortgage Loan so permit.
(c) Notwithstanding anything in this Agreement to the contrary, the
Servicer may not make any future advances with respect to a Mortgage Loan
(except as provided in Section 4.01) and the Servicer shall not (i) permit any
modification with respect to any Mortgage Loan that would change the Mortgage
Interest Rate, reduce or increase the principal balance (except for reductions
resulting from actual payments of principal) or change the final maturity date
on such Mortgage Loan (except for (A) a reduction of interest payments resulting
from the application of the Servicemembers Civil Relief Act or any similar state
statutes or (B) as provided in Section 3.07, if the Mortgagor is in default with
respect to the Mortgage Loan or such default is, in the judgment of the
Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or
amendment of any term of any Mortgage Loan that would both (A) effect an
exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or
final, temporary or proposed Treasury regulations promulgated thereunder) and
(B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the
imposition of any tax on "prohibited transactions" or "contributions after the
start-up day" under the REMIC Provisions, or (iii) except as provided in Section
3.07(a), waive any Prepayment Premiums.
(d) The Servicer may delegate its responsibilities under this
Agreement; provided, however, that no such delegation shall release the Servicer
from the responsibilities or liabilities arising under this Agreement.
Section 3.02 Subservicing Agreements between the Servicer and
Subservicer. (a) The Servicer may enter into subservicing agreements with
subservicers (each, a "Subservicer"), for the servicing and administration of
the Mortgage Loans ("Subservicing Agreements").
(b) Each Subservicer shall be (i) authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to enable the
Subservicer to perform its obligations hereunder and under the Subservicing
Agreement, (ii) an institution approved as a mortgage loan originator by the
Federal Housing Administration or an institution that has deposit accounts
insured by the FDIC and (iii) a Xxxxxxx Mac or Xxxxxx Mae approved mortgage
servicer. Each Subservicing Agreement must impose on the Subservicer
requirements conforming to the provisions set forth in Section 3.08 and provide
for servicing of the Mortgage Loans consistent with the terms of this Agreement.
The Servicer will examine each Subservicing Agreement and will be familiar with
the terms thereof. The terms of any Subservicing Agreement will not be
inconsistent with any of the provisions of this Agreement. The Servicer and the
Subservicers may enter into and make amendments to the Subservicing Agreements
or enter into different forms of Subservicing Agreements; provided, however,
that any such amendments or different forms shall be consistent with and not
violate the provisions of this Agreement, and that no such amendment or
different form shall be made or entered into which could be reasonably expected
to be materially adverse to the interests of any party hereto, without the
consent of such party. Any variation without the consent of the Trustee from the
provisions set forth in Section 3.08 relating to insurance or priority
requirements of Subservicing Accounts, or credits and charges to the
Subservicing Accounts or the timing and amount of remittances by the
Subservicers to the Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. The Servicer shall deliver to the
Master Servicer, the Securities Administrator, the Trustee and the Depositor
copies of all Subservicing Agreements, and any amendments or modifications
thereof, promptly upon the Servicer's execution and delivery of such
instruments.
(c) As part of its servicing activities hereunder, the Servicer
(except as otherwise provided in the last sentence of this paragraph), for the
benefit of the Trustee, shall enforce the obligations of each Subservicer under
the related Subservicing Agreement, including, without limitation, any
obligation to make advances in respect of delinquent payments as required by a
Subservicing Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Subservicing Agreements, and the
pursuit of other appropriate remedies, shall be in such form and carried out to
such an extent and at such time as the Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
Servicer shall pay the costs of such enforcement at its own expense, and shall
be reimbursed therefor only (i) from a general recovery resulting from such
enforcement, to the extent, if any, that such recovery exceeds all amounts due
in respect of the related Mortgage Loans or (ii) from a specific recovery of
costs, expenses or attorneys' fees against the party against whom such
enforcement is directed.
Section 3.03 Successor Subservicers. The Servicer shall be entitled
to terminate any Subservicing Agreement and the rights and obligations of any
Subservicer pursuant to any Subservicing Agreement in accordance with the terms
and conditions of such Subservicing Agreement. In the event of termination of
any Subservicer, all servicing obligations of such Subservicer shall be assumed
simultaneously by the Servicer without any act or deed on the part of such
Subservicer or the Servicer, and the Servicer either shall service directly the
related Mortgage Loans or shall enter into a Subservicing Agreement with a
successor Subservicer which qualifies under Section 3.02.
Any Subservicing Agreement shall include the provision that such
agreement may be immediately terminated by the Depositor or the Master Servicer
without fee, in accordance with the terms of this Agreement, in the event that
the Servicer shall, for any reason, no longer be the Servicer (including
termination due to an Event of Default).
Section 3.04 Liability of the Servicer. Notwithstanding any
Subservicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a Subservicer or reference
to actions taken through a Subservicer or otherwise, the Servicer shall remain
obligated and primarily liable to the Trustee for the servicing and
administering of the Mortgage Loans in accordance with the provisions of Section
3.01 without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering such Mortgage Loans. The
Servicer shall be entitled to enter into any agreement with a Subservicer for
indemnification of the Servicer by such Subservicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
Section 3.05 No Contractual Relationship between Subservicers, the
Trustee and the Master Servicer. Any Subservicing Agreement that may be entered
into and any transactions or services relating to the Mortgage Loans involving a
Subservicer in its capacity as such shall be deemed to be between the
Subservicer and the Servicer alone, and neither the Trustee nor the Master
Servicer (nor any successor Servicer) shall be deemed a party thereto and shall
have no claims, rights, obligations, duties or liabilities with respect to the
Subservicer except as set forth in Section 3.06. The Servicer shall be solely
liable for all fees owed by it to any Subservicer, irrespective of whether the
Servicer's compensation pursuant to this Agreement is sufficient to pay such
fees.
Section 3.06 Assumption or Termination of Subservicing Agreements by
Master Servicer. In the event the Servicer at any time shall for any reason no
longer be the Servicer (including by reason of the occurrence of an Event of
Default), the Master Servicer, or its designee, or the successor Servicer if the
successor Servicer is not the Master Servicer, shall thereupon assume all of the
rights and obligations of the Servicer under each Subservicing Agreement that
the Servicer may have entered into, with copies thereof provided to the Master
Servicer prior to the Master Servicer assuming such rights and obligations,
unless the Master Servicer elects to terminate any Subservicing Agreement in
accordance with its terms as provided in Section 3.03.
Upon such assumption, the Master Servicer, its designee or the
successor servicer shall be deemed, subject to Section 3.03, to have assumed all
of the Servicer's interest therein and to have replaced the Servicer as a party
to each Subservicing Agreement to the same extent as if each Subservicing
Agreement had been assigned to the assuming party, except that (i) the Servicer
shall not thereby be relieved of any liability or obligations under any
Subservicing Agreement that arose before it ceased to be the Servicer and (ii)
none of the Depositor, the Master Servicer, the Trustee, their designees or any
successor Servicer shall be deemed to have assumed any liability or obligation
of the Servicer that arose before it ceased to be the Servicer.
The Servicer at its expense shall, upon request of the Master
Servicer, deliver to the assuming party all documents and records relating to
each Subservicing Agreement and the Mortgage Loans then being serviced and an
accounting of amounts collected and held by or on behalf of it, and otherwise
use its best efforts to effect the orderly and efficient transfer of the
Subservicing Agreements to the assuming party.
Section 3.07 Collection of Certain Mortgage Loan Payments. (a) The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable Insurance Policies, follow such collection procedures as it
would follow with respect to mortgage loans comparable to the Mortgage Loans and
held for its own account. Consistent with the foregoing and Accepted Servicing
Practices, the Servicer may (i) waive any late payment charge or, if applicable,
any penalty interest, or (ii) extend the Due Dates for the Scheduled Payments
due on a Mortgage Note for a period of not greater than 180 days; provided, that
any extension pursuant to clause (ii) above shall not affect the amortization
schedule of any Mortgage Loan for purposes of any computation hereunder, except
as provided below. In the event of any such arrangement pursuant to clause (ii)
above, the Servicer shall make timely advances on such Mortgage Loan during such
extension pursuant to Section 4.01 and in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangements, subject to Section 4.01(d) pursuant to which the Servicer shall
not be required to make any such advances that are Nonrecoverable P&I Advances.
Notwithstanding the foregoing, in the event that any Mortgage Loan is in default
or in the judgment of the Servicer, such default is reasonably foreseeable, the
Servicer, consistent with the standards set forth in Section 3.01, may also
waive, modify or vary any term of such Mortgage Loan (including modifications
that would change the Mortgage Interest Rate, forgive the payment of principal
or interest, extend the final maturity date of such Mortgage Loan or waive, in
whole or in part, a Prepayment Premium), accept payment from the related
Mortgagor of an amount less than the Stated Principal Balance in final
satisfaction of such Mortgage Loan, or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor
(any and all such waivers, modifications, variances, forgiveness of principal or
interest, postponements, or indulgences collectively referred to herein as
"Forbearance"); provided, however, that the Servicer's approval of a
modification of a Due Date shall not be considered a modification for purposes
of this sentence; provided, further, that the final maturity date of any
Mortgage Loan may not be extended beyond the Final Scheduled Distribution Date
for the Certificates. The Servicer's analysis supporting any Forbearance and the
conclusion that any Forbearance meets the standards of Section 3.01 shall be
reflected in writing in the Servicing File or on the Servicer's servicing
records. In addition, notwithstanding the foregoing, the Servicer may also waive
(or permit a Subservicer to waive), in whole or in part, a Prepayment Premium if
such waiver would, in the Servicer's judgment, maximize recoveries on the
related Mortgage Loan or the Prepayment Premium is (i) not permitted to be
collected by applicable law, or the collection of the Prepayment Premium would
be considered "predatory" pursuant to written guidance published by any
applicable federal, state or local regulatory authority having jurisdiction over
such matters, or (ii) the enforceability of such Prepayment Premium is limited
(x) by bankruptcy, insolvency, moratorium, receivership or other similar laws
relating to creditors' rights or (y) due to acceleration in connection with a
foreclosure or other involuntary payment. If a Prepayment Premium is waived
other than as permitted in this Section 3.07(a), then the Servicer is required
to pay the amount of such waived Prepayment Premium, for the benefit of the
Holders of the Class P Certificates, by depositing such amount into the
Collection Account together with and at the time that the amount prepaid on the
related Mortgage Loan is required to be deposited into the Collection Account;
provided, however, that the Servicer shall not have an obligation to pay the
amount of any uncollected Prepayment Premium if the failure to collect such
amount is the direct result of inaccurate or incomplete information on the
Mortgage Loan Schedule in effect at such time.
(b) The Servicer shall give notice to the Master Servicer, the
Securities Administrator, the Trustee, each Rating Agency and the Depositor of
any proposed change of the location of the Collection Account within a
reasonable period of time prior to any change thereof.
Section 3.08 Subservicing Accounts. In those cases where a
Subservicer is servicing a Mortgage Loan pursuant to a Subservicing Agreement,
the Subservicer will be required to establish and maintain one or more accounts
(collectively, the "Subservicing Account"). The Subservicing Account shall be an
Eligible Account and shall otherwise be acceptable to the Servicer. The
Subservicer shall deposit in the clearing account (which account must be an
Eligible Account) in which it customarily deposits payments and collections on
mortgage loans in connection with its mortgage loan servicing activities on a
daily basis, and in no event more than one Business Day after the Subservicer's
receipt thereof, all proceeds of Mortgage Loans received by the Subservicer less
its servicing compensation to the extent permitted by the Subservicing
Agreement, and shall thereafter deposit such amounts in the Subservicing
Account, in no event more than two Business Days after the deposit of such funds
into the clearing account. The Subservicer shall thereafter deposit such
proceeds in the Collection Account or remit such proceeds to the Servicer for
deposit in the Collection Account not later than two Business Days after the
deposit of such amounts in the Subservicing Account. For purposes of this
Agreement, the Servicer shall be deemed to have received payments on the
Mortgage Loans when the Subservicer receives such payments.
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. (a) The Servicer shall ensure that each of the Mortgage Loans
shall be covered by a paid-in-full, life-of-the-loan tax service contract in
effect with respect to each Mortgage Loan (each, a "Tax Service Contract"). Each
Tax Service Contract shall be assigned to a successor Servicer at the Servicer's
expense in the event that the Servicer is terminated as Servicer of the related
Mortgage Loan.
(b) To the extent that the services described in this paragraph (b)
are not otherwise provided pursuant to the Tax Service Contracts described in
paragraph (a) hereof, the Servicer undertakes to perform such functions. To the
extent the related Mortgage Loan provides for Escrow Payments, the Servicer
shall establish and maintain, or cause to be established and maintained, one or
more accounts (the "Escrow Accounts"), which shall be Eligible Accounts. The
Servicer shall deposit in the clearing account (which account must be an
Eligible Account) in which it customarily deposits payments and collections on
mortgage loans in connection with its mortgage loan servicing activities on a
daily basis, and in no event more than one Business Day after the Servicer's
receipt thereof, all collections from the Mortgagors (or related advances from
Subservicers) for the payment of taxes, assessments, hazard insurance premiums
and comparable items for the account of the Mortgagors ("Escrow Payments")
collected on account of the Mortgage Loans and shall thereafter deposit such
Escrow Payments in the Escrow Accounts, in no event more than two Business Days
after the deposit of such funds in the clearing account, for the purpose of
effecting the payment of any such items as required under the terms of this
Agreement. Withdrawals of amounts from an Escrow Account may be made only to (i)
effect payment of taxes, assessments, fire and hazard insurance premiums,
condominium charges and comparable items; (ii) reimburse the Servicer (or a
Subservicer to the extent provided in the related Subservicing Agreement) out of
related collections for any advances made pursuant to Section 3.01(b) (with
respect to taxes and assessments) and Section 3.13(a) (with respect to hazard
insurance); (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) apply to the restoration or repair of the Mortgaged Property in
accordance with Section 3.13(a); (v) transfer to the Collection Account and
application to reduce the principal balance of the Mortgage Loan in accordance
with the terms of the related Mortgage and Mortgage Note; (vi) pay interest to
the Servicer and, if required and as described below, to Mortgagors on balances
in the Escrow Account; (vii) clear and terminate the Escrow Account at the
termination of the Servicer's obligations and responsibilities in respect of the
Mortgage Loans under this Agreement; or (viii) recover amounts deposited in
error or for which amounts previously deposited are returned due to a "not
sufficient funds" or other denial of payment by the related Mortgagor's banking
institution. As part of its servicing duties, the Servicer or Subservicers shall
pay to the Mortgagors interest on funds in Escrow Accounts, to the extent
required by law and, to the extent that interest earned on funds in the Escrow
Accounts is insufficient, to pay such interest from its or their own funds,
without any reimbursement therefor. To the extent that a Mortgage Loan does not
provide for Escrow Payments, the Servicer shall use commercially reasonable
efforts consistent with Accepted Servicing Practices to determine whether any
such payments are made by the Mortgagor in a manner and at a time that avoids
the loss of the Mortgaged Property due to a tax sale or the foreclosure as a
result of a tax lien. The Servicer assumes full responsibility for the payment
of all such bills within such time and shall effect payments of all such bills
irrespective of the Mortgagor's faithful performance in the payment of same or
the making of the Escrow Payments and shall make advances from its own funds to
effect such payments; provided, however, that such advances are deemed to be
Servicing Advances.
Section 3.10 Collection Account. (a) On behalf of the Trustee, the
Servicer shall establish and maintain, or cause to be established and
maintained, one or more segregated Eligible Accounts (each such account or
accounts, a "Collection Account"), held in trust for the benefit of the Trustee
for the benefit of the Certificateholders. Funds in the Collection Account shall
not be commingled with any other funds of the Servicer. On behalf of the
Trustee, the Servicer shall deposit or cause to be deposited in the clearing
account (which account must be an Eligible Account) in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no event more than
one Business Day after the Servicer's receipt thereof, and shall thereafter
deposit in the Collection Account, in no event more than two Business Days after
the deposit of such funds into the clearing account, as and when received or as
otherwise required hereunder, the following payments and collections received or
made by it subsequent to the Cut-off Date (other than in respect of principal or
interest on the related Mortgage Loans due on or before the Cut-off Date), or
payments (other than Principal Prepayments) received by it on or prior to the
Cut-off Date but allocable to a Due Period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of the related
Servicing Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds and Condemnation Proceeds (to the
extent such Insurance Proceeds and Condemnation Proceeds are not to be
applied to the restoration of the related Mortgaged Property or released
to the related Mortgagor in accordance with the express requirements of
law or in accordance with prudent and customary servicing practices) and
all Liquidation Proceeds;
(iv) any amounts required to be deposited pursuant to Section
3.12(b) in connection with any losses realized on Permitted Investments
with respect to funds held in the Collection Account;
(v) any amounts required to be deposited by the Servicer pursuant to
the second paragraph of Section 3.13(a) in respect of any blanket policy
deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or purchased in
accordance with this Agreement and any Substitution Adjustment Amount; and
(vii) all Prepayment Premiums collected by the Servicer.
The foregoing requirements for deposit in the Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges, NSF
fees, reconveyance fees, assumption fees and other similar fees and charges need
not be deposited by the Servicer in the Collection Account and shall, upon
collection, belong to the Servicer as additional compensation for its servicing
activities. In the event the Servicer shall deposit in the Collection Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from the Collection Account, any provision herein to the contrary
notwithstanding.
(b) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12. The
Servicer shall give notice to the Master Servicer, the Securities Administrator,
the Trustee and the Depositor of the location of the Collection Account
maintained by it when established and prior to any change thereof.
Section 3.11 Withdrawals from the Collection Account. (a) The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes or as described in Section 4.01:
(i) on or prior to the Remittance Date, to remit to the Master
Servicer (A) the Master Servicing Fee with respect to such Distribution
Date and (B) all Available Funds in respect of the related Distribution
Date together with all amounts representing Prepayment Premiums from the
Mortgage Loans received during the related Prepayment Period;
(ii) to reimburse the Servicer for P&I Advances, but only to the
extent of amounts received which represent Late Collections (net of the
related Servicing Fees) of Scheduled Payments on Mortgage Loans with
respect to which such P&I Advances were made in accordance with the
provisions of Section 4.01;
(iii) to pay the Servicer or any Subservicer (A) any unpaid
Servicing Fees or (B) any unreimbursed Servicing Advances with respect to
each Mortgage Loan, but only to the extent of any Late Collections,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or other
amounts as may be collected by the Servicer from a Mortgagor, or otherwise
received with respect to such Mortgage Loan (or the related REO Property);
(iv) to pay to the Servicer as servicing compensation (in addition
to the Servicing Fee) on the Remittance Date any interest or investment
income earned on funds deposited in the Collection Account;
(v) to pay the Purchaser, the Depositor or Responsible Party, as
applicable, with respect to each Mortgage Loan that has previously been
repurchased or replaced pursuant to this Agreement all amounts received
thereon subsequent to the date of purchase or substitution, as the case
may be;
(vi) to reimburse the Servicer for (A) any P&I Advance or Servicing
Advance previously made which the Servicer has determined to be a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance in
accordance with the provisions of Section 4.01 and (B) any unpaid
Servicing Fees to the extent not recoverable from Liquidation Proceeds,
Insurance Proceeds or other amounts received with respect to the related
Mortgage Loan under Section 3.11(a)(iii);
(vii) to pay, or to reimburse the Servicer for advances in respect
of, expenses incurred in connection with any Mortgage Loan pursuant to
Section 3.15;
(viii) to reimburse the Master Servicer, the Servicer, the
Depositor, the Securities Administrator or the Trustee for expenses
incurred by or reimbursable to the Master Servicer, the Servicer, the
Depositor, the Securities Administrator or the Trustee, as the case may
be, as permitted under this Agreement pursuant, but not limited, to
Section 6.03, Section 7.02, Section 8.05, Section 9.13 or Section 10.02,
as applicable;
(ix) to reimburse the Master Servicer, the Servicer or the Trustee,
as the case may be, for expenses reasonably incurred in respect of the
breach or defect giving rise to the repurchase obligation under Section
2.03 of this Agreement that were included in the Repurchase Price of the
Mortgage Loan, including any expenses arising out of the enforcement of
the repurchase obligation, to the extent not otherwise paid pursuant to
the terms hereof;
(x) to withdraw any amounts deposited in the Collection Account in
error or for which amounts previously deposited are returned due to a "not
sufficient funds" or other denial of payment by the related Mortgagor's
banking institution;
(xi) to withdraw any amounts held in the Collection Account and not
required to be remitted to the Master Servicer on the Remittance Date
occurring in the month in which such amounts are deposited into the
Collection Account, to reimburse the Servicer for xxxxxxxxxxxx X&X
Advances;
(xii) to invest funds in Permitted Investments in accordance with
Section 3.12; and
(xiii) to clear and terminate the Collection Account upon
termination of this Agreement.
To the extent that the Servicer does not timely make the remittance
referred to in clause (i) above, the Servicer shall pay the Master Servicer for
the account of the Master Servicer interest on any amount not timely remitted at
the prime rate, from and including the applicable Remittance Date to but
excluding the date such remittance is actually made.
(b) The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account, to the extent held by or on behalf of
it, pursuant to subclauses (a)(ii), (iii), (iv), (v), (vi), (vii), (viii) and
(ix) above. The Servicer shall provide written notification to the Master
Servicer, on or prior to the next succeeding Remittance Date, upon making any
withdrawals from the Collection Account pursuant to subclause (a)(vi) above.
Section 3.12 Investment of Funds in the Collection Account and the
Distribution Account (a) The Servicer may invest the funds in the Collection
Account and the Master Servicer may invest funds in the Distribution Account
during the Securities Administrator Float Period, and shall (except during the
Securities Administrator Float Period), invest such funds in the Distribution
Account at the direction of the Depositor (for purposes of this Section 3.12,
each of the Collection Account and the Distribution Account are referred to as
an "Investment Account"), in one or more Permitted Investments bearing interest
or sold at a discount, and maturing, unless payable on demand, no later than the
Business Day on which such funds are required to be withdrawn from such account
pursuant to this Agreement (except for investments made at the Depositor's
direction, which shall mature no later than the Business Day immediately
preceding the date of required withdrawal). All such Permitted Investments shall
be held to maturity, unless payable on demand. Any investment of funds in an
Investment Account shall be made in the name of the Servicer or the Master
Servicer, as applicable. The Servicer or the Master Servicer, as applicable,
shall be entitled to sole possession (except with respect to investment
direction of funds held in the related Account and any income and gain realized
thereon in any Account other than the Distribution Account during the Securities
Administrator Float Period) over each such investment, and any certificate or
other instrument evidencing any such investment shall be delivered directly to
the Servicer, the Master Servicer or their respective agent, as applicable,
together with any document of transfer necessary to transfer title to such
investment to the Servicer, the Master Servicer or their respective agent, as
applicable. In the event amounts on deposit in an Investment Account are at any
time invested in a Permitted Investment payable on demand, the Servicer or the
Master Servicer, as applicable, may:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Collection Account held by or on behalf of the Servicer, shall
be for the benefit of the Servicer and shall be subject to its withdrawal in the
manner set forth in Section 3.11. Any other benefit derived from the Collection
Account associated with the receipt, disbursement and accumulation of principal,
interest, taxes, hazard insurance, mortgage blanket insurance, and like sources,
shall accrue to the benefit of the Servicer, except that the Servicer shall not
realize any economic benefit from any forced charging of services except as
permitted by applicable law. The Servicer shall deposit in the Collection
Account and Escrow Account the amount of any loss of principal incurred in
respect of any such Permitted Investment made with funds in such accounts
immediately upon realization of such loss.
(c) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Securities Administrator
during the Securities Administrator Float Period shall be for the benefit of the
Master Servicer and shall be subject to the Securities Administrator's
withdrawal in the manner set forth in Section 3.12(a). Notwithstanding anything
in this Section 3.12(c), the Master Servicer shall be liable to the Trust for
any such loss on any funds it has invested under this Section 3.12(c) only
during the Securities Administrator Float Period, and the Master Servicer shall
deposit in the Distribution Account the amount of any loss of principal incurred
in respect of any such Permitted Investment made with funds in such account
immediately upon realization of such loss.
(d) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Servicer or the Master Servicer, as applicable, shall take such
action as may be appropriate to enforce such payment or performance, including
the institution and prosecution of appropriate proceedings.
(e) The Securities Administrator or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the Securities
Administrator's economic self-interest for (i) serving as investment adviser,
administrator, shareholder or servicing agent with respect to certain of the
Permitted Investments, (ii) using Affiliates to effect transactions in certain
Permitted Investments and (iii) effecting transactions in certain Permitted
Investments. Such compensation shall not be considered an amount that is
reimbursable or payable pursuant to this Agreement.
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions
and Fidelity Coverage (a) The Servicer shall cause to be maintained for each
Mortgage Loan fire insurance with extended coverage on the related Mortgaged
Property in an amount which is at least equal to the least of (i) the
outstanding principal balance of such Mortgage Loan, (ii) the amount necessary
to fully compensate for any damage or loss to the improvements that are a part
of such property on a replacement cost basis, (iii) the maximum insurable value
of the improvements which are a part of such Mortgaged Property, and (iv) the
amount determined by applicable federal or state law, in each case in an amount
not less than such amount as is necessary to avoid the application of any
coinsurance clause contained in the related hazard insurance policy. The
Servicer shall also cause to be maintained fire insurance with extended coverage
on each REO Property in an amount which is at least equal to the lesser of (i)
the maximum insurable value of the improvements which are a part of such
property and (ii) the outstanding principal balance of the related Mortgage Loan
at the time it became an REO Property, plus accrued interest at the Mortgage
Interest Rate and related Servicing Advances. The Servicer will comply in the
performance of this Agreement with all reasonable rules and requirements of each
insurer under any such hazard policies. Any amounts to be collected by the
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the property subject to the related Mortgage or amounts
to be released to the Mortgagor in accordance with the procedures that the
Servicer would follow in servicing loans held for its own account, subject to
the terms and conditions of the related Mortgage and Mortgage Note) shall be
deposited in the Collection Account, subject to withdrawal pursuant to Section
3.11. If the Mortgagor fails to provide Mortgage Loan hazard insurance coverage
after thirty (30) days of the Servicer's written notification, the Servicer
shall put in place such hazard insurance coverage on the Mortgagor's behalf. Any
out-of-pocket expense or advance made by the Servicer on such force placed
hazard insurance coverage shall be deemed a Servicing Advance. Any cost incurred
by the Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to the Master Servicer, be added to the unpaid
principal balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit. It is understood and agreed that no earthquake
or other additional insurance is to be required of any Mortgagor other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. If the Mortgaged Property
or REO Property is at any time in an area identified in the Federal Register by
the Federal Emergency Management Agency as having special flood hazards and
flood insurance has been made available, the Servicer will cause to be
maintained a flood insurance policy in respect thereof. Such flood insurance
shall be in an amount equal to the lesser of (i) the minimum amount required,
under the terms of coverage, to compensate for any damage or loss on a
replacement cost basis (or the unpaid principal balance of the related Mortgage
Loan if replacement cost coverage is not available for the type of building
insured) and (ii) the maximum amount of insurance which is available under the
Flood Disaster Protection Act of 1973, as amended. If at any time during the
term of the Mortgage Loan, the Servicer determines in accordance with applicable
law and pursuant to the Federal Emergency Management Agency Guides that a
Mortgaged Property is located in a special flood hazard area and is not covered
by flood insurance or is covered in an amount less than the amount required by
the Flood Disaster Protection Act of 1973, as amended, the Servicer shall notify
the related Mortgagor to obtain such flood insurance coverage, and if said
Mortgagor fails to obtain the required flood insurance coverage within
forty-five (45) days after such notification, the Servicer shall immediately
force place the required flood insurance on the Mortgagor's behalf. Any
out-of-pocket expense or advance made by the Servicer on such force placed flood
insurance coverage shall be deemed a Servicing Advance.
In the event that the Servicer shall obtain and maintain a blanket
policy with an insurer either (i) acceptable to Xxxxxx Xxx or Xxxxxxx Mac, or
(ii) having a General Policy Rating of A:12 or better in Best's (or such other
rating that is comparable to such rating) insuring against hazard losses on all
of the Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first two sentences of this Section 3.13, it
being understood and agreed that such policy may contain a deductible clause, in
which case the Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property a policy complying
with the first two sentences of this Section 3.13, and there shall have been one
or more losses which would have been covered by such policy, deposit to the
Collection Account from its own funds the amount not otherwise payable under the
blanket policy because of such deductible clause. In connection with its
activities as administrator and servicer of the Mortgage Loans, the Servicer
agrees to prepare and present, on behalf of itself, the Trustee claims under any
such blanket policy in a timely fashion in accordance with the terms of such
policy.
(b) The Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of the Servicer's obligations under this Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of Xxxxxx Mae or Xxxxxxx Mac if it were the purchaser of the
Mortgage Loans, unless the Servicer has obtained a waiver of such requirements
from Xxxxxx Mae or Xxxxxxx Mac. The Servicer shall also maintain a fidelity bond
in the form and amount that would meet the requirements of Xxxxxx Mae or Xxxxxxx
Mac, unless the Servicer has obtained a waiver of such requirements from Xxxxxx
Mae or Xxxxxxx Mac. The Servicer shall provide the Master Servicer upon request
with copies of any such insurance policies and fidelity bond. The Servicer shall
be deemed to have complied with this provision if an Affiliate of the Servicer
has such errors and omissions and fidelity bond coverage and, by the terms of
such insurance policy or fidelity bond, the coverage afforded thereunder extends
to the Servicer. Any such errors and omissions policy and fidelity bond shall by
its terms not be cancelable without thirty days' prior written notice to the
Master Servicer. The Servicer shall also cause each Subservicer to maintain a
policy of insurance covering errors and omissions and a fidelity bond which
would meet such requirements.
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption
Agreements. The Servicer will, to the extent it has knowledge of any conveyance
or prospective conveyance of any Mortgaged Property by any Mortgagor (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause, if any, applicable thereto; provided, however, that the
Servicer shall not be required to take such action if, in its sole business
judgment, the Servicer believes it is not in the best interests of the Trust
Fund and shall not exercise any such rights if prohibited by law from doing so.
If the Servicer reasonably believes it is unable under applicable law to enforce
such "due-on-sale" clause or if any of the other conditions set forth in the
proviso to the preceding sentence apply, the Servicer will enter into an
assumption and modification agreement from or with the person to whom such
property has been conveyed or is proposed to be conveyed, pursuant to which such
person becomes liable under the Mortgage Note, and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. The Servicer is also
authorized to enter into a substitution of liability agreement with such person,
pursuant to which the original Mortgagor is released from liability and such
person is substituted as the Mortgagor and becomes liable under the Mortgage
Note; provided, that no such substitution shall be effective unless such person
satisfies the underwriting criteria of the Servicer and such substitution is in
the best interest of the Certificateholders as determined by the Servicer. In
connection with any assumption, modification or substitution, the Servicer shall
apply such underwriting standards and follow such practices and procedures as
shall be normal and usual in its general mortgage servicing activities and as it
applies to other mortgage loans owned solely by it. The Servicer shall not take
or enter into any assumption and modification agreement, however, unless (to the
extent practicable in the circumstances) it shall have received confirmation, in
writing, of the continued effectiveness of any applicable hazard insurance
policy, or a new policy meeting the requirements of this Section is obtained.
Any fee collected by the Servicer in respect of an assumption or substitution of
liability agreement will be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, no material term of the
Mortgage Note (including but not limited to the related Mortgage Interest Rate
and the amount of the Scheduled Payment) may be amended or modified, except as
otherwise required pursuant to the terms thereof. The Servicer shall notify the
Custodian that any such substitution, modification or assumption agreement has
been completed by forwarding to the Custodian the executed original of such
substitution or assumption agreement, which document shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of
this Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Mortgage Loan by operation of law or by the terms of the Mortgage Note or any
assumption which the Servicer may be restricted by law from preventing, for any
reason whatsoever. For purposes of this Section 3.14, the term "assumption" is
deemed to also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
Section 3.15 Realization upon Defaulted Mortgage Loans. The Servicer
shall use its best efforts, consistent with Accepted Servicing Practices, to
foreclose upon or otherwise comparably convert (which may include an acquisition
of REO Property) the ownership of properties securing such of the Mortgage Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.07, and which are not released from this Agreement pursuant to any
other provision hereof. The Servicer shall use reasonable efforts to realize
upon such defaulted Mortgage Loans in such manner as will maximize the receipt
of principal and interest by the Securities Administrator, taking into account,
among other things, the timing of foreclosure proceedings. The foregoing is
subject to the provisions that, in any case in which a Mortgaged Property shall
have suffered damage from an uninsured cause, the Servicer shall not be required
to expend its own funds toward the restoration of such property unless it shall
determine in its sole discretion (i) that such restoration will increase the net
proceeds of liquidation of the related Mortgage Loan to the Securities
Administrator, after reimbursement to itself for such expenses, and (ii) that
such expenses will be recoverable by the Servicer through Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds from the related Mortgaged
Property, as contemplated in Section 3.11. The Servicer shall be responsible for
all other costs and expenses incurred by it in any such proceedings; provided,
however, that it shall be entitled to reimbursement thereof from the related
property, as contemplated in Section 3.11.
The proceeds of any Liquidation Event or REO Disposition, as well as
any recovery resulting from a partial collection of Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds or any income from an REO
Property, will be applied in the following order of priority: first, to
reimburse the Servicer or any Subservicer for any related unreimbursed Servicing
Advances, pursuant to Section 3.11 or 3.17; second, to reimburse the Servicer
for any xxxxxxxxxxxx X&X Advances, pursuant to Section 3.11; third, to accrued
and unpaid interest on the Mortgage Loan or REO Imputed Interest, at the
Mortgage Interest Rate, to the date of the liquidation or REO Disposition, or to
the Due Date prior to the Remittance Date on which such amounts are to be
distributed if not in connection with a Liquidation Event or REO Disposition;
and fourth, as a recovery of principal of the Mortgage Loan. If the amount of
the recovery so allocated to interest is less than a full recovery thereof, that
amount will be allocated as follows: first, to unpaid Servicing Fees; and
second, as interest at the Mortgage Interest Rate (net of the Servicing Fee
Rate). The portion of the recovery so allocated to unpaid Servicing Fees shall
be reimbursed to the Servicer or any Subservicer pursuant to Section 3.11 or
3.17. The portions of the recovery so allocated to interest at the Mortgage
Interest Rate (net of the Servicing Fee Rate) and to principal of the Mortgage
Loan shall be applied as follows: first, to reimburse the Servicer or any
Subservicer for any related unreimbursed Servicing Advances in accordance with
Section 3.11 or 3.17, and second, to the Securities Administrator in accordance
with the provisions of Section 4.02, subject to the last paragraph of Section
3.17 with respect to certain excess recoveries from an REO Disposition.
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure, in
the event the Servicer has received actual notice of, or has actual knowledge of
the presence of, hazardous or toxic substances or wastes on the related
Mortgaged Property, or if the Trustee or the Master Servicer otherwise requests,
the Servicer shall cause an environmental inspection or review of such Mortgaged
Property to be conducted by a qualified inspector. Upon completion of the
inspection, the Servicer shall promptly provide the Trustee, the Master Servicer
and the Depositor, with a written report of the environmental inspection.
