EXHIBIT 4
EXECUTION COPY
GS MORTGAGE SECURITIES CORP.,
Depositor,
OCWEN FEDERAL BANK FSB,
Servicer,
BANK ONE, N.A.,
Responsible Party and Servicer,
and
JPMORGAN CHASE BANK,
Trustee and Backup Servicer
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POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2004
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GSAMP TRUST 2004-SEA2
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2004-SEA2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.............
Section 2.03 Representations, Warranties and Covenants of the
Servicer and the Responsible Party..........................
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.............
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans..........................
Section 3.02 Subservicing Agreements between the Servicer and
Subservicers................................................
Section 3.03 Successor Subservicers......................................
Section 3.04 Liability of the Servicer...................................
Section 3.05 No Contractual Relationship between Subservicers and the
Trustee.....................................................
Section 3.06 Assumption or Termination of Subservicing Agreements by
Trustee.....................................................
Section 3.07 Collection of Certain Mortgage Loan Payments................
Section 3.08 Subservicing Accounts.......................................
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.............................................
Section 3.10 Collection Account..........................................
Section 3.11 Withdrawals from the Collection Account.....................
Section 3.12 Investment of Funds in the Collection Account and the
Distribution Account........................................
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions
and Fidelity Coverage.......................................
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption Agreements...
Section 3.15 Realization upon Defaulted Mortgage Loans...................
Section 3.16 Release of Mortgage Files...................................
Section 3.17 Title, Conservation and Disposition of REO Property.........
Section 3.18 [Reserved]..................................................
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 Backup 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 Transfer of Servicing for the Mortgage Loans................
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances....................................................
Section 4.02 Priorities of Distribution..................................
Section 4.03 Monthly Statements to Certificateholders....................
Section 4.04 Certain Matters Relating to the Determination of LIBOR......
Section 4.05 Allocation of Applied Realized Loss Amounts.................
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,
the Backup 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
DEFAULT
Section 7.01 Events of Default...........................................
Section 7.02 Backup Servicer to Act; Appointment of Successor............
Section 7.03 Notification to Certificateholders..........................
Section 7.04 Duties of Backup Servicer...................................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee.......................................
Section 8.02 Certain Matters Affecting the Trustee.......................
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.......
Section 8.04 Trustee May Own Certificates................................
Section 8.05 Trustee's Fees and Expenses.................................
Section 8.06 Eligibility Requirements for the Trustee....................
Section 8.07 Resignation and Removal of the Trustee......................
Section 8.08 Successor Trustee...........................................
Section 8.09 Merger or Consolidation of the Trustee......................
Section 8.10 Appointment of Co-Trustee or Separate Trustee...............
Section 8.11 Tax Matters.................................................
Section 8.12 Periodic Filings............................................
Section 8.13 Tax Classification of the Excess Reserve Fund Account.......
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage
Loans.......................................................
Section 9.02 Final Distribution on the Certificates......................
Section 9.03 Additional Termination Requirements.........................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment...................................................
Section 10.02 Recordation of Agreement; Counterparts......................
Section 10.03 Governing Law...............................................
Section 10.04 Intention of Parties........................................
Section 10.05 Notices.....................................................
Section 10.06 Severability of Provisions..................................
Section 10.07 Assignment; Sales; Advance Facilities.......................
Section 10.08 Limitation on Rights of Certificateholders..................
Section 10.09 Inspection and Audit Rights.................................
Section 10.10 Certificates Nonassessable and Fully Paid...................
Section 10.11 Waiver of Jury Trial........................................
Section 10.12 Limitation of Damages.......................................
SCHEDULES
Schedule I Mortgage Loan Schedule
Schedule II Representations and Warranties of Ocwen, as Servicer
Schedule III Representations and Warranties of Bank One
Schedule IV Class A-IO Scheduled Notional Amount
EXHIBITS
Exhibit A-1 Form of Class A (other than Class A-IO), Class M and Class B
Certificates
Exhibit A-2 Form of Class A-IO Certificates
Exhibit B [Reserved]
Exhibit C Form of Class R Certificate
Exhibit D Form of Class X Certificate
Exhibit E Form of Initial Certification of Trustee
Exhibit F Form of Document Certification and Exception Report of Trustee
Exhibit G Form of Residual Transfer Affidavit
Exhibit H Form of Transferor Certificate
Exhibit I Form of Rule 144A Letter
Exhibit J Form of Request for Release
Exhibit K Form of Contents for Each Mortgage File
Exhibit L Servicer Reporting Requirements
Exhibit M Form of Certification to be provided with Form 10-K
Exhibit N Form of Trustee Certification to be provided to Depositor
Exhibit O Form of Servicer Certification to be provided to Depositor
Exhibit P Duties of Backup Servicer
THIS POOLING AND SERVICING AGREEMENT, dated as of April 1, 2004, is
among GS MORTGAGE SECURITIES CORP., a Delaware corporation (the "Depositor"),
OCWEN FEDERAL BANK FSB, a federally chartered savings bank ("Ocwen"), JPMORGAN
CHASE BANK, a New York banking corporation ("JPMorgan"), and BANK ONE, N.A., a
national banking association ("Responsible Party").
W I T N E S S E T H:
- - - - - - - - - -
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Trustee shall elect that three segregated asset pools within the
Trust Fund be treated for federal income tax purposes as comprising three REMICs
(each, a "Trust REMIC" or, in the alternative, the Pooling-Tier REMIC, the
Lower-Tier REMIC and the Upper-Tier REMIC, respectively). As further described
herein, the Class X Certificates constitute, and each Class of Offered
Certificates (other than the right of each Class of Offered Certificates to
receive Basis Risk Carry Forward Amounts and the right of the Class X
Certificates to receive payments from the Cap Agreement) represents ownership
of, a regular interest in the Upper-Tier REMIC for purposes of the REMIC
Provisions. The Class R Certificates represent ownership of the sole Class of
residual interest in each of the Pooling-Tier REMIC, 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
Upper-Tier REMIC shall hold as assets the several classes of uncertificated
Lower-Tier Regular Interests, and the Lower-Tier REMIC shall hold as assets the
several classes of uncertificated Pooling-Tier Regular Interests, each set out
below. Each such Lower-Tier Regular Interest is hereby designated as a regular
interest in the Lower-Tier REMIC and each such Pooling-Tier Regular Interest is
hereby designated as a regular interest in the Pooling-Tier REMIC. The Class
LT-A-1, Class LT-A-2A, Class LT-A-2B, Class LT-A-IO, Class LT-M-1, Class LT-M-2,
Class LT-M-3, Class LT-M-4, Class LT- M-5, Class LT-B-1 and Class LT-B-2
Interests are hereby designated the LT-Accretion Directed Classes (the
"LT-Accretion Directed Classes"). Each Offered Certificate represents a
beneficial ownership of a regular interest in the Upper-Tier REMIC and the right
to receive Basis Risk Carry Forward Amounts and the Class X Certificates
represent beneficial ownership of the Class X Interest and the Excess Reserve
Account, which portions of the Trust Fund shall be treated as a grantor trust.
Pooling-Tier REMIC
Pooling-Tier Pooling-Tier Initial Pooling-Tier
Class Designation Interest Rate Principal Amount
----------------- ------------- ----------------
Class PT-A (1) $401,010,282
Class PT-B1 (1) $10,903,000
Class PT-B2 (1) $10,363,000
Class PT-B3 (1) $9,852,000
Class PT-B4 (1) $9,365,000
Class PT-B5 (1) $8,903,000
Class PT-B6 (1) $8,463,000
Class PT-B7 (1) $8,045,000
Class PT-B8 (1) $7,647,000
Class PT-B9 (1) $7,270,000
Class PT-B10 (1) $6,910,000
Class PT-B11 (1) $6,569,000
Class PT-B12 (1) $36,134,000
Class PT-B13 (1) $4,451,000
Class PT-B14 (1) $4,231,000
Class PT-B15 (1) $4,022,000
Class PT-B16 (1) $3,823,000
Class PT-B17 (1) $3,633,000
Class PT-B18 (1) $25,474,000
Class PT-B19 (1) $44,035,000
Class PT-R (2) (2)
(1)The interest rate with respect to any Distribution Date for these interests
is a per annum variable rate equal to the Class A-IO Net WAC Cap.
(2)The Class PT-R Interest is the sole Class of residual interest in the
Pooling-Tier REMIC and it does not have a principal amount or an interest
rate.
The Pooling-Tier REMIC shall hold as assets all of the assets
included in the Trust Fund other than the Cap Agreement, the Excess Reserve Fund
Account, the Pooling-Tier Regular Interests, the Lower-Tier Regular Interests
and the Upper-Tier Regular Interests.
On each Distribution Date, the Class PT-A, Class PT-B1, Class PT-B2,
Class PT-B3, Class PT-B4, Class PT-B5, Class PT-B6, Class PT-B7, Class PT-B8,
Class PT-B9, Class PT-B10, Class PT-B11, Class PT-B12, Class PT-B13, Class
PT-B14, Class PT-B15, Class PT-B16, Class PT-B17, Class PT-B18 and Class PT-B19
Interests shall receive distributions of interest and principal equal in the
aggregate to amounts distributable in respect of the Mortgage Loans pursuant to
Section 4.02 (other than to the Class R Certificates in respect of the Class
PT-R Interest) from amounts on deposit in the Distribution Account. Such amounts
with respect to interest shall accrue at the related Pooling-Tier Interest Rate
specified above. Any shortfalls of interest on the Mortgage Loans shall be
allocated, pro rata, to the Class PT-A Interest, Class PT-B1, Class PT-B2, Class
PT-B3, Class PT-B4, Class PT-B5, Class PT-B6, Class PT-B7, Class PT-B8, Class
PT-B9, Class PT-B10, Class PT-B11, Class PT-B12, Class PT-B13, Class PT-B14,
Class PT-B15, Class PT-B16, Class PT-B17, Class PT-B18 and Class PT-B19
Interests.
Amounts in reduction of the principal balance of the Pooling-Tier
Regular Interests in respect of the Mortgage Loans shall be allocated first, to
the Class PT-A Interest second, to the Class PT-B1 Interest, third, to the Class
PT-B2 Interest, fourth, to the Class PT-B3 Interest, fifth, to the Class PT-B4
Interest, sixth, to the Class PT-B5 Interest, seventh, to the Class PT-B6
Interest, eighth, to the Class PT-B7 Interest, ninth, to the Class PT-B8
Interest, tenth, to the Class PT-B9 Interest, eleventh, to the Class PT-B10
Interest, twelfth, to the Class PT-B11 Interest, thirteenth, to the Class PT-B12
Interest, fourteenth, to the Class PT-B13 Interest, fifteenth, to the Class
PT-B14 Interest, sixteenth, to the Class PT-B13 Interest, seventeenth, to the
Class PT-B16 Interest, eighteenth, to the Class PT-B17 Interest, nineteenth, to
the Class PT-B18 Interest, and twentieth, to the Class PT-B19 Interest in each
case, until its principal balance is reduced to zero. Realized Losses shall be
allocated in the same manner as amounts in reduction of principal balance. Such
amounts with respect to principal and any Realized Losses with respect to
principal shall reduce the principal balances of the Pooling-Tier Regular
Interests so that, in the aggregate, such balances correspond to the Pool Stated
Principal Balance of the Mortgage Loans as of the last day of the related
Collection Period. Any amounts remaining in Pooling-Tier REMIC on a Distribution
Date shall be distributed to the Class R Certificates in respect of the Class
PT-R Interest.
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Lower-Tier REMIC
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Lower-Tier Corresponding
Lower-Tier Interest Initial Lower-Tier Upper-Tier
Class Designation Rate Principal Amount REMIC Class
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Class LT-A-1 (1) 1/2 initial Class Certificate A-1
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-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-Accrual (1) 1/2 Pool Stated Principal
Balance plus1/2
Overcollateralized Amount
Class LT-A-IO (2) (3)
Class LT-R (4) (4)
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the WAC Cap.
(2) Notional Amount.
(3) The interest rate with respect to any Distribution Date for Class LT-A-IO
Interest is a per annum variable rate equal to the Class A-IO Pass-Through
Rate.
(4) The Class LT-R Interest is the sole Class of residual interest in the
Lower-Tier REMIC and it does not have a principal amount or an interest
rate.
The Lower-Tier REMIC shall hold as assets all of the assets included
in the Trust Fund other than the Cap Agreement, the Excess Reserve Fund Account,
and the Lower-Tier Regular Interests.
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount will be payable as a reduction of the Lower-Tier
Principal Amount of the LT-Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralized
Amount that is attributable to a reduction in the Lower-Tier Principal Amount of
its Corresponding Class) and will be accrued and added to the Lower-Tier
Principal Amount of the Class LT-Accrual Interest. On each Distribution Date,
the increase in the Lower-Tier Principal Amount of the Class LT-Accrual Interest
may not exceed interest accruals for such Distribution Date for the Class
LT-Accrual Interest. In the event that: (i) 50% of the increase in the
Overcollateralized Amount exceeds (ii) interest accruals on the Class LT-Accrual
Interest for such Distribution Date, the excess for such Distribution Date
(accumulated with all such excesses for all prior Distribution Dates) will be
added to any increase in the Overcollateralized Amount for purposes of
determining the amount of interest accrual on the Class LT-Accrual Interest
payable as principal on the LT-Accretion Directed Classes on the next
Distribution Date pursuant to the first sentence of this paragraph. All payments
of scheduled principal and prepayments of principal generated by the Mortgage
Loans shall be allocated (i) 50% to the Class LT-Accrual Interest and (ii) 50%
to the LT-Accretion Directed Classes (principal payments shall be allocated
among such LT-Accretion Directed Classes in an amount equal to 50% of the
principal amounts allocated to their respective Corresponding Classes), until
paid in full. Notwithstanding the above, principal payments allocated to the
Class X Interest that result in the reduction in the Overcollateralized Amount
shall be allocated to the Class LT-Accrual Interest (until paid in full).
Realized Losses shall be applied so that after all distributions have been made
on each Distribution Date (i) the principal balance of each of the LT-Accretion
Directed Classes is equal to 50% of the principal balance of their Corresponding
Class, and (ii) the Class LT-Accrual Interest is equal to 50% of the aggregate
Stated Principal Balance of the Mortgage Loans plus 50% of the
Overcollateralized Amount.
The Upper-Tier REMIC shall issue the following classes of Upper-Tier
Regular Interests, and each such interest, other than the Class UT-R Interest,
is hereby designated as a regular interest in the Upper-Tier REMIC.
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Upper-Tier REMIC
--------------------------------------------------------------------------------
Upper-Tier
Interest Initial Upper-Tier
Rate and Principal Amount
Corresponding and Corresponding Corresponding
Upper-Tier Class Pass-Through Class Certificate Class of
Class Designation Rate Balance Certificates
--------------------------------------------------------------------------------
Class A-1 (1) $ 52,000,000 Class A-1A(6)
Class A-2A (1) $ 355,360,000 Class A-2A(6)
Class A-2B (1) $ 69,040,000 Class A-2B(6)
Class A-IO (2) $ 220,093,000(3) Class A-IO(6)
Class M-1 (1) $ 46,554,000 Class M-1(6)
Class M-2 (1) $ 43,450,000 Class M-2(6)
Class M-3 (1) $ 15,518,000 Class M-3(6)
Class M-4 (1) $ 10,863,000 Class M-4(6)
Class M-5 (1) $ 9,931,000 Class M-5(6)
Class B-1 (1) $ 11,794,000 Class B-1(6)
Class B-2 (1) $ 6,207,000 Class B-2(6)
Class X (4) 0(4) Class X(4)
Class UT-R (5) 0 Class R
(1) The Class A-1, Class A-2A, Class X-0X, Xxxxx X-0, Class M-2, Class M-3,
Class M-4, Class M-5, Class B-1 and Class B-2 Interests will bear interest
during each Interest Accrual Period at a per annum rate equal to (a) on or
prior to the Optional Termination Date, the least of (i) LIBOR plus
0.370%, 0.290%, 0.550%, 0.650%, 1.250%, 1.600%, 2,000%, 2.400%, 4.000% and
4.000%, respectively, and (ii) the WAC Cap or (b) after the Optional
Termination Date, the lesser of (i) LIBOR plus 0.740%, 0.580%, 1.100%,
0.975%, 1.875%, 2.400%, 3.000%, 3.600%, 6.000% and 6.000%, respectively,
and (ii) the WAC Cap.
(2) The Class A-IO Interest will bear interest during each Interest Accrual
Period at the Class A-IO Pass-Through Rate.
(3) Notional Amount.
(4) The Class X Interest has an initial principal balance of $742.11, but it
will not accrue interest on such balance but will accrue interest on a
notional principal balance. As of any Distribution Date, the Class X
Interest shall have a notional principal balance equal to the aggregate of
the principal balances of the Lower-Tier Regular Interests (other than the
Class LT-A-IO Interest) as of the first day of the related Interest
Accrual Period. With respect to any Interest Accrual Period, the Class X
Interest shall bear interest at a rate equal to the excess, if any, of the
WAC Cap over the product of (i) 2 and (ii) the weighted average
Pass-Through Rate of the Lower-Tier REMIC Interests (other than the Class
LT-A-IO Interest), where the interest rate on each of the Class LT-Accrual
Interest is subject to a cap equal to zero and each LT-Accretion Directed
Class is subject to a cap equal to the Pass-Through Rate on its
Corresponding Class. With respect to any Distribution Date, interest that
so accrues on the notional principal balance of the Class X Interest shall
be deferred in an amount equal to any increase in the Overcollateralized
Amount on such Distribution Date. Such deferred interest shall not itself
bear interest. The Class X Certificates will represent beneficial
ownership of the Class X Interest and 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 Trustee will treat a Class X
Certificateholder's obligation to make payments from the Excess Reserve
Fund Account as payments made pursuant to an interest rate cap contract
written by the Class X Certificateholders in favor of each Class of
Offered Certificates. Such rights of the Class X Certificateholders and
Offered 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.
(5) The Class UT-R Interest is the sole Class of residual interest in the
Upper-Tier REMIC. The Class UT-R Interest does not have an interest rate.
(6) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper-Tier Regular Interest but also the right to
receive payments from the Excess Reserve Fund Account in respect of any
Basis Risk Carry Forward Amounts.
The minimum denomination for each Class A of the Certificates (other
than the Class A-IO Certificates) will be $25,000 initial Certificate Balance,
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 the
Subordinated Certificates will be $250,000 initial Certificate Balance, 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 the
Class A-IO Certificates will be $25,000 notional amount, with integral multiples
of $1,000 notional amount in excess thereof. The minimum denomination for (a)
Class R Certificates will be a 100% Percentage Interest in such Class and (b)
the Class X Certificates will be a 10% Percentage Interest in such Class.
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 X-0, Xxxxx, X-0X, Xxxxx X-0X and Class A-IO
Certificates.
Delay Certificates......Class A-IO Certificates.
ERISA-Restricted
Certificates...........Subordinated Certificates, Class R Certificates and
Class X Certificates; any certificate with a rating
below the lowest applicable permitted rating under the
Underwriters' Exemption.
Non-Delay
Certificates............Class A (other than the Delay Certificates), Class X and
Subordinated Certificates.
LIBOR Certificates......The Class A Certificates (other than the Delay
Certificates) and the Subordinated Certificates.
Offered Certificates....All Classes of Certificates other than the Private
Certificates.
Physical Certificates...Class X and Class R Certificates.
Private Certificates....Class X and Class R Certificates.
Rating Agencies.........Standard & Poor's and Moody's.
Regular Certificates....All Classes of Certificates other than the 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 and Class B-2 Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Accepted Servicing Practices: 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 Offered Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance (or in the case of
the Class A-IO, the Class A-IO Notional Amount) 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.
Adjusted Net Mortgage Interest Rate: As to each Mortgage Loan and at
any time, the per annum rate equal to the Mortgage Interest Rate less the
Expense Fee Rate.
Advance: Any Interest Advance or Servicing Advance.
Advance Facility: A financing or other facility as described in
Section 10.07.