After reviewing the environmental inspection report, the Servicer
shall determine consistent with Accepted Servicing Practices how to proceed with
respect to the Mortgaged Property. In the event (a) the environmental inspection
report indicates that the Mortgaged Property is contaminated by hazardous or
toxic substances or wastes and (b) the Servicer determines, consistent with
Accepted Servicing Practices, to proceed with foreclosure or acceptance of a
deed in lieu of foreclosure, the Servicer shall be reimbursed for all reasonable
costs associated with such foreclosure or acceptance of a deed in lieu of
foreclosure and any related environmental clean-up costs, as applicable, from
the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse the Servicer, the Servicer shall be entitled to
be reimbursed from amounts in the Collection Account pursuant to Section 3.11.
In the event the Servicer determines not to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, the Servicer shall be reimbursed
from general collections for all Servicing Advances made with respect to the
related Mortgaged Property from the Collection Account pursuant to Section 3.11.
The Trustee shall not be responsible for any determination made by the Servicer
pursuant to this paragraph or otherwise.
Section 3.16 Release of Mortgage Files. (a) Upon the payment in full
of any Mortgage Loan, or the receipt by the Servicer of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Servicer shall, within five (5) Business Days of the payment in full, notify the
Custodian by a certification (which certification shall include a statement to
the effect that all amounts received or to be received in connection with such
payment which are required to be deposited in the Collection Account pursuant to
Section 3.10 have been deposited) of a Servicing Officer and shall request
delivery to it of the Custodial File by completing a Request for Release to the
Custodian. Upon receipt of such certification and Request for Release, the
Custodian shall promptly release the related Custodial File to the Servicer
within five (5) Business Days. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Collection Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any insurance policy relating to the Mortgage Loans, the Custodian shall, upon
request of the Servicer and delivery to the Custodian of a Request for Release,
release the related Custodial File to the Servicer, and the Trustee shall, at
the direction of the Servicer, execute such documents provided to it as shall be
necessary to the prosecution of any such proceedings and the Servicer shall
retain the Mortgage File in trust for the benefit of the Trustee. Such Request
for Release shall obligate the Servicer to return each and every document
previously requested from the Custodial File to the Custodian when the need
therefor by the Servicer no longer exists, unless the Mortgage Loan has been
liquidated and the Liquidation Proceeds relating to the Mortgage Loan have been
deposited in the Collection Account or the Mortgage File or such document has
been delivered to an attorney, or to a public trustee or other public official
as required by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially or
non-judicially, and the Servicer has delivered to the Custodian a certificate of
a Servicing Officer certifying as to the name and address of the Person to which
such Mortgage File or such document was delivered and the purpose or purposes of
such delivery. Upon receipt of a certificate of a Servicing Officer stating that
such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the Collection Account have been so deposited, or that such Mortgage Loan
has become an REO Property, a copy of the Request for Release shall be released
by the Custodian to the Servicer or its designee. Upon receipt of a Request for
Release under this Section 3.16, the Custodian shall deliver the related
Custodial File to the Servicer by overnight courier (which shall be at the
Servicer's expense); provided, however, that in the event the Servicer has not
previously received copies of the relevant Mortgage Loan Documents necessary to
service the related Mortgage Loan in accordance with Accepted Servicing
Practices, the Depositor shall use reasonable efforts to cause the Responsible
Party to reimburse the Servicer for any overnight courier charges incurred for
the requested Custodial Files.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Servicer copies of any court pleadings, requests for
trustee's sale or other documents reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Mortgagor on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity, or shall exercise and deliver to the Servicer a power of attorney
sufficient to authorize the Servicer to execute such documents on its behalf.
Each such certification shall include a request that such pleadings or documents
be executed by the Trustee and a statement as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
Section 3.17 Title, Conservation and Disposition of REO Property.
(a) This Section shall apply only to REO Properties acquired for the account of
the Trustee for the benefit of the Certificateholders and shall not apply to any
REO Property relating to a Mortgage Loan which was purchased or repurchased from
the Trustee pursuant to any provision hereof. In the event that title to any
such REO Property is acquired, the Servicer shall cause the deed or certificate
of sale to be issued in the name of the Trustee, on behalf of the
Certificateholders, or the Trustee's nominee.
(b) The Servicer shall manage, conserve, protect and operate each
REO Property for the Trustee for the benefit of the Certificateholders solely
for the purpose of its prompt disposition and sale. The Servicer, either itself
or through an agent selected by the Servicer, shall manage, conserve, protect
and operate the REO Property in the same manner that it manages, conserves,
protects and operates other foreclosed property for its own account, and in the
same manner that similar property in the same locality as the REO Property is
managed. The Servicer shall attempt to sell the same (and may temporarily rent
the same for a period not greater than one year, except as otherwise provided
below) on such terms and conditions as the Servicer deems to be in the best
interest of the Trustee.
(c) The Servicer shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within three years after title has been taken to such REO Property, unless the
Servicer determines, and gives an appropriate notice to the Trustee and the
Master Servicer to such effect, that a longer period is necessary for the
orderly liquidation of such REO Property, so long as such extended period is
within the time period specified in Section 3.17(h). Subject to Section 3.17(h),
if a period longer than three years is permitted under the foregoing sentence
and is necessary to sell any REO Property, the Servicer shall report monthly to
the Trustee and the Master Servicer as to the progress being made in selling
such REO Property. The Trustee has no obligation with respect to REO
Dispositions.
(d) The Servicer shall segregate and hold all funds collected and
received in connection with the operation of any REO Property separate and apart
from its own funds and general assets and shall deposit such funds in the
Collection Account.
(e) The Servicer shall deposit net of reimbursement to the Servicer
for any related outstanding Servicing Advances and unpaid Servicing Fees
provided in Section 3.11, or cause to be deposited, on a daily basis in the
Collection Account all revenues received with respect to the related REO
Property and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of the REO Property.
(f) The Servicer, upon an REO Disposition, shall be entitled to
reimbursement for any related unreimbursed Servicing Advances as well as any
unpaid Servicing Fees from proceeds received in connection with the REO
Disposition, as further provided in Section 3.11.
(g) Any net proceeds from an REO Disposition which are in excess of
the unpaid principal balance of the related Mortgage Loan plus all unpaid REO
Imputed Interest thereon through the date of the REO Disposition shall be
retained by the Servicer as additional servicing compensation.
(h) The Servicer shall use its reasonable best efforts to sell, or
cause the Subservicer to sell, in accordance with Accepted Servicing Practices,
any REO Property as soon as possible, but in no event later than the conclusion
of the third calendar year beginning after the year of its acquisition by the
REMIC unless (i) the Servicer applies for an extension of such period from the
Internal Revenue Service pursuant to the REMIC Provisions and Code Section
856(e)(3), in which event such REO Property shall be sold within the applicable
extension period pursuant to the requirements of Section 3.17(c), or (ii) the
Servicer obtains for the Trustee an Opinion of Counsel, addressed to the
Depositor, the Trustee and the Servicer, to the effect that the holding by the
Pooling-Tier REMIC-1 of such REO Property subsequent to such period will not
result in the imposition of taxes on "prohibited transactions" as defined in
Section 860F of the Code or cause any Trust REMIC to fail to qualify as a REMIC
under the REMIC Provisions or comparable provisions of relevant state laws at
any time. The Servicer shall manage, conserve, protect and operate each REO
Property for the Trustee solely for the purpose of its prompt disposition and
sale in a manner which does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) or result in the
receipt by the Pooling-Tier REMIC-1 of any "income from non-permitted assets"
within the meaning of Section 860F(a)(2)(B) of the Code or any "net income from
foreclosure property" which is subject to taxation under Section 860G(a)(1) of
the Code. Pursuant to its efforts to sell such REO Property, the Servicer shall
either itself or through an agent selected by the Servicer protect and conserve
such REO Property in the same manner and to such extent as is customary in the
locality where such REO Property is located and may, incident to its
conservation and protection of the interests of the Trustee on behalf of the
Certificateholders, rent the same, or any part thereof, as the Servicer deems to
be in the best interest of the Trustee on behalf of the Certificateholders for
the period prior to the sale of such REO Property; provided, however, that any
rent received or accrued with respect to such REO Property qualifies as "rents
from real property" as defined in Section 856(d) of the Code.
Section 3.18 Notification of Adjustments. With respect to each
Adjustable Rate Mortgage Loan, the Servicer shall adjust the Mortgage Interest
Rate on the related Adjustment Date and shall adjust the Scheduled Payment on
the related mortgage payment adjustment date, if applicable, in compliance with
the requirements of applicable law and the related Mortgage and Mortgage Note.
In the event that an Index becomes unavailable or otherwise unpublished, the
Servicer shall select a comparable alternative index over which it has no direct
control and which is readily verifiable. The Servicer shall execute and deliver
any and all necessary notices required under applicable law and the terms of the
related Mortgage Note and Mortgage regarding the Mortgage Interest Rate and
Scheduled Payment adjustments. The Servicer shall promptly, upon written request
therefor, deliver to the Master Servicer such notifications and any additional
applicable data regarding such adjustments and the methods used to calculate and
implement such adjustments. Upon the discovery by the Servicer or the receipt of
notice from the Master Servicer that the Servicer has failed to adjust a
Mortgage Interest Rate or Scheduled Payment in accordance with the terms of the
related Mortgage Note, the Servicer shall deposit in the Collection Account from
its own funds the amount of any interest loss caused as such interest loss
occurs.
Section 3.19 Access to Certain Documentation and Information
Regarding the Mortgage Loans. The Servicer shall provide, or cause the
Subservicer to provide, to the Depositor, the Trustee, the OTS or the FDIC and
the examiners and supervisory agents thereof, access to the documentation
regarding the Mortgage Loans in its possession required by applicable
regulations of the OTS. Such access shall be afforded without charge, but only
upon reasonable and prior written request and during normal business hours at
the offices of the Servicer. Nothing in this Section shall derogate from the
obligation of such party to observe any applicable law prohibiting disclosure of
information regarding the Mortgagors and the failure of such party to provide
access as provided in this Section as a result of such obligation shall not
constitute a breach of this Section.
Nothing in this Section 3.19 shall require the Servicer to collect,
create, collate or otherwise generate any information that it does not generate
in its usual course of business. The Servicer shall not be required to make
copies of or to ship documents to any Person who is not a party to this
Agreement, and then only if provisions have been made for the reimbursement of
the costs thereof.
Section 3.20 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Trustee. The Servicer shall account fully to the
Securities Administrator on behalf of the Trustee for any funds received by the
Servicer or which otherwise are collected by the Servicer as Liquidation
Proceeds, Condemnation Proceeds or Insurance Proceeds in respect of any Mortgage
Loan. All Mortgage Files and funds collected or held by, or under the control
of, the Servicer in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds, including, but
not limited to, any funds on deposit in the Collection Account, shall be held by
the Servicer for and on behalf of the Trustee and shall be and remain the sole
and exclusive property of the Trustee, subject to the applicable provisions of
this Agreement. The Servicer also agrees that it shall not create, incur or
subject any Mortgage File or any funds that are deposited in the Collection
Account, the Distribution Account or any Escrow Account, or any funds that
otherwise are or may become due or payable to the Securities Administrator on
behalf of the Trustee for the benefit of the Certificateholders, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, or assert by legal action or otherwise any claim or right of setoff
against any Mortgage File or any funds collected on, or in connection with, a
Mortgage Loan, except, however, that the Servicer shall be entitled to set off
against and deduct from any such funds any amounts that are properly due and
payable to the Servicer under this Agreement.
Section 3.21 Servicing Compensation. (a) As compensation for its
activities hereunder, the Servicer shall, with respect to each Mortgage Loan, be
entitled to retain from deposits to the Collection Account and from Liquidation
Proceeds, Insurance Proceeds, and Condemnation Proceeds related to such Mortgage
Loan, the Servicing Fee with respect to each Mortgage Loan (less any portion of
such amounts retained by any Subservicer). In addition, the Servicer shall be
entitled to recover unpaid Servicing Fees out of related Late Collections and as
otherwise permitted in Section 3.11. The right to receive the Servicing Fee may
not be transferred in whole or in part except as provided in Section 12.07 or in
connection with the transfer of all of the Servicer's responsibilities and
obligations under this Agreement; provided, however, that the Servicer may pay
from the Servicing Fee any amounts due to a Subservicer pursuant to a
Subservicing Agreement entered into under Section 3.02.
(b) Additional servicing compensation in the form of assumption or
modification fees, late payment charges, NSF fees, reconveyance fees and other
similar fees and charges (other than Prepayment Premiums) shall be retained by
the Servicer only to the extent such fees or charges are received by the
Servicer. The Servicer shall also be entitled pursuant to Section 3.09(b)(vi)
and Section 3.11(a)(iv) to withdraw from the Collection Account, as additional
servicing compensation, interest or other income earned on deposits therein.
(c) The Servicer shall be required to pay all expenses incurred by
it in connection with its servicing activities hereunder (including payment of
premiums for any blanket policy insuring against hazard losses pursuant to
Section 3.13, servicing compensation of the Subservicer to the extent not
retained by it and the fees and expenses of independent accountants and any
agents appointed by the Servicer), and shall not be entitled to reimbursement
therefor except as specifically provided in Section 3.11.
Section 3.22 Annual Statement as to Compliance. The Servicer will
deliver or cause to be delivered to the Depositor, the Master Servicer, the
Rating Agencies, the Securities Administrator and the Trustee on or before March
15th of each calendar year, commencing in 2006, an Officer's Certificate
stating, as to each signatory thereof, that (i) a review of the activities of
the Servicer during the preceding calendar year and of performance under this
Agreement or a similar agreement has been made under such officers' supervision,
and (ii) to the best of such officers' knowledge, based on such review, the
Servicer has fulfilled all of its obligations in all material respects under
this Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation in any material respect, specifying each such
default known to such officers and the nature and status thereof. Promptly after
receipt of such Officer's Certificate, the Depositor shall review such Officer's
Certificate and, if applicable, consult with the Servicer as to the nature of
any defaults by the Servicer in the fulfillment of any of the Servicer's
obligations. The obligations of the Servicer under this Section apply to the
Servicer that serviced during the applicable period, whether or not such
Servicer is acting as a Servicer at the time such Officer's Certificate is
required to be delivered.
Section 3.23 Annual Independent Public Accountants' Servicing
Statement; Financial Statements. Not later than March 15th of each calendar year
commencing in 2006, the Servicer, at its expense, shall cause a nationally
recognized firm of independent certified public accountants to furnish to the
Depositor, the Master Servicer, the Rating Agencies, the Securities
Administrator and the Trustee a report stating that (i) it has obtained a letter
of representation regarding certain matters from the management of the Servicer
which includes an assertion that the Servicer has complied with certain minimum
residential mortgage loan servicing standards, identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the servicing of residential mortgage
loans during the most recently completed calendar year and (ii) on the basis of
an examination conducted by such firm in accordance with standards established
by the American Institute of Certified Public Accountants, such representation
is fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of residential mortgage
loans by Subservicers, upon comparable reports of firms of independent certified
public accountants rendered on the basis of examinations conducted in accordance
with the same standards (rendered within one year of such report) with respect
to those Subservicers. Promptly after receipt of such report, the Depositor
shall review such report and, if applicable, consult with the Servicer as to the
nature of any defaults by the Servicer in the fulfillment of any of the
Servicer's obligations. The obligations of the Servicer under this Section apply
to the Servicer that serviced during the applicable period, whether or not such
Servicer is acting as a Servicer at the time such report is required to be
delivered.
Section 3.24 Master Servicer to Act as Servicer. (a) In the event
that the Servicer shall for any reason no longer be the Servicer hereunder
(including by reason of an Event of Default), the Master Servicer (or other
successor Servicer pursuant to Section 7.02) shall thereupon assume all of the
rights and obligations of the Servicer hereunder arising thereafter (except that
the Master Servicer shall not be (i) liable for losses of the predecessor
Servicer pursuant to Section 3.10 or any acts or omissions of the predecessor
Servicer hereunder, (ii) obligated to make Advances if it is prohibited from
doing so by applicable law, (iii) obligated to effectuate repurchases or
substitutions of Mortgage Loans hereunder, including but not limited to
repurchases or substitutions pursuant to Section 2.03, (iv) responsible for
expenses of the Servicer pursuant to Section 2.03 or (v) deemed to have made any
representations and warranties of the Servicer hereunder). Any such assumption
shall be subject to Section 7.02.
(b) Every Subservicing Agreement entered into by the Servicer shall
contain a provision giving the successor Servicer the option to terminate such
agreement in the event a successor Servicer is appointed.
(c) If the Servicer shall for any reason no longer be the Servicer
(including by reason of any Event of Default), the Master Servicer (or any other
successor Servicer) may, at its option, succeed to any rights and obligations of
the Servicer under any Subservicing Agreement in accordance with the terms
thereof; provided, that the Master Servicer (or any other successor Servicer)
shall not incur any liability or have any obligations in its capacity as
successor Servicer under a Subservicing Agreement arising prior to the date of
such succession unless it expressly elects to succeed to the rights and
obligations of the Servicer thereunder; and the Servicer shall not thereby be
relieved of any liability or obligations under the Subservicing Agreement
arising prior to the date of such succession.
(d) The Servicer shall, upon request of the Master Servicer, but at
the expense of the Servicer, deliver to the assuming party all documents and
records relating to each Subservicing Agreement (if any) and the Mortgage Loans
then being serviced thereunder and an accounting of amounts collected and held
by it and otherwise use its best efforts to effect the orderly and efficient
transfer of such Subservicing Agreement to the assuming party.
Section 3.25 Compensating Interest. The Servicer shall remit to the
Master Servicer on each Remittance Date an amount from its own funds equal to
Compensating Interest payable by the Servicer for such Remittance Date.
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act. (a) With
respect to each Mortgage Loan, the Servicer shall fully furnish, in accordance
with the Fair Credit Reporting Act and its implementing regulations, accurate
and complete information (e.g., favorable and unfavorable) on the related
Mortgagor credit files to Equifax, Experian and TransUnion Credit Information
Company (three of the national credit repositories), on a monthly basis.
(b) The Servicer shall comply with all provisions of the Privacy
Laws relating to the Mortgage Loans, the related borrowers and any "nonpublic
personal information" (as defined in the Privacy Laws) received by the Servicer
incidental to the performance of its obligations under this Agreement,
including, maintaining adequate information security procedures to protect such
nonpublic personal information and providing all privacy notices required by the
Privacy Laws.
Section 3.27 Excess Reserve Fund Account; Distribution Account. (a)
The Securities Administrator shall establish and maintain the Excess Reserve
Fund Account, on behalf of the Class X Certificateholders, to receive that
portion of the distributions on the Class X Interest up to an amount equal to
any Basis Risk Payments and to pay to the LIBOR Certificateholders any Basis
Risk Carry Forward Amounts (prior to using any Net Swap Receipts). For the
avoidance of doubt, any Basis Risk Carry Forward Amounts shall be paid to the
LIBOR Certificates first from the Excess Reserve Fund Account and then from the
Supplemental Interest Trust.
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class of LIBOR Certificates, the Securities Administrator
shall (1) withdraw from the Distribution Account and deposit in the Excess
Reserve Fund Account, as set forth in Section 4.02(a)(iii)(J), the lesser of the
Class X Distributable Amount (to the extent remaining after the distributions
specified in Sections 4.02(a)(iii)(A)-(I) and without regard to the reduction in
clause (iii) of the definition thereof for any Basis Risk Payment or Defaulted
Swap Termination Payment) and the aggregate Basis Risk Carry Forward Amount and
(2) withdraw from the Excess Reserve Fund Account amounts necessary to pay to
such Class or Classes of LIBOR Certificates the applicable Basis Risk Carry
Forward Amounts. Such payments, along with payments from the Supplemental
Interest Trust, shall be allocated to those Classes based upon the amount of
Basis Risk Carry Forward Amount owed to each such Class and shall be paid in the
priority set forth in Section 4.02(a)(iii)(K). In the event that the Class
Certificate Balance of any Class of Certificates is reduced because of Applied
Realized Loss Amounts, the applicable Certificateholders will not be entitled to
receive Basis Risk Carry Forward Amounts on the written down amounts on such
Distribution Date or any future Distribution Dates (except to the extent such
Class Certificate Balance is increased as a result of any Subsequent
Recoveries), even if funds are otherwise available for distribution.
The Securities Administrator shall account for the Excess Reserve
Fund Account as an asset of a grantor trust under subpart E, Part I of
subchapter J of the Code and not as an asset of any Trust REMIC created pursuant
to this Agreement. The beneficial owners of the Excess Reserve Fund Account are
the Class X Certificateholders.
Any Basis Risk Carry Forward Amounts distributed by the Securities
Administrator to the LIBOR Certificateholders from the Excess Reserve Fund
Account shall be accounted for by the Securities Administrator, for federal
income tax purposes, as amounts paid first to the Holders of the Class X
Certificates (in respect of the Class X Interest) and then to the respective
Class or Classes of LIBOR Certificates. In addition, the Securities
Administrator shall account for the rights of Holders of each Class of LIBOR
Certificates to receive payments of Basis Risk Carry Forward Amounts from the
Excess Reserve Fund Account (along with payments of Basis Risk Carry Forward
Amounts and, without duplication, Upper-Tier Carry Forward Amounts from the
Supplemental Interest Trust) as rights in a separate limited recourse interest
rate cap contract written by the Class X Certificateholders in favor of Holders
of each such Class.
Notwithstanding any provision contained in this Agreement, the
Securities Administrator shall not be required to make any payments from the
Excess Reserve Fund Account except as expressly set forth in this Section
3.27(a).
(b) The Master Servicer shall establish and maintain the
Distribution Account on behalf of the Certificateholders. The Master Servicer
shall, promptly upon receipt on the Business Day received, deposit in the
Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Master
Servicer pursuant to Section 3.11;
(ii) any amount deposited by the Servicer pursuant to Section
3.12(b) in connection with any losses on Permitted Investments;
(iii) any amounts remitted by the Servicer to the Master Servicer in
respect of Compensating Interest pursuant to Section 3.25; and
(iv) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the Servicer shall remit any amount not required
to be remitted, the Servicer may at any time direct the Master Servicer in
writing to withdraw such amount from the Distribution Account, any provision
herein to the contrary notwithstanding. Such direction may be accomplished by
delivering notice to the Master Servicer, which describes the amounts deposited
in error in the Distribution Account. All funds deposited in the Distribution
Account shall be held by the Securities Administrator in trust for the
Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 4.02.
(c) In order to comply with its duties under the USA Patriot Act of
2001, the Securities Administrator shall obtain and verify certain information
and documentation from the other parties to this Agreement including, but not
limited to, each such party's name, address, and other identifying information.
Section 3.28 Optional Purchase of Delinquent Mortgage Loans. The
Depositor, in its sole discretion, shall have the option, but shall not be
obligated, to purchase any 90+ Day Delinquent Mortgage Loans from the Trust
Fund. The purchase price for any such Mortgage Loan shall be 100% of the unpaid
principal balance of such Mortgage Loan plus accrued and unpaid interest on the
related Mortgage Loan at the applicable Mortgage Interest Rate, plus the amount
of any unreimbursed Servicing Advances made by the Servicer. Upon receipt of
such purchase price, the Servicer shall provide to the Custodian a Request for
Release and the Custodian shall promptly release to the Depositor, the Mortgage
File relating to the Mortgage Loan being repurchased in accordance with Section
3.16(a).
Section 3.29 Back-up Certification. For so long as a certificate
under the Xxxxxxxx-Xxxxx Act of 2002, as amended ("Xxxxxxxx-Xxxxx"), is required
to be given on behalf of the Trust, by the later of March 15 commencing in 2006
or 30 days prior to the date on which the Form 10-K is required to be filed with
the Securities and Exchange Commission of each year (or if not a Business Day,
the immediately preceding Business Day), or at any other time that the Master
Servicer provides a certificate under Xxxxxxxx-Xxxxx pursuant to Section 8.12,
an officer of the Servicer and each successor Servicer shall execute and deliver
an Officer's Certificate to the Depositor, Master Servicer, the Securities
Administrator and the Trustee for the benefit of the Trust and the Master
Servicer and its officers, directors and affiliates, in the form set forth in
Exhibit P. The Servicer shall indemnify and hold harmless the Master Servicer
and its officers, directors, agents and affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach by
the Servicer or any of its officers, directors, agents or affiliates of its
obligations under this Section 3.29 or the negligence, bad faith or willful
misconduct of the Servicer in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the Master
Servicer, then the Servicer agrees that it shall contribute to the amount paid
or payable by the Master Servicer as a result of the losses, claims, damages or
liabilities of the Master Servicer in such proportion as is appropriate to
reflect the relative fault of the Master Servicer on the one hand and the
Servicer on the other in connection with a breach of the Servicer's obligations
under this Section 3.29 or the Servicer's negligence, bad faith or willful
misconduct in connection therewith.
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances. (a) The amount of P&I Advances to be made by
the Servicer for any Remittance Date shall equal, subject to Section 4.01(c),
the sum of (i) the aggregate amount of Scheduled Payments (with each interest
portion thereof net of the related Servicing Fee), due during the Due Period
immediately preceding such Remittance Date in respect of the Mortgage Loans,
which Scheduled Payments were not received as of the close of business on the
related Determination Date, plus (ii) with respect to each REO Property, which
REO Property was acquired during or prior to the related Prepayment Period and
as to which such REO Property an REO Disposition did not occur during the
related Prepayment Period, an amount equal to the excess, if any, of the
Scheduled Payments (with REO Imputed Interest) that would have been due on the
related Due Date in respect of the related Mortgage Loan, over the net income
from such REO Property transferred to the Collection Account for distribution on
such Remittance Date.
(b) On each Remittance Date, the Servicer shall remit in immediately
available funds to the Master Servicer an amount equal to the aggregate amount
of P&I Advances, if any, to be made in respect of the Mortgage Loans and REO
Properties for the related Remittance Date either (i) from its own funds or (ii)
from the Collection Account, to the extent of funds held therein for future
distribution (in which case, it will cause to be made an appropriate entry in
the records of the Collection Account that Amounts Held for Future Distribution
have been, as permitted by this Section 4.01, used by the Servicer in discharge
of any such P&I Advance) or (iii) in the form of any combination of (i) and (ii)
aggregating the total amount of P&I Advances to be made by the Servicer with
respect to the Mortgage Loans and REO Properties. Any Amounts Held for Future
Distribution and so used shall be appropriately reflected in the Servicer's
records and replaced by the Servicer by deposit in the Collection Account on or
before any future Remittance Date to the extent required.
(c) The obligation of the Servicer to make such P&I Advances is
mandatory, notwithstanding any other provision of this Agreement but subject to
(d) below, and, with respect to any Mortgage Loan or REO Property, shall
continue until a Final Recovery Determination in connection therewith or the
removal thereof from coverage under this Agreement, except as otherwise provided
in this Section 4.01.
(d) Notwithstanding anything herein to the contrary, no P&I Advance
or Servicing Advance shall be required to be made hereunder by the Servicer if
such P&I Advance or Servicing Advance would, if made, constitute a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. The
determination by the Servicer that it has made a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance or that any proposed P&I Advance or Servicing
Advance, if made, would constitute a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance, respectively, shall be evidenced by an
Officer's Certificate of the Servicer delivered to the Master Servicer. In
addition the Servicer shall not be required to advance any Relief Act Interest
Shortfalls.
(e) Except as otherwise provided herein, the Servicer shall be
entitled to reimbursement pursuant to Section 3.11 for Advances from recoveries
from the related Mortgagor or from all Liquidation Proceeds and other payments
or recoveries (including Insurance Proceeds and Condemnation Proceeds) with
respect to the related Mortgage Loan.
(f) On each Remittance Date, the Master Servicer shall deposit in
the Distribution Account all funds remitted to it by the Servicer pursuant to
Sections 3.11(a)(i)(B) and 3.25 and this Section 4.01. The Securities
Administrator may retain or withdraw from the Distribution Account, (i) the
Master Servicing Fee, (ii) amounts necessary to reimburse the Master Servicer or
the Servicer for any previously unreimbursed Advances and any Advances the
Master Servicer deems to be nonrecoverable from the related Mortgage Loan
proceeds, (iii) an amount to indemnify the Master Servicer or the Servicer for
amounts due in accordance with this Agreement, and (iv) any other amounts that
each of the Master Servicer and the Securities Administrator is entitled to
receive hereunder for reimbursement, indemnification or otherwise.
Section 4.02 Priorities of Distribution. (a) On each Distribution
Date, the Securities Administrator shall make the disbursements and transfers
from amounts then on deposit in the Distribution Account in the following order
of priority and to the extent of the Available Funds remaining:
(i) to the Supplemental Interest Trust and to the holders of each
Class of LIBOR Certificates in the following order of priority:
(A) to the Supplemental Interest Trust, the sum of (x) all Net
Swap Payments and (y) any Swap Termination Payment owed to the Swap
Provider other than a Defaulted Swap Termination Payment;
(B) concurrently, (1) from the Interest Remittance Amount
related to the Group I Mortgage Loans, pro rata (based on the
Accrued Certificate Interest Distribution Amounts and Unpaid
Interest Amounts distributable to the Class A-1A and Class A-1B
Certificates) to the Class A-1A and Class A-1B Certificates, the
related Accrued Certificate Interest Distribution Amounts and Unpaid
Interest Amounts for the Class A-1A and Class A-1B Certificates; (2)
from the Interest Remittance Amount related to the Group II Mortgage
Loans, pro rata (based on the Accrued Certificate Interest
Distribution Amounts and Unpaid Interest Amounts distributable to
the Class A-2A, Class A-2B, Class A-2C and Class A-2D Certificates)
to the Class A-2A, Class A-2B, Class A-2C and Class A-2D
Certificates, the related Accrued Certificate Interest Distribution
Amounts and Unpaid Interest Amounts for the Class A-2A, Class A-2B,
Class A-2C and Class A-2D Certificates; provided, that if the
Interest Remittance Amount for either Loan Group is insufficient to
make the related payments set forth clause (1) or (2) above, any
Interest Remittance Amount relating to the other Loan Group
remaining after payment of the related Accrued Certificate Interest
Distribution Amounts and Unpaid Interest Amounts will be available
to cover that shortfall;
(C) from any remaining Interest Remittance Amounts, to the
Class M-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(D) from any remaining Interest Remittance Amounts, to the
Class M-2 Certificates, the Accrued Certificate Interest
Distribution
Amount for such Class;
(E) from any remaining Interest Remittance Amounts, to the
Class M-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(F) from any remaining Interest Remittance Amounts, to the
Class M-4 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(G) from any remaining Interest Remittance Amounts, to the
Class M-5 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(H) from any remaining Interest Remittance Amounts, to the
Class B-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(I) from any remaining Interest Remittance Amounts, to the
Class B-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(J) from any remaining Interest Remittance Amounts, to the
Class B-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class; and
(K) from any remaining Interest Remittance Amounts, to the
Class B-4 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(ii) (A) on each Distribution Date (a) prior to the Stepdown Date or
(b) with respect to which a Trigger Event is in effect, to the holders of
the Class or Classes of LIBOR Certificates then entitled to distributions
of principal as set forth below, an amount equal to the Principal
Distribution Amount in the following order of priority:
(a) sequentially:
(x) concurrently to the Class R-1, Class R-2 and Class
R-3 Certificates, allocated pro rata, until their respective
Class Certificate Balances have been reduced to zero; and
(y) to the Class A Certificates, allocated as described
in Section 4.02(c), until their respective Class Certificate
Balances are reduced to zero;
(b) sequentially, to the Class X-0, Xxxxx X-0, Class M-3,
Class M-4, Class M-5, Class B-1, Class B-2, Class B-3 and Class B-4
Certificates, in that order, until their respective Class
Certificate Balances are reduced to zero;
(B) on each Distribution Date (a) on and after the Stepdown Date and
(b) so long as a Trigger Event is not in effect, to the holders of the
Class or Classes of LIBOR Certificates then entitled to distributions of
principal as set forth below, an amount equal to the Principal
Distribution Amount in the following order of priority:
(a) the lesser of (x) the Principal Distribution Amount and
(y) the Class A Principal Distribution Amount to the Class A
Certificates, allocated as described in Section 4.02(c), until their
respective Class Certificate Balances are reduced to zero;
(b) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above and (y) the Class M-1
Principal Distribution Amount, to the Class M-1 Certificates until
their Class Certificate Balance has been reduced to zero;
(c) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above and to the Class M-1
Certificates in clause (ii)(B)(b) above, and (y) the Class M-2
Principal Distribution Amount, to the Class M-2 Certificates until
their Class Certificate Balance has been reduced to zero;
(d) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above and to the Class M-2
Certificates in clause (ii)(B)(c) above, and (y) the Class M-3
Principal Distribution Amount, to the Class M-3 Certificates until
their Class Certificate Balance has been reduced to zero;
(e) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above and to the Class M-3
Certificates in clause (ii)(B)(d) above, and (y) the Class M-4
Principal Distribution Amount, to the Class M-4 Certificates until
their Class Certificate Balance has been reduced to zero;
(f) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above and to the Class M-4
Certificates in clause (ii)(B)(e) above, and (y) the Class M-5
Principal Distribution Amount, to the Class M-5 Certificates until
their Class Certificate Balance has been reduced to zero;
(g) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above and to the Class M-5
Certificates in clause (ii)(B)(f) above, and (y) the Class B-1
Principal Distribution Amount, to the Class B-1 Certificates until
their Class Certificate Balance has been reduced to zero;
(h) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above, to the Class M-5
Certificates in clause (ii)(B)(f) above and to the Class B-1
Certificates in clause (ii)(B)(g) above, and (y) the Class B-2
Principal Distribution Amount, to the Class B-2 Certificates until
their Class Certificate Balance has been reduced to zero; and
(i) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above, to the Class M-5
Certificates in clause (ii)(B)(f) above, to the Class B-1
Certificates in clause (ii)(B)(g) above and to the Class B-2
Certificates in clause (ii)(B)(h) above, and (y) the Class B-3
Principal Distribution Amount, to the Class B-3 Certificates until
their Class Certificate Balance has been reduced to zero;
(iii) any amount remaining after the distributions in clauses
4.02(a)(i) and (ii) above shall be distributed in the following order of
priority:
(A) to the Class M-1 Certificates, any Unpaid Interest Amount
for such Class;
(B) to the Class M-2 Certificates, any Unpaid Interest Amount
for such Class;
(C) to the Class M-3 Certificates, any Unpaid Interest Amount
for such Class;
(D) to the Class M-4 Certificates, any Unpaid Interest Amount
for such Class;
(E) to the Class M-5 Certificates, any Unpaid Interest Amount
for such Class;
(F) to the Class B-1 Certificates, any Unpaid Interest Amount
for such Class;
(G) to the Class B-2 Certificates, any Unpaid Interest Amount
for such Class;
(H) to the Class B-3 Certificates, any Unpaid Interest Amount
for such Class;
(I) to the Class B-4 Certificates, any Unpaid Interest Amount
for such Class;
(J) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment (without regard to Net Swap Receipts) for such
Distribution Date;
(K) from funds on deposit in the Excess Reserve Fund Account
with respect to such Distribution Date, an amount equal to any Basis
Risk Carry Forward Amount with respect to the LIBOR Certificates for
such Distribution Date to such Classes in the same order and
priority as set forth in Section 4.02(a)(i), with the allocation to
the Class A Certificates being pro rata based on their respective
Basis Risk Carry Forward Amounts;
(L) to the Supplemental Interest Trust, the amount of any
Defaulted Swap Termination Payment;
(M) to the Class X Certificates, the remainder of the Class X
Distributable Amount not distributed pursuant to Sections
4.02(a)(iii)(A)-(L);
(N) to the Class R-2 Certificates, any remaining amount, in
respect of Pooling-Tier REMIC-1;
(O) to the Class R-1 Certificates, any remaining amount, in
respect of Pooling-Tier REMIC-2, the Lower-Tier REMIC and the
Upper-Tier REMIC; and
(P) to the Class R-3 Certificates, any remaining amount, in
respect of the Class X REMIC.
Notwithstanding the foregoing, if the Stepdown Date is the date on
which the Class Certificate Balance of the Class A Certificates is reduced to
zero, any Principal Distribution Amount remaining after principal distributions
to the Class A Certificates pursuant to clause (ii)(A) above will be included as
part of the distributions pursuant to clause (ii)(B) above.
(b) On each Distribution Date, all amounts representing Prepayment
Premiums from the Mortgage Loans received during the related Prepayment Period
shall be distributed by the Securities Administrator to the holders of the Class
P Certificates.
(c) All principal distributions allocated to the Class A
Certificates on any Distribution Date shall be allocated among the Class A-1
Certificate Group and the Class A-2 Certificate Group based on the Class A
Principal Allocation Percentage for the Class A-1 Certificate Group and the
Class A-2 Certificate Group, as applicable. However, if the Class Certificate
Balances of the Class A Certificates in any Class A Certificate Group is reduced
to zero, then the remaining amount of principal distributions distributable to
the Class A Certificates in that Class A Certificate Group on that Distribution
Date, and the amount of principal distributions distributable on all subsequent
Distribution Dates, shall be distributed to the Class A Certificates of the
other Class A Certificate Group remaining Outstanding, in accordance with the
principal distribution allocations set forth in this Section 4.02(c), until
their respective Class Certificate Balances have been reduced to zero. Any
distributions of principal to the Class A-1 Certificate Group shall be made
first from Available Funds relating to the Group I Mortgage Loans. Any
distributions of principal to the Class A-2 Certificate Group shall be made
first from Available Funds relating to the Group II Mortgage Loans.
Any principal distributions allocated to the Class A-1 Certificate
Group are required to be distributed pro rata between the Class A-1A
Certificates and the Class A-1B Certificates, based on their respective Class
Certificate Balances, until their Class Certificate Balances have been reduced
to zero. However, so long as a Group I Sequential Trigger Event is in effect,
principal distributions to the Class A-1 Certificate Group shall be allocated
first to the Class A-1A Certificates, until their Class Certificate Balance has
been reduced to zero, and then to the Class A-1B Certificates, until their Class
Certificate Balance has been reduced to zero.
Any principal distributions allocated to the Class A-2 Certificate
Group are required to be distributed sequentially to the Class A-2A
Certificates, until their Class Certificate Balance has been reduced to zero,
then to the Class A-2B Certificates, until their Class Certificate Balance has
been reduced to zero, then to the Class A-2C Certificates, until their Class
Certificate Balance has been reduced to zero and then to the Class A-2D
Certificates, until their Class Certificate Balance has been reduced to zero.
Notwithstanding the allocation of principal to the Class A
Certificates described in the preceding paragraphs, from and after the
Distribution Date on which the aggregate Class Certificate Balances of the
Subordinated Certificates and the principal balance of the Class X Certificates
have been reduced to zero, any principal distributions allocated to the Class A
Certificates are required to be allocated pro rata to the Class A Certificates
based on their respective Certificate Principal Balances, except that so long as
a Group I Sequential Trigger event is in effect, principal allocated to the
Class A-1 Certificate Group is required to 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.
(d) On any Distribution Date, any Relief Act Interest Shortfalls and
Net Prepayment Interest Shortfalls for such Distribution Date shall be allocated
by the Securities Administrator, pro rata, as a reduction of the Accrued
Certificate Interest Distribution Amount for the Class A, Class M and Class B
Certificates, based on the amount of interest to which such Classes would
otherwise be entitled on such Distribution Date.
Section 4.03 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Securities Administrator shall make available
to each Certificateholder, the Master Servicer, the Servicer, the Depositor, the
Trustee and each Rating Agency a statement based on information provided by the
Servicer setting forth with respect to the related distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any Unpaid Interest
Amounts included in such distribution and any remaining Unpaid Interest
Amounts after giving effect to such distribution, any Basis Risk Carry
Forward Amount for such Distribution Date and the amount of all Basis Risk
Carry Forward Amounts covered by withdrawals from the Excess Reserve Fund
Account on such Distribution Date;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest, including any Basis Risk Carry Forward Amount not covered by
amounts in the Excess Reserve Fund Account;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) the Pool Stated Principal Balance for the following Distribution
Date;
(vi) the amount of the Expense Fees (in the aggregate and separately
stated) paid to or retained by the Servicer or Subservicer (with respect
to the Subservicers, in the aggregate) and the Master Servicer with
respect to such Distribution Date;
(vii) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(viii) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances reported by the
Servicer as outstanding as of the close of business on the Determination
Date immediately preceding such Distribution Date;
(ix) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the Scheduled Payment is delinquent 31 to
60 days, 61 to 90 days and 91 or more days, (2) that have become REO
Property, (3) that are in foreclosure and (4) that are in bankruptcy, in
each case as of the close of business on the last Business Day of the
immediately preceding month;
(x) for each of the preceding 12 calendar months, or all calendar
months since the related Cut-off Date, whichever is less, the aggregate
dollar amount of the Scheduled Payments (A) due on all Outstanding
Mortgage Loans on each of the Due Dates in each such month and (B)
delinquent 60 days or more on each of the Due Dates in each such month;
(xi) with respect to all Mortgage Loans that became REO Properties
during the preceding calendar month, the aggregate number of such Mortgage
Loans and the aggregate Stated Principal Balance of such Mortgage Loans as
of the close of business on the Determination Date preceding such
Distribution Date and the date of acquisition thereof;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the
Determination Date preceding such Distribution Date;
(xiii) whether a Trigger Event has occurred and is continuing
(including the calculation of thereof and the aggregate outstanding
balance of all 60+ Day Delinquent Mortgage Loans) and whether a Group I
Sequential Trigger Event has occurred and is continuing;
(xiv) the amount of any Basis Risk Carry Forward Amounts paid from
the Excess Reserve Fund Account or the Supplemental Interest Trust and the
amount of any Upper-Tier Carry Forward Amounts paid from the Supplemental
Interest Trust;
(xv) in the aggregate and for each Class of Certificates, the
aggregate amount of Applied Realized Loss Amounts incurred during the
preceding calendar month and aggregate Applied Realized Loss Amounts
through such Distribution Date;
(xvi) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the Certificateholders
with respect to Applied Realized Loss Amounts and Unpaid Interest Amounts;
(xvii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xviii) the amount distributed on the Class P Certificates;
(xix) the Cumulative Realized Loss Percentage;
(xx) the amount distributed on the Class X Certificates;
(xxi) the amount of any Subsequent Recoveries for such Distribution
Date;
(xxii) the amount of any Net Swap Payments, Net Swap Receipts, Swap
Termination Payments or Defaulted Swap Termination Payments; and
(xxiii) the calculations of LIBOR and Swap LIBOR.
(b) The Securities Administrator's responsibility for providing the
above statement to the Certificateholders, each Rating Agency, the Master
Servicer, the Servicer, the Securities Administrator, the Trustee and the
Depositor is limited to the availability, timeliness and accuracy of the
information derived from the Master Servicer and the Servicer. The Securities
Administrator will provide the above statement via the Securities
Administrator's internet website. The Securities Administrator's website will
initially be located at xxxxx://xxx.xxxxxxx.xxx and assistance in using the
website can be obtained by calling the Securities Administrator's customer
service desk at (000) 000-0000. The Securities Administrator will also make a
paper copy of the above statement available upon request.
(c) Upon request, within a reasonable period of time after the end
of each calendar year, the Securities Administrator shall cause to be furnished
to each Person who at any time during the calendar year was a Certificateholder,
a statement containing the information set forth in clauses (a)(i) and (a)(ii)
of this Section 4.03 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of the
Securities Administrator shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code as from time to time in
effect.
(d) Not later than the Reporting Date, the Servicer shall furnish to
the Securities Administrator a monthly remittance advice statement (in a format
mutually agreed upon by the Servicer and the Securities Administrator)
containing such information as shall be reasonably requested by the Securities
Administrator to provide the reports required by Section 4.03(a) as to the
accompanying remittance and the period ending on the close of business on the
last Business Day of the immediately preceding month (the "Servicer Remittance
Report").
The Servicer shall furnish to the Securities Administrator an
individual loan accounting report, as of the last Business Day of each month, to
document Mortgage Loan payment activity on an individual Mortgage Loan basis.
With respect to each month, the corresponding individual loan accounting report
(in electronic format) shall be received by the Securities Administrator no
later than the Reporting Date, which report shall contain the following:
(i) with respect to each Scheduled Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any
Prepayment Premiums, along with a detailed report of interest on Principal
Prepayment amounts remitted in accordance with Section 3.25);
(ii) with respect to each Scheduled Payment, the amount of such
remittance allocable to interest;
(iii) the amount of servicing compensation received by the Servicer
during the prior distribution period;
(iv) the individual and aggregate Stated Principal Balance of the
Mortgage Loans;
(v) the aggregate of any expenses reimbursed to the Servicer during
the prior distribution period pursuant to Section 3.11;
(vi) the number and aggregate outstanding principal balances of
Mortgage Loans (a) delinquent (1) 31 to 60 days, (2) 61 to 90 days, or (3)
91 days or more; (b) as to which foreclosure has commenced; and (c) as to
which REO Property has been acquired;
(vii) each Mortgage Loan which has been altered, modified or varied
during such month, and the reason for such modification (i.e., extension
of maturity date, Mortgage Interest Rate);
(viii) with respect to each Liquidated Mortgage Loan, the amount of
any Realized Losses for such Mortgage Loan; and
(ix) any other information reasonably required by the Securities
Administrator to enable it to prepare the Monthly Statement referred to in
Section 4.03(a).
(e) In addition to clause (d) above, the Servicer shall provide the
Depositor with full, continuous access to its online mortgage loan servicing
data system (Datamart) (the "Data System") with respect to the Mortgage Loans.
To the extent that the Data System is not available or otherwise
accessible, or the information in the following documents is not available on
the Data System or the Servicer fails to provide any report set forth in Section
4.03(f) or Exhibit N-1 hereto in a timely manner, the Servicer shall provide the
documentation listed below to the Depositor and the Securities Administrator in
an electronic format acceptable to the Securities Administrator and the
Depositor:
(i) Initiation of foreclosure - The Servicer shall deliver to the
Depositor and the Securities Administrator a copy of the collection
comments and a current BPO;
(ii) Deed-in-lieu of foreclosure - The Servicer shall deliver to the
Depositor and the Securities Administrator a copy of current value and a
copy of a title report showing clean title;
(iii) Bidding instructions at foreclosure sale - The Servicer shall
deliver to the Depositor and the Securities Administrator a statement of
total debt and current BPO;
(iv) Short sale - The Servicer shall deliver to the Depositor and
the Securities Administrator a statement of the Mortgagor's hardship,
current BPO, and statement detailing net proceeds to the Depositor and the
Securities Administrator;
(v) REO Property list price - The Servicer shall deliver to the
Depositor and the Securities Administrator a current BPO done at the time
of taking title to the REO Property and broker's recommendation for list
price;
(vi) REO Property sales price - The Servicer shall deliver to the
Depositor and the Securities Administrator a summary of the REO contract
being proposed; and
(vii) REO Property net proceeds - The Servicer shall deliver to the
Depositor and the Securities Administrator a copy of the HUD-1 statement
prior to closing.
(f) On the 5th Business Day of each month (the "Data File Delivery
Date"), the Servicer shall deliver to the Depositor a Market Value Change Report
and a data file incorporating the fields set forth in the data file layout set
forth on Exhibit N-1 hereto (the "Data File"). In the event that the Servicer is
unable to provide the complete data file on such Data File Delivery Date, the
Servicer shall provide to the Depositor additional reports as set forth on
Exhibit N-1 hereto (the "Back-up Reports") on or prior to the 8th Business Day
of such month (the "Back-up Report Delivery Date") in an electronic format
acceptable to the Depositor.
(g) On the Reporting Date in each calendar month, the Servicer shall
furnish to the Master Servicer (i) a monthly remittance advice in the format set
forth in Exhibit N-2 hereto, a monthly defaulted loan report in the format set
forth in Exhibit N-3 hereto and a realized loss report in the format set forth
in Exhibit N-4 hereto (or in such other format mutually agreed to between the
Servicer and the Master Servicer) relating to the period ending on the last day
of the preceding calendar month and (ii) all such information required pursuant
to clause (i) above on a magnetic tape or other similar media reasonably
acceptable to the Master Servicer.
Such monthly remittance advice shall also be accompanied by a
supplemental report provided to the Master Servicer which includes on an
aggregate basis for the previous calendar month (i) the amount of any insurance
claims filed, (ii) the amount of any claim payments made and (iii) the amount of
claims denied or curtailed. The Master Servicer will convert such data into a
format acceptable to the Securities Administrator and provide monthly reports to
the Securities Administrator pursuant to this Agreement.
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Securities Administrator in accordance with the
definition of "LIBOR." Until all of the LIBOR Certificates are paid in full, the
Securities Administrator will at all times retain at least four Reference Banks
for the purpose of determining LIBOR with respect to each LIBOR Determination
Date. The Securities Administrator initially shall designate the Reference Banks
(after consultation with the Depositor). Each "Reference Bank" shall be a
leading bank engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, shall not control, be controlled by, or be under common
control with, the Securities Administrator and shall have an established place
of business in London. If any such Reference Bank should be unwilling or unable
to act as such or if the Securities Administrator should terminate its
appointment as Reference Bank, the Securities Administrator shall promptly
appoint or cause to be appointed another Reference Bank (after consultation with
the Depositor). The Securities Administrator shall have no liability or
responsibility to any Person for (i) the selection of any Reference Bank for
purposes of determining LIBOR or (ii) any inability to retain at least four
Reference Banks which is caused by circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Securities Administrator on
each LIBOR Determination Date so long as the LIBOR Certificates are Outstanding
on the basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement. The Securities Administrator shall
not have any liability or responsibility to any Person for its inability,
following a good-faith reasonable effort, to obtain quotations from the
Reference Banks or to determine the arithmetic mean referred to in the
definition of LIBOR, all as provided for in this Section 4.04 and the definition
of LIBOR. The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Securities Administrator shall (in the absence of manifest
error) be final, conclusive and binding upon each Holder of a Certificate and
the Securities Administrator.
Section 4.05 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts shall be allocated by the Securities Administrator
to the most junior Class of Subordinated Certificates then Outstanding in
reduction of the Class Certificate Balance thereof. In the event Applied
Realized Loss Amounts are allocated to any Class of LIBOR Certificates, their
Class Certificate Balances shall be reduced by the amount so allocated, and no
funds will be distributable with respect to the written down amounts (including
without limitation Basis Risk Carry Forward Amounts) or with respect to interest
on the written down amounts on that Distribution Date or any future Distribution
Dates, even if funds are otherwise available for distribution. Notwithstanding
the foregoing, the Class Certificate Balance of each Class of Subordinated
Certificates that has been previously reduced by Applied Realized Loss Amounts
will be increased, in order of seniority, by the amount of the Subsequent
Recoveries (but not in excess of the Applied Realized Loss Amount allocated to
the applicable Class of Subordinated Certificates).
Section 4.06 Supplemental Interest Trust. On the Closing Date, the
Securities Administrator shall establish and maintain in its name, a separate
non-interest bearing trust account for the benefit of the holders of the LIBOR
Certificates (the "Supplemental Interest Trust") as a part of the Trust Fund.
The Supplemental Interest Trust shall be an Eligible Account, and funds on
deposit therein shall be held separate and apart from, and shall not be
commingled with, any other moneys, including, without limitation, other moneys
of the Securities Administrator held pursuant to this Agreement.
On any Distribution Date, Swap Termination Payments, Net Swap
Payments owed to the Swap Provider and Net Swap Receipts for that Distribution
Date will be deposited into the Supplemental Interest Trust. Funds in the
Supplemental Interest Trust will be distributed in the following order of
priority:
(i) to the Swap Provider, the sum of (x) all Net Swap Payments and
(y) any Swap Termination Payment, other than a Defaulted Swap Termination
Payment, to the Swap Provider, if any, owed for that Distribution Date;
(ii) to the LIBOR Certificateholders, to pay Accrued Certificate
Interest Distribution Amounts and, if applicable, any Unpaid Interest
Amounts as described in Section 4.02(a)(i) and Section 4.02(a)(iii), to
the extent unpaid from other Available Funds;
(iii) to the LIBOR Certificateholders, to pay principal as described
in Section 4.02(a)(ii), but only to the extent necessary to maintain the
Overcollateralized Amount at the Specified Overcollateralized Amount,
after giving effect to payments and distributions from other Available
Funds;
(iv) to the LIBOR Certificateholders, to pay Unpaid Interest Amounts
and Basis Risk Carry Forward Amounts as described in Section 4.02(a)(iii),
to the extent unpaid from other Available Funds (including Basis Risk
Payments on deposit in the Excess Reserve Fund Account);
(v) to the Swap Provider, any Defaulted Swap Termination Payment
owed to the Swap Provider for that Distribution Date; and
(vi) to the holders of the Class X Certificates, any remaining
amounts.
Notwithstanding the foregoing, in the event that the Trust receives
a Swap Termination Payment and a successor Swap Provider cannot be obtained,
then the Securities Administrator shall deposit the Swap Termination Payment
into the reserve account that is a sub-account of the Supplemental Interest
Trust. On each subsequent Distribution Date (so long as funds are available in
the reserve account), the Securities Administrator shall withdraw from the
reserve account and deposit into the Supplemental Interest Trust an amount equal
to the amount of any Net Swap Receipt due the Trust (calculated in accordance
with the terms of the original Interest Rate Swap Agreement) and treat such
amount as a Net Swap Receipt for purposes of determining the distributions from
the Supplemental Interest Trust.
Upon termination of the Trust, any amounts remaining in the
Supplemental Interest Trust shall be distributed pursuant to the priorities set
forth in this Section 4.06.
The Securities Administrator shall account for the Supplemental
Interest Trust as an asset of a grantor trust under subpart E, Part I of
subchapter J of the Code and not as an asset of any Trust REMIC created pursuant
to this Agreement. The beneficial owners of the Supplemental Interest Trust are
the Class X Certificateholders. For federal income tax purposes, Net Swap
Payments and Swap Termination Payments payable to the Swap Provider shall be
deemed to be paid to the Supplemental Interest Trust first, from the Class X
REMIC, by the Holder of the Class X Certificates (in respect of the Class IO
Interest and, if applicable, Class X Interest) and second, other than any
Defaulted Swap Termination Payment, from the Upper-Tier REMIC, by the Holders of
the applicable Class or Classes of LIBOR Certificates (in respect of Class IO
Shortfalls) as and to the extent provided in Section 8.13.
Any Basis Risk Carry Forward Amounts and, without duplication,
Upper-Tier Carry Forward Amounts distributed by the Securities Administrator to
the LIBOR Certificateholders shall be accounted for by the Securities
Administrator, for federal income tax purposes, as amounts paid first to the
Holders of the Class X Certificates in respect of the Class X Interest and (to
the extent remaining after payments to the Swap Provider) the Class IO Interest
and then to the respective Class or Classes of LIBOR Certificates. In addition,
the Securities Administrator shall account for the rights of Holders of each
Class of LIBOR Certificates to receive payments of Basis Risk Carry Forward
Amounts and, without duplication, Upper-Tier Carry Forward Amounts from the
Supplemental Interest Trust (along with Basis Risk Carry Forward Amounts payable
from the Excess Reserve Fund Account) as rights in a separate limited recourse
interest rate cap contract written by the Class X Certificateholders in favor of
Holders of each such Class.
The Supplemental Interest Trust shall be an "outside reserve fund"
for federal income tax purposes and not an asset of any Trust REMIC.
Furthermore, the Holders of the Class X Certificates shall be the beneficial
owners of the Supplemental Interest Trust for all federal income tax purposes,
and shall be taxable on all income earned thereon.
With respect to the failure of the Swap Provider to perform any of
its obligations under the Interest Rate Swap Agreement, the breach by the Swap
Provider of any of its representations and warranties made pursuant to the
Interest Rate Swap Agreement, or the termination of the Interest Rate Swap
Agreement, the Securities Administrator shall send any notices and make any
demands, on behalf of the Trust.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral multiples
in excess thereof (except that one Certificate in each Class may be issued in a
different amount which must be in excess of the applicable minimum denomination)
and aggregate denominations per Class set forth in the Preliminary Statement.
The Depositor hereby directs the Securities Administrator to
register the Class X, Class C and Class P Certificates in the name of the
Depositor or its designee. On a date as to which the Depositor notifies the
Securities Administrator, the Depositor hereby directs the Securities
Administrator to transfer the Class X and Class P Certificates in the name of
the NIM Trustee, or such other name or names as the Depositor shall request, and
to deliver the Class X and Class P Certificates to the NIM Trustee, or to such
other Person or Persons as the Depositor shall request.
Subject to Section 11.02 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator shall make
distributions to each Certificateholder of record on the preceding Record Date
either (x) by wire transfer in immediately available funds to the account of
such Holder at a bank or other entity having appropriate facilities therefor as
directed by that Certificateholder by written wire instructions provided to the
Securities Administrator or (y), in the event that no wire instructions are
provided to the Securities Administrator, by check mailed by first class mail to
such Certificateholder at the address of such Holder appearing in the
Certificate Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Securities Administrator by an authorized officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
such signatures were affixed, authorized to sign on behalf of the Securities
Administrator shall bind the Securities Administrator, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of any such Certificates or did not hold such
offices at the date of such Certificate. No Certificate shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless authenticated
by the Securities Administrator by manual signature, and such authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly executed and delivered hereunder. All
Certificates shall be dated the date of their authentication. On the Closing
Date, the Securities Administrator shall authenticate the Certificates to be
issued at the direction of the Depositor or any Affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Securities Administrator shall maintain, or
cause to be maintained in accordance with the provisions of Section 5.06, a
Certificate Register for the Trust Fund in which, subject to the provisions of
subsections (b) and (c) below and to such reasonable regulations as it may
prescribe, the Securities Administrator shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate, the Securities
Administrator shall execute and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class and
aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator shall execute, authenticate, and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator duly executed by the Holder thereof
or his attorney duly authorized in writing. In the event, the Depositor or an
Affiliate of the Depositor transfers the Class X Certificates, or a portion
thereof, to another Affiliate, it shall notify the Securities Administrator in
writing of the affiliated status of the transferee. The Trustee and the
Securities Administrator shall have no liability regarding the lack of notice
with respect thereto.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Securities
Administrator in accordance with the Securities Administrator's customary
procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. Except
with respect to (i) the transfer of the Class X, Class C, Class P or Class R
Certificates to the Depositor or an Affiliate of the Depositor, (ii) the
transfer of the Class X or Class P Certificates to the NIM Issuer or the NIM
Trustee, or (iii) a transfer of the Class X or Class P Certificates from the NIM
Issuer or the NIM Trustee to the Depositor or an Affiliate of the Depositor, in
the event that a transfer of a Private Certificate which is a Physical
Certificate is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer shall certify to
the Securities Administrator in writing the facts surrounding the transfer in
substantially the form set forth in Exhibit I (the "Transferor Certificate") and
either (i) there shall be delivered to the Securities Administrator a letter in
substantially the form of Exhibit J (the "Rule 144A Letter") or Exhibit K (the
"Non-Rule 144A Investment Letter") or (ii) in the case of the Class X
Certificates, there shall be delivered to the Securities Administrator at the
expense of the transferor an Opinion of Counsel that such transfer may be made
without registration under the Securities Act. In the event that a transfer of a
Private Certificate which is a Book-Entry Certificate is to be made in reliance
upon an exemption from the Securities Act and such laws, in order to assure
compliance with the Securities Act and such laws, the Certificateholder desiring
to effect such transfer will be deemed to have made as of the transfer date each
of the certifications set forth in the Transferor Certificate in respect of such
Certificate and the transferee will be deemed to have made as of the transfer
date each of the certifications set forth in the Rule 144A Letter in respect of
such Certificate, in each case as if such Certificate were evidenced by a
Physical Certificate. As directed by the Depositor, the Securities Administrator
shall provide to any Holder of a Private Certificate and any prospective
transferee designated by any such Holder, information regarding the related
Certificates and the Mortgage Loans and such other information as shall be
necessary to satisfy the condition to eligibility set forth in Rule 144A(d)(4)
for transfer of any such Certificate without registration thereof under the
Securities Act pursuant to the registration exemption provided by Rule 144A. To
the extent of any information reasonably within the possession of the applicable
party, the Depositor, the Master Servicer, the Servicer, the Securities
Administrator and the Trustee shall cooperate with the Securities Administrator
in providing the Rule 144A information referenced in the preceding sentence,
including providing to the Securities Administrator such information regarding
the Certificates, the Mortgage Loans and other matters regarding the Trust Fund
as the Securities Administrator shall reasonably request to meet its obligation
under the preceding sentence. Each Holder of a Private Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Securities
Administrator, the Master Servicer, the Servicer and the Depositor and the
Servicer against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
Except with respect to (i) the transfer of the Class R, Class X,
Class C or Class P Certificates to the Depositor or an Affiliate of the
Depositor, (ii) the transfer of the Class X or Class P Certificates to the NIM
Issuer or the NIM Trustee, or (iii) a transfer of the Class X or Class P
Certificates from the NIM Issuer or the NIM Trustee to the Depositor or an
Affiliate of the Depositor, no transfer of an ERISA-Restricted Certificate shall
be made unless the Securities Administrator shall have received either (i) a
representation from the transferee of such Certificate acceptable to and in form
and substance satisfactory to the Securities Administrator (in the event such
Certificate is a Private Certificate or a Residual Certificate, such requirement
is satisfied only by the Securities Administrator's receipt of a representation
letter from the transferee substantially in the form of Exhibit I), to the
effect that such transferee is not an employee benefit plan or arrangement
subject to Section 406 of ERISA, a plan subject to Section 4975 of the Code or a
plan subject to any Federal, state or local law ("Similar Law") materially
similar to the foregoing provisions of ERISA or the Code, nor a Person acting on
behalf of any such plan or arrangement nor using the assets of any such plan or
arrangement (collectively, a "Plan") to effect such transfer, (ii) in the case
of an ERISA-Restricted Certificate other than a Residual Certificate, a Class C
Certificate or a Class P Certificate that has been the subject of an
ERISA-Qualifying Underwriting and the purchaser is an insurance company, a
representation that the purchaser is an insurance company that is purchasing
such Certificates with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in the
case of any such ERISA-Restricted Certificate other than a Residual Certificate,
a Class C Certificate or a Class P Certificate presented for registration in the
name of a Plan, an Opinion of Counsel satisfactory to the Securities
Administrator, the Trustee and the Depositor, which Opinion of Counsel shall not
be an expense of the Securities Administrator, the Depositor, the Trustee or the
Trust Fund, addressed to the Depositor and the Securities Administrator, to the
effect that the purchase or holding of such ERISA-Restricted Certificate will
not constitute or result in a non-exempt prohibited transaction within the
meaning of ERISA, Section 4975 of the Code or any Similar Law and will not
subject the Trustee, the Depositor, the Master Servicer or the Securities
Administrator to any obligation in addition to those expressly undertaken in
this Agreement or to any liability. For purposes of the preceding sentence, with
respect to an ERISA-Restricted Certificate that is not a Private Certificate or
a Residual Certificate, in the event the representation letter referred to in
the preceding sentence is not furnished, such representation shall be deemed to
have been made to the Securities Administrator by the transferee's (including an
initial acquirer's) acceptance of the ERISA-Restricted Certificates.
Notwithstanding anything else to the contrary herein, (a) any purported transfer
of an ERISA Restricted Certificate, other than a Class C Certificate, Class P
Certificate or a Residual Certificate, to or on behalf of an employee benefit
plan subject to ERISA, the Code or Similar Law without the delivery to the
Securities Administrator of an Opinion of Counsel satisfactory to the Securities
Administrator as described above shall be void and of no effect and (b) any
purported transfer of a Class P Certificate, Class C Certificate or Residual
Certificate to a transferee that does not make the representation in clause (i)
above shall be void and of no effect.
The Class R, Class C and Class P Certificates may not be sold to any
employee benefit plan subject to Title I of ERISA, any plan subject to Section
4975 of the Code, or any plan subject to any Similar Law or any Person investing
on behalf of or with plan assets of such Plan.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Securities Administrator shall be under no liability to
any Person for any registration of transfer of any ERISA-Restricted Certificate
that is in fact not permitted by this Section 5.02(b) or for making any payments
due on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered by the Securities Administrator in accordance with the
foregoing requirements.
As long as the Interest Rate Swap Agreement is in effect, each
beneficial owner of a Certificate, or any interest therein, shall be deemed to
have represented that either (i) it is not a Plan or (ii) the acquisition and
holding of the Certificate are eligible for the exemptive relief available under
at least one of the Investor Based Exemptions.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Securities Administrator shall not register the Transfer of any Residual
Certificate unless, in addition to the certificates required to be
delivered to the Securities Administrator under subparagraph (b) above,
the Securities Administrator shall have been furnished with an affidavit
(a "Transfer Affidavit") of the initial owner or the proposed transferee
in the form attached hereto as Exhibit H;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Securities Administrator shall
not be under any liability to any Person for any registration of Transfer
of a Residual Certificate that is in fact not permitted by Section 5.02(b)
and this Section 5.02(c) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the
Transfer was registered after receipt of the related Transfer Affidavit,
Transferor Certificate and the Rule 144A Letter. The Securities
Administrator shall be entitled but not obligated to recover from any
Holder of a Residual Certificate that was in fact not a Permitted
Transferee at the time it became a Holder or, at such subsequent time as
it became other than a Permitted Transferee, all payments made on such
Residual Certificate at and after either such time. Any such payments so
recovered by the Securities Administrator shall be paid and delivered by
the Securities Administrator to the last preceding Permitted Transferee of
such Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Securities Administrator, all
information necessary to compute any tax imposed under Section 860E(e) of
the Code as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Securities Administrator of an Opinion of
Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund, the
Depositor, the Trustee or the Securities Administrator, to the effect that the
elimination of such restrictions will not cause any Trust REMIC to fail to
qualify as a REMIC at any time that the Certificates are Outstanding or result
in the imposition of any tax on the Trust Fund, a Certificateholder or another
Person. Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based on
an Opinion of Counsel furnished to the Securities Administrator, is reasonably
necessary (a) to ensure that the record ownership of, or any beneficial interest
in, a Residual Certificate is not transferred, directly or indirectly, to a
Person that is not a Permitted Transferee and (b) to provide for a means to
compel the Transfer of a Residual Certificate which is held by a Person that is
not a Permitted Transferee to a Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Securities Administrator except to another Depository; (ii) the Depository shall
maintain book-entry records with respect to the Certificate Owners and with
respect to ownership and transfers of such Book-Entry Certificates; (iii)
ownership and transfers of registration of the Book-Entry Certificates on the
books of the Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Securities
Administrator shall deal with the Depository, Depository Participants and
indirect participating firms as representatives of the Certificate Owners of the
Book-Entry Certificates for purposes of exercising the rights of holders under
this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (vi) the Securities Administrator
may rely and shall be fully protected in relying upon information furnished by
the Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and persons
shown on the books of such indirect participating firms as direct or indirect
Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (ii) the Securities
Administrator or the Depositor is unable to locate a qualified successor, or (y)
the Depositor notifies the Depository of its intent to terminate the book-entry
system through the Depository and, upon receipt of notice of such intent from
the Depository, the Depository Participants holding beneficial interests in the
Book-Entry Certificates agree to initiate such termination, the Securities
Administrator shall notify all Certificate Owners, through the Depository, of
the occurrence of any such event and of the availability of definitive,
fully-registered Certificates (the "Definitive Certificates") to Certificate
Owners requesting the same. Upon surrender to the Securities Administrator of
the related Class of Certificates by the Depository, accompanied by the
instructions from the Depository for registration, the Securities Administrator
shall issue the Definitive Certificates. Neither the Depositor nor the
Securities Administrator shall be liable for any delay in delivery of such
instruction and each may conclusively rely on, and shall be protected in relying
on, such instructions. The Depositor shall provide the Securities Administrator
with an adequate inventory of Certificates to facilitate the issuance and
transfer of Definitive Certificates. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed by
the Securities Administrator, to the extent applicable with respect to such
Definitive Certificates and the Securities Administrator shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Securities Administrator shall not by virtue of its
assumption of such obligations become liable to any party for any act or failure
to act of the Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Securities
Administrator, duly executed by the Certificateholder or his attorney duly
authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Securities Administrator in accordance with its customary
practice. No service charge shall be made for any registration of transfer or
exchange of Private Certificates, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Private Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Securities Administrator, or
the Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to the
Depositor, the Securities Administrator, and the Trustee such security or
indemnity as may be required by them to hold each of them harmless, then, in the
absence of notice to the Securities Administrator that such Certificate has been
acquired by a bona fide purchaser, the Securities Administrator shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.03, the Securities Administrator may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Securities Administrator) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners. The Trustee, the Depositor, the
Securities Administrator and any agent of the Depositor, the Trustee or the
Securities Administrator may treat the Person in whose name any Certificate is
registered as the owner of such Certificate for the purpose of receiving
distributions as provided in this Agreement and for all other purposes
whatsoever, and none of the Trustee, the Depositor, the Securities Administrator
or any agent of the Depositor, the Trustee or the Securities Administrator shall
be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Securities Administrator, (b) state that such
Certificateholders desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates, and (c)
provide a copy of the communication which such Certificateholders propose to
transmit, or if the Depositor or the Servicer shall request such information in
writing from the Securities Administrator, then the Securities Administrator
shall, within ten Business Days after the receipt of such request, provide the
Depositor, the Servicer or such Certificateholders at such recipients' expense
the most recent list of the Certificateholders of such Trust Fund held by the
Securities Administrator, if any. The Depositor and every Certificateholder, by
receiving and holding a Certificate, agree that the Securities Administrator
shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. The Securities
Administrator will maintain or cause to be maintained at its expense an office
or agency or agencies where Certificates may be surrendered for registration of
transfer or exchange. The Securities Administrator initially designates its
office for such purposes, located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services GSAMP
2005-AHL2. The Securities Administrator shall give prompt written notice to the
Certificateholders of any change in such location of any such office or agency.