Advancing Person: The Person to whom the Servicer's rights under
this Agreement to be reimbursed for any Interest Advances or Servicing Advances
have been assigned pursuant to Section 10.07.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Amount Held for Future Distribution: As to the Certificates on any
Distribution Date, the aggregate amount held in the Collection Account at the
close of business on the related Remittance Date on account of (i) Principal
Prepayments, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds
on the Mortgage Loans received after the end of the related Collection Period
and (ii) all Scheduled Payments on the Mortgage Loans due after the end of the
related Collection 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: (a) With respect to any First Lien Mortgage Loan,
(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 applicable 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, and (b) with respect to any Second Lien Mortgage
Loan, the lesser of (i) the appraised value of the related Mortgaged Property at
the time the Second Lien Mortgage Loan was originated, or (ii) the sales price
of the related Mortgaged Property at the time of origination; provided, however,
that in the case of a refinanced Mortgage Loan, such value is based solely upon
the appraisal made at the time of origination of such refinanced Mortgage Loan.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form (other than the assignee's
name and recording information not yet returned from the recording office),
reflecting the sale of the Mortgage to the Trustee.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Trustee (x) the sum of (i) all
scheduled installments of interest (net of the related Expense Fees and Simple
Interest Excesses) and principal due on the Due Date on such Mortgage Loans in
the related Collection Period or any prior Collection Period and received during
the related Collection Period, together with any Interest Advances in respect
thereof; (ii) all Condemnation Proceeds, Insurance Proceeds and Liquidation
Proceeds received during the related Collection 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 Collection Period together with all
Compensating Interest paid by the Servicer in connection therewith thereon; (iv)
for each Mortgage Loan repurchased by the Responsible Party, the Depositor or
the Purchaser as of such Distribution an amount equal to the proceeds of such
repurchase (in the case of a purchase by the Responsible Party, together with
any payments made by the Depositor pursuant to Section 2.03(h) but net of any
Repurchase Excess Amount); and (v) the proceeds received with respect to the
termination of the Trust Fund pursuant to clause (a) of Section 9.01; reduced by
(y) all amounts in reimbursement for Interest Advances and Servicing Advances
previously made with respect to the Mortgage Loans, and other amounts as to
which the Servicer, the Depositor, the Backup Servicer or the Trustee (or
co-trustee) are entitled to be paid or reimbursed pursuant to this Agreement.
Backup Report Delivery Date: As defined in Section 4.03(f).
Backup Reports: As defined in Section 4.03(f).
Backup Servicer: JPMorgan, and its successors in interest.
Backup Servicer and Trustee Fee: As to each Mortgage Loan and any
Distribution Date, an amount equal to one month's interest at the related Backup
Servicer and Trustee Fee Rate on the Stated Principal Balance of such Mortgage
Loan as of the preceding Distribution Date (or as of the Closing Date in the
case of the first Distribution Date) or, in the event of any payment of interest
which accompanies a Principal Prepayment in Full made by the Mortgagor, interest
at the Backup Servicer and Trustee Fee Rate on the Stated Principal Balance of
such Mortgage Loan for the period covered by such payment of interest.
Backup Servicer and Trustee Fee Rate: With respect to each Mortgage
Loan, 0.05% per annum.
Balloon Loan: Any Mortgage Loan that provided on the date of
origination for an amortization schedule extending beyond its stated maturity
date.
Bank One: Bank One, N.A., a national banking association, and its
successors in interest.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate 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
Offered Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of Offered Certificates is
based upon the WAC Cap or, in the case of the Class A-IO Certificates, the Class
A-IO Net WAC Cap, the excess of (i) the amount of interest such Class of
Certificates would have been entitled to receive on that Distribution Date had
the Pass-Through Rate not been subject to such caps, over (ii) the amount of
interest payable on such Class of Certificates at the WAC Cap, or, with respect
to the Class A-IO Certificates, the Class A-IO Net WAC Cap, and (B) the Basis
Risk Carry Forward Amount for such Class of Offered Certificates for all
previous Distribution Dates not previously paid, together with interest thereon
at the applicable Pass-Through Rate for such Class of Certificates for such
Distribution Date without giving effect to any such cap.
Basis Risk Payment: For any Distribution Date, an amount equal to
the aggregate of the Basis Risk Carry Forward Amounts for such Distribution
Date; provided, however, that with respect to any Distribution Date, the Basis
Risk Payment shall not exceed the Class X Distributable Amount.
Best's: Best's Key Rating Guide, as the same shall be amended from
time to time.
Book-Entry Certificates: As specified in the Preliminary Statement.
BPO: A broker's price opinion.
Business Day: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions, in (a) the States of
Florida, New York, New Jersey and California, (b) the State in which the
Servicer's servicing operations are located, or (c) the State in which the
Trustee's operations are located, are authorized or obligated by law or
executive order to be closed.
Cap Agreement: The interest rate cap agreements, dated as of March
17, 2004 and June 24, 2004, both between the Purchaser and the Cap Provider.
Cap Provider: Xxxxxxx Xxxxx Capital Markets L.P., a Delaware limited
partnership, and its successors in interest.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of Certificates,
other than the Class A-IO, Class X, or Class R Certificates, at any date, the
maximum dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the Denomination thereof minus all amounts
previously distributed to the Holders of Certificates of that Class as payments
of principal and in the case of any Subordinated Certificates, the amount of any
Applied Realized Loss Amounts previously allocated to such Class of Subordinated
Certificates; provided, however, that immediately following the Distribution
Date on which a Subsequent Recovery is distributed, the Class Certificate
Balances of any Class or Classes of Subordinated 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 A-IO, Class X and Class R Certificates have
no Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided, however,
that if any such Person (including the Depositor) owns 100% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires the
consent of the Holders of Certificates of a particular Class as a condition to
the taking of any action hereunder. The Trustee is entitled to rely conclusively
on a certification of the Depositor or any affiliate of the Depositor in
determining which Certificates are registered in the name of an affiliate of the
Depositor.
Certification: As defined in Section 8.12(b).
Class: All Certificates bearing the same Class designation as set
forth in the Preliminary Statement.
Class A Certificate Group: Either the Class A-1 Certificates or the
Class A-2 Certificate Group, as applicable.
Class A Certificates: As specified in the Preliminary Statement.
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) 52.50% (rounded to two decimal places) of the aggregate Stated
Principal Balance of the Mortgage Loans at the end of the related Collection
Period and (B) the excess, if any, of the aggregate Stated Principal Balance of
the Mortgage Loans over the Overcollateralization Floor.
Class A-IO Certificates: All Certificates bearing the Class
designation of "Class A-IO".
Class A-IO Notional Amount: With respect to any Distribution Date
prior to July 2006, an amount equal to the lesser of (i) the Class A-IO
Scheduled Notional Amount, and (ii) the aggregate Stated Principal Balance of
the Mortgage Loans at the beginning of the related Collection Period. On each
Distribution Date on or after July 2006, $0.
Class A-IO Net WAC Cap: With respect to any Distribution Date, a per
annum rate equal to the excess of (i) the product of (x) weighted average gross
rate of the Mortgage Loans in effect on the beginning of the related Collection
Period, (y) the actual number of days in the related Collection Period divided
by 365 and (z) 12, over (ii) the Expense Fee Rate.
Class A-IO Pass-Through Rate: With respect to any Distribution Date
prior to July 2006, a per annum rate equal to the lesser of (i) 5.00% and (ii)
the Class A-IO Net WAC Cap, and with respect to any Distribution Date on or
after July 2006, 0%.
Class A-IO Scheduled Notional Amount: With respect to any
Distribution Date, the amount set forth on Schedule IV to this Agreement.
Class A-1 Certificates: All Certificates bearing the Class
designation of "Class A-1."
Class A-2 Certificate Group: The Class A-2A Certificates and the
Class A-2B Certificates, collectively.
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 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 for 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 for 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 for 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 for 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) 97.00% (rounded to two decimal places) of the aggregate Stated Principal
Balance of the Mortgage Loans at the end of the related Collection Period and
(B) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans 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 for 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 that Distribution Date over (ii) the lesser of (A) 99.00%
(rounded to two decimal places) of the aggregate Stated Principal Balances of
the Mortgage Loans at the end of the related Collection Period and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
over the Overcollateralization Floor.
Class Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class LT-R Interest: The residual interest in the Lower-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class M-1 Certificates: All Certificates bearing the Class
designation of "Class M-1."
Class M-1 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 (other than the Class M-1
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.
Class M-1 Specified Enhancement Percentage: As of any date of
determination, 32.50%.
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) 67.50%
(rounded to two decimal places) of the aggregate Stated Principal Balance of the
Mortgage Loans at the end of the related Collection Period and (B) the excess,
if any, of the aggregate Stated Principal Balance of the Mortgage Loans 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) 81.50% (rounded to two decimal places) of the aggregate Stated
Principal Balance of the Mortgage Loans at the end of the related Collection
Period and (B) the excess, if any, of the aggregate Stated Principal Balance of
the Mortgage Loans 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 for 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) 86.50% (rounded to two decimal
places) of the aggregate Stated Principal Balance of the Mortgage Loans at the
end of the related Collection Period and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans 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 for 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 for 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) 90.00% (rounded to two decimal places) of the aggregate Stated Principal
Balance of the Mortgage Loans at the end of the related Collection Period and
(B) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans over the Overcollateralization Floor.
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 for 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 for 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 for 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) 93.20% (rounded to two decimal
places) of the aggregate Stated Principal Balance of the Mortgage Loans at the
end of the related Collection Period and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans over the
Overcollateralization Floor.
Class PT-R Interest: The residual interest in the Pooling-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class R Certificates: All Certificates bearing the Class designation
of "Class R."
Class UT-R Interest: The residual interest in the Upper-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class X Certificates: All Certificates bearing the Class designation
of "Class X."
Class X Distributable Amount: On any Distribution Date, (i) as a
distribution in respect to interest, the amount of interest that has accrued on
the Class X Interest and not applied as an Extra Principal Distribution Amount
on such Distribution Date, plus any such accrued interest remaining
undistributed from prior Distribution Dates, plus (ii) as a distribution in
respect of principal, any portion of the principal balance of the Class X
Interest which is distributable as an Overcollateralization Reduction Amount,
minus (iii) any amounts paid as a Basis Risk Payment.
Class X Interest: A regular interest in the Upper Tier REMIC as
specified and described in the Preliminary Statement and the related footnote
thereto.
Closing Date: June 29, 2004.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: As defined in Section 3.10(a).
Collection Period: With respect to any Remittance Date, the calendar
month preceding the calendar month in which such Remittance Date occurs.
Combined Loan-to-Value Ratio or CLTV: As of the date of origination
and as to any Second Lien Mortgage Loan, the ratio, expressed as a percentage,
of (a) the sum of (i) the principal balance of the Second Lien Mortgage Loan as
of the date of origination and (ii) the principal balance as of the date of
origination of any First Lien Mortgage Loan secured by the same Mortgaged
Property to (b) the Appraised Value.
Compensating Interest: For any Distribution Date, the lesser of (a)
the difference between the interest paid by the applicable Mortgagors for the
related Collection Period in connection with voluntary Principal Prepayments in
Full by the Mortgagors (excluding any payments made upon liquidation of any
Mortgage Loan) and thirty days' interest on the related Mortgage Loans, and (b)
the amount of the Servicing Fee payable to the Servicer for such Distribution
Date.
Condemnation Proceeds: All awards, compensation and/or settlements
in respect of a Mortgaged Property, whether permanent or temporary, partial or
entire, by exercise of the power of eminent domain or condemnation.
Corporate Trust Office: The designated office of the Trustee in the
State of New York at which at any particular time its corporate trust business
with respect to this Agreement is administered, which office at the date of the
execution of this Agreement is located at 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000, Attn: Institutional Trust Services/Global Debt - GSAMP
2004-SEA2, GSAMP Trust 2004-SEA2, Mortgage Pass-Through Certificates, facsimile
no. (000) 000-0000 and which is the address to which notices to and
correspondence with the Trustee should be directed.
Corresponding Class: The Class of interests in one Trust REMIC
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:
Lower-Tier Upper-Tier Corresponding
Class Designation Regular Interest Class of Certificates
----------------- ---------------- ---------------------
Class LT-A-1 Class A-1 Class A-1
Class LT-A-IO Class A-IO Class A-IO
Class LT-A-2A Class A-2A Class A-2A
Class LT-A-2B Class X-0X Xxxxx X-0X
Xxxxx XX-X-0 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
N/A Class X N/A
Covered Loan: A Mortgage Loan categorized as Covered pursuant to -
Appendix E of Standard & Poor's Glossary.
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.
Cumulative Loss Trigger: A Cumulative Loss Percentage of greater
than (a) during the period from the Closing Date through the date one year after
the Closing Date, 1%, (b) during the period from the date one year after the
Closing Date through the date two years after the Closing Date, 4%, (c) during
the period from the date two years after the Closing Date through the date three
years after the Closing Date, 4.5%, (d) during the period from the date three
years after the Closing Date through the date four years after the Closing Date,
5%, (e) during the period from the date four years after the Closing Date
through the date five years after the Closing Date, 5.5%, (f) during the period
from the date five years after the Closing Date through the date six years after
the Closing Date, 6%, and (g) during the period on or after the date six years
after the Closing Date, 6.5%.
Custodial File: With respect to each Mortgage Loan, the file
retained by the Trustee consisting of items (a) - (h) as listed on Exhibit K
hereto.
Cut-off Date: June 1, 2004.
Cut-off Date Pool Principal Balance: The aggregate Stated Principal
Balances of all Mortgage Loans as of the Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Data File: As defined in Section 4.03(f).
Data File Delivery Date: As defined in Section 4.03(f).
Data Tape Information: The information provided by the Responsible
Party as of the Cut-off Date to the Depositor setting forth the following
information with respect to each Mortgage Loan: (1) Mortgage Loan number; (2)
originator name; (3) Mortgagor name and property address; (4) unpaid principal
balance as of Cut-off Date; (5) Mortgage Note date; (6) Paid-To-Date; (7) Lien
Priority (First or Second); (8) PMI Coverage and Name of Insurer; (9)
Origination Appraisal Value; (10) Seller's BPO Value; (11) LTV at origination;
(12) Combined LTV at origination (2nd Lien); (13) original Mortgage Interest
Rate; (14) current Mortgage Interest Rate; (15) original Scheduled Payment; (16)
current Scheduled Payment; (17) 12 month Cash Collection; (18) original maturity
date; (19) current maturity date; (20) type of plan (BK, Foreclosure, etc.);
(21) modification date; (22) foreclosure flag; (23) bankruptcy flag; (24) plan
maturity date; (25) original term; (26) current term (if modified); (27)
property type; (28) arrearage; (29) accrued interest; (30) escrow advances; (31)
claimable corporate advances; (32) Section 32 (Y/N); (33) purpose (purchase,
refinancing, etc.); (34) documentation style; (35) owner occupied, investment;
(36) ground leases (Y/N); (37) balloon loans (Y/N); (38) interest-paid-to-date;
(39) extension flag (Y/N); (40) last extension date; (41) number of months
extended over life; (42) escrow balance, if any; (43) litigation (Y/N); and (44)
forbearance (Y/N).
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the United
States Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which
became final and non-appealable, except for such a reduction resulting from a
Deficient Valuation or any reduction that results in a permanent forgiveness of
principal.
Deficient Valuation: With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the United States
Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Deleted Mortgage Loan: Any Mortgage Loan removed from the Trust Fund
hereunder as a result of a breach of representation or warranty or a document
defect.
Delinquency Trigger: With respect to any Distribution Date (a)
during the period from the Closing Date through the date one year after the
Closing 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 Collection Period, equals or exceeds 15.00% of the Class M-1
Enhancement Percentage as of the last day of the prior Collection Period, and
(b) during the period on or after the date one year after the Closing 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 Collection
Period, equals or exceeds 20.00% of the Class M-1 Enhancement Percentage as of
the last day of the prior Collection Period
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: GS Mortgage Securities Corp., a Delaware corporation, and
its successors in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust company,
including the Trustee, that (a) is incorporated under the laws of the United
States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated P-1 by Moody's and A-1 by Standard & Poor's.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to any 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 succeeding Business Day.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.27(b) in the name of the Trustee
for the benefit of the Certificateholders and designated "JPMorgan Chase Bank in
trust for registered holders of GSAMP Trust 2004-SEA2 Mortgage Pass-Through
Certificates, Series 2004-SEA2." 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 July 2004.
Document Certification and Exception Report: The report attached to
Exhibit F hereto.
Due Date: The day of the month on which the Scheduled Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Eligible Account: Either (i) an account maintained with a federal or
state chartered depository institution or trust company the short-term unsecured
debt obligations of which (or, in the case of a depository institution or trust
company that is a subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated A-1 by Standard & Poor's and P-1
by Moody's (and a comparable rating if another Rating Agency is specified by the
Depositor by written notice to the Servicer) at the time any amounts are held on
deposit therein, (ii) a trust account or accounts maintained with a federal or
state chartered depository institution or trust company acting in its fiduciary
capacity or (iii) any other account acceptable to each Rating Agency. Eligible
Accounts may bear interest, and may include, if otherwise qualified under this
definition, accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of Prohibited
Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.09(b).
Escrow Payments: As defined in Section 3.09(b) of this Agreement.
Event of Default: As defined in Section 7.01.
Eviction Trigger: An Eviction Trigger will exist if the Servicer
fails to complete evictions in 80 days on an overall average basis for at least
three months out of any five month period.
Excess Overcollateralized Amount: With respect to any Distribution
Date, the excess, if any, of (a) the Overcollateralized Amount on such
Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Sections 3.27(a) in the name of the
Trustee for the benefit of the Regular Certificateholders and designated
"JPMorgan Chase Bank in trust for registered holders of GSAMP Trust 2004-SEA2,
Mortgage Pass-Through Certificates, Series 2004-SEA2." 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 Backup Servicer and Trustee Fee
Rate.
Expense Fees: As to each Mortgage Loan, the sum of the Servicing Fee
and the Backup Servicer and Trustee Fee.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for such Distribution
Date and (y) the related Overcollateralization Deficiency for such Distribution
Date.
Xxxxxx Xxx: The Federal National Mortgage Association and its
successors in interest.
Xxxxxx Mae Guides: The Xxxxxx Xxx Seller's Guide and the Xxxxxx Mae
Servicer's Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
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 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 in each of the
following months:
Month of
Final Scheduled
Distribution Date
-----------------
Class A-1 Certificates.................................... March 2034
Class A-IO Certificates................................... June 2006
Class A-2A Certificates................................... March 2034
Class A-2B Certificates................................... March 2034
Class M-1 Certificates.................................... March 2034
Class M-2 Certificates.................................... March 2034
Class M-3 Certificates.................................... March 2034
Class M-4 Certificates.................................... March 2034
Class M-5 Certificates.................................... March 2034
Class B-1 Certificates.................................... March 2034
Class B-2 Certificates.................................... March 2034
Class X Certificates...................................... March 2034
Class R Certificates...................................... March 2034
First Lien Mortgage Loan: Any Mortgage Loan secured by a first lien
Mortgage on the related Mortgaged Property.
Fixed Rate Mortgage Loan: A fixed rate Mortgage Loan purchased
pursuant to the Purchase Agreement.
Forbearance: As defined in Section 3.07(a).
Foreclosure Trigger: A Foreclosure Trigger will exist if foreclosure
sales are not completed on average at least 15 days ahead of Xxxxxxx Mac
foreclosure timelines for at least three months out of any five month period.
Excluded in the calculation of the average number of days ahead are loans that
are or have been subject to the following: bankruptcy, filing for relief with
housing authority, foreclosure placed on hold pending charge-off,
contested/litigated, government forfeiture/foreclosure barred, environmental
delay, payment dispute pursuant to Fair Debt Collection Practices Act,
forbearance plan, probate/estate issues/deceased defendant, missing assignment,
Servicemembers Civil Relief Act, missing collateral, repurchase pending, court
delay, posting delay, service delay, title problems and similar issues.
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.
Xxxxxxx Mac Guides: The Xxxxxxx Mac Seller's & Servicer's Guide and
all amendments or additions thereto.
High Cost Loan: A Mortgage Loan classified as (a) a "high cost" loan
under the Home Ownership and Equity Protection Act of 1994, (b) a "high cost,"
"threshold," "covered" (other than New Jersey or North Carolina "covered
loans"), "predatory" or similar loan under any other applicable state, federal
or local law (or a similarly classified loan using different terminology under a
law imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees).
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
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 Non-Delay
Certificates and each Class of Lower-Tier Regular Interests and any Distribution
Date, the period commencing on the Distribution Date occurring in the month
preceding the month in which the current Distribution Date occurs and ending on
the day immediately preceding the current Distribution Date (or, in the case of
the first Distribution Date, the period from and including the Closing Date to
but excluding such first Distribution Date). With respect to the Delay
Certificates and any Distribution Date, the calendar month preceding the month
in which such Distribution Date occurs. For purposes of computing interest
accruals on each Class of Non-Delay Certificates, each Interest Accrual Period
has the actual number of days in such period and each year is assumed to have
360 days. For purposes of computing interest accruals on the Delay Certificates,
each Interest Accrual Period has 30 days in such period and each year is assumed
to have 360 days.
Interest 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 interest, net of the Servicing Fee, that were due
during the related Collection Period on the Mortgage Loans and that were
delinquent on the related Remittance Date, plus Simple Interest Shortfalls and
certain amounts representing assumed payments of interest 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.
Interest Rate Cap Payment: Beginning on the first Distribution Date
and continuing through the immediately succeeding 58 Distribution Dates
thereafter, the amount, if any, equal to the product of (a) the amount by which
one-month LIBOR (determined in accordance with the Cap Agreement) as of the
reset date under the Cap Agreement exceeds 8.00%, and (b) the product of the
interest rate notional amount amortization schedule attached to the Cap
Agreement for that date, calculated on an "actual/360" basis.
Interest Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans in a Loan Group, that portion of Available Funds
attributable to interest relating to the Mortgage Loans in that Loan Group.