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.01 Respective Liabilities of the Depositor and the
Servicer. The Depositor and the Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them herein.
Section 6.02 Merger or Consolidation of the Depositor or the
Servicer. The Depositor and the Servicer will each keep in full effect its
existence, rights and franchises as a Delaware corporation or a limited
liability company as the case may be, under the laws of the United States or
under the laws of one of the states thereof and will each obtain and preserve
its qualification to do business as a foreign corporation or limited
partnership, as applicable, in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this
Agreement, or any of the Mortgage Loans and to perform its respective duties
under this Agreement.
Any Person into which the Depositor or the Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Depositor or the Servicer shall be a party, or any Person succeeding to the
business of the Depositor or the Servicer, shall be the successor of the
Depositor or the Servicer, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however, that
the successor or surviving Person to the Servicer shall be qualified to sell
mortgage loans to, and to service mortgage loans on behalf of, Xxxxxx Xxx or
Xxxxxxx Mac, and meets the requirements of Section 7.02, and provided, further,
that such merger, consolidation or succession does not adversely affect the then
current rating or ratings on the LIBOR Certificates.
Section 6.03 Limitation on Liability of the Depositor, the Servicer
and Others. Neither the Depositor, any of the Depositor's Affiliates, the
Servicer nor any of their respective directors, officers, employees or agents
shall be under any liability to the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor, the Servicer or any such Person against any
breach of representations or warranties made by it herein or protect the
Depositor, the Servicer or any such Person from any liability which would
otherwise be imposed by reasons of willful misfeasance, bad faith or negligence
(or gross negligence in the case of the Depositor) in the performance of duties
or by reason of reckless disregard of obligations and duties hereunder. The
Depositor, the Servicer and any director, officer, employee or agent of the
Depositor and the Servicer may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Depositor, the Servicer and any director, officer,
employee, Affiliate or agent of the Depositor and the Servicer shall be
indemnified by the Trust Fund and held harmless against any loss, liability or
expense incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Certificates or any other unanticipated or
extraordinary expense, other than any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence (or gross negligence in
the case of the Depositor) in the performance of duties hereunder or by reason
of reckless disregard of obligations and duties hereunder. Neither the Depositor
nor the Servicer shall be under any obligation to appear in, prosecute or defend
any legal action that is not incidental to its respective duties hereunder and
which in its opinion may involve it in any expense or liability; provided,
however, that each of the Depositor and the Servicer may in its discretion
undertake any such action (or direct the Trustee to undertake such actions
pursuant to Section 2.08 for the benefit of the Certificateholders) that it may
deem necessary or desirable in respect of this Agreement and the rights and
duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor and the Servicer (and the
Trustee if so directed by the Depositor or the Servicer) shall be entitled to be
reimbursed therefor out of the Collection Account.
Section 6.04 Limitation on Resignation of the Servicer. (a) The
Servicer shall not assign this Agreement or resign from the obligations and
duties hereby imposed on it except (i) by mutual consent of the Servicer, the
Depositor, the Master Servicer and the Securities Administrator with prior
written notice to the Trustee or (ii) upon the determination that its duties
hereunder are no longer permissible under applicable law and such incapacity
cannot be cured by the Servicer. Any such determination permitting the
resignation of the Servicer under clause (ii) above shall be evidenced by an
Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Depositor, the Master Servicer, the Securities Administrator, the Trustee or the
Trust Fund) to such effect delivered to the Depositor, the Master Servicer, the
Securities Administrator and the Trustee which Opinion of Counsel shall be in
form and substance acceptable to the Depositor, the Master Servicer, the
Securities Administrator and the Trustee. No such resignation shall become
effective until a successor shall have assumed the Servicer's responsibilities
and obligations hereunder.
(b) Notwithstanding anything to the contrary herein, the Servicer
may pledge or assign as collateral all its rights, title and interest under this
Agreement to a lender. No such pledge shall reduce or otherwise affect the
Servicer's obligations under this Agreement.
Section 6.05 Additional Indemnification by the Servicer; Third Party
Claims. The Servicer shall indemnify the Depositor, the Master Servicer, the
Securities Administrator, the Custodian, the Trustee and any Affiliate,
director, officer, employee or agent of the Depositor, the Master Servicer, the
Securities Administrator, the Custodian and the Trustee and hold each of them
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that any of them may sustain in any way
related to any breach by the Servicer of (i) any of its representations and
warranties referred to in Section 2.03(a), (ii) any error in any tax or
information return prepared by the Servicer, or (iii) the failure of the
Servicer to perform its duties and service the Mortgage Loans in compliance with
the terms of this Agreement. The Servicer immediately shall notify the
Depositor, the Master Servicer, the Securities Administrator, the Custodian and
the Trustee if such claim is made by a third party with respect to this
Agreement or the Mortgage Loans, assume (with the prior written consent of the
Depositor, the Master Servicer, the Securities Administrator, the Custodian and
the Trustee) the defense of any such claim and pay all expenses in connection
therewith, including reasonable counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or the Depositor,
the Master Servicer, the Securities Administrator, the Custodian or the Trustee
in respect of such claim. This indemnity shall survive the termination of this
Agreement or the earlier resignation or removal of the Servicer.
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default. "Event of Default," wherever used
herein, means any one of the following events:
(a) any failure by the Servicer to remit to the Master Servicer any
payment required to be made under the terms of this Agreement which continues
unremedied for a period of one Business Day after the date upon which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Depositor, or by the Master Servicer, or to the Servicer,
the Depositor, the Master Servicer, the Securities Administrator and the Trustee
by Certificateholders entitled to at least 25% of the Voting Rights; or
(b) the failure on the part of the Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of the Servicer set forth in this Agreement, which continues unremedied for
a period of thirty days (except that such number of days shall be ten days in
the case of a failure to observe or perform any of the obligations set forth in
Sections 3.22, 3.23 or 3.29) after the earlier of (i) the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Depositor or by the Master Servicer, or to the Servicer,
the Depositor, the Master Servicer, the Securities Administrator and the Trustee
by Certificateholders of Certificates entitled to at least 25% of the Voting
Rights and (ii) actual knowledge of such failure by a Servicing Officer of the
Servicer; provided, however, that in the case of a failure that cannot be cured
within 30 days after notice or actual knowledge by the Servicer, the cure period
may be extended for an additional 30 days upon delivery by the Servicer to the
Depositor and the Master Servicer of a certificate to the effect that the
Servicer believes in good faith that the failure can be cured within such
additional time period and the Servicer is diligently pursuing remedial action;
or
(c) (i) the failure by the Servicer in any month, to deliver to the
Depositor the Data File and the Market Value Change Report on the Data File
Delivery Date or (ii) to deliver the Servicer Remittance Report to the
Securities Administrator, and in each case such failure continues uncured for
more than 30 days after written notice of such failure; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(e) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all of its property; or
(f) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(g) if a Servicer Cumulative Loss Trigger occurs; or
(h) any failure of the Servicer to make any P&I Advance on any
Remittance Date required to be made from its own funds pursuant to Section 4.01
which continues unremedied for one Business Day immediately following the
Remittance Date; or
(i) if a Servicer Delinquency Trigger occurs; or
(j) a breach of any representation and warranty of the Servicer
referred to in Section 2.03(a), which materially and adversely affects the
interests of the Certificateholders and which continues unremedied for a period
of thirty days after the date upon which written notice of such breach is given
to the Servicer by the Trustee, the Securities Administrator, the Master
Servicer or by the Depositor, or to the Servicer, the Master Servicer, the
Securities Administrator, the Trustee and the Depositor by Certificateholders
entitled to at least 25% of the Voting Rights; or
(k) Moody's reduces its servicer rating to "SQ4" or lower or
Standard & Poor's reduces its servicer ratings to "below average" or lower.
If an Event of Default described in clauses (a) through (k) of this
Section 7.01 shall occur, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Master Servicer may, or at
the direction of Certificateholders entitled to a majority of the Voting Rights
the Master Servicer shall, by notice in writing to the Servicer (with a copy to
each Rating Agency), terminate all of the rights and obligations of the Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof,
other than its rights as a Certificateholder hereunder; provided, however, that
the Master Servicer shall not be required to give written notice to the Servicer
of the occurrence of an Event of Default described in clauses (b) through (h),
(j) and (k) of this Section 7.01 unless and until a Responsible Officer of the
Master Servicer has actual knowledge of the occurrence of such an Event of
Default. In the event that a Responsible Officer of the Master Servicer has
actual knowledge of the occurrence of an Event of Default described in clause
(a) of this Section 7.01, the Master Servicer shall give written notice to the
Servicer of the occurrence of such an event within one Business Day of the first
day on which such Responsible Officer obtains actual knowledge of such
occurrence; provided that failure to give such notice shall not constitute a
waiver of such Event of Default. The Master Servicer, upon a Responsible Officer
having actual knowledge of such default, shall deliver a written notice to the
Servicer of the default on any Remittance Date on which the Servicer fails to
make any deposit or payment required pursuant to this Agreement (including, but
not limited to Advances, to the extent required by this Agreement); provided,
however, that if an Event of Default occurs due to the failure of the Servicer
to make an Advance to the extent required, the Master Servicer, as successor
Servicer, or another successor Servicer shall, prior to the applicable
Distribution Date, immediately make such Advance. Any such notice to the
Servicer shall also be given to the Trustee, each Rating Agency and the
Depositor. Notwithstanding any other provision of this Agreement, any remedy
with respect to clauses (a) or (h) of this Section 7.01 shall be effective only
if taken no later than 8:00 AM Eastern time on the Business Day immediately
following (i) with respect to clause (a) of this Section 7.01, the date of
written notice to the Servicer, or (ii) with respect to clause (h) of this
Section 7.01, the related Remittance Date. On and after the receipt by the
Servicer of such written notice, all authority and power of the Servicer
hereunder, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the Master Servicer (or other successor Servicer under
Section 7.02). The Master Servicer is hereby authorized and empowered to execute
and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. Unless expressly
provided in such written notice, no such termination shall affect any obligation
of the Servicer to pay amounts owed pursuant to Article VIII. The Servicer
agrees to cooperate with the Master Servicer in effecting the termination of the
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to the Master Servicer of all cash amounts which shall at the time
be credited to the Collection Account of such predecessor Servicer, or
thereafter be received with respect to the Mortgage Loans.
Notwithstanding any termination of the activities of the Servicer
hereunder, the Servicer shall be entitled to receive from the Trust Fund, prior
to transfer of its servicing obligations hereunder, payment of all accrued and
unpaid portion of the Servicing Fees to which the Servicer would have been
entitled and to continue to receive reimbursement for all outstanding P&I
Advances and Servicing Advances, including Servicing Advances incurred prior to
but not invoiced until after the date of termination, in accordance with the
terms of this Agreement. In addition, the Servicer shall continue to be entitled
to the benefits of Section 6.03, notwithstanding any termination hereunder, with
respect to events occurring prior to such termination.
Section 7.02 Master Servicer to Act; Appointment of Successor
Servicer. On and after the time the Master Servicer gives, and the Servicer
receives a notice of termination pursuant to Section 7.01, the Master Servicer
shall, subject to and to the extent provided in Sections 3.06 and 7.03, and
subject to the rights of the Servicer and the Master Servicer to appoint a
successor Servicer, be the successor to the Servicer in its capacity as servicer
under this Agreement and the transactions set forth or provided for herein and
shall assume all of the obligations of the Servicer to make P&I Advances and
Servicing Advances as successor Servicer and shall assume and be subject to all
the other responsibilities, duties and liabilities relating thereto placed on
the Servicer by the terms and provisions hereof and applicable law as soon as
practicable but in no event later than 90 days following the of the notice of
termination or removal of the Servicer pursuant to Section 7.01. As compensation
therefor, the Master Servicer shall be entitled to all funds relating to the
Mortgage Loans that the Servicer would have been entitled to charge to the
Collection Account if the Servicer had continued to act hereunder including, if
the Servicer was receiving the Servicing Fee, the Servicing Fee and the income
on investments or gain related to the Collection Account (in addition to income
on investments or gain related to the Distribution Account for the benefit of
the Master Servicer as provided herein). Notwithstanding the foregoing, if the
Master Servicer has become the successor to the Servicer in accordance with this
Section 7.02, the Master Servicer may, if it shall be unwilling to so act, or
shall, if it is prohibited by applicable law from making P&I Advances and
Servicing Advances pursuant to Section 4.01 or if it is otherwise unable to so
act, or, at the written request of Certificateholders entitled to a majority of
the Voting Rights, appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution the appointment of
which does not adversely affect the then current rating of the Certificates by
each Rating Agency, as the successor to the Servicer hereunder in the assumption
of all or any part of the responsibilities, duties or liabilities of the
Servicer hereunder. No such appointment of a successor to the Servicer hereunder
shall be effective until the Depositor shall have consented thereto. Any
successor to the Servicer shall be an institution which is a Xxxxxx Mae- 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 Master Servicer an agreement
accepting such delegation and assignment, containing an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the terminated Servicer (other than liabilities of the terminated
Servicer under Section 6.03 incurred prior to termination of the Servicer under
Section 7.01), with like effect as if originally named as a party to this
Agreement; provided, that each Rating Agency acknowledges that its rating of the
Certificates in effect immediately prior to such assignment and delegation will
not be qualified or reduced, as a result of such assignment and delegation.
Pending appointment of a successor to the Servicer hereunder, the Master
Servicer, unless the Master Servicer is prohibited by law from so acting, shall,
subject to Section 3.05, act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the Master Servicer may make
such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it, the Depositor and such successor shall agree; provided,
however, that no such compensation shall be in excess of the Servicing Fee and
amounts paid to the predecessor Servicer from investments. The Master Servicer
and such successor shall take such action, consistent with this Agreement, as
shall be necessary to effectuate any such succession. Neither the Master
Servicer nor any other successor Servicer shall be deemed to be in default
hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof or any failure to perform, or any
delay in performing, any duties or responsibilities hereunder, in either case
caused by the failure of the predecessor Servicer to deliver or provide, or any
delay in delivering or providing, any cash, information, documents or records to
it.
Notwithstanding anything to the contrary herein, for a period of 30
days following the date on which the Servicer receives a notice of termination
or removal as a Servicer pursuant to Section 7.01 (other than a termination or
removal based upon the Event of Default listed as clause (a) or (h) in Section
7.01 above), the Servicer or its designee may appoint a successor Servicer that
satisfies the eligibility criteria of a successor Servicer set forth in this
Section 7.02, subject to the consent of the Depositor and the Master Servicer,
which consent shall not be unreasonably withheld or delayed. The successor
Servicer appointed by the Servicer or its designee must agree to act as
successor Servicer no later than such 30-day period, fully effect the servicing
transfer within 90 days following the notice of termination or removal of the
Servicer as a Servicer, make all P&I Advances that are otherwise required to be
made by the Servicer as of the date of such appointment, and reimburse any
expenses that the Master Servicer may have incurred in connection with the
termination or removal of the Servicer and the appointment of a successor
Servicer to the Servicer. This 30-day period shall terminate immediately if the
Servicer fails to make (or cause to be made) any P&I Advances and all payments
under Section 7.01(a).
In the event that the Servicer is terminated pursuant to Section
7.01, the terminated Servicer shall provide notices to the Mortgagors, transfer
the Servicing Files to a successor Servicer and pay all of its own out-of-pocket
costs and expenses related to such obligations. In addition, all Servicing
Transfer Costs incurred by parties other than the terminated Servicer shall be
paid by the terminated Servicer promptly upon presentation of reasonable
documentation of such costs. If such predecessor Servicer defaults in its
obligations to pay such costs, such costs shall be paid by the successor
Servicer (in which case the successor Servicer shall be entitled to
reimbursement therefor from the Trust Fund or if the successor Servicer fails to
pay, the Master Servicer pays such amounts from the Trust Fund.). If the Master
Servicer is the predecessor Servicer (except in the case where the Master
Servicer in its role as successor Servicer is being terminated pursuant to
Section 7.01 by reason of an Event of Default caused solely by the Master
Servicer as the successor Servicer and not by the predecessor Servicer's actions
or omissions), such costs shall be paid by the prior terminated Servicer
promptly upon presentation of reasonable documentation of such costs.
Any successor to the Servicer as servicer shall give notice to the
Mortgagors of such change of Servicer, in accordance with applicable federal and
state law, and shall, during the term of its service as Servicer, maintain in
force the policy or policies that the Servicer is required to maintain pursuant
to Section 3.13.
Any such successor Servicer shall be required to satisfy the
requirements of a successor Servicer under this Section 7.02.
Section 7.03 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to the Servicer, the Securities
Administrator shall give prompt written notice thereof to Certificateholders,
and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Securities Administrator shall transmit by mail to all Certificateholders, and
each Rating Agency notice of each such Event of Default hereunder known to the
Securities Administrator, unless such Event of Default shall have been cured or
waived.
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIAN
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of a Master Servicer Event of Default and after the curing of all
Master Servicer Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case a Master Servicer Event of Default has occurred and remains
uncured, the Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own bad faith or willful misfeasance.
Unless a Master Servicer Event of Default known to the Trustee has
occurred and is continuing,
(a) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of the duties and obligations specifically set
forth in this Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee, and the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement which it believed in good faith
to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights relating to the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Agreement.
Section 8.02 Certain Matters Affecting the Custodian and the
Trustee. Except as otherwise provided in Section 8.01 as to the Trustee:
(a) the Custodian and the Trustee may request and rely upon and
shall be protected in acting or refraining from acting upon any resolution,
officer's certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties and neither the
Custodian nor the Trustee shall have any responsibility to ascertain or confirm
the genuineness of any signature of any such party or parties;
(b) the Custodian and the Trustee may consult with counsel,
financial advisers or accountants and the advice of any such counsel, financial
advisers or accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(c) neither the Custodian nor the Trustee shall be liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement, nor shall either the Trustee or the Custodian be liable for acts
or omissions of the other;
(d) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) neither the Custodian nor the Trustee shall be required to risk
or expend its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not assured to it;
(g) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the investment
security);
(h) the Trustee shall not be deemed to have knowledge of a Master
Servicer Event of Default until a Responsible Officer of the Trustee shall have
received written notice thereof except as otherwise provided in Section 7.01;
and
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby.
Section 8.03 Trustee and Custodian Not Liable for Certificates or
Mortgage Loans. The recitals contained herein and in the Certificates shall be
taken as the statements of the Depositor and the Trustee assumes no
responsibility for their correctness. Neither the Trustee nor the Custodian
makes any representations as to the validity or sufficiency of this Agreement or
of the Certificates or of any Mortgage Loan or related document. Neither the
Trustee nor the Custodian shall be accountable for the use or application by the
Depositor, the Master Servicer, the Servicer or the Securities Administrator of
any funds paid to the Depositor, the Master Servicer, the Servicer or the
Securities Administrator in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account or the Distribution Account by the
Depositor, the Master Servicer, the Servicer or the Securities Administrator.
The Trustee shall have no responsibility for filing or recording any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become the successor
Master Servicer).
Section 8.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
Section 8.05 Trustee's and Custodian's Fees, Indemnification and
Expenses. As compensation for their respective activities under this Agreement,
the Trustee and the Custodian shall be paid their respective fee by the Master
Servicer from the Master Servicer's own funds pursuant to separate agreements.
Neither the Trustee nor the Custodian shall have any lien on the Trust Fund for
the payment of such fees. The Trustee, the Custodian and any director, officer,
employee, or agent of the Trustee or the Custodian shall be indemnified by the
Trust Fund and held harmless against any loss, liability, or expense (including
reasonable attorneys' fees) incurred in connection with:
(a) any claim or legal action relating to this Agreement,
(b) any claim or legal action relating to the Certificates or the
Mortgage Loans, or
(c) the performance of any of the Trustee's or the Custodian's
duties under this Agreement,
other than any loss, liability, or expense (i) resulting from any breach of the
Servicer's obligations in connection with this Agreement for which the Servicer
has performed its obligation to indemnify the Trustee and the Custodian pursuant
to Section 6.05, (ii) solely with respect to the Trustee, resulting from any
breach of the Responsible Party's obligations in connection with the Responsible
Party Agreements for which the Responsible Party has performed its obligation to
indemnify the Trustee pursuant to the Responsible Party Agreements, (iii)
resulting from any breach of the Master Servicer's obligation hereunder for
which the Master Servicer has performed its obligation to indemnify the Trustee
and the Custodian pursuant to Sections 9.03 and 9.12 or (iv) incurred because of
willful misfeasance, bad faith, or negligence in the performance of any of the
Trustee's or the Custodian's duties, as applicable, under this Agreement. This
indemnity shall survive the termination of this Agreement or the resignation or
removal of the Trustee under this Agreement. Without limiting the foregoing,
except as otherwise agreed upon in writing by the Depositor and the Trustee, and
except for any expense, disbursement, or advance arising from the Trustee's
negligence, bad faith, or willful misfeasance, the Trust Fund shall pay or
reimburse the Trustee, for all reasonable expenses, disbursements, and advances
incurred or made by the Trustee in accordance with this Agreement with respect
to:
(A) the reasonable compensation, expenses, and disbursements of its
counsel not associated with the closing of the issuance of the
Certificates; and
(B) the reasonable compensation, expenses, and disbursements of any
accountant, engineer, or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage them to perform
services under this Agreement.
Except as otherwise provided in this Agreement or a separate letter
agreement between the Trustee and the Depositor, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee under this
Agreement or for any other expenses incurred by the Trustee; provided, however,
no expense shall be reimbursed hereunder if it would not constitute an
"unanticipated expense incurred by the REMIC" within the meaning of the REMIC
Provisions.
Section 8.06 Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times be a corporation or association organized and doing
business under the laws of a state or the United States of America, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000, subject to supervision or examination by
federal or state authority and with a credit rating which would not cause any of
the Rating Agencies to reduce their respective then current ratings of the
Certificates (or having provided such security from time to time as is
sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.06
the combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
entity serving as Trustee may have normal banking and trust relationships with
the Depositor and its Affiliates or the Servicer and its Affiliates; provided,
however, that such entity cannot be an Affiliate of the Depositor or the
Servicer other than the Trustee in its role as successor to the Master Servicer.
Section 8.07 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice of resignation to the Depositor, the Master Servicer, the
Securities Administrator, the Custodian and each Rating Agency not less than 60
days before the date specified in such notice, when, subject to Section 8.08,
such resignation is to take effect, and acceptance by a successor trustee in
accordance with Section 8.08 meeting the qualifications set forth in Section
8.06. If no successor trustee meeting such qualifications shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice or resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.06 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor or the Servicer may remove the Trustee and
appoint a successor trustee by written instrument, in triplicate, one copy of
which shall be delivered to the Trustee, one copy to the Servicer and one copy
to the successor trustee.
The Holders of Certificates entitled to a majority of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to the Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. The
successor trustee shall notify each Rating Agency of any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.08.
Section 8.08 Successor Trustee. Any successor trustee appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee and the Servicer an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like
effect as if originally named as trustee herein. The Depositor, the Servicer and
the predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly vesting
and confirming in the successor trustee all such rights, powers, duties, and
obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 8.09 Merger or Consolidation of the Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.06
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider appropriate. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request to do so, or in the case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee (as successor Master
Servicer) under this Agreement to advance funds on behalf of the Master
Servicer, shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Master Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the applicable Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Securities Administrator covenants and agrees that it shall act as agent (and
the Securities Administrator is hereby appointed to act as agent) on behalf of
each Trust REMIC described in the Preliminary Statement and that in such
capacity it shall:
(a) prepare (and the Trustee shall sign) and file in a timely
manner, a U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return
(Form 1066 or any successor form adopted by the Internal Revenue Service) and
prepare and file with the Internal Revenue Service and applicable state or local
tax authorities income tax or information returns for each taxable year with
respect to each Trust REMIC described in the Preliminary Statement containing
such information and at the times and in the manner as may be required by the
Code or state or local tax laws, regulations, or rules, and furnish to
Certificateholders the schedules, statements or information at such times and in
such manner as may be required thereby;
(b) within thirty days of the Closing Date, apply for an employer
identification number from the Internal Revenue Service via Form SS-4 or any
other acceptable method for all tax entities and shall also furnish to the
Internal Revenue Service, on Form 8811 or as otherwise may be required by the
Code, the name, title, address, and telephone number of the person that the
Holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) make an election that each of Pooling-Tier REMIC-1, Pooling-Tier
REMIC-2, the Lower-Tier REMIC, the Upper-Tier REMIC and the Class X REMIC be
treated as a REMIC on the federal tax return for its first taxable year (and, if
necessary, under applicable state law);
(d) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any original
issue discount using the prepayment assumption (as described in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax imposed
on the Transfer of a Residual Certificate to a Person that is not a Permitted
Transferee (a "Non-Permitted Transferee"), or an agent (including a broker,
nominee or other middleman) of a Non-Permitted Transferee, or a pass-through
entity in which a Non-Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are Outstanding so as
to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any Trust
REMIC created hereunder;
(h) pay, from the sources specified in the second to last paragraph
of this Section 8.11, the amount of any federal or state tax, including
prohibited transaction taxes as described below, imposed on each Trust REMIC
before its termination when and as the same shall be due and payable (but such
obligation shall not prevent the Securities Administrator or any other
appropriate Person from contesting any such tax in appropriate proceedings and
shall not prevent the Securities Administrator from withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings);
(i) cause federal, state or local income tax or information returns
to be signed by the Securities Administrator or, if required by applicable tax
law, the Trustee or such other Person as may be required to sign such returns by
the Code or state or local laws, regulations or rules; and
(j) maintain records relating to each of the Trust REMICs, including
the income, expenses, assets, and liabilities thereof on a calendar year basis
and on the accrual method of accounting and the fair market value and adjusted
basis of the assets determined at such intervals as may be required by the Code,
as may be necessary to prepare the foregoing returns, schedules, statements or
information.
The Holder of the largest Percentage Interest of the Class R-2
Certificates shall act as Tax Matters Person for Pooling-Tier REMIC-1, the
holder of the largest Percentage Interest of the Class R-1 Certificates shall
act as the Tax Matters Person for Pooling-Tier REMIC-2, the Lower-Tier REMIC and
the Upper-Tier REMIC, and the Holder of the largest Percentage Interest of the
Class R-3 Certificates shall act as Tax Matters Person for the Class X REMIC, in
each case, within the meaning of Treasury Regulations Section 1.860F-4(d), and
the Securities Administrator is hereby designated as agent of such
Certificateholders for such purpose (or if the Securities Administrator is not
so permitted, such Holder shall be the Tax Matters Person in accordance with the
REMIC Provisions). In such capacity, the Securities Administrator shall, as and
when necessary and appropriate, represent any Trust REMIC in any administrative
or judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable year of
any Trust REMIC, enter into settlement agreements with any governmental taxing
agency, extend any statute of limitations relating to any tax item of any Trust
REMIC, and otherwise act on behalf of each Trust REMIC in relation to any tax
matter or controversy involving it.
The Securities Administrator shall treat the rights of the Class P
Certificateholders to receive Prepayment Premiums, the rights of the Class X
Certificateholders to receive amounts from the Excess Reserve Fund Account and
the Supplemental Interest Trust (subject to the obligation to pay Basis Risk
Carry Forward Amounts, without duplication, and Upper-Tier Carry Forward
Amounts) and the rights of the LIBOR Certificateholders to receive Basis Risk
Carry Forward Amounts and, without duplication, Upper-Tier Carry Forward Amounts
as the beneficial ownership of interests in a grantor trust and not as
obligations of any Trust REMIC created hereunder, for federal income tax
purposes. The Securities Administrator shall file or cause to be filed with the
Internal Revenue Service Form 1041 or such other form as may be applicable and
shall furnish or cause to be furnished, to the Class P, Class X
Certificateholders and the LIBOR Certificateholders, the respective amounts
described above that are received, in the time or times and in the manner
required by the Code.
To enable the Securities Administrator to perform its duties under
this Agreement, the Depositor shall provide to the Securities Administrator
within ten days after the Closing Date all information or data that the
Securities Administrator requests in writing and determines to be relevant for
tax purposes to the valuations and offering prices of the Certificates,
including the price, yield, prepayment assumption, and projected cash flows of
the Certificates and the Mortgage Loans. Moreover, the Depositor shall provide
information to the Securities Administrator concerning the value, if any, to
each Class of LIBOR Certificates of the right to receive Basis Risk Carry
Forward Amounts from the Excess Reserve Fund Account and Basis Risk Carry
Forward Amounts or Upper-Tier Carry Forward Amounts from the Supplemental
Interest Trust. Thereafter, the Depositor shall provide to the Securities
Administrator promptly upon written request therefor any additional information
or data that the Securities Administrator may, from time to time, reasonably
request to enable the Securities Administrator to perform its duties under this
Agreement; provided, however, that the Depositor shall not be required to
provide any information regarding the Mortgage Loans after the Closing Date or
any information that the Servicer is required to provide to the Securities
Administrator pursuant to this Agreement. The Depositor hereby indemnifies the
Securities Administrator for any losses, liabilities, damages, claims, or
expenses of the Securities Administrator arising from any errors or
miscalculations of the Securities Administrator that result from any failure of
the Depositor to provide, pursuant to this paragraph, accurate information or
data to the Securities Administrator on a timely basis.
None of the Master Servicer, the Securities Administrator or the
Trustee shall (i) cause the creation of any interests in any Trust REMIC other
than the regular and residual interests set forth in the Preliminary Statement,
(ii) receive any amount representing a fee or other compensation for services
(except as otherwise permitted by this Agreement) or (iii) otherwise knowingly
or intentionally take any action, cause the Trust Fund to take any action or
fail to take (or fail to cause to be taken) any action reasonably within its
control and the scope of duties more specifically set forth herein, that, under
the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of any Trust REMIC as a REMIC or (ii) result in the
imposition of a tax upon any Trust REMIC or the Trust Fund (including but not
limited to the tax on "prohibited transactions" as defined in Section 860F(a)(2)
of the Code and the tax on contributions to a REMIC set forth in Section 860G(d)
of the Code, or the tax on "net income from foreclosure property") unless the
Securities Administrator receives an Opinion of Counsel (at the expense of the
party seeking to take such action or, if such party fails to pay such expense,
at the expense of the Trust Fund, but in no event at the expense of the
Securities Administrator) to the effect that the contemplated action will not,
with respect to the Trust Fund, result in the imposition of a tax upon any Trust
REMIC created hereunder or endanger the status of any Trust REMIC.
If any tax is imposed on "prohibited transactions" of any Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Pooling-Tier REMIC-1 as defined in Section 860G(c)
of the Code, on any contribution to any Trust REMIC after the Start-up Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed, including,
if applicable, any minimum tax imposed on any Trust REMIC pursuant to Sections
23153 and 24874 of the California Revenue and Taxation Code, if not paid as
otherwise provided for herein, the tax shall be paid by (i) the Master Servicer,
the Trustee or the Securities Administrator, as applicable, if such tax arises
out of or results from negligence of the Master Servicer, the Trustee or the
Securities Administrator, as applicable, in the performance of any of its
obligations under this Agreement, (ii) the Servicer, in the case of any such
minimum tax, and otherwise if such tax arises out of or results from a breach by
the Servicer of any of its obligations under this Agreement, (iii) the Purchaser
if such tax arises out of or results from the Purchaser's obligation to
repurchase a Mortgage Loan pursuant to Section 2.03, or (iv) in all other cases,
or if the Trustee, the Master Servicer, the Securities Administrator, the
Servicer or the Purchaser fails to honor its obligations under the preceding
clause (i), (ii), or (iii), any such tax will be paid with amounts otherwise to
be distributed to the Certificateholders, as provided in Section 4.02(a).
For as long as each Trust REMIC shall exist, the Securities
Administrator shall act in accordance with this Agreement and shall comply with
any directions of the Depositor or the Servicer as provided herein so as to
assure such continuing treatment. The Securities Administrator shall not (a)
sell or permit the sale of all or any portion of the Mortgage Loans unless
pursuant to a repurchase or substitution in accordance with this Agreement, or
of any investment of deposits in an Account, and (b) accept any contribution to
any Trust REMIC after the Startup Day without receipt of a REMIC Opinion.
Section 8.12 Periodic Filings. (a) As part of the Form 10-K required
to be filed pursuant to paragraph (c) of this Section 8.12, the Master Servicer
shall include the Servicer's annual statement of compliance, and each such
accountant's report, as well as a report of any significant deficiencies
relating to the Servicer's performance of its obligations under this Agreement.
(b) The Master Servicer shall reasonably cooperate with the
Depositor to enable the Trust to satisfy its reporting requirements under the
Exchange Act. The Master Servicer shall prepare on behalf of the Trust any Forms
8-K (or other comparable required Form containing the same or comparable
information or other information mutually agreed upon) and 10-K customary for
similar securities as required by the Exchange Act and the rules and regulations
promulgated thereunder, and the Master Servicer shall sign and file (via the
Securities and Exchange Commission's Electronic Data Gathering and Retrieval
System) such forms on behalf of the Trust.
(c) Each Form 8-K shall be filed by the Master Servicer within 15
days after each Distribution Date and shall include a copy of the statement to
the Certificateholders for such Distribution Date as an exhibit thereto. On or
prior to March 30th of each year beginning in March 2006 (or such earlier date
as may be required by the Exchange Act and the rules and regulations promulgated
thereunder), the Master Servicer shall file a Form 10-K, in substance as
required by applicable law or applicable Securities and Exchange Commission
staff's interpretations. Such Form 10-K shall include as exhibits the annual
statements of compliance, the accountant's reports, any report of significant
deficiencies relating to the Servicer's performance of its obligations under
this Agreement described in paragraph (a) of this Section 8.12 and any other
exhibits that may be required as a result of any new rules adopted by the
Securities and Exchange Commission, in each case to the extent they have been
timely delivered to the Master Servicer. In accordance with the Exchange Act and
the rules and regulations promulgated thereunder, if such exhibits are not so
timely delivered, the Master Servicer shall (i) file the balance of the Form
10-K, indicating on the cover page thereof which of such exhibits are omitted,
and (ii) no later than one Business Day after the due date for Form 10-K, file a
Form 12b-25, notifying the Securities and Exchange Commission of its inability
to timely file all or any required portion of Form 10-K. No later than the
fifteenth calendar day after the due date for Form 10-K, the Master Servicer
shall, to the extent in its possession, file such exhibits with the Securities
and Exchange Commission. If the Master Servicer has not received such exhibits
by the tenth calendar day after such due date, the Master Servicer shall notify
the Depositor. The Master Servicer shall have no liability with respect to any
failure to properly prepare or file such periodic reports resulting from or
relating to the Master Servicer's inability or failure to obtain any information
not resulting from its own negligence, bad faith or willful misconduct. Each
Form 10-K shall also include a certification in the form attached hereto as
Exhibit O or in such other form as may be required by Rules 13a-14 and 15d-14
under the Exchange Act, as applicable, and any existing or future directives or
interpretations thereof or rules subsequently adopted by the Securities and
Exchange Commission (the "Certification"), which Certification shall be signed
by a Master Servicing Officer.