Investment Account: As defined in Section 3.12(a).
JPMorgan Chase: JPMorgan Chase Bank, a New York banking corporation,
and its successors in interest.
Late Collections: With respect to any Mortgage Loan and any
Collection Period, all amounts received after the Remittance Date immediately
following such Collection 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 Collection Period and not
previously recovered.
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Trustee on the related LIBOR
Determination Date on the basis of the offered rate for one-month U.S. dollar
deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on such date; provided, that if such rate does not appear on Telerate Page
3750, the rate for such date will be determined on the basis of the rates at
which one-month U.S. dollar deposits are offered by the Reference Banks at
approximately 11:00 a.m. (London time) on such date to prime banks in the London
interbank market. In such event, the Trustee shall request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16%). If fewer than two quotations are provided as
requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Trustee (after
consultation with the Depositor), at approximately 11:00 a.m. (New York City
time) on such date for one-month U.S. dollar deposits of leading European banks.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: With respect to any Interest Accrual
Period for the LIBOR Certificates, the second London Business Day preceding the
commencement of such Interest Accrual Period.
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-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 Regular Interest: Each of the Class LT-A-1, Class
LT-A-2A, Class LT-A-2B, 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-A-IO and Class LT-Accrual
Interests as described in the Preliminary Statement.
Lower-Tier REMIC: As described in the Preliminary Statement.
Lower-Tier Principal Amount: As described in the Preliminary
Statement.
Majority Class X Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class X Certificates.
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.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.03.
Moody's: Xxxxx'x Investors Service, Inc. If Xxxxx'x is designated as
a Rating Agency in the Preliminary Statement, for purposes of Section 10.05(b)
the address for notices to Moody's shall be Xxxxx'x Investors Service, Inc., 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage
Pass-Through Group, or such other address as Moody's may hereafter furnish to
the Depositor, the Servicer 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 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) Mortgage Loan number;
(2) originator name; (3) Mortgagor name and property address; (4) unpaid
principal balance as of Cut-Off Date; (5) Mortgage Note date; (6) Paid-To-Date;
(7) Lien Priority (First or Second); (8) PMI Coverage and Name of Insurer; (9)
Origination Appraisal Value; (10) Seller's BPO Value; (11) LTV at origination;
(12) Combined LTV at origination (2nd Lien); (13) original Mortgage Interest
Rate; (14) current Mortgage Interest Rate; (15) original Scheduled Payment; (16)
current Scheduled Payment; (17) 12 month Cash Collection; (18) original maturity
date; (19) current maturity date; (20) type of plan (BK, Foreclosure, etc.);
(21) modification date; (22) foreclosure flag; (23) bankruptcy flag; (24) plan
maturity date; (25) original term; (26) current term (if modified); (27)
property type; (28) arrearage; (29) accrued interest; (30) escrow advances; (31)
claimable corporate advances; (32) Section 32 (Y/N); (33) purpose (purchase,
refinancing, etc.); (34) documentation style; (35) owner occupied, investment;
(36) ground leases (Y/N); (37) balloon loans (Y/N); (38) interest-paid-to-date;
(39) extension flag (Y/N); (40) last extension date; (41) number of months
extended over life; (42) escrow balance, if any; (43) litigation (Y/N); and (44)
forbearance (Y/N). 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.
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 exceeds the sum of
the Compensating Interest payments made with respect to such Distribution Date.
NIM Issuer: The entity established as the issuer of the NIM
Securities.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class X Certificates.
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
Collection Period, three 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.
Non-Delay Certificates: As specified in the Preliminary Statement.
Nonrecoverable Interest Advance: Any Interest Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property that,
in the good faith business judgment of the Servicer, will not or, in the case of
a proposed Interest Advance, would not be ultimately recoverable from related
late payments, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
on such Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advances previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in the good faith business judgment of the Servicer, will not or, in the
case of a proposed Servicing Advance, would not, be ultimately recoverable from
related Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or
otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Ocwen: Ocwen Federal Bank FSB, a federally chartered savings bank,
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 with responsibility for the servicing of the Mortgage Loans required to
be serviced by the Servicer and listed on a list delivered to the Trustee
pursuant to this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for the Servicer or a Subservicer, reasonably acceptable to the
Trustee; provided, that any Opinion of Counsel relating to (a) qualification of
any Trust REMIC as a REMIC or (b) compliance with the REMIC Provisions, must be
(unless otherwise stated in such Opinion of Counsel) an opinion of counsel who
(i) is in fact independent of the Servicer of the Mortgage Loans, (ii) does not
have any material direct or indirect financial interest in the Servicer of the
Mortgage Loans or in an affiliate of either and (iii) is not connected with the
Servicer of the Mortgage Loans as an officer, employee, director or person
performing similar functions.
Optional Termination Date: The date determined as follows:
(i) The Majority Class X Certificateholder (as evidenced on the
records of the Registrar) may cause the Optional Termination Date to occur
on the Distribution Date when the aggregate Stated Principal Balance of
the Mortgage Loans, as of the last day of the related Collection Period,
is equal to 10.00% or less of the Cut-off Date Pool Principal Balance
(provided, that if the Depositor or an Affiliate of the Depositor is one
of the Holders constituting such majority, then there must be at least one
other unaffiliated Holder constituting such majority and the Class X
Certificates held by such Holder (or unaffiliated Holders in the
aggregate) must represent at least a 10% Percentage Interest in the Class
X Certificates); and
(ii) The Servicer may cause the Optional Termination Date to occur
on the Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans, as of the last day of the related Collection
Period, is equal to 5.00% or less of the Cut-off Date Pool Principal
Balance.
In the event that the Servicer and the Majority Class X
Certificateholder (or the Majority Class X Certificateholder and another Class X
Certificateholder) have the call rights described above, at such time as those
rights may be exercised, the first Person to provide notice to exercise the call
right will have the right to purchase the Mortgage Loans.
Original Purchase Date: March 31, 2004.
OTS: Office of Thrift Supervision, and any successor thereto.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Amount: As of any Distribution Date, the excess,
if any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over (b) the aggregate of the Class Certificate Balances
of the LIBOR 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 Total Monthly Excess Spread.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
Pass-Through Margin: With respect to each Class of Regular
Certificates, the following percentages: Class A-1 Certificates, 0.370%; Class
A-2A Certificates, 0.290%; Class A-2B Certificates, 0.550%; Class M-1
Certificates, 0.650%; Class M-2 Certificates, 1.250%; Class M-3 Certificates,
1.600%; Class M-4 Certificates, 2.000%; Class M-5 Certificates, 2.400%; Class
B-1 Certificates, 4.000%; and Class B-2 Certificates, 4.000%. On the first
Distribution Date after the Optional Termination Date, the Pass-Through Margins
shall increase to: Class A-1 Certificates, 0.740%; Class A-2A Certificates,
0.580%; Class A-2B Certificates, 1.100%; Class M-1 Certificates, 0.975%; Class
M-2 Certificates, 1.875%; Class M-3 Certificates, 2.400%; Class M-4
Certificates, 3.000%; Class M-5 Certificates, 3.600%; Class B-1 Certificates,
6.000%; and Class B-2 Certificates, 6.000%.
Pass-Through Rate: For each Class of Certificates, each Lower-Tier
Regular Interest, and each Pooling-Tier Regular Interest, the per annum rate set
forth or calculated in the manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Permitted Investments: Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued by the Servicer, the Trustee or any of their respective
Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars and
issued by any Depository Institution and rated P-1 by Moody's and A-1+ by
S&P;
(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) money market mutual funds, including, without limitation, any
mutual fund for which the Trustee or any affiliate of the Trustee serves
as investment manager, administrator, shareholder servicing agent, and/or
custodian or subcustodian, notwithstanding that (i) the Trustee or an
affiliate of the Trustee receives fees from such funds for services
rendered, (ii) the Trustee charges and collects fees for services rendered
pursuant to this Agreement, which fees are separate from the fees received
from such funds, and (iii) services performed for such funds and pursuant
to this Agreement may at times duplicate those provided to such funds by
the Trustee or its affiliates;
(vii) trust funds, trust accounts, interest-bearing demand or time
deposits (including certificates of deposit) which are held in banks
having general obligations rated at least "A" category by S&P or Moody's;
(viii) a trust account with JPMorgan Chase Bank;
(ix) a deposit if any bank (including that of the Trustee and its
affiliates), trust company or financial institution authorized to engage
in the banking business having a combined capital and surplus of at least
$500,000,000, whose long term, unsecured debt is rated in the "A" category
by S&P or "A" or higher by Moody's;
(x) units of money market funds, including money market funds
advised by the Depositor or the Trustee or an Affiliate thereof, that have
been rated "Aaa" by Moody's and "AAAm" or "AAAm-G" by Standard & Poor's;
and
(xi) if previously confirmed in writing to the Trustee, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to the Rating Agencies as a permitted
investment of funds backing "Aaa" or "AAA" rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a U.S.
Person or a U.S. Person with respect to whom income from a Residual Certificate
is attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of such Person or any other U.S.
Person, (vi) an "electing large partnership" within the meaning of Section 775
of the Code and (vii) any other Person so designated by the Depositor based upon
an Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to such Person may cause any Trust REMIC to fail to qualify as a
REMIC at any time that the Certificates are outstanding. The terms "United
States," "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of Xxxxxxx Mac, a majority of its board
of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
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 Collection Period.
Pooling Tier Regular Interest: As specified in the Preliminary
Statement.
Pooling Tier REMIC: As specified 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 Collection
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 Collection 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
Collection Period.
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 Collection Period: (i) each scheduled payment of
principal on a Mortgage Loan due during such Collection Period or any prior
Collection Period and received by the Servicer during the related Collection
Period (ii) all Principal Prepayments received during the related Collection
Period, (iii) all the Liquidation Proceeds, Condemnation Proceeds and Insurance
Proceeds on the Mortgage Loans allocable to principal actually collected by the
Servicer during the related Collection 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 Collection
Period, that was repurchased during the period from the prior Distribution Date
through the Remittance Date for the current Distribution Date (in the case of a
repurchase by the Responsible Party, together with the portion of any payment
allocable to principal made by the Depositor pursuant to Section 2.03(h) but net
of any Repurchase Excess Amount), and (v) the allocable portion of the proceeds
received with respect to the termination of the Trust Fund pursuant to clause
(a) of Section 9.01 (to the extent such proceeds relate to principal).
Privacy Laws: Title V of the 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 June 25,
2004, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchase Agreement: The Mortgage Loan Purchase and Sale Agreement,
dated as of March 31, 2004, by and between Bank One and the Purchaser.
Purchase Price and Terms Letter: The Purchase Price and Terms
Letter, dated as of March 16, 2004, by and between the Responsible Party and the
Purchaser.
Purchaser: Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors in interest.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee. References
herein to a given rating or rating category of a Rating Agency shall mean such
rating category without giving effect to any modifiers. For purposes of Section
10.05(b), the addresses for notices to each Rating Agency shall be the address
specified therefor in the definition corresponding to the name of such Rating
Agency, or such other address as either such Rating Agency may hereafter furnish
to the Depositor and the Servicer.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid principal
balance of such Liquidated Mortgage Loan together with accrued and unpaid
interest thereon exceeds (b) the Liquidation Proceeds with respect thereto net
of the expenses incurred by the Servicer in connection with the liquidation of
such Liquidated Mortgage Loan and net of 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 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 day of the month immediately
preceding the related Distribution Date (or if such day is not a Business Day,
on the immediately preceding Business Day).
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 Collection Period as a result of
the application of the Servicemembers Civil Relief Act, or any similar state
statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, no later
than 12:00 PM, Central Time on the 18th day of the month in which the
Distribution Date occurs or, if such day is not a Business Day, the immediately
succeeding Business Day.
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 16th day of each calendar month or the
immediately following Business Day if the 16th is not a Business Day.
Repurchase Excess Amount: As defined in Section 2.03(h)
Repurchase Price: With respect to (a) repurchase by the Responsible
Party, an amount equal to the sum of (i) the applicable purchase price
percentage set forth in the Purchase Price and Terms Letter, multiplied by the
unpaid principal balance of such Mortgage Loan as of the date of repurchase,
(ii) interest on such unpaid principal balance of such Mortgage Loan at the
Mortgage Interest Rate from the last date through which interest has been paid
and distributed to the Trustee to the date of repurchase, (iii) all unreimbursed
Servicing Advances and (iv) all expenses incurred by the Servicer, the Trust or
the Trustee, as the case may be, in respect of a breach or defect, including,
without limitation, (A) expenses arising out of the Servicer's or Trustee's, as
the case may be, enforcement of the Depositor's or Responsible Party'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)
repurchase by 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 Trustee to the date of repurchase, (iii) all unreimbursed
Servicing Advances and (iv) all expenses incurred by the Servicer, the Trust or
the Trustee, as the case may be, in respect of a breach or defect, including,
without limitation, (A) expenses arising out of the Servicer's or Trustee's, as
the case may be, enforcement of the Depositor's or Responsible Party'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.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee, substantially in the form of Exhibit J.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, any associate or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers who at such time shall be officers to whom, with respect to a
particular matter, such matter is referred because of such officer's knowledge
of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement.
Responsible Party: Bank One.
Rule 144A Letter: As defined in Section 5.02(b).
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second lien
Mortgage on the related Mortgaged Property.
Securities Act: The Securities Act of 1933, as amended.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans at the end
of the related Collection Period.
Senior Specified Enhancement Percentage: As of any date of
determination, 47.50%.
Servicer: After the Servicing Transfer Date, Ocwen and if a
successor servicer is appointed hereunder, such successor servicer. Before the
Servicing Transfer Date, Bank One shall be the Servicer. For purposes of
Sections 3.22, 3.23 and 8.12 with respect to any year, and for avoidance of
doubt, the term "Servicer" includes the Person then servicing the Mortgage Loans
as well as any Person who serviced the Mortgage Loans during such year.
Servicer Remittance Report: As defined in Section 4.03(d).
Servicing Advances: The reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred by the Servicer (or by any prior
servicer that has not been reimbursed) in the performance of its servicing
obligations in connection with a default, delinquency or other unanticipated
event, including, but not limited to, the cost of (i) the preservation,
restoration, inspection and protection of a Mortgaged Property, (ii) any
enforcement or judicial proceedings, including foreclosures and litigation, in
respect of a particular Mortgage Loan, (iii) the management (including
reasonable fees in connection therewith) and liquidation of any REO Property,
(iv) the performance of its obligations under Sections 3.01, 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 (v) 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 the Servicer, each Mortgage Loan
serviced by the Servicer and any Distribution Date, an amount equal to the
product of (i) one-twelfth of Servicing Fee Rate and (ii) the applicable 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, 0.55% per
annum.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer consisting of originals or copies of all documents in
the Mortgage File which are not delivered to the Trustee in the Custodial File
and copies of the Mortgage Loan Documents set forth in Exhibit K hereto.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee by the Servicer on the Closing Date pursuant to this Agreement, as
such list may from time to time be amended.
Servicing Transfer Costs: All reasonable out-of-pocket costs and
expenses incurred by the Trustee or the Backup 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 Trustee or the Backup Servicer to correct any
errors or insufficiencies in the servicing data or otherwise to enable the
Trustee (or any successor Servicer appointed pursuant to Section 7.02) to
service the Mortgage Loans properly and effectively.
Servicing Transfer Date: June 30, 2004.
Similar Law: As defined in Section 5.02(b).
Simple Interest Excess: With respect to any Distribution Date and
any Mortgage Loan, the excess, if any, of (i) the portion of the monthly payment
received from the related Mortgagor allocable to interest with respect to the
Due Date in the related Collection Period, over (ii) a full month's interest on
such Mortgage Loan at the Mortgage Interest Rate.
Simple Interest Shortfall: With respect to any Distribution Date and
any Mortgage Loan, the excess, if any, of (i) a full month's interest on such
Mortgage Loan at the Mortgage Interest Rate, over (ii) the portion of the
monthly payment received from the related Mortgagor allocable to interest with
respect to the Due Date in the related Collection Period.
Six-Month LIBOR Index: With respect to each applicable Adjustable
Rate Mortgage Loan, the rate as determined on the basis of rates at which
six-month U.S. dollar deposits are offered to prime banks in the London
interbank market on such date as provided in the related Mortgage Note.
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
Collection 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: An amount equal to 0.50% of the
Cut-off Date Pool Principal Balance.
Standard & Poor's: Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. If Standard & Poor's is designated as a Rating
Agency in the Preliminary Statement, for purposes of Section 10.05(b) the
address for notices to Standard & Poor's shall be Standard & Poor's, 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage Surveillance
Group - GSAMP Trust 2004-SEA2, or such other address as Standard & Poor's may
hereafter furnish to the Depositor, the Servicer and the Trustee.
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 unpaid principal balance of the Mortgage Loan on
the Cut-off Date (after giving effect to payments of principal received prior to
the Cut-off Date), minus (ii) all amounts previously remitted to the Trustee
with respect to the related Mortgage Loan representing payments or recoveries of
principal. For purposes of any Distribution Date, the Stated Principal Balance
of any Mortgage Loan will give effect to any payments of principal received by
the Servicer during the related Collection Period (other than any Amount Held
for Future Distribution).
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 July
2007, and (ii) the first Distribution Date on which the Senior Enhancement
Percentage is greater than or equal to the Senior Specified Enhancement
Percentage.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subsequent Recoveries: Amounts received with respect to any
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).
Tax Service Contract: As defined in Section 3.09(a).
Telerate Page 3750: The display page currently so designated on the
Bridge Telerate Service (or such other page as may replace that page on that
service for displaying comparable rates or prices).
Termination Price: As defined in Section 9.01.
30 Day Delinquency: The failure of the Mortgagor to make any
Scheduled Payment due under the Mortgage Note on or prior to the date which is
30 days after such payment's 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)
over (ii) the sum of the interest payable to the Classes of Certificates on such
Distribution Date pursuant to Section 4.02(a)(i).
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a Trigger
Event exists if (i) the quotient (expressed as a percentage) of (1) the rolling
three month average of the aggregate unpaid principal balance of 60+ Day
Delinquent Mortgage Loans, divided by (2) the aggregate unpaid principal balance
of the Mortgage Loans as of the last day of the related Collection Period,
equals or exceeds 50.00% of the Class M-1 Enhancement Percentage as of the prior
Distribution Date 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 Collection 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 Cumulative Loss Percentage
--------------------------------------------------------------------------------
July 2007 through June 2008 3.5000% for the first month, plus
an additional 1/12th of 1.000% for
each month thereafter (e.g.,
approximately 3.583% in August 2007)
July 2008 through June 2009 4.5000% for the first month, plus
an additional 1/12th of 0.7500% for
each month thereafter (e.g.,
approximately 4.563% in August 2008)
July 2009 through June 2010 5.250% for the first month, plus an
additional 1/12th of 0.2500% for
each month thereafter (e.g.,
approximately 5.2710% in
August 2009)
July 2010 and thereafter 5.5000%
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 on or after the related Cut-off Date; (ii) the Collection
Account, Excess Reserve Fund Account, the Distribution Account, and all amounts
deposited therein pursuant to the applicable provisions of this Agreement
(exclusive of any Repurchase Excess Amounts); (iii) property that secured a
Mortgage Loan and has been acquired by foreclosure, deed-in-lieu of foreclosure
or otherwise; (iv) the Cap Agreement and (v) all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing.
Trust REMIC: Any of the Pooling-Tier REMIC, the Lower-Tier REMIC and
the Upper-Tier REMIC.
Trustee: JPMorgan, and its successors in interest and, if a
successor trustee is appointed hereunder, such successor.
Trustee Float Period: With respect to any Distribution Date and the
related amounts in the Distribution Account, the period commencing on the
Remittance Date immediately preceding such Distribution Date and ending on such
Distribution Date.
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.
Underwriters' Exemption: Any exemption listed in footnote 1 of, and
amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002),
or any successor exemption.
Underwriting Guidelines: The underwriting guidelines attached to the
applicable Purchase Agreement.
Unpaid Interest Amount: As of any Distribution Date and any Class of
Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from prior Distribution Dates remaining unpaid and (b)
interest on such unpaid amount at the applicable Pass-Through Rate (to the
extent permitted by applicable law).
Upper-Tier Regular Interest: As described in the Preliminary
Statement.
Upper-Tier REMIC: As described in the Preliminary Statement.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class A-IO
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), and (c) the remaining Voting Rights shall be allocated among Holders
of the remaining Classes of Certificates in proportion to the Certificate
Balances of their respective Certificates on such date.
WAC Cap: With respect to the Mortgage Loans as of any Distribution
Date, a per annum rate equal to the product of (a) the excess of (i) the product
of (x) weighted average gross rate of the Mortgage Loans in effect on the
beginning of the related Collection Period, (y) the actual number of days in the
related Collection Period divided by 365 and (z) 12, over (ii) the sum of (x)
the Expense Fee Rate and (y) the Class A-IO Pass-Through Rate multiplied by a
fraction the numerator of which is the Class A-IO Notional Amount for that
Distribution Date and the denominator of which is the aggregate principal
balance of the Mortgage Loans at the beginning of the Collection Period and (b)
30 divided by actual days of the accrual period of the LIBOR Certificates
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 Trustee for
the benefit of the Certificateholders the following documents or instruments
with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note (except for up to 3% of the Mortgage
Notes (by Stated Principal Balance) for which there is a lost note
affidavit and the copy of the Mortgage Note and except for up to 2% of the
Mortgage Loans (by Stated Principal Balance) with missing intervening
endorsements) including all intervening endorsements showing a complete
chain of endorsement from the originator to the last endorsee, endorsed
"Pay to the order of _____________, without recourse" and signed in the
name of the last endorsee by an authorized officer. To the extent that
there is no room on the face of the Mortgage Notes for endorsements, the
endorsement may be contained on an allonge, if state law so allows and the
Trustee is so advised by the Depositor that state law so allows;
(ii) the original of any guarantee executed in connection with the
Mortgage Note;
(iii) the original Mortgage with evidence of recording thereon, or a
copy thereof certified by the public recording office in which such
mortgage has been recorded or, if the original Mortgage has not been
returned from the applicable public recording office, a true certified
copy of the original Mortgage together with a certificate of the
Responsible Party certifying that the original Mortgage has been delivered
for recording in the appropriate public recording office of the
jurisdiction in which the Mortgaged Property is located.
(iv) the originals, or certified copies, of all assumption,
modification or consolidation agreements, if any, with evidence of
recording thereon, where such assumption, modification or consolidation
agreement has been recorded, and all originals or copies of extension
agreements, to the extent that the Depositor is in possession of them;
(v) the original Assignment of Mortgage for each Mortgage Loan
endorsed in blank and in recordable form (except for less than 0.75% of
the Mortgage Loans (by Stated Principal Balance));
(vi) the originals of all intervening Assignments of Mortgage (if
any) evidencing a complete chain of assignment from the applicable
originator to the last endorsee with evidence of recording thereon, or if
any such intervening assignment has not been returned from the applicable
recording office or has been lost or if such public recording office
retains the original recorded Assignments of Mortgage, the Responsible
Party (to the extent that it has not previously delivered the same to the
Purchaser or the Trustee), shall deliver or cause to be delivered to the
Trustee, a photocopy of such intervening assignment, together with (A) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Responsible Party (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 Trustee upon
receipt thereof by the Responsible Party, or (B) in the case of an
intervening assignment where a public recording office retains the
original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording
office, a copy of such intervening assignment certified by such public
recording office to be a true and complete copy of the original recorded
intervening assignment;
(vii) where a policy of title insurance was required pursuant to the
applicable underwriting standards of the originator, the original
mortgagee policy of title insurance or, in the event such original title
policy is unavailable, a copy of the related policy binder, preliminary
report or commitment for title; and
(viii)a security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage (if provided).
Each Mortgage Loan for which a Mortgage Note is missing shall be
evidenced by a lost note affidavit as of the Closing Date. In the event, for
purposes of the Closing Date, one or more lost note affidavits are provided to
cover multiple missing Mortgage Notes, the Responsible Party shall deliver to
the Trustee 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 30 days of the Closing Date.
The Responsible Party shall deliver to the Trustee the applicable
recorded document promptly upon receipt from the respective recording office but
in no event later than 150 days from the Closing Date.
From time to time, the Responsible Party shall forward to the
Trustee additional original documents, additional documents evidencing an
assumption, modification, consolidation or extension of a Mortgage Loan approved
by such Responsible Party in accordance with the terms of this Agreement. All
such mortgage documents held by the Trustee as to each Mortgage Loan shall
constitute the "Custodial File."
On or prior to the Closing Date, the Responsible Party shall deliver
to the Trustee Assignments of Mortgages, in blank, for each applicable Mortgage
Loan. The Responsible Party shall cause the Assignments of Mortgage with
completed recording information to be provided to the Depositor 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 Depositor of the fully
completed Assignments of Mortgages in recordable form, the Depositor shall
promptly submit or cause to be submitted for recording, at the expense of the
Responsible Party, at no expense to the Trust Fund or the Trustee 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. If the
Assignment of Mortgage is to be recorded, the Responsible Party shall assign, at
its expense, to "JPMorgan Chase Bank, as trustee under the Pooling and Servicing
Agreement dated as of June 1, 2004, GSAMP Trust 2004-SEA2." In the event that
any such assignment is lost or returned unrecorded because of a defect therein,
the Responsible Party shall promptly prepare a substitute assignment to cure
such defect and thereafter cause each such assignment to be duly recorded.
On or prior to the Closing Date, the Depositor shall deliver to the
Trustee and the Servicer a copy of the Data Tape Information in electronic,
machine readable medium in a form mutually acceptable to the Depositor, the
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
Trustee and the Servicer.
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 Trustee within 90 days following the
Closing Date, and in the event that the Responsible Party does not cure such
failure within 30 days of discovery or receipt of written notification of such
failure from the Depositor, the related Mortgage Loan shall, upon the request of
the Depositor, be repurchased by the Responsible Party at the price and in the
manner specified in Section 2.03. The foregoing repurchase remedy shall not
apply in the event that the Responsible Party cannot deliver such original or
copy of any document submitted for recordation to the appropriate public
recording office within the specified period due to a delay caused by the
recording office in the applicable jurisdiction; provided, that the Responsible
Party shall instead deliver a recording receipt of such recording office or, if
such recording receipt is not available, an officer's certificate of an officer
of the Responsible Party confirming that such document has been accepted for
recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses the
original Mortgage or assignment after it has been recorded, the obligations of
the Responsible Party shall be deemed to have been satisfied upon delivery by
the Responsible Party to the Trustee prior to the Closing Date of a copy of such
Mortgage or assignment, as the case may be, certified (such certification to be
an original thereof) by the public recording office to be a true and complete
copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "GSAMP Trust 2004-SEA2" and
JPMorgan Chase Bank 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 and the Cap Agreement)
pursuant to Section 2.01(a).
Section 2.02 Acceptance by the Trustee of the Mortgage Loans. The
Trustee acknowledges receipt of the documents identified in the Initial
Certification in the form annexed hereto as Exhibit E, and declares that it
holds and will hold such documents and the other documents delivered to it
pursuant to Section 2.01, and that it holds or will hold such other assets as
are included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders. The Trustee acknowledges that it will
maintain possession of the related Mortgage Notes in the State of Texas, unless
otherwise permitted by the Rating Agencies.
Prior to and as a condition to the Closing, the Trustee shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor 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 Trustee shall not be responsible to verify the validity,
sufficiency or genuineness of any document in any Custodial File.
On the Closing Date, the Trustee shall ascertain that all documents
required to be reviewed by it are in its possession, and shall deliver to the
Depositor and the Servicer an Initial Certification, in the form annexed hereto
as Exhibit E, and shall deliver to the Depositor and the Servicer a Document
Certification and Exception Report, in the form annexed hereto as Exhibit F,
within 90 days after the Closing Date to the effect that, as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or any Mortgage Loan specifically identified in such certification as an
exception and not covered by such certification): (i) all documents required to
be reviewed by it are in its possession; (ii) such documents have been reviewed
by it and appear regular on their face and relate to such Mortgage Loan; (iii)
based on its examination and only as to the foregoing documents, the information
set forth in items (1), (2) and (3) of the Mortgage Loan Schedule and items (1),
(2) and (3) 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 Trustee shall not be responsible to verify the
validity, sufficiency or genuineness of any document in any Custodial File.
The Trustee shall retain possession and custody of each Custodial
File in accordance with and subject to the terms and conditions set forth
herein. The Servicer shall promptly deliver to the Trustee, upon the execution
or receipt thereof, the originals of such other documents or instruments
constituting the Custodial File as come into the possession of the Servicer from
time to time.
The 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 Trustee, 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, at such Responsible Party's
expense pursuant to the related Purchase Agreement, to the Servicer and in no
event shall the Servicer be responsible for such expense.
Section 2.03 Representations, Warranties and Covenants of the
Servicer and the Responsible Party. (a) The Servicer hereby makes the
representations and warranties set forth in Schedule II hereto to the Depositor,
the Backup Servicer and the Trustee as of the Closing Date.
(b) The Responsible Party hereby makes the representations and
warranties set forth in Schedule IIIA and IIIB hereto to the Depositor and its
Affiliates, the Servicer, the Backup Servicer and the Trustee as of the Closing
Date.
(c) It is understood and agreed that the representations and
warranties set forth in Section 2.03(b) shall survive the transfer of the
Mortgage Loans by the Depositor to the Trustee until March 31, 2007, and shall
inure to the benefit of the Depositor and its Affiliates, the Servicer, the
Backup Servicer and the Trustee notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment of Mortgage or the examination or
failure to examine any Mortgage File. Upon discovery by any of the Responsible
Party, the Depositor, the Trustee, the Backup Servicer 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 other.
(d) Within 30 days of the earlier of either discovery by or notice
to the Responsible Party that any Mortgage Loan does not conform to the
requirements as determined in the Trustee's review of the related Custodial File
or within 60 days of the earlier of either discovery by or notice to the
Responsible Party of any breach of a representation or warranty set forth in
Section 2.03(b), that materially and adversely affects the value of any Mortgage
Loan or the interest of the Trustee or the Certificateholders therein, the
Responsible Party shall use its best efforts to cause to be remedied a material
defect in a document constituting part of a Mortgage File or promptly to cure
such breach in all material respects and, if such defect or breach cannot be
remedied, the Responsible Party shall, repurchase such Mortgage Loan at the
Repurchase Price. In the event that a breach which materially and adversely
affects the value of the related Mortgage Loan or Mortgage Loans, as the case
may be, or the interests of the Trustee or the Certificateholders therein, shall
involve any representation or warranty set forth in Schedule III, and such
breach cannot be cured within 60 days of the earlier of either discovery by or
notice to the Responsible Party of such breach, all of the Responsible Party
Mortgage Loans shall, at the Depositor's option, be repurchased by the
Responsible Party at the Repurchase Price. Notwithstanding the foregoing, a
breach which causes a Mortgage Loan not to constitute a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code will be deemed
automatically to materially and adversely affect the value of such Mortgage Loan
and the interests of the Trustee and Certificateholders in such Mortgage Loan.
The Responsible Party shall repurchase each such Deleted Mortgage Loan within 60
days of the earlier of discovery or receipt of notice with respect to each such
Deleted Mortgage Loan.
(e) In connection with any repurchase of a Mortgage Loan pursuant to
this Section 2.03, the Servicer shall, based on information provided by the
Responsible Party, amend the Mortgage Loan Schedule for the benefit of the
Certificateholders to reflect the removal of such Deleted Mortgage Loan or Loans
and the Servicer shall deliver the amended Mortgage Loan Schedule to the
Trustee.
(f) Until March 31, 2007, in addition to the repurchase obligations
set forth in this Section 2.03, the Responsible Party shall indemnify the
Depositor, and its Affiliates, the Servicer, the Backup Servicer and the Trustee
and hold such parties harmless against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a breach by the
Responsible Party of any of its representations and warranties contained in this
Agreement.
(g) In the event that a Mortgage Loan shall have been repurchased
pursuant to this Section 2.03, 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 J hereto, the
Trustee shall release the related Custodial File held for the benefit of the
Certificateholders to such Person as directed by the Servicer, and the Trustee
shall execute and deliver at such Person's direction such instruments of
transfer or assignment prepared by such Person, in each case without recourse,
as shall be necessary to transfer title from the Trustee. It is understood and
agreed that the obligation under this Agreement of any Person to cure,
repurchase or replace any Mortgage Loan as to which a breach has occurred and is
continuing, together with any related indemnification obligations, shall
constitute the sole remedy against such Persons respecting such breach available
to Certificateholders, the Depositor, the Servicer, the Backup Servicer 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 Trustee for
the benefit of the Certificateholders.
(h) In the event that the Responsible Party repurchases any Mortgage
Loan pursuant to this Section 2.03 and the Repurchase Price is less than the
amount calculated pursuant to clause (b) of the definition of "Repurchase
Price", such shortfall shall be paid by the Depositor in the manner set forth in
Section 2.03(g), and if the Repurchase Price is greater than the amount
calculated pursuant to clause (b) of the definition of "Repurchase Price", such
excess amount (the "Repurchase Excess Amount") shall be promptly remitted by the
Servicer to the Depositor.
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, has executed and delivered to or
upon the order of the Depositor, the Certificates in authorized denominations
evidencing directly or indirectly the entire ownership of the Trust Fund. The
Trustee agrees to hold the Trust Fund and exercise the rights referred to above
for the benefit of all present and future Holders of the Certificates.
Section 2.06 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
The "Start-up Day" for purposes of the REMIC Provisions shall be the Closing
Date. The "latest possible maturity date" is the Distribution Date in September
2033, which is the Distribution Date following the latest Mortgage Loan maturity
date. Amounts paid to the Class X Certificates (prior to any reduction for any
Basis Risk Payment) shall be deemed paid from the Upper-Tier REMIC in respect of
the Class X Interest to the holders of the Class X Certificates.
Section 2.07 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Trustee, the
Responsible Party, the Backup Servicer and the Servicer that as of the date of
this Agreement or as of such date specifically provided herein:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to convey
the Mortgage Loans and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite corporate action having been
taken, and, assuming the due authorization, execution and delivery hereof by the
Servicer, the Responsible Party, the Backup Servicer, and the Trustee,
constitutes or will constitute the legal, valid and binding agreement of the
Depositor, enforceable against the Depositor in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law);
(d) No consent, approval, authorization or order of or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been made on or prior to the
Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of trust, contract
or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound; (ii)
results or will result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Depositor of any court or governmental
authority having jurisdiction over the Depositor or its subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or encumbrance which
would have a material adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder;
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of each Mortgage Note and each
Mortgage as and in the manner contemplated by this Agreement is sufficient
either (i) fully to transfer to the Trustee, for the benefit of the
Certificateholders, all right, title, and interest of the Depositor thereto as
note holder and mortgagee or (ii) to grant to the Trustee, for the benefit of
the Certificateholders, the security interest referred to in Section 10.04; and
(i) Except if the Mortgage Loan is identified on the Data Tape
Information as being "Section 32," no Mortgage Loan is a Mortgage Loan
classified as (a) a "high cost" loan under the Home Ownership and Equity
Protection Act of 1994, (b) a "high cost home," "threshold," "covered,"
(excluding New Jersey "Covered Home Loans" as that term is defined in clause (1)
of the definition of that term in the New Jersey Home Ownership Security Act of
2002), "high risk home," "predatory" or similar loan under any other applicable
state, federal or local law (or a similarly classified loan using different
terminology under a law imposing heightened regulatory scrutiny or additional
legal liability for residential mortgage loans having high interest rates,
points and/or fees), (c) a Mortgage Loan categorized as High Cost pursuant to
Appendix E of Standard & Poor's Glossary or (d) Covered Loan, as applicable, and
no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is
governed by the Georgia Fair Lending Act. No Mortgage Loan is covered by the
Home Ownership and Equity Protection Act of 1994 and no Mortgage Loan is in
violation of any comparable state or local law.
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 Trustee or to a custodian, as the case may be,
and shall inure to the benefit of the Trustee.
Within 30 days of the earlier of either discovery by or notice to
the Depositor of a breach of the representations and warranties set forth in
clause (h) or (i) 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. In the event the
Depositor has breached the representation or warranty under clause (i) prior to
March 31, 2007, the Trustee shall first proceed against the Responsible Party.
If the Responsible Party does not within 60 days after notification of the
breach, take steps to cure such breach (which may include certifying to progress
made and requesting an extension of the time to cure such breach, to the extent
permitted under the Servicing Agreement) or repurchase the Mortgage Loan, the
Trustee shall be entitled to enforce the obligations of the Depositor hereunder
to cure such breach or to repurchase the Mortgage Loan. In such event, the
Depositor shall succeed to the rights of the Trust to enforce the obligations of
the Responsible Party to cure such breach or repurchase such Mortgage Loan
hereunder. The obligations of the Depositor to cure such breach or to purchase
any Mortgage Loan constitute the sole remedies respecting a material breach of
any such representation or warranty to the Holders of the Certificates and the
Trustee.
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 serviced by it 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 Interest 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
related 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 related 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 related 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. 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.
(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,
neither Servicer may 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.
(d) The Servicer may delegate its responsibilities under this
Agreement; provided, however, that no such delegation shall release the Servicer
from the responsibilities or liabilities arising under this Agreement.
Section 3.02 Subservicing Agreements between the Servicer and
Subservicers. (a) The Servicer may enter into subservicing agreements with
subservicers (each, a "Subservicer"), for the servicing and administration of
the related Mortgage Loans ("Subservicing Agreements").
(b) Each Subservicer shall be (i) authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to enable the
Subservicer to perform its obligations hereunder and under the Subservicing
Agreement, (ii) an institution approved as a mortgage loan originator by the
Federal Housing Administration or an institution that has deposit accounts
insured by the FDIC and (iii) a Xxxxxxx Mac or Xxxxxx Mae approved mortgage
servicer. Each Subservicing Agreement must impose on the Subservicer
requirements conforming to the provisions set forth in Section 3.08 and provide
for servicing of the Mortgage Loans consistent with the terms of this Agreement.
The Servicer will examine each Subservicing Agreement and will be familiar with
the terms thereof. The terms of any Subservicing Agreement will not be
inconsistent with any of the provisions of this Agreement. The Servicer and the
respective Subservicers may enter into and make amendments to the Subservicing
Agreements or enter into different forms of Subservicing Agreements; provided,
however, that any such amendments or different forms shall be consistent with
and not violate the provisions of this Agreement, and that no such amendment or
different form shall be made or entered into which could be reasonably expected
to be materially adverse to the interests of the Trustee, without the consent of
the Trustee. Any variation without the consent of the Trustee from the
provisions set forth in Section 3.08 relating to insurance or priority
requirements of Subservicing Accounts, or credits and charges to the
Subservicing Accounts or the timing and amount of remittances by the
Subservicers to the Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. The Servicer shall deliver to the
Trustee and the Depositor copies of all Subservicing Agreements, and any
amendments or modifications thereof, promptly upon the Servicer's execution and
delivery of such instruments.
(c) As part of its servicing activities hereunder, the Servicer
(except as otherwise provided in the last sentence of this paragraph), for the
benefit of the Trustee, shall enforce the obligations of each Subservicer under
the related Subservicing Agreement to which the Servicer is a party, 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 to which the Servicer is a party 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 party to the related
Subservicing Agreement 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, the Backup Servicer or
the Trustee without fee, in accordance with the terms of this Agreement, in the
event that the Servicer which is a party to the related Subservicing Agreement
shall, for any reason, no longer be the Servicer (including termination due to
an Event of Default).
Section 3.04 Liability of the Servicer. Notwithstanding any
Subservicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a Subservicer or reference
to actions taken through a Subservicer or otherwise, the Servicer shall remain
obligated and primarily liable to the Trustee for the servicing and
administering of the Mortgage Loans in accordance with the provisions of Section
3.01 without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering such Mortgage Loans. The
Servicer shall be entitled to enter into any agreement with a Subservicer for
indemnification of the Servicer by such Subservicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
Section 3.05 No Contractual Relationship between Subservicers and
the Trustee. Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to be between the Subservicer and the
Servicer alone, and the Trustee (or any successor to the Servicer) shall not be
deemed a party thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Subservicer except as set forth in Section 3.06.
The Servicer shall be solely liable for all fees owed by it to any Subservicer,
irrespective of whether the Servicer's compensation pursuant to this Agreement
is sufficient to pay such fees.
Section 3.06 Assumption or Termination of Subservicing Agreements by
Trustee. In the event the Servicer at any time shall for any reason no longer be
the Servicer (including by reason of the occurrence of an Event of Default), the
Trustee, or its designee, or the successor Servicer if the successor Servicer is
not the Trustee, shall thereupon assume all of the rights and obligations of the
Servicer under each Subservicing Agreement that the Servicer may have entered
into, with copies thereof provided to the Trustee prior to the Trustee assuming
such rights and obligations, unless the Trustee elects to terminate any
Subservicing Agreement in accordance with its terms as provided in Section 3.03.
Upon such assumption, the Trustee, its designee or the successor
servicer shall be deemed, subject to Section 3.03, to have assumed all of the
Servicer's interest therein and to have replaced the Servicer as a party to each
Subservicing Agreement to which the predecessor Servicer was a party to the same
extent as if each Subservicing Agreement had been assigned to the assuming
party, except that (i) the Servicer shall not thereby be relieved of any
liability or obligations under any Subservicing Agreement that arose before it
ceased to be the Servicer and (ii) none of the Depositor, the Trustee, their
designees or any successor to the Servicer shall be deemed to have assumed any
liability or obligation of the Servicer that arose before it ceased to be the
Servicer.