(d) Upon any filing with the Securities and Exchange Commission, the
Securities Administrator shall promptly deliver to the Depositor a copy of any
such executed report, statement or information.
(e) Prior to January 30 of the first year in which the Securities
Administrator is able to do so under applicable law, the Securities
Administrator shall file a Form 15 Suspension Notification with respect to the
Trust unless instructed in writing by the Depositor not to do so.
Section 8.13 Tax Treatment of Upper-Tier Carry Forward Amounts and
Basis Risk Carry Forward Amounts. The Securities Administrator shall treat the
rights that each Class of LIBOR Certificates has to receive payments of
Upper-Tier Carry Forward Amounts and, to the extent not paid from the Excess
Reserve Fund Account, Basis Risk Carry Forward Amounts from the Supplemental
Interest Trust (together with Basis Risk Carry Forward Amounts from the Excess
Reserve Fund Account) as rights to receive payments under a limited recourse
interest rate cap contract written by the Class X Certificateholders in favor of
each such Class. Accordingly, each Class of Certificates (excluding the Class X,
Class P and Class R Certificates) will be comprised of two components - an
Upper-Tier Regular Interest and an interest in an interest rate cap contract,
and the Class X Certificate will be comprised of four components - two
Upper-Tier Regular Interests (the Class X Interest and the Class IO Interest),
ownership of the Excess Reserve Fund Account, subject to an obligation to pay
Basis Risk Carry Forward Amounts, and ownership of the Supplemental Interest
Trust and the Interest Rate Swap Agreement, subject to the obligation to pay
Upper-Tier Carry Forward Amounts and, without duplication, Basis Risk Carry
Forward Amounts. The Securities Administrator shall allocate the issue price for
a Class of LIBOR Certificates among the respective components for purposes of
determining the issue price of the Upper-Tier Regular Interest component based
on information received from the Depositor. Unless otherwise advised by the
Depositor in writing, for federal income tax purposes, the Securities
Administrator is hereby directed to assign a value of zero to the right of each
Holder of a LIBOR Certificate to receive the related Upper-Tier Carry Forward
Amounts and, without duplication, the related Basis Risk Carry Forward Amount
for purposes of allocating the purchase price of an initial LIBOR
Certificateholder between such right and the related Upper-Tier Regular
Interest.
Holders of LIBOR Certificates shall also be treated as having agreed
to pay, on each Distribution Date, to the Holders of the Class X Certificates an
aggregate amount equal to the excess, if any, of (i) Net Swap Payments and Swap
Termination Payments (other than Defaulted Swap Termination Payments) over (ii)
the sum of amounts payable on the Class X Interest available for such payments
and amounts payable on the Class IO Interest (such excess, a "Class IO
Shortfall"), first from interest and then from principal distributable on the
LIBOR Certificates. A Class IO Shortfall payable from interest collections shall
be allocated pro rata among such LIBOR Certificates based on the amount of
interest otherwise payable to such Class of LIBOR Certificates, and a Class IO
Shortfall payable from principal collections shall be allocated in reverse
sequential order beginning with the most subordinate Class of LIBOR Certificates
then Outstanding.
Any payments of Class IO Shortfalls shall be treated for tax
purposes as having been received by the Holders of such Class of LIBOR
Certificates in respect of the corresponding Upper-Tier Regular Interest and as
having been paid by such Holders to the Holders of the Class X Certificates
through the Supplemental Interest Trust.
Section 8.14 Custodial Responsibilities. (a) The Custodian shall
provide access to the Mortgage Loan Documents in possession of the Custodian
regarding the related Mortgage Loans and REO Property and the servicing thereof
to the Trustee, the Certificateholders, the FDIC, and the supervisory agents and
examiners of the FDIC, such access being afforded only upon reasonable prior
written request and during normal business hours at the office of the Custodian.
The Custodian shall allow representatives of the above entities to photocopy any
of the records and documentation and shall provide equipment for that purpose at
the expense of the person requesting such access.
(b) The Custodian may resign from its obligations hereunder upon 60
days' prior written notice to the Trustee, the Depositor, the Securities
Administrator and the Servicer. Such resignation shall take effect upon (i) the
appointment of a successor Custodian reasonably acceptable to the Depositor
within such 60 day period; and (ii) delivery of all Mortgage Loan Files to the
successor Custodian. The Trustee shall have the right, but not the obligation,
to become the successor Custodian. If no successor Custodian is appointed within
60 days after written notice of the Custodian's resignation is received by the
Trustee, the Custodian may petition a court of competent jurisdiction to appoint
a successor Custodian.
Upon such resignation and appointment of successor Custodian, the
Custodian shall, at the Custodian's expense, promptly transfer to the successor
Custodian, as directed in writing by the Trustee, all applicable Mortgage Files
being administered under this Agreement. Notwithstanding the foregoing, the
Trust Fund, not the Custodian, shall bear the costs relating to the transfer of
Mortgage Files if the Custodian shall resign with cause (including the
Custodian's resignation due to the failure of the Custodian to be paid all fees
due to such Custodian hereunder).
Section 8.15 Limitations on Custodial Responsibilities.
(a) The Custodian shall be under no duty or obligation to inspect,
review or examine the Mortgage Files to determine that the contents thereof are
appropriate for the represented purpose or that they have been actually recorded
or that they are other than what they purport to be on their face.
(b) The Custodian shall not be responsible for preparing or filing
any reports or returns relating to federal, state or local income taxes with
respect to this Agreement, other than for the Custodian's compensation or for
reimbursement of expenses.
(c) The Custodian shall not be responsible or liable for, and makes
no representation or warranty with respect to, the validity, adequacy,
perfection or priority of any lien upon or security interest in any Mortgage
File.
(d) The duties and obligations of the Custodian shall only be such
as are expressly set forth in this Agreement or as set forth in a written
amendment to this Agreement executed by the parties hereto or their successors
and assigns. In the event that any provision of this Agreement implies or
requires that action or forbearance be taken by a party, but is silent as to
which party has the duty to act or refrain from acting, the parties agree that
the Custodian shall not be the party required to take the action or refrain from
acting. In no event shall the Custodian have any responsibility to ascertain or
take action except as expressly provided herein.
(e) The Custodian makes no representations and shall have no
responsibilities (except as expressly set forth herein) as to the validity,
sufficiency, value, genuineness, ownership or transferability of any of the
Mortgage Loans, and shall not be required to and shall not make any
representations as to the validity, value or genuineness of the Mortgage Loans.
(f) The Custodian shall not be liable for any error of judgment, or
for any act done or step taken or omitted by it, in good faith, or for any
mistake of fact or law, or for anything that it may do or refrain from doing in
connection therewith, except in the case of its negligent performance or
omission or its bad faith or willful misfeasance.
(g) The Custodian shall not be responsible to verify (i) the
validity, legality, enforceability, sufficiency, due authorization or
genuineness of any document in the Mortgage File or of any Mortgage Loans or
(ii) the collectability, insurability, effectiveness including the authority or
capacity of any Person to execute or issue any document in the Mortgage File, or
suitability of any Mortgage Loans.
(h) The Custodian shall have no obligation to verify the receipt of
any such documents the existence of which was not made known to the Custodian by
receipt of the Mortgage File.
(i) The Custodian shall have no obligation to determine whether the
recordation of any document is necessary.
(j) In no event shall the Custodian or its directors, affiliates,
officers, agents, and employees be held liable for any special, indirect or
consequential damages resulting from any action taken or omitted to be taken by
it or them hereunder or in connection herewith even if advised of the
possibility of such damages.
(k) In order to comply with its duties under the USA Patriot Act of
2001, the Custodian shall obtain and verify certain information and
documentation from the other parties to this Agreement including, but not
limited to, each such party's name, address and other identifying information.
Any Person into which the Custodian may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the Custodian
shall be a party, or any person succeeding to the business of the Custodian,
shall be the successor of the Custodian hereunder without the execution or
filing of any paper or any further act on the part of any of the parties hereto
anything herein to the contrary notwithstanding.
ARTICLE IX
ADMINISTRATION OF THE MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of
Servicer's Obligations. (a) The Master Servicer, on behalf of the Trustee, the
Securities Administrator, the Depositor and the Certificateholders, shall
monitor the performance of the Servicer's obligations under this Agreement, and
(except as set forth below) shall use its reasonable good faith efforts to cause
the Servicer to duly and punctually perform its duties and obligations
hereunder. Upon the occurrence of an Event of Default of which a Responsible
Officer of the Master Servicer has actual knowledge, the Master Servicer shall
promptly notify the Securities Administrator and the Trustee and shall specify
in such notice the action, if any, the Master Servicer plans to take in respect
of such default. So long as an Event of Default shall occur and be continuing,
the Master Servicer shall take the actions specified in Article VII.
If (i) the Servicer reports a delinquency on a monthly report and
(ii) the Servicer, by 11 a.m. (New York Time) on the related Remittance Date,
neither makes an Advance nor provides the Securities Administrator and the
Master Servicer with an Officer's Certificate certifying that such an Advance
would be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, then
the Master Servicer shall deposit in the Distribution Account not later than the
Business Day immediately preceding the related Distribution Date an Advance in
an amount equal to the difference between (x) with respect to each Monthly
Payment due on a Mortgage Loan that is delinquent (other than Relief Act
Interest Shortfalls) and for which the Servicer was required to make an Advance
pursuant to this Agreement and (y) amounts deposited in the Collection Account
to be used for Advances with respect to such Mortgage Loan, except to the extent
the Master Servicer determines any such Advance to be a Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance. Subject to the foregoing and
Section 7.02, the Master Servicer shall continue to make such Advances for so
long as the Servicer is required to do so under this Agreement. If applicable,
on the Business Day immediately preceding the Distribution Date, the Master
Servicer shall deliver an Officer's Certificate to the Trustee stating that the
Master Servicer elects not to make an Advance in a stated amount and detailing
the reason(s) it deems the Advance to be a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance. Any amounts deposited by the Master Servicer
pursuant to this Section 9.01 shall be net of the Servicing Fee for the related
Mortgage Loans.
(b) The Master Servicer shall pay the costs of monitoring the
Servicer as required hereunder (including costs associated with (i) termination
of the Servicer, (ii) the appointment of a successor servicer or (iii) the
transfer to and assumption of, the servicing by the Master Servicer) and shall,
to the extent permitted hereunder, seek reimbursement therefor initially from
the terminated Servicer. In the event the full costs associated with the
transition of servicing responsibilities to the Master Servicer are not paid for
by the predecessor or successor Servicer (provided such successor Servicer is
not the Master Servicer), the Master Servicer may be reimbursed therefor by the
Trust for out-of-pocket costs incurred by the Master Servicer associated with
any such transfer of servicing duties from the Servicer to the Master Servicer
or any other successor servicer.
(c) If the Master Servicer assumes the servicing with respect to any
of the Mortgage Loans, it will not assume liability for the representations and
warranties of the Servicer it replaces or for any errors or omissions of the
Servicer.
(d) Neither the Depositor nor the Securities Administrator shall
consent to the assignment by the Servicer of the Servicer's rights and
obligations under this Agreement without the prior written consent of the Master
Servicer, which consent shall not be unreasonably withheld.
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance. The Master Servicer, at its expense, shall maintain in effect a
blanket fidelity bond and an errors and omissions insurance policy, affording
coverage with respect to all directors, officers, directors, employees and other
Persons acting on such Master Servicer's behalf, and covering errors and
omissions in the performance of the Master Servicer's obligations hereunder. The
errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
Section 9.03 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the Depositor, the
Securities Administrator, the Custodian and the Trustee, for the benefit of the
Certificateholders, as of the Closing Date that:
(i) it is a national banking association validly existing and in
good standing under the laws of the United States of America, and as
Master Servicer has full power and authority to transact any and all
business contemplated by this Agreement and to execute, deliver and comply
with its obligations under the terms of this Agreement, the execution,
delivery and performance of which have been duly authorized by all
necessary corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws,
(B) violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it is bound
or to which any of its assets are subject, which violation, default or
breach would materially and adversely affect the Master Servicer's ability
to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights in general, and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any order
or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency to the extent that any such default would
materially and adversely affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any agreement
or instrument or subject to any charter provision, bylaw or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that may materially and adversely affect its ability as
Master Servicer to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations
under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement;
(vii) [Reserved];
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master Servicer
with this Agreement or the consummation of the transactions contemplated
by this Agreement, except for such consents, approvals, authorizations and
orders (if any) as have been obtained; and
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer.
(b) [Reserved]
(c) It is understood and agreed that the representations and
warranties set forth in this Section shall survive the execution and delivery of
this Agreement. The Master Servicer shall indemnify the Depositor, Securities
Administrator, the Custodian, the Trustee and the Trust and hold them harmless
against any loss, damages, penalties, fines, forfeitures, reasonable legal fees
and related costs, judgments, and other reasonable costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a material breach of the Master Servicer's representations and
warranties contained in Section 9.03(a) above. It is understood and agreed that
the enforcement of the obligation of the Master Servicer set forth in this
Section 9.03 to indemnify the Depositor, the Securities Administrator, the
Custodian, the Trustee and the Trust constitutes the sole remedy of the
Depositor, the Securities Administrator, the Custodian, the Trustee and the
Trust, respecting a breach of the foregoing representations and warranties. Such
indemnification shall survive any termination of the Master Servicer as Master
Servicer hereunder and any termination of this Agreement.
Any cause of action against the Master Servicer relating to or
arising out of the breach of any representations and warranties made in this
Section shall accrue upon discovery of such breach by either the Depositor, the
Master Servicer, Securities Administrator, the Custodian or the Trustee or
notice thereof by any one of such parties to the other parties.
Section 9.04 Master Servicer Events of Default. Each of the
following shall constitute a "Master Servicer Event of Default":
(a) any failure by the Master Servicer to deposit in the
Distribution Account any payment received by it from the Servicer or required to
be made by the Master Servicer under the terms of this Agreement which continues
unremedied for a period of two (2) Business Days after the date upon which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by any other party hereto;
(b) failure by the Master Servicer to duly observe or perform, in
any material respect, any other covenants, obligations or agreements of the
Master Servicer as set forth in this Agreement which failure continues
unremedied for a period of thirty (30) days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Master Servicer by the Trustee or to the Master Servicer and Trustee by
the holders of Certificates evidencing at least 25% of the Voting Rights;
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master Servicer
and such decree or order shall have remained in force, undischarged or unstayed
for a period of sixty (60) days;
(d) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Master Servicer or relating to all or
substantially all of its property;
(e) the Master Servicer shall admit in writing its inability to pay
its debts as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations for
three (3) Business Days;
(f) except as otherwise set forth herein, the Master Servicer
attempts to assign this Agreement or its responsibilities hereunder or to
delegate its duties hereunder (or any portion thereof) without the consent of
the Securities Administrator, the Trustee and the Depositor; or
(g) the indictment of the Master Servicer for the taking of any
action by the Master Servicer, any Affiliate or any director or employee thereof
that constitutes fraud or criminal activity in the performance of its
obligations under this Agreement, in each case, where such indictment materially
and adversely affects the ability of the Master Servicer to perform its
obligations under this Agreement (subject to the condition that such indictment
is not dismissed within ninety (90) days).
In each and every such case, so long as a Master Servicer Event of
Default shall not have been remedied, in addition to whatever rights the Trustee
may have at law or equity to damages, including injunctive relief and specific
performance, the Trustee, by notice in writing to the Master Servicer, may, and
upon the request of the Holders of Certificates representing at least 51% of the
Voting Rights shall, terminate with cause all the rights and obligations of the
Master Servicer under this Agreement.
Upon receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer under this Agreement, shall pass to
and be vested in any successor master servicer appointed hereunder which accepts
such appointments. Upon written request from the Trustee or the Depositor, the
Master Servicer shall prepare, execute and deliver to the successor entity
designated by the Trustee any and all documents and other instruments related to
the performance of its duties hereunder as the Master Servicer and, place in
such successor's possession all such documents with respect to the master
servicing of the Mortgage Loans and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, at the Master Servicer's sole expense. The Master Servicer shall
cooperate with the Trustee and such successor master servicer in effecting the
termination of the Master Servicer's responsibilities and rights hereunder,
including without limitation, the transfer to such successor master servicer for
administration by it of all cash amounts which shall at the time be credited to
the Distribution Account or are thereafter received with respect to the Mortgage
Loans.
All reasonable out-of-pocket costs and expenses incurred by the
Trustee in connection with the transfer of servicing from a terminated Master
Servicer, including, without limitation, any such costs or expenses associated
with the complete transfer of all servicing data and the completion, correction
or manipulation of such servicing data as may be required by the Trustee to
correct any errors or insufficiencies in the servicing data or otherwise to
enable the Trustee (or any successor Master Servicer appointed pursuant to
Section 9.06) to master service shall be paid by the terminated Master Servicer;
provided, however, that to the extent not previously reimbursed by the
terminated Master Servicer, such fees and expenses shall be payable to the
Trustee pursuant to Section 8.05.
Section 9.05 Waiver of Default. By a written notice, the Trustee may
with the consent of a Holders of Certificates evidencing at least 51% of the
Voting Rights waive any default by the Master Servicer in the performance of its
obligations hereunder and its consequences. Upon any waiver of a past default,
such default shall cease to exist, and any Master Servicer Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so waived.
Section 9.06 Successor to the Master Servicer. Upon termination of
the Master Servicer's responsibilities and duties under this Agreement, the
Trustee shall appoint or may petition any court of competent jurisdiction for
the appointment of a successor, which shall succeed to all rights and assume all
of the responsibilities, duties and liabilities of the Master Servicer under
this Agreement prior to the termination of the Master Servicer. Any successor
shall be a Xxxxxx Xxx and Xxxxxxx Mac approved servicer in good standing and
acceptable to the Depositor and the Rating Agencies. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that in no event shall the Master
Servicing Fee paid to such successor master servicer exceed that paid to the
Master Servicer hereunder. In the event that the Master Servicer's duties,
responsibilities and liabilities under this Agreement are terminated, the Master
Servicer shall continue to discharge its duties and responsibilities hereunder
until the effective date of such termination with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement and shall
take no action whatsoever that might impair or prejudice the rights of its
successor. The termination of the Master Servicer shall not become effective
until a successor shall be appointed pursuant hereto and shall in no event (i)
relieve the Master Servicer of responsibility for the representations and
warranties made pursuant to Section 9.03(a) hereof and the remedies available to
the Trustee under Section 9.03(b) hereof, it being understood and agreed that
the provisions of Section 9.03 hereof shall be applicable to the Master Servicer
notwithstanding any such sale, assignment, resignation or termination of the
Master Servicer or the termination of this Agreement; or (ii) affect the right
of the Master Servicer to receive payment and/or reimbursement of any amounts
accruing to it hereunder prior to the date of termination (or during any
transition period in which the Master Servicer continues to perform its duties
hereunder prior to the date the successor master servicer fully assumes its
duties).
If no successor Master Servicer has accepted its appointment within
90 days of the time the Trustee receives the resignation of the Master Servicer,
the Trustee shall be the successor Master Servicer in all respects under this
Agreement and shall have all the rights and powers and be subject to all the
responsibilities, duties and liabilities relating thereto, including the
obligation to make Advances; provided, however, that any failure to perform any
duties or responsibilities caused by the Master Servicer's failure to provide
information required by this Agreement shall not be considered a default by the
Trustee hereunder. In the Trustee's capacity as such successor, the Trustee
shall have the same limitations on liability herein granted to the Master
Servicer. As compensation therefor, the Trustee shall be entitled to receive the
compensation, reimbursement and indemnities otherwise payable to the Master
Servicer, including the fees and other amounts payable pursuant to Section 9.07
hereof.
Any successor master servicer appointed as provided herein, shall
execute, acknowledge and deliver to the Master Servicer and to the Trustee an
instrument accepting such appointment, wherein the successor shall make the
representations and warranties set forth in Section 9.03 hereof, and whereupon
such successor shall become fully vested with all of the rights, powers, duties,
responsibilities, obligations and liabilities of the Master Servicer, with like
effect as if originally named as a party to this Agreement. Any termination or
resignation of the Master Servicer or termination of this Agreement shall not
affect any claims that the Trustee may have against the Master Servicer arising
out of the Master Servicer's actions or failure to act prior to any such
termination or resignation or in connection with the Trustee's assumption of
such obligations, duties and responsibilities.
Upon a successor's acceptance of appointment as such, the Master
Servicer shall notify by mail the Trustee of such appointment.
Section 9.07 Compensation of the Master Servicer. As compensation
for its activities under this Agreement, the Master Servicer shall be paid the
Master Servicing Fee and shall be entitled to the investment income earned on
amounts in the Distribution Account during the Securities Administrator Float
Period.
Section 9.08 Merger or Consolidation. Any Person into which the
Master Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor to the Master Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or resulting Person to the Master Servicer
shall (i) be a Person (or have an Affiliate) that is qualified and approved to
service mortgage loans for Xxxxxx Xxx and Xxxxxxx Mac (provided further that a
successor Master Servicer that satisfies subclause (i) through an Affiliate
agrees to service the Mortgage Loans in accordance with all applicable Xxxxxx
Mae and Xxxxxxx Mac guidelines) and (ii) have a net worth of not less than
$25,000,000.
Section 9.09 Resignation of the Master Servicer. Except as otherwise
provided in Sections 9.08 and 9.10 hereof, the Master Servicer shall not resign
from the obligations and duties hereby imposed on it unless the Master
Servicer's duties hereunder are no longer permissible under applicable law or
are in material conflict by reason of applicable law with any other activities
carried on by it and cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of Counsel
that shall be independent to such effect delivered to the Trustee. No such
resignation shall become effective until the Trustee shall have assumed, or a
successor master servicer satisfactory to the Trustee and the Depositor shall
have assumed, the Master Servicer's responsibilities and obligations under this
Agreement. Notice of such resignation shall be given promptly by the Master
Servicer to the Depositor and the Trustee.
If at any time, Xxxxx Fargo Bank, N.A., as Master Servicer, resigns
under this Section 9.09, or is removed as Master Servicer pursuant to Section
9.04, then at such time Xxxxx Fargo Bank, N.A. shall also resign (and shall be
entitled to resign) as Securities Administrator under this Agreement.
Section 9.10 Assignment or Delegation of Duties by the Master
Servicer. Except as expressly provided herein, the Master Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer; provided, however, that the Master Servicer
shall have the right with the prior written consent of the Depositor (which
shall not be unreasonably withheld or delayed), and upon delivery to the Trustee
and the Depositor of a letter from each Rating Agency to the effect that such
action shall not result in a downgrade of the ratings assigned to any of the
Certificates, to delegate or assign to or subcontract with or authorize or
appoint any qualified Person to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Master Servicer hereunder.
Notice of such permitted assignment shall be given promptly by the Master
Servicer to the Depositor and the Trustee. If, pursuant to any provision hereof,
the duties of the Master Servicer are transferred to a successor master
servicer, the entire compensation payable to the Master Servicer pursuant hereto
shall thereafter be payable to such successor master servicer but in no event
shall the fee payable to the successor master servicer exceed that payable to
the predecessor master servicer.
Section 9.11 Limitation on Liability of the Master Servicer. Neither
the Master Servicer nor any of the directors, officers, employees or agents of
the Master Servicer shall be under any liability to the Trustee, Securities
Administrator, the Servicer or the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Master Servicer or any such person against any liability
that would otherwise be imposed by reason of willful malfeasance, bad faith or
negligence in the performance of its duties or by reason of reckless disregard
for its obligations and duties under this Agreement. The Master Servicer and any
director, officer, employee or agent of the Master Servicer may rely in good
faith on any document prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Master Servicer shall be under no
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties as Master Servicer with respect to the Mortgage Loans
under this Agreement and that in its opinion may involve it in any expenses or
liability; provided, however, that the Master Servicer may in its sole
discretion undertake any such action that it may deem necessary or desirable in
respect to this Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom, shall
be liabilities of the Trust, and the Master Servicer shall be entitled to be
reimbursed therefor out of the Distribution Account in accordance with the
provisions of Section 9.07 and Section 9.12.
The Master Servicer shall not be liable for any acts or omissions of
the Servicer except to the extent that damages or expenses are incurred as a
result of such act or omissions and such damages and expenses would not have
been incurred but for the negligence, willful malfeasance, bad faith or
recklessness of the Master Servicer in supervising, monitoring and overseeing
the performance of the obligations of the Servicer as required under this
Agreement.
Section 9.12 Indemnification; Third Party Claims. The Master
Servicer agrees to indemnify the Depositor, Securities Administrator, the
Custodian, the Trustee and the Trust, and hold them harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the Depositor,
the Securities Administrator, the Custodian, the Trustee or the Trust may
sustain as a result of the Master Servicer's willful malfeasance, bad faith or
negligence in the performance of its duties hereunder or by reason of its
reckless disregard for its obligations and duties under this Agreement. The
Depositor, Securities Administrator, the Custodian and the Trustee shall
immediately notify the Master Servicer if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans which would entitle the
Depositor, the Securities Administrator, the Custodian, the Trustee or the Trust
to indemnification under this Section 9.12, whereupon the Master Servicer shall
assume the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim.
The Master Servicer agrees to indemnify and hold harmless the
Trustee from and against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liability, fees and expenses (including reasonable attorneys' fees) that the
Trustee may sustain as a result of such liability or obligations of the Master
Servicer and in connection with the Trustee's assumption (not including the
Trustee's performance, except to the extent that costs or liability of the
Trustee are created or increased as a result of negligent or wrongful acts or
omissions of the Master Servicer prior to its replacement as Master Servicer) of
the Master Servicer's obligations, duties or responsibilities under this
Agreement.
The Trust will indemnify the Master Servicer and hold it harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that the Master Servicer may incur or sustain in connection with,
arising out of or related to this Agreement or the Certificates, except to the
extent that any such loss, liability or expense is related to (i) a material
breach of the Master Servicer's representations and warranties in this
Agreement, (ii) resulting from any breach of the Servicer's obligations in
connection with this Agreement for which the Servicer has performed its
obligation to indemnify the Trustee and the Custodian pursuant to Section 6.05,
(iii) resulting from any breach of the Responsible Party's obligations in
connection with the Responsible Party Agreements for which the Responsible Party
has performed its obligation to indemnify the Master Servicer pursuant to the
Responsible Party Agreements or (ii) the Master Servicer's willful malfeasance,
bad faith or negligence or by reason of its reckless disregard of its duties and
obligations under this Agreement; provided that any such loss, liability or
expense constitutes an "unanticipated expense incurred by the REMIC" within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii). The Master Servicer
shall be entitled to reimbursement for any such indemnified amount from funds on
deposit in the Distribution Account.
Section 9.13 Annual Statement as to Compliance. The Master Servicer
will deliver or cause to be delivered to the Depositor, the Securities
Administrator, the Rating Agencies and the Trustee on or before March 15 of each
calendar year, commencing in 2006, an Officer's Certificate stating, as to each
signatory thereof, that (i) a review of the activities of the Master Servicer
during the preceding calendar year and of performance under this Agreement or a
similar agreement has been made under such officers' supervision, and (ii) to
the best of such officers' knowledge, based on such review, the Master Servicer
has fulfilled all of its obligations under this Agreement throughout such year,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officers and the nature and status
thereof.
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator. The Securities
Administrator shall undertake to perform such duties and only such duties as are
specifically set forth in this Agreement.
The Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Securities Administrator that are specifically
required to be furnished pursuant to any provision of this Agreement shall
examine them to determine whether they are in the form required by this
Agreement; provided, however, that the Securities Administrator shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Securities Administrator shall notify the
Certificateholders of such non conforming instrument in the event the Securities
Administrator, after so requesting, does not receive a satisfactorily corrected
instrument.
No provision of this Agreement shall be construed to relieve the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) the duties and obligations of the Securities Administrator shall
be determined solely by the express provisions of this Agreement, the
Securities Administrator shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Securities Administrator and the Securities
Administrator may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Securities Administrator and conforming to
the requirements of this Agreement which it believed in good faith to be
genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the Securities Administrator shall not be liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Securities Administrator, unless it shall be conclusively
determined by a court of competent jurisdiction, such determination no
longer subject to appeal, that the Securities Administrator was negligent
in ascertaining the pertinent facts;
(iii) the Securities Administrator shall not be liable with respect
to any action or inaction taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Holders of Certificates
evidencing not less than 25% of the Voting Rights of Certificates relating
to the time, method and place of conducting any proceeding for any remedy
available to the Securities Administrator, or exercising or omitting to
exercise any trust or power conferred upon the Securities Administrator
under this Agreement; and
(iv) the Securities Administrator shall not be accountable, shall
have no liability and makes no representation as to any acts or omissions
hereunder of the Master Servicer or the Trustee.
Section 10.02 Certain Matters Affecting the Securities
Administrator. Except as otherwise provided in Section 10.01:
(i) the Securities Administrator may request and conclusively rely
upon and shall be fully protected in acting or refraining from acting upon
any resolution, Officer's Certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties and the Securities Administrator shall have no
responsibility to ascertain or confirm the genuineness of any signature of
any such party or parties;
(ii) the Securities Administrator may consult with counsel,
financial advisers or accountants and the advice of any such counsel,
financial advisers or accountants and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) the Securities Administrator shall not be liable for any
action or inaction taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(iv) the Securities Administrator shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing not
less than 25% of the Voting Rights allocated to each Class of
Certificates; provided, however, that if the payment within a reasonable
time to the Securities Administrator of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Securities Administrator, not reasonably assured to the
Securities Administrator by the security afforded to it by the terms of
this Agreement, the Securities Administrator may require reasonable
indemnity against such expense or liability as a condition to so
proceeding. Nothing in this clause (iv) shall derogate from the obligation
of the Master Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors, provided that the
Master Servicer shall have no liability for disclosure required by this
Agreement;
(v) the Securities Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian and the Securities
Administrator shall not be responsible for any misconduct or negligence on
the part of any such agent, attorney or custodian appointed by the
Securities Administrator with due care;
(vi) the Securities Administrator shall not be required to risk or
expend its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its rights
or powers hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not assured to it, and none of the provisions contained in
this Agreement shall in any event require the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer under this Agreement;
(vii) the Securities Administrator shall be under no obligation to
exercise any of the trusts, rights or powers vested in it by this
Agreement or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Securities Administrator
reasonable security or indemnity satisfactory to the Securities
Administrator against the costs, expenses and liabilities which may be
incurred therein or thereby; and
(viii) the Securities Administrator shall have no obligation to
appear in, prosecute or defend any legal action that is not incidental to
its duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Securities Administrator
may in its discretion undertake any such action that it may deem necessary
or desirable in respect of this Agreement and the rights and duties of the
parties hereto and the interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and
any liability resulting therefrom shall be expenses, costs and liabilities
of the Trust Fund, and the Securities Administrator shall be entitled to
be reimbursed therefor out of the Collection Account.
The Securities Administrator shall have no duty (A) to see to any
recording, filing, or depositing of this Agreement or any agreement referred to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing thereof, (B) to
see to the provision of any insurance or (C) to see to the payment or discharge
of any tax, assessment, or other governmental charge or any lien or encumbrance
of any kind owing with respect to, assessed or levied against, any part of the
Trust Fund other than from funds available in the Distribution Account.
Section 10.03 Securities Administrator Not Liable for Certificates
or Mortgage Loans. The recitals contained herein and in the Certificates shall
be taken as the statements of the Depositor or the Transferor, as the case may
be, and the Securities Administrator assumes no responsibility for their
correctness. The Securities Administrator makes no representations as to the
validity or sufficiency of this Agreement or of the Certificates or of any
Mortgage Loan or related document other than with respect to the Securities
Administrator's execution and authentication of the Certificates. The Securities
Administrator shall not be accountable for the use or application by the
Depositor or the Master Servicer of any funds paid to the Depositor or the
Master Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Collection Account by the Depositor or the Master Servicer.
Section 10.04 Securities Administrator May Own Certificates. The
Securities Administrator in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact business with the parties
hereto and their Affiliates with the same rights as it would have if it were not
the Securities Administrator.
Section 10.05 Securities Administrator's Fees and Expenses. As
compensation for its activities under this Agreement, the Securities
Administrator shall be paid by the Master Servicer from the Master Servicer's
own funds from compensation received in its capacity as Master Servicer. The
Securities Administrator and any director, officer, employee, agent or "control
person" within the meaning of the Securities Act of 1933, as amended, and the
Securities Exchange of 1934, as amended ("Control Person"), of the Securities
Administrator shall be indemnified by the Trust and held harmless against any
loss, liability or expense (including reasonable attorney's fees) (i) incurred
in connection with any claim or legal action relating to (a) this Agreement, (b)
the Mortgage Loans or (c) the Certificates, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of any of the Securities Administrator's duties hereunder, (ii)
incurred in connection with the performance of any of the Securities
Administrator's duties hereunder, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of any of the Securities Administrator's duties hereunder or (iii)
incurred by reason of any action of the Securities Administrator taken at the
direction of the Certificateholders, provided that any such loss, liability or
expense constitutes an "unanticipated expense incurred by the REMIC" within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii). Such indemnity shall
survive the termination of this Agreement or the resignation or removal of the
Securities Administrator hereunder. Without limiting the foregoing, and except
for any such expense, disbursement or advance as may arise from the Securities
Administrator's negligence, bad faith or willful misconduct, or which would not
be an "unanticipated expense" within the meaning of the second preceding
sentence, the Securities Administrator shall be reimbursed by the Trust for all
reasonable expenses, disbursements and advances incurred or made by the
Securities Administrator in accordance with any of the provisions of this
Agreement with respect to: (A) the reasonable compensation and the expenses and
disbursements of its counsel not associated with the closing of the issuance of
the Certificates, (B) the reasonable compensation, expenses and disbursements of
any accountant, engineer, appraiser or other agent that is not regularly
employed by the Securities Administrator, to the extent that the Securities
Administrator must engage such Persons to perform acts or services hereunder and
(C) printing and engraving expenses in connection with preparing any Definitive
Certificates. The Trust shall fulfill its obligations under this paragraph from
amounts on deposit from time to time in the Distribution Account.
The Securities Administrator shall be required to pay all expenses
incurred by it in connection with its activities hereunder and shall not be
entitled to reimbursement therefor except as provided in this Agreement.
Section 10.06 Eligibility Requirements for Securities Administrator.
The Securities Administrator hereunder shall at all times be a corporation or
association organized and doing business under the laws the United States of
America or any state thereof, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating of at least investment grade. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 10.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 10.06, the Securities
Administrator shall resign immediately in the manner and with the effect
specified in Section 10.07 hereof. The entity serving as Securities
Administrator may have normal banking and trust relationships with the Depositor
and its affiliates or the Trustee and its affiliates.
Any successor Securities Administrator (i) may not be an originator,
the Master Servicer, the Servicer, the Depositor or an affiliate of the
Depositor unless the Securities Administrator functions are operated through an
institutional trust department of the Securities Administrator, (ii) must be
authorized to exercise corporate trust powers under the laws of its jurisdiction
of organization, and (iii) must be rated at least "A/F1" by Fitch, if Fitch is a
Rating Agency, or the equivalent rating by Standard & Poor's or Xxxxx'x. If no
successor Securities Administrator shall have been appointed and shall have
accepted appointment within 60 days after the Securities Administrator ceases to
be the Securities Administrator pursuant to Section 10.07, then the Trustee may
(but shall not be obligated to) become the successor Securities Administrator.
The Depositor shall appoint a successor to the Securities Administrator in
accordance with Section 10.07. The Trustee shall notify the Rating Agencies of
any change of Securities Administrator.
Section 10.07 Resignation and Removal of Securities Administrator.
The Securities Administrator may at any time resign by giving written notice of
resignation to the Depositor and the Trustee and each Rating Agency not less
than 60 days before the date specified in such notice when, subject to Section
10.08, such resignation is to take effect, and acceptance by a successor
Securities Administrator in accordance with Section 10.08 meeting the
qualifications set forth in Section 10.06. If no successor Securities
Administrator meeting such qualifications shall have been so appointed by the
Depositor and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Securities Administrator may petition any
court of competent jurisdiction for the appointment of a successor Securities
Administrator.
If at any time the Securities Administrator shall cease to be
eligible in accordance with the provisions of Section 10.06 hereof and shall
fail to resign after written request thereto by the Depositor, or if at any time
the Securities Administrator shall become incapable of acting, or shall be
adjudged as bankrupt or insolvent, or a receiver of the Securities Administrator
or of its property shall be appointed, or any public officer shall take charge
or control of the Securities Administrator or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or a tax is imposed with
respect to the Trust Fund by any state in which the Securities Administrator or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different Securities Administrator, then the Depositor may
remove the Securities Administrator and appoint a successor Securities
Administrator by written instrument, in triplicate, one copy of which instrument
shall be delivered to the Securities Administrator so removed, one copy of which
shall be delivered to the Master Servicer and one copy to the successor
Securities Administrator.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Securities Administrator and appoint a
successor Securities Administrator by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys in fact duly authorized,
one complete set of which instruments shall be delivered by the successor
Securities Administrator to the Trustee, one complete set to the Securities
Administrator so removed and one complete set to the successor so appointed.
Notice of any removal of the Securities Administrator shall be given to each
Rating Agency by the successor Securities Administrator.
Any resignation or removal of the Securities Administrator and
appointment of a successor Securities Administrator pursuant to any of the
provisions of this Section 10.07 shall become effective upon acceptance by the
successor Securities Administrator of appointment as provided in Section 10.08
hereof.
Notwithstanding the foregoing, if at any time the Securities
Administrator resigns pursuant to Section 9.09, the Trustee shall be authorized
to appoint, with the Depositor's consent, a successor Securities Administrator
concurrently with the appointment of a successor Master Servicer.
Section 10.08 Successor Securities Administrator. Any successor
Securities Administrator (which may be the Trustee) appointed as provided in
Section 10.07 hereof shall execute, acknowledge and deliver to the Depositor and
to its predecessor, the Securities Administrator and the Trustee an instrument
accepting such appointment hereunder and thereupon the resignation or removal of
the predecessor Securities Administrator shall become effective and such
successor Securities Administrator, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and obligations of
its predecessor hereunder, with the like effect as if originally named as
Securities Administrator herein. The Depositor, the Trustee, the Master Servicer
and the predecessor Securities Administrator shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Securities
Administrator all such rights, powers, duties, and obligations.
No successor Securities Administrator shall accept appointment as
provided in this Section 10.08 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 10.06 hereof and its appointment shall not adversely affect the then
current rating of the Certificates, as confirmed in writing by each Rating
Agency.
Upon acceptance by a successor Securities Administrator of
appointment as provided in this Section 10.08, the Depositor shall mail notice
of the succession of such Securities Administrator hereunder to all Holders of
Certificates. If the Depositor fails to mail such notice within 10 days after
acceptance by the successor Securities Administrator of appointment, the
successor Securities Administrator shall cause such notice to be mailed at the
expense of the Depositor.
Section 10.09 Merger or Consolidation of Securities Administrator.
Any corporation or other entity into which the Securities Administrator may be
merged or converted or with which it may be consolidated or any corporation or
other entity resulting from any merger, conversion or consolidation to which the
Securities Administrator shall be a party, or any corporation or other entity
succeeding to the business of the Securities Administrator, shall be the
successor of the Securities Administrator hereunder, provided that such
corporation or other entity shall be eligible under the provisions of Section
10.06 hereof, without the execution or filing of any paper or further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 10.10 Assignment or Delegation of Duties by the Securities
Administrator. Except as expressly provided herein, the Securities Administrator
shall not assign or transfer any of its rights, benefits or privileges hereunder
to any other Person, or delegate to or subcontract with, or authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by the Securities Administrator; provided, however, that the
Securities Administrator shall have the right with the prior written consent of
the Depositor (which shall not be unreasonably withheld or delayed), and upon
delivery to the Trustee and the Depositor of a letter from each Rating Agency to
the effect that such action shall not result in a downgrade of the ratings
assigned to any of the Certificates, to delegate or assign to or subcontract
with or authorize or appoint any qualified Person to perform and carry out any
duties, covenants or obligations to be performed and carried out by the
Securities Administrator hereunder. Notice of such permitted assignment shall be
given promptly by the Securities Administrator to the Depositor and the Trustee.
If, pursuant to any provision hereof, the duties of the Securities Administrator
are transferred to a successor securities administrator, the entire compensation
payable to the Securities Administrator pursuant hereto shall thereafter be
payable to such successor securities administrator but in no event shall the fee
payable to the successor securities administrator exceed that payable to the
predecessor securities administrator.
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 11.02 and Section 11.03, the obligations and
responsibilities of the Depositor, the Master Servicer, the Servicer, the
Securities Administrator, the Custodian and the Trustee created hereby with
respect to the Trust Fund shall terminate upon the earlier of (a) the purchase,
on the Optional Termination Date, of all Mortgage Loans (and REO Properties) at
the price equal to the sum of (i) 100% of the unpaid principal balance of each
Mortgage Loan (other than in respect of REO Property) plus accrued and unpaid
interest thereon at the applicable Mortgage Interest Rate, (ii) the lesser of
(x) the appraised value of any REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the Person
electing to terminate the Trust Fund (or in the case of the Servicer, acting at
the direction of the Majority Class C Certificateholder, selected by the
Majority Class C Certificateholder), at the expense of such Person (or in the
case of the Servicer, acting at the direction of the Majority Class C
Certificateholder, the Majority Class C Certificateholder), plus accrued and
unpaid interest on the related Mortgage Loan at the applicable Mortgage Interest
Rates and (y) the unpaid principal balance of each Mortgage Loan related to any
REO Property, in each case plus accrued and unpaid interest thereon at the
applicable Mortgage Interest Rate, and (iii) any Swap Termination Payment owed
to the Swap Provider (as provided to the Securities Administrator by the Swap
Provider pursuant to the Interest Rate Swap Agreement) ("Termination Price") and
(b) the later of (i) the maturity or other Liquidation Event (or any Advance
with respect thereto) of the last Mortgage Loan remaining in the Trust Fund and
the disposition of all REO Property and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant to
this Agreement. In no event shall the trusts created hereby continue beyond the
expiration of 21 years from the death of the survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof.
Section 11.02 Final Distribution on the Certificates. If on any
Remittance Date, the Servicer notifies the Securities Administrator that there
are no Outstanding Mortgage Loans and no other funds or assets in the Trust Fund
other than the funds in the Collection Account, the Servicer shall direct the
Securities Administrator promptly to send a Notice of Final Distribution to each
Certificateholder and the Swap Provider. If the Servicer (at the direction of
the Majority Class C Certificateholder), or the Master Servicer or the Servicer,
individually, elects to terminate the Trust Fund pursuant to clause (a) of
Section 11.01, by the 25th day of the month preceding the month of the final
distribution, the Person electing to terminate the Trust Fund shall notify the
Depositor, the Servicer, the Master Servicer, the Securities Administrator, the
Custodian and the Trustee of the date the electing Person intends to terminate
the Trust Fund and of the applicable Termination Price of the Mortgage Loans and
REO Properties. The Servicer, when acting at the direction of the Majority Class
C Certificateholder, shall be entitled to reasonably rely on a representation
from the Majority Class C Certificateholder that it is the Majority Class C
Certificateholder and is entitled under this Agreement to direct the Servicer to
terminate the Trust Fund.
A Notice of Final Distribution, specifying the Distribution Date on
which Certificateholders may surrender their Certificates for payment of the
final distribution and cancellation, shall be given promptly by the Securities
Administrator by letter to Certificateholders mailed not later than the 15th day
of the month of such final distribution. Any such Notice of Final Distribution
shall specify (a) the Distribution Date upon which final distribution on the
Certificates will be made upon presentation and surrender of Certificates at the
office therein designated, (b) the amount of such final distribution, (c) the
location of the office or agency at which such presentation and surrender must
be made, and (d) that the Record Date otherwise applicable to such Distribution
Date is not applicable, distributions being made only upon presentation and
surrender of the Certificates at the office therein specified. The Securities
Administrator will give such Notice of Final Distribution to each Rating Agency
at the time such Notice of Final Distribution is given to Certificateholders.
In the event such Notice of Final Distribution is given and the
Person electing to terminate the Trust Fund is the Servicer (at the direction of
the Majority Class C Certificateholder), the Majority Class C Certificateholder
shall remit the applicable Termination Price in immediately available funds to
the Servicer at least two Business Days prior to the applicable Distribution
Date, and, upon receipt of such funds from the Majority Class C
Certificateholder, the Servicer shall promptly deposit such funds in the
Collection Account. During the time such funds are held in the Collection
Account, such funds shall be invested, at the direction of the Majority Class C
Certificateholder, in Permitted Investments, and the Majority Class C
Certificateholder shall be entitled to all income from such investments, and
shall be responsible for, and shall reimburse the Servicer for all losses from
such investments. The Majority Class C Certificateholder shall be obligated to
reimburse the Servicer for its reasonable out-of-pocket expenses incurred in
connection with its termination of the Trust Fund at the direction of the
Majority Class C Certificateholder and shall indemnify and hold harmless the
Servicer for any losses, liabilities or expenses resulting from any claims
directly resulting from or relating to the Servicer's termination of the Trust
Fund at the direction of the Majority Class C Certificateholder except to the
extent such losses, liabilities or expenses arise out of or result from the
Servicer's negligence, bad faith or willful misconduct. In the event such Notice
of Final Distribution is given and the Person electing to terminate the Trust
Fund is the Servicer, the Servicer shall deposit the Termination Price in the
Collection Account at least two Business Days prior to the applicable
Distribution Date. During the time such funds are held in the Collection
Account, such funds may be invested by the Servicer in accordance with Section
3.12. In connection with any such termination of the Trust Fund, the Servicer
shall cause all funds in the Collection Account, including the applicable
Termination Price for the Mortgage Loans and REO Properties, to be remitted to
the Master Servicer for deposit in the Distribution Account on the Business Day
prior to the applicable Distribution Date. In the event such Notice of Final
Distribution is given and the Person electing to terminate the Trust Fund is the
Master Servicer, the Master Servicer shall deposit the Termination Price in the
Distribution Account on the Business Day prior to the applicable Distribution
Date. Upon such final deposit with respect to the Trust Fund and the receipt by
the Custodian of a Request for Release therefor (certifying as to such deposit),
the Custodian shall promptly release to the Person electing to terminate the
Trust Fund, or its designee, the Custodial Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class (after reimbursement of all amounts due to the Servicer (including all
unreimbursed Advances and any Servicing Fees accrued and unpaid as of the date
the Termination Price is paid), the Master Servicer, the Securities
Administrator, the Depositor and the Trustee hereunder), in each case on the
final Distribution Date and in the order set forth in Section 4.02, in
proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount up to an amount equal to (i) as
to each Class of Regular Certificates (except the Class X Certificates), the
Certificate Balance thereof plus for each such Class and the Class X
Certificates accrued interest thereon in the case of an interest bearing
Certificate and all other amounts to which such Classes are entitled pursuant to
Section 4.02, and (ii) as to the Residual Certificates, the amount, if any,
which remains on deposit in the Distribution Account (other than the amounts
retained to meet claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Securities Administrator
shall give a second written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. If within six months after the second notice all the
applicable Certificates shall not have been surrendered for cancellation, the
Securities Administrator may take appropriate steps, or may appoint an agent to
take appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain a part of the Trust Fund. If within one year
after the second notice all Certificates shall not have been surrendered for
cancellation, the Class R Certificateholders shall be entitled to all unclaimed
funds and other assets of the Trust Fund which remain subject hereto.
Section 11.03 Additional Termination Requirements. In the event a
Person elects to terminate the Trust Fund as provided in Section 11.01, the
Trust Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee has been supplied with an Opinion of Counsel,
at the expense of the electing Person, to the effect that the failure to comply
with the requirements of this Section 11.03 will not (i) result in the
imposition of taxes on "prohibited transactions" on any Trust REMIC as defined
in Section 860F of the Code, or (ii) cause any Trust REMIC to fail to qualify as
a REMIC at any time that any Certificates are Outstanding:
(a) The Securities Administrator shall sell all of the assets of the
Trust Fund to the Person electing to terminate the Trust Fund, or its designee,
and, within 90 days of such sale, shall distribute to the Certificateholders the
proceeds of such sale in complete liquidation of each of the Trust REMICs; and
(b) The Securities Administrator shall attach a statement to the
final federal income tax return for each of the Trust REMICs stating that
pursuant to Treasury Regulations Section 1.860F 1, the first day of the 90 day
liquidation period for each such Trust REMIC was the date on which the
Securities Administrator sold the assets of the Trust Fund to the electing
Person.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Servicer, the Master Servicer, the Securities
Administrator, the Custodian and the Trustee without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision herein or to supplement any provision herein which may be
inconsistent with any other provision herein, (iii) to add to the duties of the
Depositor, the Master Servicer, the Securities Administrator, the Custodian or
the Servicer, (iv) to add any other provisions with respect to matters or
questions arising hereunder or (v) to modify, alter, amend, add to or rescind
any of the terms or provisions contained in this Agreement; provided, that any
action pursuant to clause (iv) or (v) above shall not, as evidenced by an
Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Master Servicer, the Securities Administrator, the Custodian, the Trustee or the
Trust Fund), adversely affect in any material respect the interests of any
Certificateholder; provided, further, that the amendment shall not be deemed to
adversely affect in any material respect the interests of the Certificateholders
if the Person requesting the amendment obtains a letter from each Rating Agency
stating that the amendment would not result in the downgrading or withdrawal of
the respective ratings then assigned to the Certificates; it being understood
and agreed that any such letter in and of itself will not represent a
determination as to the materiality of any such amendment and will represent a
determination only as to the credit issues affecting any such rating. The
Trustee, the Depositor, the Master Servicer, the Securities Administrator, the
Custodian and the Servicer also may at any time and from time to time amend this
Agreement, but without the consent of the Certificateholders to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
or helpful to (i) maintain the qualification of each Trust REMIC under the REMIC
Provisions, (ii) avoid or minimize the risk of the imposition of any tax on any
Trust REMIC pursuant to the Code that would be a claim at any time prior to the
final redemption of the Certificates or (iii) comply with any other requirements
of the Code; provided, that the Trustee has been provided an Opinion of Counsel,
which opinion shall be an expense of the party requesting such opinion but in
any case shall not be an expense of the Trustee or the Trust Fund, to the effect
that such action is necessary or helpful to, as applicable, (i) maintain such
qualification, (ii) avoid or minimize the risk of the imposition of such a tax
or (iii) comply with any such requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Servicer, the Master Servicer, the Securities Administrator, the
Custodian and the Trustee with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 66(2)/3% of each Class
of Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments required to be distributed on any Certificate
without the consent of the Holder of such Certificate, (ii) adversely affect in
any material respect the interests of the Holders of any Class of Certificates
in a manner other than as described in clause (i), without the consent of the
Holders of Certificates of such Class evidencing, as to such Class, Percentage
Interests aggregating not less than 66(2)/3%, or (iii) reduce the aforesaid
percentages of Certificates the Holders of which are required to consent to any
such amendment, without the consent of the Holders of all such Certificates then
Outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless (i) it shall
have first received an Opinion of Counsel, which opinion shall not be an expense
of the Trustee or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on any Trust REMIC or the Certificateholders or
cause any Trust REMIC to fail to qualify as a REMIC or the grantor trust to fail
to qualify as a grantor trust at any time that any Certificates are Outstanding
and (ii) the party seeking such amendment shall have provided written notice to
the Rating Agencies (with a copy of such notice to the Trustee) of such
amendment, stating the provisions of the Agreement to be amended.
Notwithstanding the foregoing provisions of this Section 12.01, with
respect to any amendment that significantly modifies the permitted activities of
the Trustee or the Servicer, any Certificate beneficially owned by the Depositor
or any of its Affiliates shall be deemed not to be Outstanding (and shall not be
considered when determining the percentage of Certificateholders consenting or
when calculating the total number of Certificates entitled to consent) for
purposes of determining if the requisite consents of Certificateholders under
this Section 12.01 have been obtained.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Securities Administrator shall
furnish written notification of the substance or a copy of such amendment to
each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Securities Administrator may prescribe.
Nothing in this Agreement shall require the Trustee, the Master
Servicer, the Securities Administrator or the Custodian to enter into an
amendment which modifies its obligations or liabilities without its consent and
in all cases without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee, the Master Servicer, the Securities Administrator,
the Custodian or the Trust Fund), satisfactory to the Trustee, the Master
Servicer and the Securities Administrator that (i) such amendment is permitted
and is not prohibited by this Agreement and that all requirements for amending
this Agreement have been complied with; and (ii) either (A) the amendment does
not adversely affect in any material respect the interests of any
Certificateholder or (B) the conclusion set forth in the immediately preceding
clause (A) is not required to be reached pursuant to this Section 12.01.
Section 12.02 Recordation of Agreement; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Depositor at the expense of the Trust, but only upon receipt of an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 12.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. It is, further, not the intention of the
parties that such conveyances be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, such assets are held to be the
property of the Depositor, as the case may be, or if for any other reason this
Agreement is held or deemed to create a security interest in either such assets,
then (i) this Agreement shall be deemed to be a security agreement within the
meaning of the Uniform Commercial Code of the State of New York and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The Depositor, for the benefit of the Certificateholders, shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Trust Fund, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement.
Section 12.05 Notices. (a) The Securities Administrator shall use
its best efforts to promptly provide notice to each Rating Agency with respect
to each of the following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer, the
Servicer, the Securities Administrator or the Trustee and the appointment of any
successor;
4. The repurchase or substitution of Mortgage Loans pursuant to
Sections 2.03, 2.07 or 3.28; and
5. The final payment to Certificateholders.
(b) In addition, the Securities Administrator shall promptly furnish
to each Rating Agency copies of the following:
1. Each report to Certificateholders described in Section 4.03.
2. Any notice of a purchase of a Mortgage Loan pursuant to Section
3.28.
All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to (a) in the case of
the Depositor, to GS Mortgage Securities Corp., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Principal Finance Group/Xxxxxxxxxxx X. Xxxxxxx and Asset
Management Group/Senior Asset Manager (and, in the case of the Officer's
Certificate delivered pursuant to Section 3.22, to [PricewaterhouseCoopers LLP,
000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, Attention:
Xxxxxxxx Xxxxxxx]), or such other address as may be hereafter furnished to the
other parties hereto by the Depositor in writing; (b) in the case of the
Servicer, to Ocwen Loan Servicing, LLC, 0000 Xxxxxxxxxxx Xxxx Xxxxx 000,
Xxxxxxxxxx Xxxx, Xxxx Xxxx Xxxxx, XX 00000, Attention: Secretary, or such other
address as may be hereafter furnished to the other parties hereto by the
Servicer in writing; (c) in the case of the Trustee or the Securities
Administrator, to the Corporate Trust Office, or such other address as may be
hereafter furnished to the other parties hereto by the Trustee in writing; (d)
in the case of the Master Servicer, to Xxxxx Fargo Bank, N.A., 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, or such other address as may be
hereafter furnished to the other parties hereto by the Master Servicer in
writing; (e) in the case of the Custodian, to Deutsche Bank National Trust
Company, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000,
Attention: Mortgage Custody - GS05UC, or such other address as may be hereafter
furnished to the other parties hereto by the Custodian in writing; and (f) in
the case of each of the Rating Agencies, the address specified therefor in the
definition corresponding to the name of such Rating Agency. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
Section 12.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 12.07 Assignment; Sales; Advance Facilities. (a)
Notwithstanding anything to the contrary contained herein, except as provided in
Section 6.04, this Agreement may be assigned by the Servicer with the prior
written consent of the Depositor, the Master Servicer and the Trustee. In
addition, for so long as the Servicer is acting as the Servicer hereunder (i)
the Servicer is hereby authorized to enter into an advance facility ("Advance
Facility") under which (A) the Servicer sells, assigns or pledges to an
Advancing Person the Servicer's rights under this Agreement to be reimbursed for
any P&I Advances or Servicing Advances and/or (B) an Advancing Person agrees to
fund some or all P&I Advances or Servicing Advances required to be made by the
Servicer pursuant to this Agreement and (ii) the Servicer is hereby authorized
to assign its rights to the Servicing Fee; it being understood that neither the
Trust Fund nor any party hereto shall have a right or claim to an Advance
Reimbursement Amount so assigned or to the portion of the Servicing Fee so
assigned; it being further understood that upon resignation or termination of
the Servicer and reimbursement of all amounts due to the Servicer hereunder, the
assignment of further Advance reimbursement rights to such Advance Facility (in
the case of clause (i)) and such assignment (in the case of clause (ii)) shall
be terminated with respect to amounts due related to this Agreement. No consent
of the Trustee, Certificateholders, or any other party is required before the
Servicer may enter into an Advance Facility. Notwithstanding the existence of
any Advance Facility under which an Advancing Person agrees to fund P&I Advances
and/or Servicing Advances on the Servicer's behalf, the Master Servicer shall
have no oversight obligations with respect to such Advance Facility and the
Servicer shall remain obligated pursuant to this Agreement to make P&I Advances
and Servicing Advances pursuant to and as required by this Agreement, and shall
not be relieved of such obligations by virtue of such Advance Facility.
(b) Advance reimbursement amounts ("Advance Reimbursement Amounts")
shall consist solely of amounts in respect of P&I Advances and/or Servicing
Advances made with respect to the Mortgage Loans for which the Servicer would be
permitted to reimburse itself in accordance with this Agreement, assuming the
Servicer had made the related P&I Advance(s) and/or Servicing Advance(s).
(c) The Servicer shall maintain and provide to any successor
Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced
by, pledged or assigned to, and reimbursed to any Advancing Person. The
successor Servicer shall be entitled to rely on any such information provided by
the predecessor Servicer, and the successor Servicer shall not be liable for any
errors in such information.
(d) An Advancing Person who purchases or receives an assignment or
pledge of the rights to be reimbursed for P&I Advances and/or Servicing
Advances, and/or whose obligations hereunder are limited to the funding of P&I
Advances and/or Servicing Advances shall not be required to meet the criteria
for qualification of a Subservicer set forth in this Agreement.
(e) Advance Reimbursement Amounts distributed with respect to each
Mortgage Loan shall be allocated to outstanding xxxxxxxxxxxx X&X Advances or
Servicing Advances (as the case may be) made with respect to that Mortgage Loan
on a "first-in, first out" (FIFO) basis. Such documentation shall also require
the Servicer to provide to the related Advancing Person or its designee
loan-by-loan information with respect to each such Advance Reimbursement Amount
distributed to such Advancing Person or Advance Facility trustee on each
Distribution Date, to enable the Advancing Person or Advance Facility trustee to
make the FIFO allocation of each such Advance Reimbursement Amount with respect
to each Mortgage Loan. The Servicer shall remain entitled to be reimbursed by
the Advancing Person or Advance Facility trustee for all P&I Advances and
Servicing Advances funded by the Servicer to the extent the related rights to be
reimbursed therefor have not been sold, assigned or pledged to an Advancing
Person.
(f) Any amendment to this Section 12.07 or to any other provision of
this Agreement that may be necessary or appropriate to effect the terms of an
Advance Facility as described generally in this Section 12.07, including
amendments to add provisions relating to a successor Servicer, may be entered
into by the Trustee, the Depositor, the Master Servicer, the Securities
Administrator, the Custodian and the Servicer without the consent of any
Certificateholder, notwithstanding anything to the contrary in this Agreement,
provided, that the Trustee has been provided an Opinion of Counsel that such
amendment has no material adverse effect on the Certificateholders which opinion
shall be an expense of the Servicer entering into the Advance Facility but in
any case shall not be an expense of the Trustee or the Trust Fund; provided,
further, that the amendment shall not be deemed to adversely affect in any
material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency (instead of
obtaining an Opinion of Counsel) stating that the amendment would not result in
the downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such rating letter in and
of itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. Prior to entering into an Advance Facility, the
Servicer shall notify the lender under such facility in writing that: (a) the
Advances financed by and/or pledged to the lender are obligations owed to the
Servicer on a non-recourse basis payable only from the cash flows and proceeds
received under this Agreement for reimbursement of Advances only to the extent
provided herein, and the Trustee and the Trust are not otherwise obligated or
liable to repay any Advances financed by the lender; (b) the Servicer will be
responsible for remitting to the lender the applicable amounts collected by it
as reimbursement for Advances funded by the lender, subject to the restrictions
and priorities created in this Agreement; and (c) the Trustee shall not have any
responsibility to track or monitor the administration of the financing
arrangement between the Servicer and the lender.
Section 12.08 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the Trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 12.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 12.09 Inspection and Audit Rights. The Servicer agrees that
on reasonable prior notice, it will permit any representative of the Depositor,
the Master Servicer or the Trustee during the Servicer's normal business hours,
to examine all the books of account, records, reports and other papers of the
Servicer relating to the Mortgage Loans, to make copies and extracts therefrom,
to cause such books to be audited by independent certified public accountants
selected by the Depositor, the Master Servicer or the Trustee and to discuss its
affairs, finances and accounts relating to the Mortgage Loans with its officers,
employees and independent public accountants (and by this provision the Servicer
hereby authorizes said accountants to discuss with such representative such
affairs, finances and accounts), all at such reasonable times and as often as
may be reasonably requested. Any reasonable out-of-pocket expense of the
Servicer incident to the exercise by the Depositor, the Master Servicer or the
Trustee of any right under this Section 12.09 shall be borne by the Servicer.
The Servicer may impose commercially reasonable restrictions on dissemination of
information the Servicer defines as confidential.
Nothing in this Section 12.09 shall limit the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of the Servicer to provide access as
provided in this Section 12.09 as a result of such obligation shall not
constitute a breach of this Section. Nothing in this Section 12.09 shall require
the Servicer to collect, create, collate or otherwise generate any information
that it does not generate in its usual course of business. The Servicer shall
not be required to make copies of or to ship documents to any Person who is not
a party to this Agreement, and then only if provisions have been made for the
reimbursement of the costs thereof.
Section 12.10 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Securities Administrator pursuant to this Agreement, are and shall be deemed
fully paid.
Section 12.11 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW)
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
Section 12.12 Limitation of Damages. NOTWITHSTANDING ANYTHING
CONTAINED HEREIN TO THE CONTRARY, THE PARTIES AGREE THAT NO PARTY SHALL BE
LIABLE TO ANY OTHER PARTY FOR ANY PUNITIVE DAMAGES WHATSOEVER, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL
OR EQUITABLE PRINCIPLE, PROVIDED, HOWEVER, THAT SUCH LIMITATION SHALL NOT BE
APPLICABLE WITH RESPECT TO THIRD PARTY CLAIMS MADE AGAINST A PARTY.
Section 12.13 Rights of the Swap Provider. The Swap Provider shall
be deemed a third-party beneficiary of this Agreement to the same extent as if
it were a party hereto and shall have the right to enforce its rights under this
Agreement.
Section 12.14 No Solicitation. From and after the Closing Date, the
Servicer agrees that it will not take any action or permit or cause any action
to be taken by any of its agents or Affiliates, or by any independent
contractors on the Servicer's behalf, to personally, by telephone or mail,
solicit the borrower or obligor under any Mortgage Loan, including to refinance
a Mortgage Loan, in whole or in part. It is understood and agreed that all
rights and benefits relating to the solicitation of any Mortgagors and the
attendant rights, title and interest in and to the list of such Mortgagors and
data relating to their Mortgages (including insurance renewal dates) are vested
in the Trustee pursuant hereto and the Servicer shall take no action to
undermine these rights and benefits. Notwithstanding the foregoing, it is
understood and agreed that (a) promotions undertaken by the Servicer or any
Affiliate of the Servicer which are directed to the general public at large,
including, without limitation, mass mailing based on commercially acquired
mailing lists, newspaper, radio, internet, company website, and television
advertisements and (b) solicitation of the Mortgagors under the Servicer's
existing programs and programs directed toward equivalent ends (which in no
event shall solicit the refinancing of mortgage loans from the Mortgagors),
shall, in each case, not constitute solicitation under this Section 12.14.
* * * * * * *
IN WITNESS WHEREOF, the Depositor, the Servicer, the Master
Servicer, the Securities Administrator, the Custodian and the Trustee have
caused their names to be signed hereto by their respective officers thereunto
duly authorized as of the day and year first above written.
GS MORTGAGE SECURITIES CORP.,
as Depositor
By:/s/ Xxxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
OCWEN LOAN SERVICING, LLC,
as Servicer
By:/s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Representative
XXXXX FARGO BANK, N.A.,
as Master Servicer and Securities
Administrator
By:/s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By:/s/ Xxxxxx Xxxx
--------------------------------------
Name: Xxxxxx Xxxx
Title: Associate
By:/s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
LASALLE BANK NATIONAL ASSOCIATION,
solely as Trustee and not in its
individual capacity
By:/s/ Xxxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Assistant Vice President
SCHEDULE I
Mortgage Loan Schedule
[Available Upon Request to the Trustee]
SCHEDULE II
GSAMP Mortgage Loan Trust 2005-AHL2,
Mortgage Pass-Through Certificates
Representations and Warranties of Ocwen Loan Servicing, LLC, as Servicer
Ocwen Loan Servicing, LLC ("Ocwen") hereby makes the representations
and warranties set forth in this Schedule II to the Depositor, the Master
Servicer, the Securities Administrator, the Custodian and the Trustee, as of the
Closing Date, or if so specified herein, as of the Cut-off Date:
(1) Ocwen is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware and
is duly authorized and qualified to transact any and all business
contemplated by this Agreement to be conducted by Ocwen in any state in
which a Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such State, to the extent
necessary to ensure its ability to enforce each Mortgage Loan and to
service each Mortgage Loan in accordance with the terms of this Agreement;
(2) Ocwen has the full power and authority to service each Mortgage
Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by this Agreement and has duly
authorized by all necessary action on the part of Ocwen the execution,
delivery and performance of this Agreement; and this Agreement, assuming
the due authorization, execution and delivery thereof by the Depositor,
the Master Servicer, the Securities Administrator, the Custodian and the
Trustee, constitutes a legal, valid and binding obligation of Ocwen,
enforceable against Ocwen in accordance with its terms, except to the
extent that (a) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to the
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(3) The execution and delivery of this Agreement by Ocwen, the
servicing of the Mortgage Loans by Ocwen hereunder, the consummation by
Ocwen of any other of the transactions herein contemplated, and the
fulfillment of or compliance with the terms hereof are in the ordinary
course of business of Ocwen and will not (A) result in a breach of any
term or provision of the organizational documents of Ocwen or (B) conflict
with, result in a breach, violation or acceleration of, or result in a
default under, the terms of any other material agreement or instrument to
which Ocwen is a party or by which it may be bound, or any statute, order
or regulation applicable to Ocwen of any court, regulatory body,
administrative agency or governmental body having jurisdiction over Ocwen;
and Ocwen is not a party to, bound by, or in breach or violation of any
indenture or other agreement or instrument, or subject to or in violation
of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it,
which materially and adversely affects or, to Ocwen's knowledge, would in
the future materially and adversely affect, (x) the ability of Ocwen to
perform its obligations under this Agreement or (y) the business,
operations, financial condition, properties or assets of Ocwen taken as a
whole;
(4) Ocwen is an approved seller/servicer for Xxxxxx Mae and an
approved servicer for Xxxxxxx Mac in good standing;
(5) No litigation is pending against Ocwen that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement or the ability of Ocwen to service the Mortgage Loans or to
perform any of its other obligations hereunder in accordance with the
terms hereof;
(6) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Ocwen of, or compliance by Ocwen with, this Agreement or
the consummation by Ocwen of the transactions contemplated by this
Agreement, except for such consents, approvals, authorizations or orders,
if any, that have been obtained prior to the Closing Date; and
(7) Ocwen covenants that its computer and other systems used in
servicing the Mortgage Loans operate in a manner such that Ocwen can
service the Mortgage Loans in accordance with the terms of this Agreement.
With respect to each Mortgage Loan, to the extent Ocwen serviced
such Mortgage Loan and to the extent Ocwen provided monthly reports to the three
credit repositories, Ocwen has fully furnished, in accordance with the Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information (i.e., favorable and unfavorable) on its borrower credit files to
Equifax, Experian, and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis.
SCHEDULE III
GSAMP Mortgage Loan Trust 2005-AHL2,
Mortgage Pass-Through Certificates
Representations and Warranties of Deutsche Bank National Trust Company, as
Custodian
Deutsche Bank National Trust Company ("Deutsche Bank") hereby makes
the representations and warranties set forth in this Schedule III to the
Depositor, the Servicer, the Master Servicer, the Securities Administrator and
the Trustee, as of the Closing Date, or if so specified herein, as of the
Cut-off Date:
(1) Deutsche Bank is duly organized and is validly existing and in
good standing under the laws of its jurisdiction of incorporation and is
duly authorized and qualified to transact any and all business
contemplated by this Agreement to be conducted by Deutsche Bank or is
otherwise not required under applicable law to effect such qualification
and, in any event, is in compliance with the doing business laws of any
such state, to the extent necessary to perform any of its obligations
under this Agreement in accordance with the terms thereof.
(2) Deutsche Bank has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary
action on the part of Deutsche Bank the execution, delivery and
performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery thereof by the other parties
thereto, constitutes a legal, valid and binding obligation of Deutsche
Bank, enforceable against Deutsche Bank in accordance with its terms,
except that (i) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (ii) the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by Deutsche Bank,
the consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms thereof are
in the ordinary course of business of Deutsche Bank and will not result in
a material breach of any term or provision of the articles of
incorporation or bylaws of Deutsche Bank.