Such Servicer at its expense shall, upon request of the Trustee,
deliver to the assuming party all documents and records relating to each
Subservicing Agreement to which it is a party and the Mortgage Loans then being
serviced by it 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 interest 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
Interest 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 LIBOR Certificates. The Servicer's analysis supporting any
Forbearance and the conclusion that any Forbearance meets the standards of
Section 3.01 shall be reflected in writing in the applicable Servicing File or
on the Servicer's servicing records.
(b) The Servicer shall give notice to the Trustee, each Rating
Agency and the Depositor of any proposed change of the location of the
Collection Account within a reasonable period of time prior to any change
thereof.
Section 3.08 Subservicing Accounts. In those cases where a
Subservicer is servicing a Mortgage Loan pursuant to a Subservicing Agreement,
the Subservicer will be required to establish and maintain one or more accounts
(collectively, the "Subservicing Account"). The Subservicing Account shall be an
Eligible Account and shall otherwise be acceptable to the Servicer. The
Subservicer shall deposit in the clearing account (which account must be an
Eligible Account) in which it customarily deposits payments and collections on
mortgage loans in connection with its mortgage loan servicing activities on a
daily basis, and in no event more than one Business Day after the Subservicer's
receipt thereof, all proceeds of Mortgage Loans received by the Subservicer less
its servicing compensation to the extent permitted by the Subservicing
Agreement, and shall thereafter deposit such amounts in the Subservicing
Account, in no event more than two Business Days after the deposit of such funds
into the clearing account. The Subservicer shall thereafter deposit such
proceeds in the Collection Account of the Servicer or remit such proceeds to the
Servicer for deposit in the Collection Account of the Servicer 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 related Mortgage
Loans shall be covered by a paid-in-full, life-of-the-loan tax service contract
in effect with respect to each First Lien Mortgage Loan (each, a "Tax Service
Contract") serviced by the Servicer. Each Tax Service Contract shall be assigned
to the Trustee, or its designee, at the Servicer's expense in the event that the
Servicer is terminated as Servicer of the related Mortgage Loan.
(b) To the extent that the services described in this paragraph (b)
are not otherwise provided pursuant to the Tax Service Contracts described in
paragraph (a) hereof, the Servicer undertakes to perform such functions with
respect to the Mortgage Loans serviced by the Servicer. To the extent the
related Mortgage Loan provides for Escrow Payments, the Servicer shall establish
and maintain, or cause to be established and maintained, one or more accounts
(the "Escrow Accounts"), which shall be Eligible Accounts. The Servicer shall
deposit in the clearing account (which account must be an Eligible Account) in
which it customarily deposits payments and collections on mortgage loans in
connection with its mortgage loan servicing activities on a daily basis, and in
no event more than one Business Day after the Servicer's receipt thereof, all
collections from the Mortgagors (or related advances from Subservicers) for the
payment of taxes, assessments, hazard insurance premiums and comparable items
for the account of the Mortgagors ("Escrow Payments") collected on account of
the Mortgage Loans and shall thereafter deposit such Escrow Payments in the
Escrow Accounts, in no event more than two Business Days after the deposit of
such funds in the clearing account, for the purpose of effecting the payment of
any such items as required under the terms of this Agreement. Withdrawals of
amounts from an Escrow Account may be made only to (i) effect payment of taxes,
assessments, hazard insurance premiums, and comparable items; (ii) reimburse the
Servicer (or a Subservicer to the extent provided in the related Subservicing
Agreement) out of related collections for any advances made pursuant to Section
3.01 (with respect to taxes and assessments) and Section 3.13 (with respect to
hazard insurance); (iii) refund to Mortgagors any sums as may be determined to
be overages; (iv) apply to the restoration or repair of the Mortgaged Property
in accordance with the Section 3.13; (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
related 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 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 Eligible Accounts (each such account or accounts, a
"Collection Account"), held in trust for the benefit of the Trustee. 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, or payments
(other than Principal Prepayments) received by it on or prior to the related
Cut-off Date but allocable to a Collection Period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of the related
Servicing Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds and Condemnation Proceeds (to the
extent such Insurance Proceeds and Condemnation Proceeds are not to be
applied to the restoration of the related Mortgaged Property or released
to the related Mortgagor in accordance with the express requirements of
law or in accordance with prudent and customary servicing practices) and
all Liquidation Proceeds;
(iv) any amounts required to be deposited pursuant to Section 3.12
in connection with any losses realized on Permitted Investments with
respect to funds held in the Collection Account;
(v) any amounts required to be deposited by the Servicer pursuant to
the second paragraph of Section 3.13(a) in respect of any blanket policy
deductibles; and
(vi) all proceeds of any Mortgage Loan repurchased or purchased in
accordance with this Agreement.
The foregoing requirements for deposit in the Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges, NSF
fees, reconveyance fees, assumption fees and other similar fees and charges need
not be deposited by the Servicer in the Collection Account and shall, upon
collection, belong to the Servicer as additional compensation for its servicing
activities. In the event the Servicer shall deposit in the Collection Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from the Collection Account, any provision herein to the contrary
notwithstanding.
(b) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12. The
Servicer shall give notice to the Trustee and the Depositor of the location of
the Collection Account maintained by it when established and prior to any change
thereof.
Section 3.11 Withdrawals from the Collection Account. (a) The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes or as described in Section 4.01:
(i) on or prior to the Remittance Date, (A) remit to the Trustee and
Backup Servicer the Backup Servicer and Trustee Fee with respect to such
Distribution Date and (B) to remit to the Trustee all Available Funds in
respect of the related Distribution Date;
(ii) to reimburse the Servicer for Interest Advances, but only to
the extent of amounts received which represent Late Collections (net of
the related Servicing Fees) of Scheduled Interest on Mortgage Loans with
respect to which such Interest 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 serviced by the Servicer, 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 to the Responsible Party, with respect to each Mortgage
Loan that has previously been repurchased pursuant to this Agreement all
amounts received thereon subsequent to the date of purchase, as the case
may be;
(vi) to reimburse the Servicer for (A) any Interest Advance or
Servicing Advance previously made which the Servicer has determined to be
a Nonrecoverable Interest 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 serviced by the
Servicer pursuant to Section 3.15;
(viii) to reimburse the Servicer, the Depositor, the Backup Servicer
or the Trustee for expenses incurred by or reimbursable to the Servicer,
the Depositor, the Backup Servicer or the Trustee, as the case may be,
pursuant to Section 6.03, Section 7.02 or Section 8.05;
(ix) to reimburse the Servicer or the Trustee, as the case may be,
for expenses reasonably incurred in respect of the breach or defect giving
rise to the repurchase obligation under Section 2.03 of this Agreement
that were included in the Repurchase Price of the Mortgage Loan, including
any expenses arising out of the enforcement of the repurchase obligation,
to the extent not otherwise paid pursuant to the terms hereof;
(x) to 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 Trustee on the Remittance Date occurring in
the month in which such amounts are deposited into such Collection
Account, to reimburse the Servicer for unreimbursed Interest 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 Trustee for the
account of the Trustee 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), (ix)
and (x) above. The Servicer shall provide written notification to the Depositor,
on or prior to the next succeeding Remittance Date, upon making any withdrawals
from the Collection Account pursuant to subclause (a)(vi) above.
Section 3.12 Investment of Funds in the Collection Account and the
Distribution Account. (a) The Servicer may invest the funds in the Collection
Account and the Trustee may invest funds in the Distribution Account during the
Trustee Float Period (for purposes of this Section 3.12, each of the Collection
Account and the Distribution Accounts are referred to as an "Investment
Account"), in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, no later than the Business Day
on which such funds are required to be withdrawn from such account pursuant to
this Agreement. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee. The Trustee shall be entitled to sole
possession (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 Trustee Float Period) over each such
investment, and any certificate or other instrument evidencing any such
investment shall be delivered directly to the Trustee or its agent, together
with any document of transfer necessary to transfer title to such investment to
the Trustee. In the event amounts on deposit in an Investment Account are at any
time invested in a Permitted Investment payable on demand, the Trustee may:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Collection Account and Escrow 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 and Escrow 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 no Servicer shall realize any economic
benefit from any forced charging of services except as permitted by applicable
law. Such 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 Trustee, shall be for the
benefit of the Depositor (except for any income or gain realized from the
investment of funds on deposit in the Distribution Account during the Trustee
Float Period, which shall be for the benefit of the Trustee). The Depositor
shall deposit in the Distribution Account (except with respect to the Trustee
Float Period, in which case the Trustee shall deposit) the amount of any loss of
principal incurred in respect of any such Permitted Investment made with funds
in such accounts immediately upon realization of such loss.
(d) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings.
(e) The Trustee or its Affiliates are permitted to receive
additional compensation that could be deemed to be in the Trustee's economic
self-interest for (i) serving as investment adviser, administrator, shareholder,
servicing agent, custodian or sub-custodian with respect to certain of the
Permitted Investments, (ii) using Affiliates to effect transactions in certain
Permitted Investments and (iii) effecting transactions in certain Permitted
Investments.
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions
and Fidelity Coverage. (a) The Servicer shall cause to be maintained for each
First Lien Mortgage Loan serviced by the Servicer 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 serviced by the Servicer
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 any 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
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 any Servicer in
maintaining any such insurance shall not, for the purpose of calculating
distributions to the Trustee, be added to the unpaid principal balance of the
related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so
permit. It is understood and agreed that no earthquake or other additional
insurance is to be required of any Mortgagor other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Mortgaged Property or REO Property is
at any time in an area identified in the Federal Register by the Federal
Emergency Management Agency as having special flood hazards and flood insurance
has been made available, the Servicer will cause to be maintained a flood
insurance policy in respect thereof. Such flood insurance shall be in an amount
equal to the lesser of (i) the 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 any Servicer shall obtain and maintain a blanket
policy with an insurer either (i) acceptable to Xxxxxx Xxx or Xxxxxxx Xxx, 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 Trustee upon request with
copies of any such insurance policies and fidelity bond. The Servicer shall be
deemed to have complied with this provision if an Affiliate of the Servicer has
such errors and omissions and fidelity bond coverage and, by the terms of such
insurance policy or fidelity bond, the coverage afforded thereunder extends to
the Servicer. Any such errors and omissions policy and fidelity bond shall by
its terms not be cancelable without thirty days' prior written notice to the
Trustee. 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 no
Servicer shall 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. No Servicer shall 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
Trustee that any such substitution, modification or assumption agreement has
been completed by forwarding to the Trustee the executed original of such
substitution or assumption agreement, which document shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of
this Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Mortgage Loan by operation of law or by the terms of the Mortgage Note or any
assumption which the Servicer may be restricted by law from preventing, for any
reason whatsoever. For purposes of this Section 3.14, the term "assumption" is
deemed to also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
Section 3.15 Realization upon Defaulted Mortgage Loans. The Servicer
shall use its best efforts, consistent with Accepted Servicing Practices, to
foreclose upon or otherwise comparably convert (which may include an acquisition
of REO Property) the ownership of properties securing such of the Mortgage Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.07, and which are not released from this Agreement pursuant to any
other provision hereof. The Servicer shall use reasonable efforts to realize
upon such defaulted Mortgage Loans in such manner as will maximize the receipt
of principal and interest by the Trustee, taking into account, among other
things, the timing of foreclosure proceedings; provided, however with respect to
any Second Lien Mortgage Loan for which the related First Lien Mortgage Loan is
not included in the Trust Fund, if, after such Mortgage Loan becomes 180 days or
more delinquent, the Servicer determines that a significant net recovery is not
possible through foreclosure, such Mortgage Loan may be charged off and the
Mortgage Loan will be treated as a Liquidated Mortgage Loan giving rise to a
Realized Loss. The foregoing is subject to the provisions that, in any case in
which a Mortgaged Property shall have suffered damage from an uninsured cause,
the Servicer shall not be required to expend its own funds toward the
restoration of such property unless it shall determine in its sole discretion
(i) that such restoration will increase the net proceeds of liquidation of the
related Mortgage Loan to the Trustee, after reimbursement to itself for such
expenses, and (ii) that such expenses will be recoverable by the Servicer
through Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds from
the related Mortgaged Property, as contemplated in Section 3.11. The Servicer
shall be responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the related property, as contemplated in Section 3.11.
In the event that a First Lien Mortgage Loan is not being serviced
by the Servicer, the Servicer shall have no liability for any losses resulting
from a foreclosure on a Second Lien Mortgage Loan in connection with the
foreclosure on the related First Lien Mortgage Loan for which the related First
Lien Mortgage Loan is not included in the Trust Fund where the Servicer did not
receive notice or otherwise had no actual knowledge regarding such foreclosure
on the related First Lien Mortgage Loan; provided, however, if the Servicer is
either notified or has actual knowledge that any holder of a First Lien Mortgage
Loan intends to accelerate the obligations secured by the First Lien Mortgage
Loan, or that any such holder intends to declare a default under the mortgage or
promissory note secured thereby, or has filed or intends to file an election to
have the related Mortgaged Property sold or foreclosed, the Servicer shall take,
on behalf of the Trust, whatever actions are necessary to protect the interests
of the Trust in accordance with Accepted Servicing Practices and the REMIC
Provisions. The Servicer shall not be required to make a Servicing Advance
pursuant to Section 4.01 with respect thereto except to the extent that it
determines in its reasonable good faith judgment that such advance would be
recoverable from Liquidation Proceeds on the related Second Lien Mortgage Loan
and in no event in an amount that is greater than the then outstanding principal
balance of the related Second Lien Mortgage Loan. The Servicer shall thereafter
take such action as is reasonably necessary to recover any amount so advanced
and to otherwise reimburse itself as a Servicing Advance from the Collection
Account pursuant to Section 3.11.
The proceeds of any Liquidation Event or REO Disposition, as well as
any recovery resulting from a partial collection of Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds or any income from an REO
Property, will be applied in the following order of priority: first, to
reimburse the Servicer or any Subservicer for any related unreimbursed Servicing
Advances, pursuant to Section 3.11 or 3.17; second, to accrued and unpaid
interest on the Mortgage Loan or REO Imputed Interest, at the Mortgage Interest
Rate, to the date of the liquidation or REO Disposition, or to the Due Date
prior to the Remittance Date on which such amounts are to be distributed if not
in connection with a Liquidation Event or REO Disposition; third, to reimburse
any Servicer for any related unreimbursed Interest Advances, pursuant to Section
3.11; and fourth, as a recovery of principal of the Mortgage Loan. If the amount
of the recovery so allocated to interest is less than a full recovery thereof,
that amount will be allocated as follows: first, to unpaid Servicing Fees; and
second, as interest at the Mortgage Interest Rate (net of the Servicing Fee
Rate). The portion of the recovery so allocated to unpaid Servicing Fees shall
be reimbursed to the Servicer or any Subservicer pursuant to Section 3.11 or
3.17. The portions of the recovery so allocated to interest at the Mortgage
Interest Rate (net of the Servicing Fee Rate) and to principal of the Mortgage
Loan shall be applied as follows: first, to reimburse the Servicer or any
Subservicer for any related unreimbursed Servicing Advances in accordance with
Section 3.11 or 3.17, and second, to the Trustee in accordance with the
provisions of Section 4.02, subject to the last paragraph of Section 3.17 with
respect to certain excess recoveries from an REO Disposition.
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure, in
the event the Servicer has received actual notice of, or has actual knowledge of
the presence of, hazardous or toxic substances or wastes on the related
Mortgaged Property, or if the Trustee otherwise requests, the Servicer shall
cause an environmental inspection or review of such Mortgaged Property to be
conducted by a qualified inspector. Upon completion of the inspection, the
Servicer shall promptly provide the Trustee, with a written report of the
environmental inspection.
After reviewing the environmental inspection report, the Servicer
shall determine, consistent with Accepted Servicing Practices, 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 will, within five (5) Business Days of the payment in full, notify the
Trustee by a certification (which certification shall include a statement to the
effect that all amounts received or to be received in connection with such
payment which are required to be deposited in the Collection Account pursuant to
Section 3.10 have been or will be so deposited) of a Servicing Officer and shall
request delivery to it of the Custodial File by completing a Request for
Release. Upon receipt of such certification and Request for Release, the Trustee
shall promptly release the related Custodial File to the Servicer within three
(3) Business Days. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Collection
Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any Insurance Policy relating to the Mortgage Loans, the Trustee shall, upon
request of the Servicer and delivery to the Trustee, 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 Trustee 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 Trustee 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 Trustee to the Servicer or its designee. Upon receipt of a Request for
Release under this Section 3.16, the Trustee shall deliver the related Custodial
File to the requesting Servicer by regular mail, unless the Servicer requests
that the Trustee deliver such Custodial File to the Servicer by overnight
courier (in which case such delivery shall be at the Servicer's expense);
provided, however, that in the event the Servicer has not previously received
copies of the relevant Mortgage Loan Documents necessary to service the related
Mortgage Loan in accordance with Accepted Servicing Practices, the Depositor
shall use reasonable best 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 any Servicer copies of any court pleadings, requests for
trustee's sale or other documents reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Mortgagor on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity, or shall exercise and deliver to the Servicer a power of attorney
sufficient to authorize the Servicer to execute such documents on its behalf.
Each such certification shall include a request that such pleadings or documents
be executed by the Trustee and a statement as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
Section 3.17 Title, Conservation and Disposition of REO Property.
(a) This Section shall apply only to REO Properties acquired for the account of
the Trustee and shall not apply to any REO Property relating to a Mortgage Loan
which was purchased or repurchased from the Trustee pursuant to any provision
hereof. In the event that title to any such REO Property is acquired, the
Servicer shall cause the deed or certificate of sale to be issued in the name of
the Trustee, on behalf of the Certificateholders, or the Trustee's nominee.
(b) The Servicer shall manage, conserve, protect and operate each
REO Property for the Trustee solely for the purpose of its prompt disposition
and sale. The Servicer, either itself or through an agent selected by the
Servicer, shall manage, conserve, protect and operate the REO Property in the
same manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property in
the same locality as the REO Property is managed. The Servicer shall attempt to
sell the same (and may temporarily rent the same for a period not greater than
one year, except as otherwise provided below) on such terms and conditions as
the Servicer deems to be in the best interest of the Trustee.
(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 to such
effect, that a longer period is necessary for the orderly liquidation of such
REO Property and such longer period is not in violation of the REMIC Provisions.
If a period longer than three years is permitted under the foregoing sentence
and is necessary to sell any REO Property, the Servicer shall report monthly to
the Trustee as to the progress being made in selling such REO Property. 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, any REO Property as soon as possible, but in no
event later than the conclusion of the third calendar year beginning after the
year of its acquisition by the REMIC unless (i) the Servicer applies for an
extension of such period from the Internal Revenue Service pursuant to the REMIC
Provisions and Code Section 856(e)(3), in which event such REO Property shall be
sold within the applicable extension period, or (ii) the Servicer obtains for
the Trustee an Opinion of Counsel, addressed to the Depositor, the Trustee and
the Servicer, to the effect that the holding by the Pooling Tier REMIC of such
REO Property subsequent to such period will not result in the imposition of
taxes on "prohibited transactions" as defined in Section 860F of the Code or
cause any Trust REMIC to fail to qualify as a REMIC under the REMIC Provisions
or comparable provisions of relevant state laws at any time. The Servicer shall
manage, conserve, protect and operate each REO Property serviced by the Servicer
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 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 [Reserved].
Section 3.19 Access to Certain Documentation and Information
Regarding the Mortgage Loans. The Servicer shall provide, or cause the
applicable Subservicer to provide, to the Depositor, the Trustee, the OTS or the
FDIC and the examiners and supervisory agents thereof, access to the
documentation regarding the Mortgage Loans in its possession required by
applicable regulations of the OTS. Such access shall be afforded without charge,
but only upon reasonable and prior written request and during normal business
hours at the offices of the Servicer. Nothing in this Section shall derogate
from the obligation of any such party to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors and the failure of any such
party to provide access as provided in this Section as a result of such
obligation shall not constitute a breach of this Section.
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
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 serviced by the Servicer. 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 any Collection Account, the Distribution
Account or any Escrow Account, or any funds that otherwise are or may become due
or payable to the Trustee for the benefit of the Certificateholders, to any
claim, lien, security interest, judgment, levy, writ of attachment or other
encumbrance, or assert by legal action or otherwise any claim or right of setoff
against any Mortgage File or any funds collected on, or in connection with, a
Mortgage Loan, except, however, that the Servicer shall be entitled to set off
against and deduct from any such funds any amounts that are properly due and
payable to the Servicer under this Agreement.
Section 3.21 Servicing Compensation. (a) As compensation for its
activities hereunder, the Servicer shall, with respect to each Mortgage Loan, be
entitled to retain from deposits to the Collection Account and from Liquidation
Proceeds, Insurance Proceeds, and Condemnation Proceeds related to such Mortgage
Loan, the Servicing Fee with respect to each Mortgage Loan (less any portion of
such amounts retained by any Subservicer). In addition, the Servicer shall be
entitled to recover unpaid Servicing Fees out of related Late Collections and as
otherwise permitted in Section 3.11. Except as provided in Section 6.06, the
right to receive the Servicing Fee may not be transferred in whole or in part
except 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 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 Sections 3.09(b)(vi) and 3.11(a)(iv) to withdraw from the
Collection Account, as additional servicing compensation, interest or other
income earned on deposits therein.