EXHIBIT A-1
FORM OF CLASS A, CLASS M AND CLASS B CERTIFICATES
[To be added to the Class B-2, Class B-3 and 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 SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE (THE "TRANSFEROR CERTIFICATE") IN THE FORM OF EXHIBIT I TO THE
AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR
RECEIVES A RULE 144A LETTER (THE "144A LETTER") IN THE FORM OF EXHIBIT J TO THE
AGREEMENT REFERRED TO HEREIN OR A LETTER (THE "NON-RULE 144A INVESTMENT LETTER")
IN THE FORM OF EXHIBIT K TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE
SECURITIES ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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
CERTIFICATE AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.
In the event that a transfer of a Private Certificate which is a Book-Entry
Certificate is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer will be deemed to
have made as of the transfer date each of the certifications set forth in the
Transferor Certificate in respect of such Certificate and the transferee will be
deemed to have made as of the transfer date each of the certifications set forth
in the Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate.]
[To be added to the Class B-4 Certificates: NEITHER THIS CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE
SECURITIES ADMINISTRATOR EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH
A PLAN, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A REPRESENTATION LETTER
THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND
HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL SATISFACTORY TO THE
SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE
MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT
SUBJECT THE TRUSTEE, THE DEPOSITOR, THE MASTER SERVICER, THE SERVICER OR THE
SECURITIES ADMINISTRATOR TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY
UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE
TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF
THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER OR OPINION OF COUNSEL
SATISFACTORY TO THE SECURITIES ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID
AND OF NO EFFECT.]
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER
ASSETS.
AS LONG AS THE INTEREST RATE SWAP AGREEMENT IS IN EFFECT, EACH BENEFICIAL OWNER
OF THIS CERTIFICATE, OR ANY INTEREST THEREIN, SHALL BE DEEMED TO HAVE
REPRESENTED THAT EITHER (I) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A
PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, NOR A PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR ARRANGEMENT NOR USING THE ASSETS OF ANY SUCH PLAN OR
ARRANGEMENT OR (II) THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE ELIGIBLE
FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AT LEAST ONE OF PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 84-14, XXXX 00-0, XXXX 00-0, XXXX 95-60 OR PTCE 96-23
OR A COMPARABLE EXEMPTION AVAILABLE UNDER SIMILAR LAW.
Certificate No. : [1]
Cut-off Date : December 1, 2005
First Distribution Date : January 25, 2006
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate
Balances of all Class Certificate
Certificates of this Class : Class Balance
Class A-1A $108,759,000
Class A-1B $27,190,000
Class A-2A $156,886,000
Class A-2B $65,607,000
Class A-2C $63,603,000
Class A-2D $25,693,000
Class M-1 $43,526,000
Class M-2 $11,317,000
Class M-3 $19,152,000
Class M-4 $8,995,000
Class M-5 $8,415,000
Class B-1 $6,094,000
Class B-2 $5,803,000
Class B-3 $5,804,000
Class B-4 $5,803,000
CUSIP : Class CUSIP No.
Class A-1A 362341 B8 1
Class A-1B 362341 B9 9
Class A-2A 362341 C2 3
Class A-2B 362341 C3 1
Class A-2C 362341 C4 9
Class A-2D 362341 C5 6
Class M-1 362341 C6 4
Class M-2 362341 C7 2
Class M-3 362341 C8 0
Class M-4 362341 C9 8
Class M-5 362341 D2 2
Class B-1 362341 D3 0
Class B-2 362341 J5 9
Class B-3 362341 J6 7
Class B-4 362341 J7 5
ISIN : Class ISIN
Class A-1A US362341B815
Class A-1B US362341B997
Class A-2A US362341C235
Class A-2B US362341C318
Class A-2C US362341C490
Class A-2D US362341C565
Class M-1 US362341C649
Class M-2 US362341C722
Class M-3 US362341C805
Class M-4 US362341C987
Class M-5 US362341D225
Class B-1 US362341D308
Class B-2 US362341J594
Class B-3 US362341J677
Class B-4 US362341J750
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL2
Mortgage Pass-Through Certificates, Series 2005-AHL2
[Class A-] [Class M-] [Class B-]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, the Master Servicer, the Securities Administrator, the
Custodian, the Purchaser, the Responsible Party or the Trustee referred to below
or any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer,
(the "Servicer"), Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"),
Deutsche Bank National Trust Company, as custodian (the "Custodian"), and
LaSalle Bank National Association, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
***
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity, but
solely as
Securities Administrator
By:____________________________________
Authenticated:
By:_________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-AHL2 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Master Servicer, the
Securities Administrator, the Custodian and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 of the Agreement will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect of
the Mortgage Loans at a purchase price determined as provided in the Agreement.
The obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ______________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number ______________, or, if mailed by check, to ___________________.
Applicable statements should be mailed to ___________________________________,
_____________________________________________________________________________.
This information is provided by _________________________________,
the assignee named above, or ________________________________________________,
as its agent.
EXHIBIT B
FORM OF CLASS P CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (i) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM
OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (ii) THE SECURITIES
ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE
TRANSFEROR, STATING THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE
I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO APPLICABLE
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE, OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
WITHOUT THE REPRESENTATION LETTER SATISFACTORY TO THE SECURITIES ADMINISTRATOR
AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [1]
Cut-off Date : December 1, 2005
First Distribution Date : January 25, 2006
Percentage Interest of
this Certificate
("Denomination") : [__]%
CUSIP : 362341 J9 1
ISIN : US362341J917
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL2
Mortgage Pass-Through Certificates, Series 2005-AHL2
Class P
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Servicer, the
Master Servicer, the Securities Administrator, the Custodian, the Purchaser, the
Responsible Party or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer,
(the "Servicer"), Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"),
Deutsche Bank National Trust Company, as custodian (the "Custodian"), and
LaSalle Bank National Association, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Securities Administrator for such purpose.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor.
No transfer of a Certificate of this Class shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan subject to Section 406 of ERISA, Section 4975 of
the Code or any materially similar provisions of applicable Federal, state or
local law ("Similar Law"), or a person acting on behalf of or investing plan
assets of any such plan, which representation letter shall not be an expense of
the Securities Administrator.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
***
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By:____________________________________
Authenticated:
By ____________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-AHL2 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 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 for any Definitive Certificates is the last Business Day of
the month immediately preceding the month in which such Distribution Date
occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Master Servicer, the
Securities Administrator, the Custodian and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 of the Agreement will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect of
the Mortgage Loans at a purchase price determined as provided in the Agreement.
The obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of
assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ______________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number ______________, or, if mailed by check, to ___________________.
Applicable statements should be mailed to ___________________________________,
_____________________________________________________________________________.
This information is provided by _________________________________,
the assignee named above, or ________________________________________________,
as its agent.
EXHIBIT C-1
FORM OF CLASS R-1 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN THREE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR
PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT
SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [1]
Cut-off Date : December 1, 2005
First Distribution Date : January 25, 2006
Initial Certificate Balance
of this Certificate
("Denomination") : $100
Initial Certificate Balance
of all Certificates of this
Class : $100
CUSIP : 362341 K2 4
ISIN : US362341K246
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL2
Mortgage Pass-Through Certificates, Series 2005-AHL2
Class R-1
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class R-1 Certificate is not entitled to
distributions in respect of interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Servicer, the Master Servicer, the Securities Administrator, the Custodian, the
Purchaser, the Responsible Party or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that ______________ is the registered owner of the
Percentage Interest evidenced by this Certificate in certain monthly
distributions pursuant to a Pooling and Servicing Agreements dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer
(the "Servicer"), Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"),
Deutsche Bank National Trust Company, as custodian (the "Custodian"), and
LaSalle Bank National Association, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class R-1
Certificate at the offices designated by the Securities Administrator for such
purposes.
No transfer of a Class R-1 Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Depositor, the Master
Servicer, the Securities Administrator, the Servicer, the Trustee or the Trust
Fund. In the event that such representation is violated, or any attempt is made
to transfer to a plan or arrangement subject to Section 406 of ERISA or a plan
subject to Section 4975 of the Code or a plan subject to Similar Law, or a
person acting on behalf of any such plan or arrangement or using the assets of
any such plan or arrangement, such attempted transfer or acquisition shall be
void and of no effect.
Each Holder of this Class R-1 Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R-1 Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class R-1 Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R-1 Certificate shall be a
Permitted Transferee and shall promptly notify the Securities Administrator of
any change or impending change in its status as a Permitted Transferee, (ii) no
Ownership Interest in this Class R-1 Certificate may be registered on the
Closing Date or thereafter transferred, and the Securities Administrator shall
not register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R-1 Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R-1 Certificate,
(B) to obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer of this
Class R-1 Certificate, (C) not to cause income with respect to the Class R-1
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person and (D) not to Transfer the Ownership Interest in this
Class R-1 Certificate or to cause the Transfer of the Ownership Interest in this
Class R-1 Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee and (iv) any attempted or purported
Transfer of the Ownership Interest in this Class R-1 Certificate in violation of
the provisions herein shall be absolutely null and void and shall vest no rights
in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By:____________________________________
Authenticated:
By:________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-AHL2 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 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 for any Definitive Certificates is the last Business Day of
the month immediately preceding the month in which such Distribution Date
occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Master Servicer, the
Securities Administrator, the Custodian and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 of the Agreement will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect of
the Mortgage Loans at a purchase price determined as provided in the Agreement.
The obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of
assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ______________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number ______________, or, if mailed by check, to ___________________.
Applicable statements should be mailed to ___________________________________,
_____________________________________________________________________________.
This information is provided by _________________________________,
the assignee named above, or ________________________________________________,
as its agent.
EXHIBIT C-2
FORM OF CLASS R-2 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR
PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT
SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [1]
Cut-off Date : December 1, 2005
First Distribution Date : January 25, 2006
Initial Certificate Balance
of this Certificate
("Denomination") : $100
Initial Certificate Balances
of all Certificates of this
Class : $100
CUSIP : 362341 K3 2
ISIN : US362341K329
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL2
Mortgage Pass-Through Certificates, Series 2005-AHL2
Class R-2
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class R-2 Certificate is not entitled to
distributions in respect of interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Servicer, the Master Servicer, the Securities Administrator, the Custodian, the
Purchaser, the Responsible Party or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that _____________ is the registered owner of the
Percentage Interest evidenced by this Certificate in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer
(the "Servicer"), Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"),
Deutsche Bank National Trust Company, as custodian (the "Custodian"), and
LaSalle Bank National Association, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class R-2
Certificate at the offices designated by the Securities Administrator for such
purposes.
No transfer of a Class R-2 Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Depositor, the Master
Servicer, the Securities Administrator, the Servicer, the Trustee or the Trust
Fund. In the event that such representation is violated, or any attempt is made
to transfer to a plan or arrangement subject to Section 406 of ERISA or a plan
subject to Section 4975 of the Code or a plan subject to Similar Law, or a
person acting on behalf of any such plan or arrangement or using the assets of
any such plan or arrangement, such attempted transfer or acquisition shall be
void and of no effect.
Each Holder of this Class R-2 Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R-2 Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class R-2 Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R-2 Certificate shall be a
Permitted Transferee and shall promptly notify the Securities Administrator of
any change or impending change in its status as a Permitted Transferee, (ii) no
Ownership Interest in this Class R-2 Certificate may be registered on the
Closing Date or thereafter transferred, and the Securities Administrator shall
not register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R-2 Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R-2 Certificate,
(B) to obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer of this
Class R-2 Certificate, (C) not to cause income with respect to the Class R-2
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person and (D) not to Transfer the Ownership Interest in this
Class R-2 Certificate or to cause the Transfer of the Ownership Interest in this
Class R-2 Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee and (iv) any attempted or purported
Transfer of the Ownership Interest in this Class R-2 Certificate in violation of
the provisions herein shall be absolutely null and void and shall vest no rights
in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By:____________________________________
Authenticated:
By:________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-AHL2 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Master Servicer, the
Securities Administrator, the Custodian and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 of the Agreement will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect of
the Mortgage Loans at a purchase price determined as provided in the Agreement.
The obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of
assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ______________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number ______________, or, if mailed by check, to ___________________.
Applicable statements should be mailed to ___________________________________,
_____________________________________________________________________________.
This information is provided by _________________________________,
the assignee named above, or ________________________________________________,
as its agent.
EXHIBIT C-3
FORM OF CLASS R-3 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR
PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT
SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [1]
Cut-off Date : December 1, 2005
First Distribution Date : January 25, 2006
Initial Certificate Balance
of this Certificate
("Denomination") : $100
Initial Certificate Balances
of all Certificates of this
Class : $100
CUSIP : 362341K4 0
ISIN : US362341K402
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL2
Mortgage Pass-Through Certificates, Series 2005-AHL2
Class R-3
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class R-3 Certificate is not entitled to
distributions in respect of interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Servicer, the Master Servicer, the Securities Administrator, the Custodian, the
Purchaser, the Responsible Party or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that _____________ is the registered owner of the
Percentage Interest evidenced by this Certificate in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer
(the "Servicer"), Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"),
Deutsche Bank National Trust Company, as custodian (the "Custodian"), and
LaSalle Bank National Association, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class R-3
Certificate at the offices designated by the Securities Administrator for such
purposes.
No transfer of a Class R-3 Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Depositor, the Master
Servicer, the Securities Administrator, the Trustee, the Servicer or the Trust
Fund. In the event that such representation is violated, or any attempt is made
to transfer to a plan or arrangement subject to Section 406 of ERISA or a plan
subject to Section 4975 of the Code or a plan subject to Similar Law, or a
person acting on behalf of any such plan or arrangement or using the assets of
any such plan or arrangement, such attempted transfer or acquisition shall be
void and of no effect.
Each Holder of this Class R-3 Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R-3 Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class R-3 Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R-3 Certificate shall be a
Permitted Transferee and shall promptly notify the Securities Administrator of
any change or impending change in its status as a Permitted Transferee, (ii) no
Ownership Interest in this Class R-3 Certificate may be registered on the
Closing Date or thereafter transferred, and the Securities Administrator shall
not register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit H to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R-3 Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R-3 Certificate,
(B) to obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer of this
Class R-3 Certificate, (C) not to cause income with respect to the Class R-3
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person and (D) not to Transfer the Ownership Interest in this
Class R-3 Certificate or to cause the Transfer of the Ownership Interest in this
Class R-3 Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee and (iv) any attempted or purported
Transfer of the Ownership Interest in this Class R-3 Certificate in violation of
the provisions herein shall be absolutely null and void and shall vest no rights
in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By:____________________________________
Authenticated:
By:________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-AHL2 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Master Servicer, the
Securities Administrator, the Custodian and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 of the Agreement will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect of
the Mortgage Loans at a purchase price determined as provided in the Agreement.
The obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of
assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ______________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number ______________, or, if mailed by check, to ___________________.
Applicable statements should be mailed to ___________________________________,
_____________________________________________________________________________.
This information is provided by _________________________________,
the assignee named above, or ________________________________________________,
as its agent.
EXHIBIT D
FORM OF CLASS C CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM
OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES
ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE
TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE
I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
WITHOUT THE REPRESENTATION LETTER SATISFACTORY TO THE SECURITIES ADMINISTRATOR
AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [1]
Cut-off Date : December 1, 2005
First Distribution Date : January 25, 2006
Percentage Interest of
this Certificate
("Denomination") : [ ]%
CUSIP : 362341 K5 7
ISIN : US362341K576
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL2
Mortgage Pass-Through Certificates, Series 2005-AHL2
Class C
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Servicer, the Master Servicer,
the Securities Administrator, the Custodian, the Purchaser, the Responsible
Party or the Trustee referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that _____________ is the registered owner of the
Percentage Interest evidenced by this Certificate in certain monthly
distributions pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer
(the "Servicer"), Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"),
Deutsche Bank National Trust Company, as custodian (the "Custodian"), and
LaSalle Bank National Association, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
This Certificate does not have a Pass-Through Rate and will not be
entitled to any distributions pursuant to the Agreement. The only rights of this
Class under the Agreement is to make a request as set forth in Article XI of the
Agreement.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By:____________________________________
Authenticated:
By: ___________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-AHL2 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator and the other parties to
the Agreement.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Master Servicer, the
Securities Administrator, the Custodian and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 of the Agreement will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect of
the Mortgage Loans at a purchase price determined as provided in the Agreement.
The obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of
assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ______________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number ______________, or, if mailed by check, to ___________________.
Applicable statements should be mailed to ___________________________________,
_____________________________________________________________________________.
This information is provided by _________________________________,
the assignee named above, or ________________________________________________,
as its agent.
EXHIBIT E
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS TWO
"REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER ASSETS.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (i) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM
OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (ii) THE SECURITIES
ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE
TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN
INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS
GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE
COVERED UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
OR AN OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE
EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR
RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE MASTER SERVICER, THE
SECURITIES ADMINISTRATOR, THE DEPOSITOR, THE TRUSTEE OR THE SERVICER TO ANY
OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY
LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE
REPRESENTATION LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES
ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [1]
Cut-off Date : December 1, 2005
First Distribution Date : January 25, 2006
Percentage Interest of this
Certificate ("Denomination") : [__]%
CUSIP : 362341 J8 3
ISIN : US362341J834
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL2
Mortgage Pass-Through Certificates, Series 2005-AHL2
Class X
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class X Certificate has no Certificate Balance
and is not entitled to distributions in respect of principal or interest. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer, the Master Servicer, the Securities
Administrator, the Custodian, the Purchaser, the Responsible Party or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that _____________ is the registered owner of the
Percentage Interest specified above of any monthly distributions due to the
Class X Certificates pursuant to a Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer
(the "Servicer"), Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"),
Deutsche Bank National Trust Company, as custodian (the "Custodian"), and
LaSalle Bank National Association, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class X
Certificate at the offices designated by the Securities Administrator for such
purposes.
No transfer of a Class X Certificate shall be made unless the
Securities Administrator shall have received either (i) a representation letter
from the transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Master Servicer, the
Securities Administrator, the Trustee, the Depositor, the Servicer or the Trust
Fund, or (ii) if the Class X Certificate has been the subject of an ERISA
Qualifying Underwriting and the transferee is an insurance company, a
representation letter that it is purchasing such Certificates with the assets of
its general account and that the purchase and holding of such Certificates are
covered under Sections I and III of PTCE 95-60, or (iii) in the case of a Class
X Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or a plan or arrangement subject to Section 4975 of the Code
(or comparable provisions of any subsequent enactments) or a plan subject to
Similar Law, or a trustee of any such plan or any other person acting on behalf
of any such plan or arrangement or using such plan's or arrangement's assets, an
Opinion of Counsel satisfactory to the Securities Administrator, which Opinion
of Counsel shall not be an expense of the Master Servicer, the Securities
Administrator, the Depositor, the Servicer, the Trustee or the Trust Fund,
addressed to the Securities Administrator, to the effect that the purchase or
holding of such Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the Code or
any Similar Law and will not subject the Master Servicer, the Securities
Administrator, the Trustee, the Depositor or the Servicer to any obligation in
addition to those expressly undertaken in this Agreement or to any liability. In
the event that such representation is violated, or any attempt is made to
transfer to a plan or arrangement subject to Section 406 of ERISA or a plan
subject to Section 4975 of the Code or a plan subject to Similar Law, or a
person acting on behalf of any such plan or arrangement or using the assets of
any such plan or arrangement, such attempted transfer or acquisition shall be
void and of no effect.
Each Holder of this Class X Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class X Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class X Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class X Certificate shall be a
Permitted Transferee and shall promptly notify the Securities Administrator of
any change or impending change in its status as a Permitted Transferee, (ii) no
Ownership Interest in this Class X Certificate may be registered on the Closing
Date or thereafter transferred, and the Securities Administrator shall not
register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class X Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class X Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of this Class X
Certificate, (C) not to cause income with respect to the Class X Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person and (D) not to Transfer the Ownership Interest in this Class X
Certificate or to cause the Transfer of the Ownership Interest in this Class X
Certificate to any other Person if it has actual knowledge that such Person is
not a Permitted Transferee and (iv) any attempted or purported Transfer of the
Ownership Interest in this Class X Certificate in violation of the provisions
herein shall be absolutely null and void and shall vest no rights in the
purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities
Administrator
By:____________________________________
Authenticated:
By:______________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-AHL2 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 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 for any Definitive Certificates is the last Business Day of
the month immediately preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer, the Master Servicer, the
Securities Administrator, the Custodian and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 of the Agreement will have the option to repurchase, in whole, from the
Trust Fund all remaining Mortgage Loans and all property acquired in respect of
the Mortgage Loans at a purchase price determined as provided in the Agreement.
The obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of
assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ______________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number ______________, or, if mailed by check, to ___________________.
Applicable statements should be mailed to ___________________________________,
_____________________________________________________________________________.
This information is provided by _________________________________,
the assignee named above, or ________________________________________________,
as its agent.
EXHIBIT F
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
[Master Servicer]
[Servicer]
[Trustee]
_______________________
_______________________
Re: Pooling and Servicing Agreement among GS Mortgage Securities
Corp., as Depositor, Ocwen Loan Servicing, LLC, as Servicer,
Xxxxx Fargo Bank, N.A., as Master Servicer and Securities
Administrator, Deutsche Bank National Trust Company, as
Custodian, and LaSalle Bank National Association, as Trustee,
GSAMP Trust 2005-AHL2
--------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Custodian, for each Mortgage Loan listed in the Mortgage Loan Schedule (other
than any Mortgage Loan listed in the attached schedule of exceptions), certifies
that it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) except with respect to each MERS Designated Mortgage Loan, a
duly executed Assignment of Mortgage (which may be included in a blanket
assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Custodian makes no representations as to:
(i) the validity, legality, sufficiency, enforceability, recordability or
genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan or the perfection or priority of any Mortgage. Notwithstanding anything
herein to the contrary, the Custodian has made no determination and makes no
representations as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as Certificateholder or
assignee thereof, in and to that Mortgage Note or (ii) any assignment is in
recordable form or sufficient to effect the assignment of and transfer to the
assignee thereof, under the Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT G
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF CUSTODIAN
[date]
[Depositor]
[Master Servicer]
[Servicer]
[Trustee]
_____________________
_____________________
Re: Pooling and Servicing Agreement among GS Mortgage Securities
Corp., as Depositor, Ocwen Loan Servicing, LLC, as Servicer,
Xxxxx Fargo Bank, N.A., as Master Servicer and Securities
Administrator, Deutsche Bank National Trust Company, as
Custodian, and LaSalle Bank National Association, as Trustee,
GSAMP Trust 2005-AHL2
--------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Custodian, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on the
attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in
Section 2.01 of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator
to the last endorsee.
(ii) The original recorded Mortgage or a certified copy thereof.
(iii) Except with respect to each MERS Designated Mortgage Loan, a
duly executed Assignment of Mortgage endorsed in blank in the form
provided in Section 2.01 of the Pooling and Servicing Agreement; or, if
the Custodian has actual knowledge that the related Mortgage has not been
returned from the applicable recording office, a copy of the Assignment of
Mortgage (excluding information to be provided by the recording office).
(iv) Except with respect to each MERS Designated Mortgage Loan, the
original or duplicate original recorded assignment or assignments of the
Mortgage endorsed in blank showing a complete chain of assignment from the
originator to the last endorsee.
(v) The original or duplicate original or certified copy lender's
title policy and all riders thereto or, any one of an original title
binder, an original preliminary title report or an original title
commitment, or a copy thereof certified by the title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (1), (2) and (13) of
the Mortgage Loan Schedule and the Data Tape Information accurately reflects
information set forth in the Custodial File.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Pooling and Servicing Agreement. The Custodian
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability, recordability or genuineness of any of the documents contained
in each Mortgage File of any of the Mortgage Loans identified on the Mortgage
Loan Schedule or (ii) the collectability, insurability, effectiveness or
suitability of any such Mortgage Loan or the perfection or priority of any
Mortgage. Notwithstanding anything herein to the contrary, the Custodian has
made no determination and makes no representations as to whether (i) any
endorsement is sufficient to transfer all right, title and interest of the party
so endorsing, as holder of the Mortgage Note or assignee thereof, in and to that
Mortgage Note or (ii) any assignment is in recordable form or sufficient to
effect the assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY
as Custodian
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT H
FORM OF RESIDUAL TRANSFER AFFIDAVIT
GSAMP Trust 2005-AHL2,
Mortgage Pass-Through Certificates
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in a Residual Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement dated as
of December 1, 2005 (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer (the
"Servicer"), Xxxxx Fargo Bank, N.A., as master servicer (the "Master Servicer")
and securities administrator (the "Securities Administrator"), Deutsche Bank
National Trust Company, as custodian, and LaSalle Bank National Association, as
trustee (the "Trustee"). Capitalized terms used, but not defined herein or in
Exhibit 1 hereto, shall have the meanings ascribed to such terms in the
Agreement. The Transferee has authorized the undersigned to make this affidavit
on behalf of the Transferee for the benefit of the Depositor and the Securities
Administrator.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Securities Administrator a certificate
substantially in the form set forth as Exhibit I to the Agreement (a "Transferor
Certificate") to the effect that such Transferee has no actual knowledge that
the Person to which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee has historically paid its debts as they have come
due, intends to pay its debts as they come due in the future, and understands
that the taxes payable with respect to the Certificate may exceed the cash flow
with respect thereto in some or all periods and intends to pay such taxes as
they become due. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check one of the following:
[ ] The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on such
Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates
losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[ ] The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to
which income from the Certificate will only be taxed in the
United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Certificate only to another
"eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii)
and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury
Regulations; and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and
reinvestment assumptions, tax rates and other factors specific
to the Transferee) that it has determined in good faith.
None of the above.
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 I
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services, GSAMP 2005-AHL2
Re: GSAMP Trust 2005-AHL2, Mortgage Pass-Through Certificates,
Series 2005-AHL2, Class [ ]
--------------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (C) we have no
reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
_______________________________________
Print Name of Transferor
By:____________________________________
Authorized Officer
EXHIBIT J
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services, GSAMP 2005-AHL2
Re: GSAMP Trust 2005-AHL2, Mortgage Pass-Through Certificates,
Series 2005-AHL2 Class [ ]
----------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either we are purchasing a Class B-2 or Class B-3
Certificate, or we are not an employee benefit plan that is subject to Title I
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
a plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), or a plan subject to any federal, state
or local law materially similar to the foregoing provisions of ERISA or the
Code, nor are we acting on behalf of any such plan or arrangement nor using the
assets of any such plan or arrangement to effect such acquisition, or, with
respect to a Class B-4 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 J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $ (1) in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A and (ii)
the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or
territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is
attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
____ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
________________________________________
Print Name of Transferee
By:____________________________________
Name:
Title:
Date:__________________________________
--------
(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.
ANNEX 2 TO EXHIBIT J
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
____ The Buyer owned $____________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $_________ in securities (other than
the excluded securities referred to below) as of the end of
the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
_______________________________________
Print Name of Transferee
By:____________________________________
Name:
Title:
IF AN ADVISER:
_______________________________________
Print Name of Buyer
Date:__________________________________
EXHIBIT K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
_____________________
Date
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services, GSAMP 2005-AHL2
Re: GSAMP Trust 2005-AHL2, Mortgage Pass-Through Certificates,
Series 2005-AHL2, Class [ ]
----------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
institutional "accredited investor" (within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Act, and have such knowledge and experience
in financial and business matters that we are capable of evaluating the merits
and risks of investments in the Certificates, (c) we have had the opportunity to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates, (d)
either we are purchasing a Class B-2 or Class B-3 Certificate, or we are not an
employee benefit plan that is subject to the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or a plan or arrangement that is subject to
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code") or a
plan subject to any federal, state or local law materially similar to the
foregoing provisions of ERISA or the Code, nor are we acting on behalf of any
such plan or arrangement nor using the assets of any such plan or arrangement to
effect such acquisition, or, with respect to a Class B-4 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 are acquiring the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory to
the addressees of this Certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser or
transferee has otherwise complied with any conditions for transfer set forth in
the Pooling and Servicing Agreement.
_______________________________________
Print Name of Transferee
By:____________________________________
Name:
Title:
Date:__________________________________
EXHIBIT L
FORM OF REQUEST FOR RELEASE
(for Custodian)
To: [Address]
Re:
In connection with the administration of the Mortgage Loans held by
you as the Custodian on behalf of the Certificateholders we request the release,
and acknowledge receipt, of the (Custodial File/[specify documents]) for the
Mortgage Loan described below, for the reason indicated.
Mortgagor's Name, Address & Zip Code:
-------------------------------------
Mortgage Loan Number:
---------------------
Reason for Requesting Documents (check one)
-------------------------------------------
____1. Mortgage Loan Paid in Full. (The Servicer hereby certifies
that all amounts received in connection therewith have been
credited to the Collection Account as provided in the
Pooling and Servicing Agreement.)
____2. Mortgage Loan Repurchase Pursuant to Section 2.03, 2.08 or
3.28 of the Pooling and Servicing Agreement. (The Servicer
hereby certifies that the repurchase price has been
credited to the Collection Account as provided in the
Pooling and Servicing Agreement.)
____3. Mortgage Loan Liquidated by _________________. (The
Servicer hereby certifies that all proceeds of foreclosure,
insurance, condemnation or other liquidation have been
finally received and credited to the Collection Account
pursuant to the Pooling and Servicing Agreement.)
____4. Mortgage Loan in Foreclosure.
____5. Other (explain).
If box 1, 2 or 3 above is checked, and if all or part of the Custodial File was
previously released to us, please release to us our previous request and receipt
on file with you, as well as any additional documents in your possession
relating to the specified Mortgage Loan.
If Box 4 or 5 above is checked, upon our return of all of the above documents to
you as the Custodian, please acknowledge your receipt by signing in the space
indicated below, and returning this form, if requested.
Address to which Custodian should
deliver the Custodian's Mortgage File:
________________________________________
________________________________________
________________________________________
OCWEN LOAN SERVICING, LLC
By: __________________________
Name:
Title:
Date:
Acknowledged receipt by:
Deutsche Bank National Trust Company, as Custodian
By: ______________________________________________
Name:
Title:
Date:
EXHIBIT M
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and which shall be retained by the Servicer or delivered to and
retained by the Custodian, as applicable:
(a) The documents or instruments set forth as items (i) to (vii)
in Section 2.01(b) of the Agreement.
(b) Evidence of payment of taxes and insurance, insurance claim
files, correspondence, current and historical computerized
data files (which include records of tax receipts and payment
history from the date of origination), and all other
processing, underwriting and closing papers and records which
are customarily contained in a mortgage loan file and which
are required to document the Mortgage Loan or to service the
Mortgage Loan.
EXHIBIT N-1
SERVICER REPORTING REQUIREMENTS
DATA FILE LAYOUT
XXXXXXX SACHS LOAN SERVICER INFORMATION REQUEST LIST
Legend:
A=Available at Inception
T=Tech staff to resolve
B=Best efforts to provide data
N=Not available
FIELD NAME FIELD DESCRIPTION FORMAT
---------- ----------------- ------
ONE TIME, STATIC Legend
FIELDS
Loan Number A Loan Number currently being used to Text
service this loan.
Prior Loan Number A Prior Loan Number (if any). If Text
servicing has transferred this should
contain the Loan Number used by the
previous servicer.
Trustee File Number T Trustee ID used to file documents. Text
This can be the Trustee's only id or a
category used to arrange documents into
proper pools.
Trustee Loan Number T Trustee secondary ID used to file Text
documents. Often this is used in
conjunction with Trustee File Number to
uniquely identify loans.
Origination Date A Origination Date shown on loan Date
documents.
Original Balance A Original amount of loan granted to Numeric
borrower. In the case of construction
loans this should be the full amount
extended on which the monthly payments
are based.
First Payment Date A This is the contractual date when the first
payment was to be made. If the loan has been
modified this should be the first scheduled
payment date following the modification.
Original Maturity A This is the contractual date when the Date
Date last payment on the loan is scheduled
to be made. For balloons it should be
the balloon date. For modified loans
it should not be the modified maturity
date.
Original Term A The number of months from First Payment Number
Date to Maturity Date inclusive.
Balloon Flag A Code/literal to identify balloon Text
loans. Example: Y, N.
Loan Type A Code/literal to identify the loan Text
type. See Enumerations worksheet.
Amortization Type A Generic category to describe loan Text
type. See Enumerations worksheet.
Original A Original Amortization Term of the loan Number
Amortization Term in number of months. For fully
amortizing loans would be the same as
Original Term. For balloon loans this
would exceed Original Term. For IO
loans this would have no value.
Interest Calculation A The basis on which interest is
Method calculated. See Enumerations worksheet.
Daily Simple T Flag to identify loans where interest is due is
Interest Flag calculated based on the date that each payment is
actually received.
Original Principal A Original contractual principal and Number
and Interest interest payment amount.
Original Interest A Original contractual interest rate for
Rate loan.
Negative A Code/literal to identify loans where Text
Amortization Flag negative amortization is allowed.
Example: Y=neg am allowed, N=no neg am
allowed.
Negam Percent Cap A Maximum percentage of original balance Number
that a loan may negatively amortize
by. Example: 1.25, 1,10.
Servicing Fee A Servicing Fee rate due servicer. Number
Example: 0.25%.
Property Type A Code/literal that identifies the type Text
of property securing the loan. See
Enumerations worksheet.
Property Address A Property address, not billing address. Text
Property City A Property city. Text
Property State A Property state. Text
Property Zip A Property zip. Number
Borrower Name A Name of borrower. Preferably in a Text
fixed format.
Example: XXXXX
XXXX W.
CoBorrower Name A Name of Co borrower. Preferably in a Text
fixed format.
Example: XXXXX
XXXX W.
Borrower Social Security Eleven character ID. Example: Number
Number/TIN 000-00-0000.
A
CoBorrower Social Security Eleven character ID. Example: Number
Number/TIN 000-00-0000.
A
Original FICO score A Credit bureau score obtained at Number
application.
Original Credit A Internal credit grade assigned at Text
Grade origination.
Original Loan To A Ratio representing the Original Loan Balance to
Value Ratio the lower of the Original Appraised Value or
Original Purchase Price. Example: 80.00.
Original Appraised A Appraised value at time of application. Number
Value
Original Appraisal A Date of the original Appraisal Date
Date
Original Appraisal A Name of the Appraisal firm Text
Firm
Original Purchase A Price paid for home. Number
Price
Purchase BPO A BPO at the time of Purchase by GS. Number
Purchase BPO Date A Date of the Purchase BPO Date
Lien Position A Number used to identify the lien Number
position in effect at the time of
application. Example: 1, 2, 3
PMI Provider A Name or code for company providing
private mortgage insurance.
PMI Coverage A Percentage of insurance provided by PMI
Percentage agreement.
PMI Certificate ID A Unique ID to identify PMI insurance
certificate.
Occupancy Type A Occupancy status at time of Text
application. See Enumerations
worksheet.
Purpose of Loan A Code/literal used to identify the Text
original purpose of the loan. See
Enumerations worksheet.
Prepayment Flag A Code/Flag to determine if loan was Text
originated with a prepayment penalty.
Prepayment Penalty T Code/literal to identify Text
Type characteristics of penalty. Example:
6 MO INT ON 80% XXXX, 5/4/3/2/1, 3%.
Prepayment Term A Original number of months that penalty Number
was imposed.
Front Ratio T Front End Ratio at time of Number
application. Mortgage debt to borrower
income.