(c) The Servicer shall be required to pay all expenses incurred by
it in connection with its servicing activities hereunder (including payment of
premiums for any blanket policy insuring against hazard losses pursuant to
Section 3.13, servicing compensation of the Subservicer to the extent not
retained by it and the fees and expenses of independent accountants and any
agents appointed by the Servicer), and shall not be entitled to reimbursement
therefor except as specifically provided in Section 3.11.
Section 3.22 Annual Statement as to Compliance. The Servicer will
deliver or cause to be delivered to the Depositor, the Rating Agencies and the
Trustee on or before March 15th of each calendar year, commencing in 2005, an
Officer's Certificate stating, as to each signatory thereof, that (i) a review
of the activities of the Servicer during the preceding calendar year and of
performance under this Agreement or a similar agreement has been made under such
officers' supervision, and (ii) to the best of such officers' knowledge, based
on such review, the Servicer has fulfilled all of its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officers and the nature and status thereof. Promptly after receipt of such
Officer's Certificate, the Depositor shall review such Officer's Certificate
and, if applicable, consult with the Servicer as to the nature of any defaults
by the Servicer in the fulfillment of any of the Servicer's obligations.
Section 3.23 Annual Independent Public Accountants' Servicing
Statement; Financial Statements. Not later than March 15th of each calendar year
commencing in 2005, the Servicer, at its expense, shall cause a nationally
recognized firm of independent certified public accountants to furnish to the
Depositor, the Rating Agencies, and the Trustee a report stating that (i) it has
obtained a letter of representation regarding certain matters from the
management of the Servicer which includes an assertion that the Servicer has
complied with certain minimum residential mortgage loan servicing standards,
identified in the Uniform Single Attestation Program for Mortgage Bankers
established by the Mortgage Bankers Association of America, with respect to the
servicing of residential mortgage loans during the most recently completed
calendar year and (ii) on the basis of an examination conducted by such firm in
accordance with standards established by the American Institute of Certified
Public Accountants, such representation is fairly stated in all material
respects, subject to such exceptions and other qualifications that may be
appropriate. In rendering its report such firm may rely, as to matters relating
to the direct servicing of residential mortgage loans by Subservicers, upon
comparable reports of firms of independent certified public accountants rendered
on the basis of examinations conducted in accordance with the same standards
(rendered within one year of such report) with respect to those Subservicers.
Promptly after receipt of such report, the Depositor shall review such report
and, if applicable, consult with the Servicer as to the nature of any defaults
by the Servicer in the fulfillment of any of the Servicer's obligations.
Section 3.24 Backup 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 Backup Servicer or its
successor shall, subject to the rights of the Depositor to appoint a successor
Servicer pursuant to Section 7.02, thereupon assume all of the rights and
obligations of the Servicer hereunder arising thereafter (except that the Backup
Servicer shall not be (i) liable for losses of such predecessor Servicer
pursuant to Section 3.10 or any acts or omissions of such 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 Backup 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 Backup 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 Backup Servicer, but at
the expense of the Servicer, deliver to the assuming party all documents and
records relating to each Subservicing Agreement (if any) to which it is a party
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
Trustee on each Remittance Date an amount from its own funds equal to
Compensating Interest payable by the Servicer for such Remittance Date except
that no Compensating Interest shall be paid on the Remittance Date in July 2004.
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 the three 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 Trustee shall establish and maintain the Excess Reserve Fund Account, on
behalf of the Class X Certificateholders, to receive any Basis Risk Payment and
to pay to the Offered Certificateholders any Basis Risk Carry Forward Amounts.
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class of Offered Certificates, the Trustee shall (1)
withdraw from the Distribution Account and deposit in the Excess Reserve Fund
Account, as set forth in Section 4.02(a)(iii)(H), the lesser of the Class X
Distributable Amount (to the extent remaining after the distributions specified
in Sections 4.02(a)(iii)(A)-(G)) 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 Certificates the applicable Basis Risk Carry
Forward Amounts. Such payments 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 Sections 4.02(a)(iii)(I). In the event that
the Certificate Balance of any Class of Certificates is permanently 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, even if
funds are otherwise available for distribution.
The Trustee shall account for the Excess Reserve Fund Account as an
outside reserve fund within the meaning of Treasury Regulations Section
1.860G-2(h) and not as an asset of any Trust REMIC created pursuant to this
Agreement. The beneficial owners of the Excess Reserve Fund Account are the
Class X Certificateholders. For all federal income tax purposes, amounts
transferred by the Upper-Tier REMIC to the Excess Reserve Fund Account shall be
treated as first distributed by the Trustee to the Class X Certificateholders in
respect of the Class X Interest, and then contributed by the Class X
Certificateholders to the Excess Reserve Fund Account.
Any Basis Risk Carry Forward Amounts paid by the Trustee to the
Offered Certificateholders shall be accounted for by the Trustee as amounts paid
first to the Holders of the Class X Certificates and then to the respective
Class or Classes of Offered Certificates. In addition, the Trustee shall account
for the rights of Holders of each Class of Offered Certificates to receive
payments of Basis Risk Carry Forward Amounts as rights in a separate limited
recourse interest rate cap contract written by the Class X Certificateholders in
favor of Holders of each such Class.
Notwithstanding any provision contained in this Agreement, the
Trustee shall not be required to make any payments from the Excess Reserve Fund
Account except as expressly set forth in this Section 3.27(a).
(b) The Trustee shall establish and maintain the Distribution
Account on behalf of the Certificateholders. The Trustee shall, promptly upon
receipt on the Business Day received, deposit in the Distribution Account and
retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Trustee
pursuant to Section 3.11;
(ii) any amount deposited by the Servicer pursuant to Section
3.12(b) in connection with any losses on Permitted Investments; and
(iii) 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 Trustee in writing to
withdraw such amount from the Distribution Account, any provision herein to the
contrary notwithstanding. Such direction may be accomplished by delivering
notice to the Trustee which describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 4.02.
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+ 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 Trustee a Request for
Release and the Trustee shall promptly release to the Depositor, the Mortgage
File relating to the Mortgage Loan being repurchased.
Section 3.29 Transfer of Servicing for the Mortgage Loans. Prior to
the Servicing Transfer Date, Bank One shall have complied with each of the
servicing transfer requirements to transfer the servicing of the Mortgage Loans
to Ocwen in accordance with customary industry procedures. Ocwen shall not be
responsible for any losses or defaults resulting from Bank One's failure to
transfer the servicing of the Mortgage Loans in a manner that allows Ocwen to
perform its obligations under this Agreement.
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances. (a) The amount of Interest 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 interest net of the Servicing
Fee, due during the Collection Period immediately preceding such Remittance Date
in respect of the Mortgage Loans serviced by the Servicer, which interest was
not received as of the close of business on the related Determination Date, (ii)
the amount of Simple Interest Shortfalls for the related Collection Period
(provided that Simple Interest Excess from the related Collection Period and any
previous Collection Period can be used by the Servicer to pay Simple Interest
Shortfalls) plus (iii) with respect to each REO Property, which REO Property was
acquired during or prior to the related Collection Period and as to which such
REO Property an REO Disposition did not occur during the related Collection
Period, an amount equal to the excess, if any, of the 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 Trustee an amount equal to the aggregate amount of
Interest Advances, if any, to be made in respect of the Mortgage Loans and REO
Properties serviced by the Servicer 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 Interest Advance) or (iii) in the form of any
combination of (i) and (ii) aggregating the total amount of Interest 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 Interest 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.
(d) Notwithstanding anything herein to the contrary, no Interest
Advance or Servicing Advance shall be required to be made hereunder by the
Servicer if such Interest Advance or Servicing Advance would, if made,
constitute a Nonrecoverable Interest Advance or Nonrecoverable Servicing
Advance. The determination by the Servicer that it has made a Nonrecoverable
Interest Advance or a Nonrecoverable Servicing Advance or that any proposed
Interest Advance or Servicing Advance, if made, would constitute a
Nonrecoverable Interest Advance or a Nonrecoverable Servicing Advance,
respectively, shall be evidenced by an Officer's Certificate of the Servicer
delivered to the Trustee.
(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.
Section 4.02 Priorities of Distribution. (a) On each Distribution
Date, the Trustee shall make the disbursements and transfers from amounts then
on deposit in the Distribution Account in the following order of priority and to
the extent of the Available Funds remaining:
(i) to the holders of each Class of LIBOR Certificates and the Class
A-IO Certificates, in the following order of priority:
(A) concurrently, from Interest Remittance Amount, (1) to the
Class A-1 Certificates, the Accrued Certificate Interest
Distribution Amount and Unpaid Interest Amount for the Class A-1
Certificates, (2) to the Class A-2A Certificates, the Accrued
Certificate Interest Distribution Amount and Unpaid Interest Amount
for the Class A-2A Certificates, (3) to the Class A-2B Certificates,
the Accrued Certificate Interest Distribution Amount and Unpaid
Interest Amount for the Class A-2B Certificates, and (4) to the
Class A-IO Certificates, the Accrued Certificate Interest
Distribution Amount and Unpaid Interest Amount for the Class A-IO
Certificates;
(B) from any remaining Interest Remittance Amount, to the
Class M-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(C) from any remaining Interest Remittance Amount, to the
Class M-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(D) from any remaining Interest Remittance Amount, to the
Class M-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(E) from any remaining Interest Remittance Amount, to the
Class M-4 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(F) from any remaining Interest Remittance Amount, to the
Class M-5 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(G) from any remaining Interest Remittance Amount, to the
Class B-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date; and
(H) from any remaining Interest Remittance Amount, to the
Class B-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(ii) (A) on each Distribution Date (a) before the Stepdown Date or
(b) with respect to which a Trigger Event is in effect, to the holders of
the related Class or Classes of LIBOR Certificates then entitled to
distributions of principal as set forth below, from amounts remaining on
deposit in the Distribution Account after making distributions pursuant to
clause (i) above, an amount equal to the Principal Distribution Amount in
the following order of priority:
(a) to the Class A Certificates, allocated as described in
Section 4.02(c), until the respective Class Certificate Balances
thereof 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 and Class B-2 Certificates, in that order,
until the respective Class Certificate Balances thereof are reduced
to zero;
(B) on each Distribution Date (a) on and after the Stepdown Date and
(b) as long as a Trigger Event is not in effect, to the holders of the
related Class or Classes of LIBOR Certificates then entitled to
distribution of principal, from amounts remaining on deposit in the
Distribution Account after making distributions pursuant to clause (i)
above, an amount equal to, the Principal Distribution Amount in the
following amounts and order of priority:
(a) the lesser of (x) the Principal Distribution Amount and
(y) the Class A Principal Distribution Amount to the Class A
Certificates, allocated as described in Section 4.02(c), until the
respective Class Certificate Balances thereof are reduced to zero;
(b) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above and (y) the Class M-1
Principal Distribution Amount to the Class M-1 Certificates, until
the Class Certificate Balance thereof has been reduced to zero;
(c) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above and (y) the Class M-2
Principal Distribution Amount to the Class M-2 Certificates, until
the Class Certificate Balance thereof has been reduced to zero;
(d) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above and to the Class M-2
Certificates in clause (ii)(B)(c) above, and (y) the Class M-3
Principal Distribution Amount to the Class M-3 Certificates, until
the Class Certificate Balance thereof has been reduced to zero;
(e) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above and to the Class M-3
Certificates in clause (ii)(B)(d) above, and (y) the Class M-4
Principal Distribution Amount to the Class M-4 Certificates, until
the Class Certificate Balance thereof has been reduced to zero;
(f) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above and to the Class 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
the Class Certificate Balance thereof has been reduced to zero;
(g) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class 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
the Class Certificate Balance thereof has been reduced to zero; and
(h) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class 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
the Class Certificate Balance thereof has been reduced to zero.
(iii) any amount remaining after the distributions in clauses (i)
and (ii) above shall be distributed in the following order of priority:
(A) to the holders of the Class M-1 Certificates, any Unpaid
Interest Amount for such Class;
(B) to the holders of the Class M-2 Certificates, any Unpaid
Interest Amount for such Class;
(C) to the holders of the Class M-3 Certificates, any Unpaid
Interest Amount for such Class;
(D) to the holders of the Class M-4 Certificates, any Unpaid
Interest Amount for such Class;
(E) to the holders of the Class M-5 Certificates, any Unpaid
Interest Amount for such Class;
(F) to the holders of the Class B-1 Certificates, any Unpaid
Interest Amount for such Class;
(G) to the holders of the Class B-2 Certificates, any Unpaid
Interest Amount for such Class;
(H) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment for such Distribution Date;
(I) from funds on deposit in the Excess Reserve Fund Account
(not including any Interest Rate Cap Payments included in such
account) with respect to that Distribution Date, an amount equal to
any Basis Risk Carry Forward Amount with respect to the Offered
Certificates for such Distribution Date to the Offered Certificates
in the same order and priority in which Accrued Certificate Interest
Distribution Amount is allocated among those Classes of Certificates
(with the allocation to the Class A Certificates being pro rata
based on their respective Basis Risk Carry Forward Amounts);
(J) (1) concurrently from any Interest Rate Cap Payments on
deposit in the Excess Reserve Fund Account with respect to that
Distribution Date, to the Class A-1, Class A-2A and Class A-2B
Certificates their respective unpaid remaining Basis Risk Carry
Forward Amounts (with the allocation to the Class A Certificates
being pro rata based on their respective Basis Risk Carry Forward
Amounts), then (2) from any remaining Interest Rate Cap Payments (a)
sequentially to the Class X-0, Xxxxx X-0, Class M-3, Class M-4,
Class M-5, Class B-1 and Class B-2 Certificates, in each case, up to
their respective unpaid remaining Basis Risk Carry Forward Amounts,
and then (b) to the extent remaining, to the Class X Certificates;
(K) to the holders of the Class X Certificates, the remainder
of the Class X Distributable Amount not distributed pursuant to
Sections 4.02(a)(iii)(A)-(J); and
(L) to the holders of the Class R Certificates, any remaining
amount.
If on any Distribution Date, as a result of the allocation rules set
forth in clause (i)(A) above, any Class of Class A Certificates does not receive
the related Accrued Certificate Interest Distribution Amount or the related
Unpaid Interest Amount, if any, then that unpaid amount shall be recoverable by
the holders of those Classes, with interest thereon, on future Distribution
Dates, as Unpaid Interest Amounts, subject to the priorities described above. In
the event the Class Certificate Balance of any Class of Certificates has been
reduced to zero (and is not subsequently increased as a result of any Subsequent
Recoveries), that Class of Certificates shall no longer be entitled to receive
any related unpaid Basis Risk Carry Forward Amounts.
(b) On any Distribution Date, any Relief Act Interest Shortfalls and
Net Prepayment Interest Shortfalls for such Distribution Date shall be allocated
pro rata, as a reduction of the Accrued Certificate Interest Distribution
Amounts 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.
(c) All principal distributions to the Class A Certificates (other
than the Class A-IO Certificates) on any Distribution Date shall be allocated
between the Class A Certificate Groups, pro rata, based on the Class Certificate
Balances for each such Class A Certificate Groups on such Distribution Date.
On each Distribution Date, principal distributions allocated to the
Class A-2 Certificate Group shall be distributed sequentially to the Class A-2A
Certificates, until their Class Certificate Balance has been reduced to zero,
and then to the Class A-2B Certificates, until their Class Certificate Balance
has been reduced to zero.
Section 4.03 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Trustee shall make available to each
Certificateholder, the Servicer, the Backup Servicer, the Depositor and each
Rating Agency a statement based substantially on information provided by the
Servicer in the related Servicer Remittance Reports 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 Amount covered by withdrawals from the Excess Reserve Fund
Account on such Distribution Date;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest, including any Basis Risk Carry Forward Amount not covered by
amounts in the Excess Reserve Fund Account;
(iv) the Class Certificate Balance of each Class of 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 Servicing Fees paid to or retained by the
Servicer or Subservicer (with respect to the Subservicers, in the
aggregate) 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 Interest Advances included in the distribution
on such Distribution Date and the aggregate amount of Interest Advances
reported by the Servicer as outstanding as of the close of business on the
Determination Date immediately preceding such Distribution Date;
(ix) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the Scheduled Payment is delinquent 31 to
60 days, 61 to 90 days and 91 or more days, (2) that have become REO
Property, (3) that are in foreclosure and (4) that are in bankruptcy, in
each case as of the close of business on the last Business Day of the
immediately preceding month;
(x) For each of the preceding 12 calendar months, or all calendar
months since the related Cut-off Date, whichever is less, the aggregate
dollar amount of the Scheduled Payments (A) due on all Outstanding
Mortgage Loans on each of the Due Dates in each such month and (B)
delinquent 60 days or more on each of the Due Dates in each such month;
(xi) with respect to all Mortgage Loans that became REO Properties
during the preceding calendar month, the aggregate number of such Mortgage
Loans and the aggregate Stated Principal Balance of such Mortgage Loans as
of the close of business on the Determination Date preceding such
Distribution Date and the date of acquisition thereof;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the
Determination Date preceding such Distribution Date;
(xiii)whether a Trigger Event has occurred and is continuing
(including the calculation of thereof and the aggregate outstanding
balance of all 60+ Day Delinquent Mortgage Loans);
(xiv) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on such Distribution Date);
(xv) in the aggregate and for each Class of Certificates, the
aggregate amount of Applied Realized Loss Amounts incurred during the
preceding calendar month and aggregate Applied Realized Loss Amounts
through such Distribution Date;
(xvi) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the Certificateholders
with respect to Applied Realized Loss Amounts and Unpaid Interest Amounts;
(xvii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xviii) the Interest Cap Payment, if any, for such Distribution
Date;
(xix) the Cumulative Loss Percentage;
(xx) the amount distributed on the Class X Certificates; and
(xxi) the amount of any Subsequent Recoveries for such Distribution
Date.
(b) The Trustee's responsibility for providing the above statement
to the Certificateholders, each Rating Agency, the Servicer, the Backup Servicer
and the Depositor is limited to the availability, timeliness and accuracy of the
information derived from the Servicer or the Responsible Party. The Trustee will
provide the above statement via the Trustee's internet website. The Trustee's
website will initially be located at https:\\xxx.xxxxxxxx.xxx/xxx and assistance
in using the website can be obtained by calling the Trustee's investor relations
desk at (000) 000-0000.
A paper copy of the above statement will also be made available upon
request.
Upon written request from any Certificateholder, the Trustee shall
provide the information provided for in Sections 4.03(e) and 4.03(f) to such
Certificateholder, at the expense of the requesting Certificateholder. The
Trustee's responsibility for providing the information provided for in Sections
4.03(e) and 4.03(f) to the Certificateholders is limited to the availability and
timeliness of the information provided by the Servicer. The Trustee shall
provide the information provided for in Sections 4.03(e) and 4.03(f) in the same
format as received from the Servicer upon request by the Certificateholders. The
Trustee shall have no duty or obligation to monitor, review or take any action
regarding such information received pursuant to Section 4.03(e) and/or 4.03(f)
other than forwarding copies to Certificateholders. The Trustee shall have no
liability for the accuracy, completeness or otherwise for such information.
(c) Upon request, within a reasonable period of time after the end
of each calendar year, the Trustee shall cause to be furnished to each Person
who at any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i) 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 Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
(d) Not later than the Reporting Date, the Servicer shall furnish to
the Trustee and Backup Servicer a monthly remittance advice statement (in a
format mutually agreed upon by the Servicer and the Trustee) containing such
information as shall be reasonably requested by the Trustee to provide the
reports required by Section 4.03(a) or perform the calculations referred to in
Section 4.02 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 Backup Servicer an individual loan
accounting report, as of the last Business Day of each week (for the 90 day
period commencing on the Servicing Transfer Date) and month (and monthly to the
Trustee), 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 Backup
Servicer 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, 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 Mortgage Loan, the amount of any
Realized Losses for such Mortgage Loan; and
(ix) any other information reasonably required by the Trustee to
enable it to prepare the monthly statement referred to in Section 4.03(a)
or perform the calculations referred to in Section 4.02.
(e) The Servicer shall provide the Trustee, the Backup Servicer and
the Depositor with full, continuous read-only 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 L hereto in a timely manner, the Servicer, upon request,
shall provide the documentation listed below to the Depositor, the Backup
Servicer and the Trustee in an electronic format acceptable to the Trustee,
Backup Servicer and the Depositor:
(i) Initiation of foreclosure - the Servicer shall deliver to the
Depositor, the Backup Servicer and the Trustee a copy of the collection
comments and a current BPO;
(ii) Deed-in-lieu of foreclosure - the Servicer shall deliver to the
Depositor, the Backup Servicer and the Trustee 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, the Backup Servicer and the Trustee a statement
of total debt and current BPO;
(iv) Short sale - the Servicer shall deliver to the Depositor, the
Backup Servicer and the Trustee a statement of the Mortgagor's hardship,
current BPO, and statement detailing net proceeds to the Depositor and the
Trustee;
(v) REO Property list price - the Servicer shall deliver to the
Depositor, the Backup Servicer and the Trustee 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, the Backup Servicer and the Trustee a summary of the REO
contract being proposed; and
(vii) REO Property net proceeds - the Servicer shall deliver to the
Depositor, the Backup Servicer and the Trustee 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 Trustee, the Backup Servicer and the
Depositor a data file incorporating the fields set forth in the data file layout
set forth on Exhibit L hereto (the "Data File") and shall deliver to the
Depositor a Market Value Change Report. 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 Trustee, the Backup Servicer and the Depositor additional
reports as set forth on Exhibit L hereto (the "Backup Reports") on or prior to
the 8th Business Day of such month (the "Backup Report Delivery Date") in an
electronic format acceptable to the Trustee, the Backup Servicer and the
Depositor.
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Trustee in accordance with the definition of
"LIBOR." Until all of the LIBOR Certificates are paid in full, the Trustee will
at all times retain at least four Reference Banks for the purpose of determining
LIBOR with respect to each LIBOR Determination Date. The Trustee initially shall
designate the Reference Banks (after consultation with the Depositor). Each
"Reference Bank" shall be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, shall not control, be
controlled by, or be under common control with, the Trustee and shall have an
established place of business in London. If any such Reference Bank should be
unwilling or unable to act as such or if the Trustee should terminate its
appointment as Reference Bank, the Trustee shall promptly appoint or cause to be
appointed another Reference Bank (after consultation with the Depositor). The
Trustee shall have no liability or responsibility to any Person for (i) the
selection of any Reference Bank for purposes of determining LIBOR or (ii) any
inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Trustee on each LIBOR
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the LIBOR Certificates in the table relating to the Certificates in the
Preliminary Statement. The Trustee shall not have any liability or
responsibility to any Person for its inability, following a good-faith
reasonable effort, to obtain quotations from the Reference Banks or to determine
the arithmetic mean referred to in the definition of LIBOR, all as provided for
in this Section 4.04 and the definition of LIBOR. The establishment of LIBOR and
each Pass-Through Rate for the LIBOR Certificates by the Trustee shall (in the
absence of manifest error) be final, conclusive and binding upon each Holder of
a Certificate and the Trustee.
Section 4.05 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts will be allocated to the most junior Class of
Subordinated Certificates then outstanding in reduction of the Class Certificate
Balance thereof. In the event Applied Realized Loss Amounts are allocated to any
Class of Certificates, their Class Principal 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).
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral multiples
in excess thereof (except that one Certificate in each Class may be issued in a
different amount which must be in excess of the applicable minimum denomination)
and aggregate denominations per Class set forth in the Preliminary Statement.
The Depositor hereby directs the Trustee to register the Class X
Certificates in the name of the Depositor or its designee. On a date as to which
the Depositor notifies the Trustee in writing, the Depositor hereby directs the
Trustee to transfer the Class X Certificates to the NIM Issuer or the NIM
Trustee.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such holder at a bank
or other entity having appropriate facilities therefor as directed by that
Certificateholder by written wire instructions provided to the Trustee or (y),
in the event that no wire instructions are provided to the Trustee, by check
mailed by first Class mail to such Certificateholder at the address of such
holder appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the authentication and delivery of any such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless authenticated by the Trustee by manual signature, and
such authentication upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their authentication. On
the Closing Date, the Trustee shall authenticate the Certificates to be issued
at the direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the Trustee
on a continuous basis, an adequate inventory of Certificates to facilitate
transfers.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Trustee shall maintain, or cause to be
maintained in accordance with the provisions of Section 5.06, a Certificate
Register for the Trust Fund in which, subject to the provisions of subsections
(b) and (c) below and to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the name
of the designated transferee or transferees, one or more new Certificates of the
same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
holder thereof or his attorney duly authorized in writing. In the event, the
Depositor or an Affiliate transfers the Class X Certificates, or a portion
thereof, to another Affiliate, it shall notify the Trustee in writing of the
affiliated status of the transferee. The Trustee shall have no liability
regarding the lack of notice with respect thereto.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. Except
with respect to (i) the transfer of the Class X Certificates to the NIM Issuer
or the NIM Trustee, or (ii) a transfer of the Class X 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 Trustee in writing the facts surrounding the transfer in substantially the
form set forth in Exhibit H (the "Transferor Certificate") and either (i) there
shall be delivered to the Trustee a letter in substantially the form of Exhibit
I (the "Rule 144A Letter") or (ii) in the case of the Class X Certificates,
there shall be delivered to the Trustee at the expense of the transferor an
Opinion of Counsel that such transfer may be made without registration under the
Securities Act. In the event that a transfer of a Private Certificate which is a
Book-Entry Certificate is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer will
be deemed to have made as of the transfer date each of the certifications set
forth in the Transferor Certificate in respect of such Certificate and the
transferee will be deemed to have made as of the transfer date each of the
certifications set forth in the Rule 144A Letter in respect of such Certificate,
in each case as if such Certificate were evidenced by a Physical Certificate.
The Depositor shall provide to any Holder of a Private Certificate and any
prospective transferee designated by any such Holder, information regarding the
related Certificates and the Mortgage Loans and such other information as shall
be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by Rule
144A. The Trustee and the Servicer shall cooperate with the Depositor in
providing the Rule 144A information referenced in the preceding sentence,
including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund as
the Depositor shall reasonably request to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor and the Servicer against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state laws.
Except with respect to (i) the initial transfer of the Class X
Certificates to the NIM Issuer or the NIM Trustee, or (ii) a transfer of the
Class X 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 Trustee shall have received either (i) a representation
from the transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trustee (in the event such Certificate is a Private
Certificate or a Residual Certificate, such requirement is satisfied only by the
Trustee's receipt of a representation letter from the transferee substantially
in the form of Exhibit I), to the effect that such transferee is not an employee
benefit plan or arrangement subject to Section 406 of ERISA, a plan subject to
Section 4975 of the Code or a plan subject to any Federal, state or local law
("Similar Law") materially similar to the foregoing provisions of ERISA or the
Code, nor a person acting on behalf of any such plan or arrangement nor using
the assets of any such plan or arrangement to effect such transfer, (ii) in the
case of an ERISA-Restricted Certificate other than a Residual Certificate 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 presented for registration in the name of an employee
benefit plan subject to Title I of ERISA, a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a plan subject to Similar Law, or a trustee of any such plan or
any other person acting on behalf of any such plan or arrangement or using such
plan's or arrangement's assets, an Opinion of Counsel satisfactory to the
Trustee and the Depositor, which Opinion of Counsel shall not be an expense of
the Trustee, the Depositor, the Servicer or the Trust Fund, addressed to the
Trustee, to the effect that the purchase or holding of such ERISA-Restricted
Certificate will not constitute or result in a non-exempt prohibited transaction
within the meaning of ERISA, Section 4975 of the Code or any Similar Law and
will not subject the Trustee or the Servicer to any obligation in addition to
those expressly undertaken in this Agreement or to any liability. For purposes
of the preceding sentence, with respect to an ERISA-Restricted Certificate that
is not a Private Certificate or a Residual Certificate, in the event the
representation letter referred to in the preceding sentence is not furnished,
such representation shall be deemed to have been made to the Trustee by the
transferee's (including an initial acquirer's) acceptance of the
ERISA-Restricted Certificates. Notwithstanding anything else to the contrary
herein, (a) any purported transfer of an ERISA-Restricted Certificate, other
than a Residual Certificate, to or on behalf of an employee benefit plan subject
to ERISA, the Code or Similar Law without the delivery to the Trustee of an
Opinion of Counsel satisfactory to the Trustee as described above shall be void
and of no effect and (b) any purported transfer of a Residual Certificate to a
transferee that does not make the representation in clause (i) above shall be
void and of no effect.
The Class R Certificate may not be sold to any employee benefit plan
subject to Title I of ERISA, any plan subject to Section 4975 of the Code, or
any plan subject to any Similar Law or any person investing on behalf of or with
plan assets of such plan.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Trustee shall be under no liability to any Person for
any registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee in the form attached hereto as Exhibit G;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and the Rule 144A Letter. The Trustee shall be entitled but
not obligated to recover from any Holder of a Residual Certificate that
was in fact not a Permitted Transferee at the time it became a Holder or,
at such subsequent time as it became other than a Permitted Transferee,
all payments made on such Residual Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of
such Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee, or the
Servicer, to the effect that the elimination of such restrictions will not cause
any Trust REMIC to fail to qualify as a REMIC at any time that the Certificates
are outstanding or result in the imposition of any tax on the Trust Fund, a
Certificateholder or another Person. Each Person holding or acquiring any
Ownership Interest in a Residual Certificate hereby consents to any amendment of
this Agreement which, based on an Opinion of Counsel furnished to the Trustee,
is reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Residual Certificate is not transferred, directly or
indirectly, to a Person that is not a Permitted Transferee and (b) to provide
for a means to compel the Transfer of a Residual Certificate which is held by a
Person that is not a Permitted Transferee to a Holder that is a Permitted
Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor, or (y) the Depositor notifies the
Depository of its intent to terminate the book-entry system through the
Depository and, upon receipt of notice of such intent from the Depository, the
Depository Participants holding beneficial interests in the Book-Entry
Certificates agree to initiate such termination, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully-registered Certificates (the
"Definitive Certificates") to Certificate Owners requesting the same. Upon
surrender to the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. None of the Servicer, the
Depositor or the Trustee shall be liable for any delay in delivery of such
instruction and each may conclusively rely on, and shall be protected in relying
on, such instructions. The Depositor shall provide the Trustee with an adequate
inventory of Certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Trustee shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Trustee and the
Certificate Registrar, duly executed by the Certificateholder or his attorney
duly authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by the Certificate Registrar in accordance with its customary practice. No
service charge shall be made for any registration of transfer or exchange of
Private Certificates, but the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Private Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Trustee, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Depositor, the Servicer and the
Trustee such security or indemnity as may be required by them to hold each of
them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 5.03, the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 5.03 shall constitute complete and indefeasible evidence of
ownership, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners. The Servicer, the Trustee, the
Depositor and any agent of the Servicer, the Depositor or the Trustee may treat
the Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and none of the Servicer, the
Trustee, the Depositor or any agent of the Servicer, the Depositor or the
Trustee shall be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or the Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, the Servicer or such Certificateholders at
such recipients' expense the most recent list of the Certificateholders of such
Trust Fund held by the Trustee, if any. The Depositor and every
Certificateholder, by receiving and holding a Certificate, agree that the
Trustee shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. The Trustee will
maintain or cause to be maintained at its expense an office or offices or agency
or agencies in New York City where Certificates may be surrendered for
registration of transfer or exchange. The Trustee initially designates the
offices of its agent for such purposes, located at 4 New York Plaza, 1st Floor
Window, New York, New York 10004. The Trustee will give prompt written notice to
the Certificateholders of any change in such location of any such office or
agency.
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.01 Respective Liabilities of the Depositor and the
Servicer. The Depositor and the Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them herein.
Section 6.02 Merger or Consolidation of the Depositor or the
Servicer. Subject to the following paragraph, the Depositor and the Servicer
will each keep in full effect its existence, rights and franchises as a
corporation or federally chartered savings bank, as the case may be, under the
laws of the United States or under the laws of one of the states thereof and
will each obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, or any
of the Mortgage Loans and to perform its respective duties under this Agreement.
Any Person into which the Depositor 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 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,
the Backup Servicer and Others. Neither the Depositor, the Servicer, the Backup
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, the Backup Servicer or any such
Person against any breach of representations or warranties made by it herein or
protect the Depositor, the Servicer, the Backup 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, the Backup
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, the Backup Servicer and any director, officer,
employee 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. None of the Depositor, the Backup Servicer or
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, the Backup Servicer and the Servicer may in its
discretion undertake any such action (or direct the Trustee to undertake such
actions pursuant to Section 2.03 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, the Backup Servicer and the
Servicer shall be entitled to be reimbursed therefor out of the Collection
Account.
Section 6.04 Limitation on Resignation of the Servicer. 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
Backup Servicer and 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 to such effect delivered to the Depositor and the Trustee
which Opinion of Counsel shall be in form and substance acceptable to the
Depositor and the Trustee. No such resignation shall become effective until a
successor shall have assumed the Servicer's responsibilities and obligations
hereunder.
Section 6.05 Additional Indemnification by the Servicer; Third Party
Claims. The Servicer shall indemnify the Depositor, the Backup Servicer and the
Trustee and any Affiliate, director, officer, employee or agent of the Depositor
and the Trustee and hold each of them harmless against any and all claims,
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and any other costs, fees and expenses that
any of them may sustain in any way related to 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 Backup Servicer 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 Backup Servicer 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
or the Trustee in respect of such claim.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. "Event of Default," wherever used
herein, means any one of the following events:
(a) any failure by the Servicer to remit to the Trustee any payment
required to be made under the terms of this Agreement which continues unremedied
for a period of one Business Day after the date upon which written notice of
such failure, requiring the same to be remedied, shall have been given to the
Servicer by the Depositor, or by the Trustee, or to the Servicer, the Depositor
and the Trustee by Certificateholders entitled to at least 25% of the Voting
Rights; or
(b) the failure on the part of the Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of the Servicer set forth in this Agreement, which continues unremedied for
a period of thirty days after the earlier of (i) the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Depositor or by the Trustee, or to the Servicer, the
Depositor and the Trustee by Certificateholders of Certificates entitled to at
least 25% of the Voting Rights and (ii) actual knowledge of such failure by a
Servicing Officer of the Servicer; provided, however, that in the case of a
failure or breach that cannot be cured within 30 days after notice or actual
knowledge by the Servicer, the cure period may be extended for an additional 30
days upon delivery by the Servicer to the Trustee of a certificate to the effect
that the Servicer believes in good faith that the failure or breach can be cured
within such additional time period and the Servicer is diligently pursuing
remedial action; or
(c) the failure by the Servicer, on a timely basis, (a) to deliver
to the Trustee, the Backup Servicer and the Depositor (i) the Data File and the
Market Value Change Report on the Data File Delivery Date or (ii) the Backup
Reports set forth on Exhibit L hereto on the Backup Report Delivery Date, or (b)
to deliver the Servicer Remittance Report to the Trustee, or (c) to deliver to
the Depositor the Market Value Change Report on the Data File Delivery Date, 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 Cumulative Loss Trigger occurs; or
(h) any failure of the Servicer to make any Interest 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 Delinquency Trigger occurs; or
(j) if a Foreclosure Trigger occurs; or
(k) if a Eviction Trigger occurs; or
(l) 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 or by the Depositor, or to the Servicer, the
Trustee and the Depositor by Certificateholders entitled to at least 25% of the
Voting Rights in the Certificates; or
(m) Xxxxx'x reduces its servicer rating of the Servicer to "SQ4" or
lower or Standard & Poor's reduces its servicer rating of the Servicer to "below
average" or lower.
If an Event of Default described in clauses (a) through (m) of this
Section 7.01 shall occur, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Trustee may, or at the
direction of Certificateholders entitled to a majority of the Voting Rights the
Trustee shall, by notice in writing to the Servicer (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 serviced by the Servicer and the
proceeds thereof, other than its rights as a Certificateholder hereunder;
provided, however, that the Trustee shall not be required to give written notice
to the Servicer of the occurrence of an Event of Default described in clauses
(b) through (m) of this Section 7.01 unless and until the Responsible Officer of
the Trustee has actual knowledge of the occurrence of such an Event of Default.
In the event that the Responsible Officer of the Trustee has actual knowledge of
the occurrence of an Event of Default described in clause (a) of this Section
7.01, the Trustee 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.
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
Backup Servicer. The Backup 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 Trustee and the Backup Servicer in
effecting the termination of the Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer to the Trustee of all
cash amounts which shall at the time be credited to the Collection Account, 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 reimbursement for all outstanding Interest 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 Backup Servicer to Act; Appointment of Successor. On
and after the time the Servicer receives a notice of termination pursuant to
Section 7.01, the Backup Servicer shall, subject to and to the extent provided
in Section 3.06, 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 immediately assume all of the obligations of the Servicer to make Interest
Advances and Servicing Advances 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 30 days after the receipt by the Servicer of the notice
of termination pursuant to Section 7.01. As compensation therefor, the Backup
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. Notwithstanding the foregoing, if the Backup
Servicer has become the successor to the Servicer in accordance with this
Section 7.02, the Backup Servicer may, if it shall be unwilling to so act, or
shall, if it is prohibited by applicable law from making Interest Advances and
Servicing Advances pursuant to Section 4.01 or if it is otherwise unable to so
act, or, at the written request of Certificateholders entitled to a majority of
the Voting Rights, appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution the appointment of
which does not adversely affect the then current rating of the Certificates by
each Rating Agency, as the successor to the Servicer hereunder in the assumption
of all or any part of the responsibilities, duties or liabilities of the
Servicer hereunder. No such appointment of a successor to the Servicer hereunder
shall be effective until the Depositor shall have consented thereto. Any
successor to the Servicer shall be an institution which is a Xxxxxx Xxx- and
Xxxxxxx Mac-approved seller/servicer in good standing, which has a net worth of
at least $30,000,000, which is willing to service the Mortgage Loans and which
executes and delivers to the Depositor and the Trustee an agreement accepting
such delegation and assignment, containing an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of such
terminated Servicer (other than liabilities of such 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 Backup Servicer, unless the Backup
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 Backup 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 Rate and amounts paid to
the predecessor Servicer from investments. The Backup Servicer and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. Neither the Backup 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.
In the event that the Servicer is terminated pursuant to Section
7.01, such 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 and 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 Trustee pays such amounts from the Trust Fund.). If the Backup Servicer
is the predecessor Servicer (except in the case where the Backup 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 Backup 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 Trustee shall
give prompt written notice thereof to Certificateholders and to each Rating
Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders and each Rating Agency
notice of each such Event of Default hereunder known to the Trustee, unless such
Event of Default shall have been cured or waived.
Section 7.04 Duties of Backup Servicer. The Backup Servicer agrees
to act as successor Servicer (or cause one of its Affiliates that meets the
requirements of a successor Servicer under this Agreement to act as successor
servicer) in the event the Servicer resigns or is terminated pursuant to the
terms of this Agreement. Prior to such time, the Backup Servicer shall perform
the duties set forth on Exhibit P to this Agreement. The Backup Servicer may, at
its own expense, delegate some or all of its obligations under this Agreement;
provided, however, that no such delegation shall release the Backup Servicer
from the responsibilities and liabilities under this Agreement.
Section 7.05 Resignation and Removal of Backup Servicer. The Backup
Servicer may at any time resign and be discharged by giving written notice of
resignation to the Depositor, the Servicer, the Trustee and each Rating Agency
not less than 60 days before the date specified in such notice when such
resignation is to take effect, and acceptance by a successor backup servicer. If
no successor backup servicer shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice or resignation, the
resigning Backup Servicer may petition any court of competent jurisdiction for
the appointment of a successor backup servicer.
If at any time the Backup Servicer shall become incapable of acting,
or shall be adjudged as bankrupt or insolvent, or a receiver of the Backup
Servicer or of its property shall be appointed, or any public officer shall take
charge or control of the Backup Servicer or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Depositor, the
Trustee or the Servicer may remove the Backup Servicer and appoint a successor
backup servicer by written instrument, in triplicate, one copy of which shall be
delivered to the Backup Servicer, one copy to the Servicer and one copy to the
successor backup servicer.
Any resignation or removal of the Backup Servicer and appointment of
a successor Backup Servicer pursuant to this Section 7.05 shall become effective
upon acceptance of appointment by the successor backup servicer.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of an Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default has occurred and remains uncured, the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own bad faith or willful misfeasance; provided, however, that:
(a) Unless an Event of Default known to the Trustee has occurred and
is continuing, the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of the duties and obligations specifically set
forth in this Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee, and the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming 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 Trustee. Except as
otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
Opinion of Counsel, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(c) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing 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) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it, and none
of the provisions contained in this Agreement shall in any event require the
Trustee to perform, or be responsible for the manner of performance of, any of
the obligations of the Servicer under this Agreement except during such time, if
any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Servicer in accordance with the terms of
this Agreement;
(g) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the investment
security and except with respect to the investment of funds in the Distribution
Account not made at the direction of the Depositor during the Trustee Float
Period);
(h) the Trustee shall not be deemed to have knowledge of an Event of
Default until the Responsible Officer of the Trustee shall have received written
notice thereof except as otherwise provided in Section 7.01;
(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;
(j) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence, bad faith or willful
misconduct in the performance of such act; and
(k) the Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the powers granted
hereunder.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document other than with respect to the Trustee's execution and
authentication of the Certificates. The Trustee shall not be accountable for the
use or application by the Depositor or the Servicer of any funds paid to the
Depositor or the Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or the Servicer.
The Trustee shall have no responsibility for filing or recording any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become the successor
Servicer, (i) to see to any insurance (unless the Trustee shall have become the
successor Servicer), or (ii) to confirm or verify the contents of any reports or
certificates of the Servicer delivered to the Trustee pursuant to this Agreement
believed by the Trustee to be genuine and to have been signed or presented by
the proper party or parties).