Back Ratio T Back End Ratio at time of application. Number
Total debt to borrower income.
MONTHLY LOAN DATA
UPDATES
-----------------
As Of Date A As Of Date for data sent. Date
Loan Number A Loan Number currently being used to Number
service this loan.
Investor Number A This is the servicer assigned number Number
for reporting purposes.
Investor Category A This is the servicer assigned category
for reporting purposes.
Current Maturity A This is the actual date when the last Date
Date payment on the loan is scheduled to be
made. For balloons it should be the
balloon date. For modified loans it
should be the modified maturity date.
Remaining Term A The Remaining Term of the loan Number
Current Principal & A Principal & Interest in effect for Number
Interest Payment currently outstanding payment.
Current Interest A Interest Rate in effect for currently Number
Rate outstanding payment.
Next Due Date A Date next payment is due.
Interest Paid To A Date interest is paid to. Typically for 30/360
Date loans it is one month prior to Next Due Date.
Last Payment Date A Date last payment was made. Date
Current Balance A Actual outstanding balance of loan. Number
Current Balance Net T The net present value of the current Number
Present Value balance
Days Past Due A Number of days loan is past due.
Delinquency Indicates if ABS or MBS method for
Convention reporting delinquencies is used.
Delinquency Status A Indicates delinquency reported. Number
Example: 30, 60, 90.
Status of Loan A Code/literal used to identify loan Text
status. See Enumerations worksheet.
12 Month Pay String T 12 character string representing the timing of
payments received on a rolling 12 month basis.
String should begin with January and end with
December.
Time 30 Days Delinquent in Indicates the number of times a loan payment has
Past 12 Months been made 30 or more days delinquent in the past
12 months.
A
Time 60 Days Delinquent in Indicates the number of times a loan payment has
Past 12 Months been made 60 or more days delinquent in the past
12 months.
A
Time 90 Days Delinquent in Indicates the number of times a loan payment has
Past 12 Months been made 90 or more days delinquent in the past
12 months.
A
Last Modification B Date that loan was last modified.
Date
Last Extension Date B Date loan term was last extended.
Total Extension B Number of months loan has been extended
Months in total.
Restructured B Total amount of restructured interest.
Interest
Property Sale Date A Date property sold. Date
Debt To Income Ratio A Debt To Income Ratio Number
Senior Lien Amount A Most recently recorded senior lien Number
amount.
Recent Property A Most recent appraised value or BPO Number
Valuation value.
Recent Property A Date of most recent valuation. Date
Valuation Date
Valuation Method A Identify method used to obtain new Text
valuation. See Enumerations worksheet.
Valuation Firm T Name of the Firm who appraised the Text
property
Current FICO T Current FICO score. Number
FICO Date T FICO Date. Date
MONTHLY SERVICING
UPDATES
-----------------
Borrower Payments
Total Monthly A Total cash received from borrower. Number
Payment
Total Monthly A Cash applied to principal. Number
Payment Principal
Total Monthly A Cash applied to interest. Number
Payment Interest
Total Monthly Payment Cash applied to fees. Text
Penalties / Fee
A
Total Monthly A Cash applied to escrow account. Number
Escrow Payment
Total Monthly T Total amount borrower prepaid Number
Prepayment Amount
Payment Date A Date the payment was made. Date
Scheduled P&I A Borrower Scheduled P&I payment for the Number
month
REO Rent Collection A Collection of rent on an REO Property
Servicer Payments
Monthly Escrow A Net escrow advances made or recovered Number
Advances by servicer. Positive value denotes
payments made by servicer.
Monthly Corporate A Net corporate advances made or Number
Advances recovered by servicer. Positive value
denotes payments made by servicer.
Monthly Non Recoverable Net Non Recoverable Corporate Advances Number
Corporate Advances made or recovered by Servicer.
A Positive value denotes payments made by
Servicer.
Principal Advances A Total outstanding principal advances Number
made by servicer.
Interest Advances A Total outstanding interest advances Number
made by servicer.
LPMI Flag A Code/Flag to determine if PMI is paid Text
by owner of loan
LPMI Rate A Rate per annum of LPMI premiums Number
Account Balances
Beginning Scheduled A Beginning scheduled loan balance. If Number
Balance the loan is serviced on a scheduled
balance basis
Ending Scheduled A Ending scheduled loan balance. If the
Balance loan is serviced on a scheduled balance
basis
Escrow Balance A Current balance of escrow account Number
(borrower's positive funds).
Escrow Advance A Total outstanding escrow advance Number
Balance balance.
Recoverable A Total outstanding Recoverable corporate Number
Corporate Advance advance balance amount.
Balance
Non Recoverable Corporate Total outstanding Non Recoverable Number
Advance Balance corporate advance balance amount.
A
Suspense Account A Total suspense account balance Number
Balance
Accrued Interest A Total Accrued Interest on loan. Number
Account Management
Statistics
Forced Placed T Code indicating loan is on forced
Insurance Flag placed insurance.
Annual Forced T Amount of forced placed policy.
Placed Insurance
Stop Advance Flag B Code indicating loan has been placed in Text
a stop advance status. Example:
Y=Stop Advance.
Stop Advance B Amount of principal and interest
Recovered advances recovered at stop date.
Stop Advance Start B Date loan was initially placed on a Date
Date stop advance status.
Stop Advance B Date stop advance status was reversed. Date
Reversal Date
Stop Advance B Amount of advances reversed. Number
Reversal Amount
Last Contact Date A Date of Servicer's last contact with Date
the borrower.
Last Attempt Date A Date of the Servicer's last attempt to Date
contact the borrower.
Bankruptcy Flag A Flag indicating loan is in bankruptcy. Text
Bankruptcy Chapter A Chapter of bankruptcy (7, 11, 12, 13). Text
Bankruptcy Start A Bankruptcy filing date. Date
Date
Bankruptcy End Date A Dismissal/Discharge date. Date
Bankruptcy Post A Payment due date of Bankruptcy payment Date
Petition Due Date plan. In essence the new due date.
Motion for Relief A Motion for Relief Request Date. Date
Request Date
Motion for Relief A Date
Filing Date
Motion for Relief A Motion for Relief Hearing Date. Date
Hearing Date
Motion for Relief A Motion for Relief Granted Date. Date
Granted Date
Motion for Relief N Date the motion was Denied (if Date
Denied Date applicable)
In Demand Flag T Code indicating demand letter has been Text
sent.
In Demand Start Date T Date demand letter was sent. Date
In Demand End Date T Expiration of demand letter. Date
Foreclosure Start A Date foreclosure flag placed on loan. Date
Date
Due Date At Referral T The revised due date on any payment Date
modification.
Foreclosure T On loans that are in Foreclosure the Servicer
Estimated End Date estimate of when the FCL will be completed.
Foreclosure Sale A Date of actual foreclosure sale. Date
Date
Foreclosure end date T Date of recording of foreclosure deed. Date
First Legal Date A Date of first legal action taken on Date
foreclosure.
Foreclosure B Indicates if the loan has moved out of Number
Resolution Flag foreclosure (i.e. Did not go to REO).
Foreclosure B Method used by the servicer to prevent the
Resolution Type foreclosed loan from moving into REO (i.e.
Reinstated, Paid Off, Worked out Repayment
plan....).
Foreclosure On Hold B Flag indicating that the loan is in
foreclosure but on hold.
Foreclosure Hold B Date indicating when the loan's Date
Start Date foreclosure proceedings were put on
hold.
Bankruptcy Cash B Number of days an active foreclosure has been in
Delays BK subsequent to its initial foreclosure start
date.
Forbearance Cash B Number of days an active foreclosure has been in
Delays forbearance subsequent to its initial foreclosure
start date.
Non - Cash Delays B Number of allowable days that a loan's
foreclosure proceedings have been on hold due to
a non cash delay (i.e. Title problem...) [again as
per Fannie time line]
Forbearance Start A Date forbearance plan was initiated. Date
Date
Forbearance Payment A Amount of payment under Forbearance Number
plan.
Forbearance End Date A Date forbearance plan scheduled to be Date
complete.
Eviction Start Date A Date eviction flag placed on loan. Date
Eviction End Date A Date property is vacated. Date
REO Start Date A Date REO flag placed on loan (including Date
any redemption periods).
REO End Date A Date property is sold. Date
REO Sub Status A Status while within REO. See
Enumerations worksheet.
Not Acquired Date T Date that the REO enters "Not Acquired" Date
sub status
Eviction Date A Date that the REO enters "Eviction" sub Date
status
Possession Date T Date that the REO enters "Possession" Date
sub status
Listed Date A Date that the REO enters "Listed" sub Date
status
Under Contract Date T Date that the REO enters "Under Date
Contract" sub status
Estimated Sale Date A Servicer estimated closing date on loan Date
Days In REO A Number of Days from the REO becomes Number
marketable to the As of Date
Estimated Sales A Servicer estimated REO Sales Price Number
Price
Possession Date A Date when the servicer takes possession of the
property. Date we have full access to the
property, eviction completed
Redemption End Date A Legal time period, determined by State, when
borrower can redeem their property. Property not
available for sale until redemption completed (no
beginning date, just an end date)
Initial Listing A First listing price of property. Number
Price
Initial Listing Date A Date of the first listing price of Date
property
Current List Price A Most recent listing price of property. Number
Current List Date A Date of the most recent listing price Date
of property.
Reason For Default A Servicer Code representing the Reason for
Default. See Enumerations worksheet.
LIQUIDATED LOANS (Liquidated and Paid Off loans)
----------------
Termination Type A Type of liquidation. See Enumerations Text
worksheet.
Balance at A Actual Principal balance at time of Number
Termination termination.
Scheduled Sale Date A Dates of planned sales for properties in Date
Foreclosure
Property Sales Price A Sales price if liquidation was short sale or Number
REO sale.
Liquidation Date A Date property liquidated. Date
Gross Total Proceeds A Gross Total Proceeds. Number
Net Total Proceeds A Gross total proceeds less expenses.
Principal Advanced A Total of principal advanced at time of Number
liquidation.
Interest Advanced A Total of interest advanced at time of Number
liquidation.
Deferred Interest T Amount of deferred interest on the loan @ Number
liquidation
Accrued Servicing T Servicing fee recovered at time of Number
Fee Recovered liquidation.
Corporate Advances The amount of the Total Corporate Advance Number
Recovered at balance recovered at termination
Termination A
Escrow Advances The amount of the Total Escrow Advance Number
Recovered at balance recovered at termination
Termination A
Commission A The broker commission amount on liquidation Number
Seller Concession A The dollar amt of seller concessions upon Number
liquidation.
Taxes A Taxes paid on liquidation Number
Repairs A Cost of Repairs to property Number
Water and Sewer A Water & Sewer costs Number
Expenses Recovered A The amount of the Total Expenses recovered Number
at Termination at termination
Corporate Advances A Corporate advance balance at time of Number
at Termination liquidation.
Escrow Advances at T Escrow advance balance at time of Number
Termination liquidation.
Days from A Days from Acquisition to Close Number
Acquisition to Close
Days from Possession A Days from Possession to Close Number
to Close
Charge-off amount A Loss amount. Number
Severity A Severity percentage.
Severity Formula A Formula for calculating Severity percentage. Text
Potential Deficiency N Flag indicating loan is referred for Text
Judgment Flag deficiency collections.
Potential Deficiency N Deficiency balance reported to borrower/IRS. Number
Amount
Deficiency Proceeds N Deficiency proceeds collected in current Number
(this period) month.
Deficiency Proceeds N Deficiency proceeds collected to date. Number
Total (to date)
Deficiency Vendor N Deficiency vendor out of pocket expenses. Number
Expense
Deficiency Servicer N Deficiency vendor collection fee Number
Expense
Hazard Insurance B Date hazard claim filed. Date
Claim Date
Hazard Insurance B Date hazard claim due. Number
Claim Due Date
Hazard Insurance B Amount of hazard claim. Date
Claim Amount
Hazard Insurance Amount of hazard claim paid to investor. Number
Claim Paid Amount B
MI Insurance Claim A Date MI claim filed.
Date
MI Insurance Claim A Date MI claim is due to be paid.
Due Date
MI Insurance Claim A Expected MI proceeds.
Amount
MI Insurance Claim A Actual MI proceeds received.
Paid Amount
Servicer Hold Back B Amount servicer withholds for future
Amount trailing expenses.
Interest
Calculation Method
----------------------------------------------------
3360 30/360
A360 Actual/360
A365 Actual/365
AA Actual/Actual
----------------------------------------------------
Loan Type
----------------------------------------------------
COMI Conventional, with mi.
Collecting a premium from the
borrower for mortgage insurance
and is FHA and is VA
CONV Conventional, no mi
FHA FHA Mortgage
HEL Home Equity Line of credit
CC Credit Card
A Auto
B Boats
RV RV's
MFG Manufactured Housing
ATV ATV
VA VA Mortgage
OTH Other
----------------------------------------------------
Occupancy Type
----------------------------------------------------
2ND 2nd Home
NOO Non Owner Occupied
OO Owner Occupied
VA Vacant
----------------------------------------------------
Property Type
----------------------------------------------------
2F 2 Family
3F 3 Family
4F 4 Family
2-4F 2-4 Family
AUTO Automobile
BOAT Boat
COND Condominium
COOP Cooperative
HR-CONDO High Rise Condo
HVAC HVAC
MF Multi Family
MH Manufactured Housing
MX Mixed Use
OF Office
OTH Other
PUDA PUD - Attached
PUDD PUD - Detached
PWR PowerSports
RT Retail
RV Recreational Vehicle
SF Single Family
TH TownHouse
----------------------------------------------------
Purpose of Loan
----------------------------------------------------
PUR Purchase
RELO Relocation
REFI Rate/Term Refinance
CASH Cash Out Refinance
DEBT Cash Out Debt Consolidation
IMPR Cash Out Home Improvement
EDUC Cash Out Medical or Educational
Expense
TIT1 Title One Home Improvement
CONST New Construction
REO Facilitate REO
----------------------------------------------------
Status of Loan
----------------------------------------------------
BU Bankrupt - Unknown Status
C Current
DISP Dispute
F Foreclosure
NE Non Equity (NPV of current
balance < $7,500)
FB Forbearance
ID In Demand
LIT Litigation
NLS No Longer Serviced
PO Paid Off- Borrower paid down
entire balance
REO Real Estate Owned - MUST
Include a REO sub status
RSLD Resolved
LIQ Liquidated - MUST include a
Termination Type
U Unknown
----------------------------------------------------
Termination Type
----------------------------------------------------
CO Charge Off
COC Charge Off with cash possible
NLPO Negotiated Loan Payoff
NS Negotiated Sale
PO Paid Off
PPOC PPO with More Cash Possible
REOS REO Sale
TPPO Third Party Paid Off
----------------------------------------------------
Valuation Method
----------------------------------------------------
DB Drive By
WT Walk Through
OTH Other
APPR Appraisal
DD Due Diligence
PRFC Pre Foreclosure
SUPP Supplemental
RR Re-review
----------------------------------------------------
REO Sub Status
----------------------------------------------------
AC Acquired
PS Possession
EV Eviction
LS Listed
UC Under Contract
----------------------------------------------------
Reason For Default
----------------------------------------------------
ABP Abandonment of Property
BF Business Failure
CI Curtailment Of Income
D Death
EO Excessive Obligations
ILL Illness
ITR Inability To Rent
MD Marital Difficulties
MS Military Service
MI Mortgagor Incarcerated
N No Reason
PD Payment Dispute
PP Property Problem
SP Servicing Problems
TOP Transfer Of Ownership Pen
UC Unable To Contact
UEMP Unemployment
----------------------------------------------------
EXHIBIT N-2
STANDARD FILE LAYOUT
------------------------------- -------------------------------------------------- ----------- ------------------------------------
Column Name Description Decimal Format Comment
------------------------------- -------------------------------------------------- ----------- ------------------------------------
LOAN_NBR Loan Number assigned by investor Text up to 10 digits
------------------------------- -------------------------------------------------- ----------- ------------------------------------
SERVICER LOAN_NBR Servicer Loan Number Text up to 10 digits
------------------------------- -------------------------------------------------- ----------- ------------------------------------
BORROWER_NAME Mortgagor name assigned to Note Max length of 30
------------------------------- -------------------------------------------------- ----------- ------------------------------------
SCHED_PMT_AMT P&I constant 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
NOTE_INT_RATE Gross Interest Rate 4 Max length of 6
------------------------------- -------------------------------------------------- ----------- ------------------------------------
NET_RATE Gross Interest Rate less the Service Fee Rate 4 Max length of 6
------------------------------- -------------------------------------------------- ----------- ------------------------------------
SERV_FEE_RATE Service Fee Rate 4 Max length of 6
------------------------------- -------------------------------------------------- ----------- ------------------------------------
NEW_PAY_AMT ARM loan's forecasted P&I constant 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
NEW_LOAN_RATE ARM loan's forecasted Gross Interest Rate 4 Max length of 6
------------------------------- -------------------------------------------------- ----------- ------------------------------------
ARM_INDEX_RATE ARM loan's index Rate used 4 Max length of 6
------------------------------- -------------------------------------------------- ----------- ------------------------------------
ACTL_BEG_BAL Beginning Actual Balance 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
ACTL_END_BAL Ending Actual Balance 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
NEXT_DUE_DATE Borrower's next due date MM/DD/YYYY
------------------------------- -------------------------------------------------- ----------- ------------------------------------
CURT_AMT_1 Curtailment Amount 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
CURT_DATE_1 Due date Curtailment was applied to MM/DD/YYYY
------------------------------- -------------------------------------------------- ----------- ------------------------------------
CURT_ADJ_ AMT_1 Curtailment Interest if applicable 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
CURT_AMT_2 Curtailment Amount 2 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
CURT_DATE_2 Due date Curtailment was applied to MM/DD/YYYY
------------------------------- -------------------------------------------------- ----------- ------------------------------------
CURT_ADJ_ AMT2 Curtailment Interest if applicable 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
CURT_AMT_3 Curtailment Amount 3 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
CURT_DATE_3 Due date Curtailment was applied to MM/DD/YYYY
------------------------------- -------------------------------------------------- ----------- ------------------------------------
CURT_ADJ_AMT3 Curtailment Interest, if applicable 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
SCHED_BEG_BAL Beginning Scheduled Balance 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
SCHED_END_BAL Ending Scheduled Balance 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
SCHED_PRIN_AMT Scheduled Principal portion of P&I 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
Scheduled Net Interest (less Service Fee)
SCHED_NET_INT portion of P&I 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
Liquidation Principal Amt to bring balance to
LIQ_AMT zero 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
PIF_DATE Liquidation Date MM/DD/YYYY
------------------------------- -------------------------------------------------- ----------- ------------------------------------
ACTION_CODE Either 60 for liquidation or 65 for Repurchase Max length of 2
------------------------------- -------------------------------------------------- ----------- ------------------------------------
PRIN_ADJ_AMT Principal Adjustments made to loan, if applicable 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
INT_ADJ_AMT Interest Adjustment made to loan, if applicable 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
PREPAYMENT PENALTY AMT Prepayment penalty amount, if applicable 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
Soldier and Sailor Adjustment amount, if
SOILDER_SAILOR ADJ AMT applicable 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
NON ADV LOAN AMT Non Recoverable Loan Amount, if applicable 2 No commas(,) or dollar signs ($)
------------------------------- -------------------------------------------------- ----------- ------------------------------------
EXHIBIT N-3
STANDARD FILE LAYOUT FOR DELINQUENCY REPORTING
-------------------------------------- ------------------------------------------------------- ------------ -----------------
Column/Header Name Description Decimal Format Comment
-------------------------------------- ------------------------------------------------------- ------------ -----------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer.
This may be different than the LOAN_NBR
-------------------------------------- ------------------------------------------------------- ------------ -----------------
LOAN_NBR A unique identifier assigned to each loan by the
originator.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
CLIENT_NBR Servicer Client Number
-------------------------------------- ------------------------------------------------------- ------------ -----------------
SERV_INVESTOR_NBR Contains a unique number as assigned by an external
servicer to identify a group of loans in their
system.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
BORROWER_FIRST_NAME First Name of the Borrower.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
BORROWER_LAST_NAME Last name of the borrower.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
XXXX_XXXXXXX Xxxxxx Name and Number of Property
-------------------------------------- ------------------------------------------------------- ------------ -----------------
PROP_STATE The state where the property located.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
PROP_ZIP Zip code where the property is located.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is due to MM/DD/YYYY
the servicer at the end of processing
cycle, as reported by Servicer.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
-------------------------------------- ------------------------------------------------------- ------------ -----------------
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was filed. MM/DD/YYYY
-------------------------------------- ------------------------------------------------------- ------------ -----------------
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was filed.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
BANKRUPTCY_CASE_NBR The case number assigned by the court to the
bankruptcy filing.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
POST_PETITION_DUE_DATE The payment due date once the bankruptcy has been MM/DD/YYYY
approved by the courts
-------------------------------------- ------------------------------------------------------- ------------ -----------------
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. Either MM/DD/YYYY
by Dismissal, Discharged and/or a Motion For Relief
Was Granted.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The MM/DD/YYYY
Servicer
-------------------------------------- ------------------------------------------------------- ------------ -----------------
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A Loan Such
As;
-------------------------------------- ------------------------------------------------------- ------------ -----------------
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is Scheduled To MM/DD/YYYY
End/Close
-------------------------------------- ------------------------------------------------------- ------------ -----------------
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
-------------------------------------- ------------------------------------------------------- ------------ -----------------
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the servicer MM/DD/YYYY
with instructions to begin foreclosure proceedings.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue MM/DD/YYYY
Foreclosure
-------------------------------------- ------------------------------------------------------- ------------ -----------------
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a MM/DD/YYYY
Foreclosure Action
-------------------------------------- ------------------------------------------------------- ------------ -----------------
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected to MM/DD/YYYY
occur.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
-------------------------------------- ------------------------------------------------------- ------------ -----------------
FRCLSR_SALE_AMT The amount a property sold for at the foreclosure 2 No commas(,) or
sale. dollar signs ($)
-------------------------------------- ------------------------------------------------------- ------------ -----------------
EVICTION_START_DATE The date the servicer initiates eviction of the MM/DD/YYYY
borrower.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
EVICTION_COMPLETED_DATE The date the court revokes legal possession of the MM/DD/YYYY
property from the borrower.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,) or
dollar signs ($)
-------------------------------------- ------------------------------------------------------- ------------ -----------------
LIST_DATE The date an REO property is listed at a particular MM/DD/YYYY
price.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,) or
dollar signs ($)
-------------------------------------- ------------------------------------------------------- ------------ -----------------
OFFER_DATE_TIME The date an offer is received by DA Admin or by the MM/DD/YYYY
Servicer.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
REO_CLOSING_DATE The date the REO sale of the property is scheduled to MM/DD/YYYY
close.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
-------------------------------------- ------------------------------------------------------- ------------ -----------------
OCCUPANT_CODE Classification of how the property is occupied.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
PROP_CONDITION_CODE A code that indicates the condition of the property.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
-------------------------------------- ------------------------------------------------------- ------------ -----------------
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
-------------------------------------- ------------------------------------------------------- ------------ -----------------
CURR_PROP_VAL The current "as is" value of the property based on 2
brokers price opinion or appraisal.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
REPAIRED_PROP_VAL The amount the property would be worth if repairs are 2
completed pursuant to a broker's price opinion or
appraisal.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
If applicable:
-------------------------------------- ------------------------------------------------------- ------------ -----------------
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
-------------------------------------- ------------------------------------------------------- ------------ -----------------
DELINQ_REASON_CODE The circumstances which caused a borrower to stop
paying on a loan. Code indicates the reason why the
loan is in default for this cycle.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With Mortgage MM/DD/YYYY
Insurance Company.
-------------------------------------- ------------------------------------------------------- ------------ -----------------
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or
dollar signs ($)
-------------------------------------- ------------------------------------------------------- ------------ -----------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim MM/DD/YYYY
Payment
-------------------------------------- ------------------------------------------------------- ------------ -----------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,) or
dollar signs ($)
-------------------------------------- ------------------------------------------------------- ------------ -----------------
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
-------------------------------------- ------------------------------------------------------- ------------ -----------------
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No commas(,) or
dollar signs ($)
-------------------------------------- ------------------------------------------------------- ------------ -----------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By MM/DD/YYYY
The Pool Insurer
-------------------------------------- ------------------------------------------------------- ------------ -----------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,) or
dollar signs ($)
-------------------------------------- ------------------------------------------------------- ------------ -----------------
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
-------------------------------------- ------------------------------------------------------- ------------ -----------------
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or
dollar signs ($)
-------------------------------------- ------------------------------------------------------- ------------ -----------------
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
-------------------------------------- ------------------------------------------------------- ------------ -----------------
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or
dollar signs ($)
-------------------------------------- ------------------------------------------------------- ------------ -----------------
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
-------------------------------------- ------------------------------------------------------- ------------ -----------------
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or
dollar signs ($)
-------------------------------------- ------------------------------------------------------- ------------ -----------------
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
-------------------------------------- ------------------------------------------------------- ------------ -----------------
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or
dollar signs ($)
-------------------------------------- ------------------------------------------------------- ------------ -----------------
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
-------------------------------------- ------------------------------------------------------- ------------ -----------------
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
-------------------------------------- ------------------------------------------------------- ------------ -----------------
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,) or
dollar signs ($)
-------------------------------------- ------------------------------------------------------- ------------ -----------------
Standard File Codes - Delinquency Reporting
-------------------------------------------
The Loss Mit Type field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply
Xxxxx Fargo Bank with a description of each of the Loss Mitigation Types
prior to sending the file.
The Occupant Code field should show the current status of the property code
as follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The Property Condition field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
The FNMA Delinquent Reason Code field should show the Reason for Delinquency
as follows:
--------------------------------------------------------
Delinquency Code Delinquency Description
001 FNMA-Death of principal mortgagor
002 FNMA-Illness of principal mortgagor
003 FNMA-Illness of mortgagor's family
member
004 FNMA-Death of mortgagor's family
member
005 FNMA-Marital difficulties
006 FNMA-Curtailment of income
007 FNMA-Excessive Obligation
008 FNMA-Abandonment of property
009 FNMA-Distant employee transfer
011 FNMA-Property problem
012 FNMA-Inability to sell property
013 FNMA-Inability to rent property
014 FNMA-Military Service
015 FNMA-Other
016 FNMA-Unemployment
017 FNMA-Business failure
019 FNMA-Casualty loss
022 FNMA-Energy environment costs
023 FNMA-Servicing problems
026 FNMA-Payment adjustment
027 FNMA-Payment dispute
029 FNMA-Transfer of ownership pending
030 FNMA-Fraud
031 FNMA-Unable to contact borrower
INC FNMA-Incarceration
The FNMA Delinquent Status Code field should show the Status of Default as
follows:
-------------------------------------------------------
Status Code Status Description
-------------------------------------------------------
09 Forbearance
17 Pre-foreclosure Sale Closing Plan
Accepted
24 Government Seizure
26 Refinance
27 Assumption
28 Modification
29 Charge-Off
30 Third Party Sale
31 Probate
32 Military Indulgence
43 Foreclosure Started
44 Deed-in-Lieu Started
49 Assignment Completed
61 Second Lien Considerations
62 Veteran's Affairs-No Bid
63 Veteran's Affairs-Refund
64 Veteran's Affairs-Buydown
65 Chapter 7 Bankruptcy
66 Chapter 11 Bankruptcy
67 Chapter 13 Bankruptcy
EXHIBIT N-4
FORM 332
The numbers on the form correspond with the numbers listed below.
Liquidation and Acquisition Expenses:
-------------------------------------
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default
through liquidation breaking out the net interest and servicing
fees advanced is required.
2. The Total Interest Due less the aggregate amount of servicing fee
that would have been earned if all delinquent payments had been
made as agreed. For documentation, an Amortization Schedule from
date of default through liquidation breaking out the net interest
and servicing fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance
of the Mortgage Loan as calculated on a monthly basis. For
documentation, an Amortization Schedule from date of default
through liquidation breaking out the net interest and servicing
fees advanced is required.
4-12. Complete as applicable. All line entries must be supported by
copies of appropriate statements, vouchers, receipts, bills,
canceled checks, etc., to document the expense. Entries not
properly documented will not be reimbursed to the Servicer.
13. The total of lines 1 through 12.
(a) Credits:
14-21. Complete as applicable. All line entries must be supported by
copies of the appropriate claims forms, EOBs, HUD-1 and/or other
proceeds verification, statements, payment checks, etc. to document
the credit. If the Mortgage Loan is subject to a Bankruptcy
Deficiency, the difference between the Unpaid Principal Balance of
the Note prior to the Bankruptcy Deficiency and the Unpaid Principal
Balance as reduced by the Bankruptcy Deficiency should be input on
line 20.
22. The total of lines 14 through 21.
Please note: For HUD/VA loans, use line (15) for Part A/Initial proceeds
and line (16) for Part B/Supplemental proceeds.
(b) Total Realized Loss (or Amount of Any Gain)
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized gain, show the amount in parenthesis ( ).
XXXXX FARGO BANK, N.A.
CALCULATION OF REALIZED LOSS/GAIN
Prepared by: __________________ Date: _______________
Phone: ______________________ Email Address:_____________________
------------------- ------------------- --------------------
Servicer Loan No. Servicer Name Servicer Address
------------------- ------------------- --------------------
XXXXX FARGO BANK, N.A. Loan No._____________________________
Borrower's Name:________________________________________________________
Property
Address:________________________________________________________________
Liquidation and Acquisition Expenses:
(1) Actual Unpaid Principal Balance of Mortgage Loan $ ______________ (1)
(2) Interest accrued at Net Rate ________________ (2)
(3) Accrued Servicing Fees ________________ (3)
(4) Attorney's Fees ________________ (4)
(5) Taxes ________________ (5)
(6) Property Maintenance ________________ (6)
(7) MI/Hazard Insurance Premiums ________________ (7)
(8) Utility Expenses ________________ (8)
(9) Appraisal/BPO ________________ (9)
(10) Property Inspections ________________ (10)
(11) FC Costs/Other Legal Expenses ________________ (11)
(12) Other (itemize) $________________(12)
Cash for Keys__________________________ ________________
HOA/Condo Fees_______________________ ________________
______________________________________ ________________
______________________________________ ________________
Total Expenses $ _______________(13)
Credits:
(14) Escrow Balance $ _______________(14)
(15) HIP Refund ________________ (15)
(16) Rental Receipts ________________ (16)
(17) Hazard Loss Proceeds ________________ (17)
(18) Primary Mortgage Insurance Proceeds ________________ (18)
(19) Pool Insurance Proceeds ________________ (19)
(20) Proceeds from Sale of Acquired Property ________________ (20)
(21) Other (itemize) ________________ (21)
_________________________________________ _________________
_________________________________________ _________________
Total Credits $________________(22)
Total Realized Loss (or Amount of Gain) $________________(23)
EXHIBIT O
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM-10-K
GSAMP Trust 2005-AHL2
Mortgage Pass-Through Certificates
Series 2005-AHL2
This Certification is being made pursuant to Section 8.12(c) of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") relating
to the above-referenced Series, among GS Mortgage Securities Corp., as depositor
(the "Depositor"), Ocwen Loan Servicing, LLC, as servicer (the "Servicer"),
Xxxxx Fargo Bank, N.A., as master servicer (the "Master Servicer") and
securities administrator (the "Securities Administrator"), Deutsche Bank
National Trust Company, as custodian (the "Custodian"), and LaSalle Bank
National Association, as trustee (the "Trustee"). Capitalized terms used but not
defined herein shall have the meanings assigned in the Pooling and Servicing
Agreement.
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K (the "Annual
Report"), and all reports on Form 8-K containing distribution date
reports (collectively with this Annual Report, the "Reports") filed
in respect of periods included in the year covered by this Annual
Report, of the Trust;
2. Based on my knowledge, the information in the Reports, taken as a
whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made,
in light of the circumstances under which such statements were made,
not misleading as of the last day of the period covered by this
Annual Report;
3. Based on my knowledge, the servicing information required to be
provided to the Securities Administrator by the Master Servicer
under the Pooling and Servicing Agreement for inclusion in the
Reports is included in the Reports;
4. I am responsible for reviewing the activities performed by the
Servicer under the Pooling and Servicing Agreement and based upon my
knowledge and the annual compliance review required under the
Pooling and Servicing Agreement, and except as disclosed in the
Reports, the Servicer has fulfilled its obligations under the
Pooling and Servicing Agreement; and
5. The Reports disclose all significant deficiencies relating to the
Servicer's compliance with the minimum servicing standards based
upon the report provided by an independent public accountant, after
conducting a review in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar procedure as set
forth in the Pooling and Servicing Agreement, that is included in
the Reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: the Servicer.
Capitalized terms used but not defined herein have the meanings
assigned in the Pooling and Servicing Agreement among the Depositor, the
Servicer, the Master Servicer, the Securities Administrator, the Custodian and
the Trustee.
_______________________________________
[Signature]
Name:______________________
Title: ____________________
EXHIBIT P
FORM OF BACK-UP CERTIFICATION
OCWEN LOAN SERVICING, LLC
[Name and address of
depositor, master servicer, securities
administrator and trustee]
Re: GSAMP Trust 2005-AHL2
---------------------
Ocwen Loan Servicing, LLC, as Servicer hereby certifies to the Depositor,
the Master Servicer, the Trustee and the Securities Administrator, and each of
their officers, directors and affiliates that:
1. Based on my knowledge, the information in the Annual Statement of
Compliance, the Annual Independent Public Accountant's Servicing Report and all
servicing reports, officer's certificates and other information relating to the
servicing of the Mortgage Loans submitted to the Master Servicer taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
date of this certification;
2. Based on my knowledge, the servicing information required to be
provided to the Master Servicer by the Servicer under the Pooling and Servicing
Agreement has been provided to the Master Servicer;
3. I am responsible for reviewing the activities performed by the Servicer
under the Pooling and Servicing Agreement and based upon the review required by
the Pooling and Servicing Agreement, and except as disclosed in the Annual
Statement of Compliance and the Annual Independent Public Accountant's Servicing
Report submitted to the Master Servicer, the Servicer has, as of the date of
this certification fulfilled its obligations under the Pooling and Servicing
Agreement; and
4. I have disclosed to the Master Servicer all significant deficiencies
relating to the Servicer's compliance with the minimum servicing standards in
accordance with a review conducted in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar standard as set forth in the
Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the meanings ascribed
to them in the Pooling Servicing Agreement, dated as of December 1, 2005 (the
"Pooling and Servicing Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Ocwen Loan Servicing, LLC, as servicer (the
"Servicer"), Xxxxx Fargo Bank, N.A., as master servicer (the "Master Servicer")
and securities administrator (the "Securities Administrator"), Deutsche Bank
National Trust Company, as custodian (the "Custodian"), and LaSalle Bank
National Association, as trustee (the "Trustee").
OCWEN LOAN SERVICING, LLC,
as Servicer
By: __________________________
Name:
Title:
Date:
EXHIBIT Q
RESPONSIBLE PARTY AGREEMENTS