The Trustee executes the Certificates not in its individual capacity
but solely as Trustee of the Trust Fund created by this Agreement, in the
exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust Fund in the Certificates is made and intended not
as a personal undertaking or agreement by the Trustee but is made and intended
for the purpose of binding only the Trust Fund.
Section 8.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
Section 8.05 Trustee's Fees and Expenses. As compensation for its
activities under this Agreement, the Trustee may withdraw from the Distribution
Account on each Distribution Date the Backup Servicer and Trustee Fee for the
Distribution Date and, during the Trustee Float Period, any interest or
investment income earned on funds deposited in the Distribution Account. The
Trustee and the Backup Servicer and any director, officer, employee, or agent of
the Trustee and the Backup Servicer shall be indemnified by the Trust Fund and
held harmless against any loss, liability, or expense (including reasonable
attorney's fees) incurred in connection with any claim or legal action relating
to:
(a) this Agreement,
(b) the Certificates, or
(c) the performance of any of the Trustee's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any breach of the
Servicer's obligations in connection with this Agreement for which the Servicer
has performed its obligation to indemnify the Trustee pursuant to Section 6.05,
(ii) resulting from any breach of the Responsible Party's obligations in
connection with this Agreement for which the Responsible Party has performed its
obligation to indemnify the Trustee pursuant to the Section 2.03(f), or (iii)
incurred because of willful misfeasance, bad faith, or negligence in the
performance of any of the Trustee's or the Backup Servicer's duties under this
Agreement. This indemnity shall survive the termination of this Agreement or the
resignation or removal of the Trustee or the Backup Servicer 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 and the
Backup Servicer, for all reasonable expenses, disbursements, and advances
incurred or made by the Trustee in accordance with this Agreement with respect
to:
(A) the reasonable compensation, expenses, and disbursements of its
counsel not associated with the closing of the issuance of the Certificates;
(B) the reasonable compensation, expenses, and disbursements of any
accountant, engineer, or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage them to perform services
under this Agreement; and
(C) printing and engraving expenses in connection with preparing any
Definitive Certificates.
Except as otherwise provided in this Agreement or a separate letter
agreement between the Trustee and the Depositor, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
paying agent under this Agreement or for any other expenses.
Section 8.06 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 their affiliates; provided,
however, that such entity cannot be an affiliate of the Depositor or the
Servicer other than the Trustee in its role as successor to the Servicer.
Section 8.07 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice of resignation to the Depositor, the Servicer and each Rating
Agency not less than 60 days before the date specified in such notice, when,
subject to Section 8.08, such resignation is to take effect, and acceptance by a
successor trustee in accordance with Section 8.08 meeting the qualifications set
forth in Section 8.06. If no successor trustee meeting such qualifications shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice or resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.06 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor or the Servicer may remove the Trustee and
appoint a successor trustee by written instrument, in triplicate, one copy of
which shall be delivered to the Trustee, one copy to the Servicer and one copy
to the successor trustee.
The Holders of Certificates entitled to a majority of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to the Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. The
successor trustee shall notify each Rating Agency of any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.08.
Section 8.08 Successor Trustee. Any successor trustee appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee and the Servicer an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The Depositor, the
Servicer and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for more fully and
certainly vesting and confirming in the successor trustee all such rights,
powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 8.09 Merger or Consolidation of the Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.06
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider appropriate. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by the Servicer
of a request to do so, or in the case an Event of Default shall have occurred
and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06 and no
notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this Agreement
to advance funds on behalf of the Servicer, shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or as
successor to the Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the applicable Trust
Fund or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of each Trust REMIC described in the
Preliminary Statement and that in such capacity it shall:
(a) prepare and file in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit (REMIC) Income Tax Return (Form 1066 or any successor form
adopted by the Internal Revenue Service) and prepare and file with the Internal
Revenue Service and applicable state or local tax authorities income tax or
information returns for each taxable year with respect to each Trust REMIC
described in the Preliminary Statement containing such information and at the
times and in the manner as may be required by the Code or state or local tax
laws, regulations, or rules, and furnish to Certificateholders the schedules,
statements or information at such times and in such manner as may be required
thereby;
(b) within thirty days of the Closing Date, the Trustee will apply
for an employer identification number from the Internal Revenue Service via Form
SS-4 or any other acceptable method for all tax entities and shall also furnish
to the Internal Revenue Service, on Form 8811 or as otherwise may be required by
the Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) make an election that each of the Pooling-Tier REMIC, the
Lower-Tier REMIC and the Upper-Tier REMIC be treated as a REMIC on the federal
tax return for its first taxable year (and, if necessary, under applicable state
law);
(d) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any original
issue discount using the prepayment assumption (as described in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee (a "Non-Permitted Transferee"), or an agent (including a broker,
nominee or other middleman) of a Non-Permitted Transferee, or a pass-through
entity in which a Non-Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so as
to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any Trust
REMIC created hereunder;
(h) pay, from the sources specified in the last paragraph of this
Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on any Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings);
(i) cause federal, state or local income tax or information returns
to be signed by the Trustee or such other person as may be required to sign such
returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to each of the Trust REMICs, including
the income, expenses, assets, and liabilities thereof on a calendar year basis
and on the accrual method of accounting and the fair market value and adjusted
basis of the assets determined at such intervals as may be required by the Code,
as may be necessary to prepare the foregoing returns, schedules, statements or
information; and
(k) as and when necessary and appropriate, represent each Trust
REMIC in any administrative or judicial proceedings relating to an examination
or audit by any governmental taxing authority, request an administrative
adjustment as to any taxable year of any Trust REMIC, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of any Trust REMIC, and otherwise act on
behalf of each Trust REMIC in relation to any tax matter or controversy
involving it.
The Trustee shall treat the rights of the Class X Certificateholders
to receive amounts from the Excess Reserve Account (subject to the obligation to
pay Basis Risk Carry Forward Amounts) and the rights of the Offered
Certificateholders to receive Basis Risk Carry Forward Amounts as the beneficial
ownership of interests in a grantor trust and not as an obligations of any Trust
REMIC created hereunder, for federal income tax purposes.
To enable the Trustee to perform its duties under this Agreement,
the Depositor shall provide to the Trustee within ten days after the Closing
Date all information or data that the Trustee requests in writing and determines
to be relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption, and projected
cash flows of the Certificates and the Mortgage Loans. Moreover, the Depositor
shall provide information to the Trustee concerning the value, if any, to each
Class of Certificates of the right to receive Basis Risk Carry Forward Amounts
from the Excess Reserve Fund Account. Unless otherwise advised by the Depositor
in writing, for federal income tax purposes, the Trustee is hereby directed to
assign a value of zero to the right of each Holder of an Offered Certificate to
receive the related Basis Risk Carry Forward Amount for purposes of allocating
the purchase price of an initial Offered Certificateholder between such right
and the related Upper-Tier Regular Interest. Thereafter, the Depositor shall
provide to the Trustee promptly upon written request therefor any additional
information or data that the Trustee may, from time to time, reasonably request
to enable the Trustee to perform its duties under this Agreement. The Depositor
hereby indemnifies the Trustee for any losses, liabilities, damages, claims, or
expenses of the Trustee arising from any errors or miscalculations of the
Trustee that result from any failure of the Depositor to provide, or to cause to
be provided, accurate information or data to the Trustee on a timely basis.
If any tax is imposed on "prohibited transactions" of 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 as defined in Section 860G(c) of
the Code, on any contribution to any Trust REMIC after the Start-up Day pursuant
to Section 860G(d) of the Code, or any other tax is imposed, including, if
applicable, any minimum tax imposed on any Trust REMIC pursuant to Sections
23153 and 24874 of the California Revenue and Taxation Code, if not paid as
otherwise provided for herein, the tax shall be paid by (i) the Trustee if such
tax arises out of or results from negligence of the Trustee in the performance
of any of its obligations under this Agreement, (ii) the Servicer, 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, or
(iii) in all other cases, or if the Trustee or the Servicer fails to honor its
obligations under the preceding clause (i) or (ii) any such tax will be paid
with amounts otherwise to be distributed to the Certificateholders, as provided
in Section 4.02(a).
Section 8.12 Periodic Filings. (a) The Trustee and the Servicer
shall reasonably cooperate with the Depositor in connection with the Trust's
satisfying the reporting requirements under the Exchange Act. Except as provided
for in Section 8.12(b), the Trustee shall prepare on behalf of the Trust any
Forms 8-K and 10-K customary for similar securities as required by the Exchange
Act and the Rules and Regulations of the Securities and Exchange Commission
thereunder, and the Trustee shall sign and file (via the Securities and Exchange
Commission's Electronic Data Gathering and Retrieval System) such Forms (other
than the Form 10-K) on behalf of the Depositor, if an officer of the Depositor
signs the Certification pursuant to paragraph (b) of this Section 8.12, or
otherwise on behalf of the Trust. In the event the Trustee is signing on behalf
of the Depositor pursuant to the preceding sentence, the Depositor hereby grants
to the Trustee a limited power of attorney to execute and file each such
document on behalf of the Depositor. Such power of attorney shall continue until
the earlier of either (i) receipt by the Trustee from the Depositor of written
termination of such power of attorney and (ii) the termination of the Trust.
Notwithstanding the foregoing, the Trustee shall prepare such Form 10-K to be
signed by the Depositor and the Depositor shall sign such form.
(b) The Depositor shall prepare or cause to be prepared and file the
current Report on Form 8-K attaching this Agreement as an exhibit and,
thereafter, each Form 8-K shall be filed by the Trustee within 15 days after
each Distribution Date, including a copy of the statement to the
Certificateholders for such Distribution Date as an exhibit thereto until such
time as periodic reports under the Exchange Act are not required to be filed
with the Commission. On or prior to March 30th of each year (or such earlier
date as may be required by the Exchange Act and the Rules and Regulations of the
Securities and Exchange Commission), the Trustee shall file a Form 10-K, in
substance as required by applicable law or applicable Securities and Exchange
Commission staff's interpretations. Such Form 10-K shall be signed by the
Depositor and shall include as exhibits the Servicer's annual statement of
compliance described under Section 3.22 and the accountant's report described
under Section 3.23, in each case to the extent they have been timely delivered
to the Trustee. If they are not so timely delivered, the Trustee shall file an
amended Form 10-K including such documents as exhibits reasonably promptly after
they are delivered to the Trustee. The Trustee shall have no liability with
respect to any failure to properly prepare or file such periodic reports
resulting from or relating to the Trustee's inability or failure to obtain any
information not resulting from its own negligence, willful misconduct or bad
faith. The Form 10-K shall also include a certification in the form attached
hereto as Exhibit M (the "Certification"), which shall, except as described
below, be signed by the senior officer of the Depositor in charge of
securitization.
(c) In the event the Certification is to be signed by an officer of
the Depositor, the Trustee shall sign a certification (in the form attached
hereto as Exhibit N) for the benefit of the Depositor and its officers,
directors and Affiliates in respect of items 1 through 3 of the Certification
(provided, however, that the Trustee shall not undertake an analysis of the
accountant's report attached as an exhibit to the Form 10-K), and the Servicer
shall sign a certification solely with respect to the Servicer (in the form
attached hereto as Exhibit O) for the benefit of the Depositor, the Trustee and
their officers, directors and Affiliates in respect of items 4 and 5 of the
Certification. Each such certification shall be delivered to the Depositor and
the Trustee by March 20th of each year (or if not a Business Day, the
immediately preceding Business Day). The Certification attached hereto as
Exhibit M shall be delivered to the Trustee by March 25th for filing on or prior
to March 30th of each year (or if not a Business Day, the immediately preceding
Business Day). In addition, (i) the Trustee shall indemnify and hold harmless
the Depositor and its officers, directors and Affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon a breach of the Trustee's obligations under this Section 8.12(c) or
the Trustee's negligence, bad faith or willful misconduct in connection
therewith, and (ii) the Servicer, severally and not jointly, shall indemnify and
hold harmless the Depositor, the Trustee and their respective officers,
directors, employees, agents and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of the Servicer's obligations under this Section 8.12(c) or the
Servicer's negligence, bad faith or willful misconduct in connection therewith.
If the indemnification provided for herein is unavailable or insufficient to
hold harmless the indemnified party, then (i) the Trustee agrees in connection
with a breach of the Trustee's obligations under this Section 8.12(c) or the
Trustee's negligence, bad faith or willful misconduct in connection therewith
that it shall contribute to the amount paid or payable by the Depositor as a
result of the losses, claims, damages or liabilities of the Depositor in such
proportion as is appropriate to reflect the relative fault of the Depositor on
the one hand and the Trustee on the other and (ii) the Servicer agrees that it
shall contribute to the amount paid or payable by the Depositor and/or the
Trustee as a result of the losses, claims, damages or liabilities of the
Depositor and/or the Trustee in such proportion as is appropriate to reflect the
relative fault of the Depositor or the Trustee, as the case may be, on the one
hand and the Servicer on the other in connection with a breach of the Servicer'
obligations under this Section 8.12(c) or the Servicer's negligence, bad faith
or willful misconduct in connection therewith.
(d) Upon any filing with the Securities and Exchange Commission, the
Trustee shall promptly deliver to the Depositor a copy of any such executed
report, statement or information.
(e) Prior to January 30 of the first year in which the Trustee is
able to do so under applicable law, the Trustee shall file a Form 15 Suspension
Notification with respect to the Trust.
Section 8.13 Tax Classification of the Excess Reserve Fund Account.
For federal income tax purposes, the Trustee shall treat the Excess Reserve Fund
Account as beneficially owned by the holders of the Class X Certificates and
shall treat such portion of the Trust Fund as a grantor trust under subpart E,
Part I of subchapter J of the Code. The Trustee shall treat the rights that each
Class of Offered Certificates has to receive payments of Basis Risk Carry
Forward Amounts from the Excess Reserve Fund Account as rights to receive
payments under an interest rate cap contract written by the Class X
Certificateholders in favor of each such Class and beneficially owned by each
such Class through the grantor trust. Accordingly, each Class of Offered
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
Certificates will be comprised of two components - an Upper-Tier Regular
Interest, and ownership of the Excess Reserve Fund Account, subject to an
obligation to pay Basis Risk Carry Forward Amounts. The Trustee shall allocate
the issue price for a Class of Certificates among the respective components for
purposes of determining the issue price of the Upper-Tier Regular Interest
component based on information received from the Depositor.
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 9.03, the obligations and responsibilities of
the Depositor, the Servicer and the Trustee created hereby with respect to the
Trust Fund shall terminate upon the earlier of (a) the purchase, on or after the
Optional Termination Date, by the Majority Class X Certificateholder or the
Servicer, of all Mortgage Loans (and REO Properties) at the price equal to the
sum of (i) 100% of the unpaid principal balance of each Mortgage Loan (other
than in respect of REO Property) plus accrued and unpaid interest thereon at the
applicable Mortgage Interest Rate, together with any unpaid remaining Basis Risk
Carry Forward Amounts, and (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 seeking to purchase such Mortgage
Loans, at the expense of such Person, 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 ("Termination Price") and (b) the later of (i) the maturity or
other Liquidation Event (or any Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all REO
Property and (ii) the distribution to Certificateholders of all amounts required
to be distributed to them pursuant to this Agreement. In no event shall the
trusts created hereby continue beyond the expiration of 21 years from the death
of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of
the United States to the Court of St. James's, living on the date hereof.
Section 9.02 Final Distribution on the Certificates. If on any
Remittance Date, the Servicer determines that there are no Outstanding Mortgage
Loans and no other funds or assets in the Trust Fund other than the funds in the
Collection Account, the Servicer shall direct the Trustee promptly to send a
Notice of Final Distribution to each Certificateholder. If the Servicer elects
to terminate the Trust Fund pursuant to clause (a) of Section 9.01, at least 20
days prior to the date the Notice of Final Distribution is to be mailed to the
affected Certificateholders, the Depositor shall notify the Servicer and the
Trustee of the date the Depositor intends to terminate the Trust Fund and of the
applicable repurchase price of the Mortgage Loans and REO Properties.
A Notice of Final Distribution, specifying the Distribution Date on
which Certificateholders may surrender their Certificates for payment of the
final distribution and cancellation, shall be given promptly by the Trustee by
letter to Certificateholders mailed not later than the 15th day of the month of
such final distribution. Any such Notice of Final Distribution shall specify (a)
the Distribution Date upon which final distribution on the Certificates will be
made upon presentation and surrender of Certificates at the office therein
designated, (b) the amount of such final distribution, (c) the location of the
office or agency at which such presentation and surrender must be made, and (d)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Trustee will give such Notice
of Final Distribution to each Rating Agency at the time such Notice of Final
Distribution is given to Certificateholders.
In the event such Notice of Final Distribution is given, the
Servicer shall cause all funds in the Collection Account to be remitted to the
Trustee for deposit in the Distribution Account on the Business Day prior to the
applicable Distribution Date in an amount equal to the final distribution in
respect of the Certificates. Upon such final deposit with respect to the Trust
Fund and the receipt by the Trustee of a Request for Release therefor, the
Trustee shall promptly release to the Depositor or its designee the Custodial
Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Certificateholders of each Class (after
reimbursement of all amounts due to the Servicer, the Depositor and the Trustee
hereunder), in each case on the final Distribution Date and in the order set
forth in Section 4.02, in proportion to their respective Percentage Interests,
with respect to Certificateholders of the same Class, an amount up to an amount
equal to (i) as to each Class of Regular Certificates (except the Class X
Certificates), the Certificate Balance thereof plus for each such Class and the
Class X Certificates accrued interest thereon in the case of an interest-bearing
Certificate and all other amounts to which such Classes are entitled pursuant to
Section 4.02, (ii) as to the Residual Certificates, the amount, if any, which
remains on deposit in the Distribution Account (other than the amounts retained
to meet claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for cancellation,
the Class R Certificateholders shall be entitled to all unclaimed funds and
other assets of the Trust Fund which remain subject hereto.
Section 9.03 Additional Termination Requirements. In the event the
Majority Class X Certificateholder or the Servicer exercises its purchase option
with respect to the Mortgage Loans as provided in Section 9.01, the Trust Fund
shall be terminated in accordance with the following additional requirements,
unless the Trustee has been supplied with an Opinion of Counsel, at the expense
of the Depositor, to the effect that the failure to comply with the requirements
of this Section 9.03 will not (i) result in the imposition of taxes on
"prohibited transactions" on any Trust REMIC as defined in Section 860F of the
Code, or (ii) cause any Trust REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding:
(a) The Trustee shall sell all of the assets of the Trust Fund to
the Depositor, and, within 90 days of such sale, shall distribute to the
Certificateholders the proceeds of such sale in complete liquidation of each of
the Trust REMICs; and
(b) The Trustee shall attach a statement to the final federal income
tax return for each of the Trust REMICs stating that pursuant to Treasury
Regulations Section 1.860F-1, the first day of the 90-day liquidation period for
each such Trust REMIC was the date on which the Trustee sold the assets of the
Trust Fund to the Depositor.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Servicer, the Backup Servicer, the Responsible Party
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 or the Servicer,
(iv) to add any other provisions with respect to matters or questions arising
hereunder or (v) to modify, alter, amend, add to or rescind any of the terms or
provisions contained in this Agreement; provided, that any action pursuant to
clause (iv) or (v) above shall not, as evidenced by an Opinion of Counsel (which
Opinion of Counsel shall not be an expense of the Trustee or the Trust Fund),
adversely affect in any material respect the interests of any Certificateholder;
provided, further, that the amendment shall not be deemed to adversely affect in
any material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency stating that
the amendment would not result in the downgrading or withdrawal of the
respective ratings then assigned to the Certificates; it being understood and
agreed that any such letter in and of itself will not represent a determination
as to the materiality of any such amendment and will represent a determination
only as to the credit issues affecting any such rating. The Trustee, the
Depositor, the Servicer, the Responsible Party and the Backup 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 Backup Servicer, the Responsible Party 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.
The Responsible Party shall be obligated to execute any amendment to
this Agreement, unless such amendment would adversely affect in any material
respect the rights or obligations of the Responsible Party.
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 at any time that any
Certificates are outstanding and (ii) the party seeking such amendment shall
have provided written notice to the Rating Agencies (with a copy of such notice
to the Trustee) of such amendment, stating the provisions of the Agreement to be
amended.
Notwithstanding the foregoing provisions of this Section 10.01, with
respect to any amendment that significantly modifies the permitted activities of
the Trustee or the Servicer, any Certificate beneficially owned by the Depositor
or any of its Affiliates or by the Responsible Party shall be deemed not to be
outstanding (and shall not be considered when determining the percentage of
Certificateholders consenting or when calculating the total number of
Certificates entitled to consent) for purposes of determining if the requisite
consents of Certificateholders under this Section 10.01 have been obtained.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 10.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment which modifies its obligations or liabilities without its consent and
in all cases without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee or the Trust Fund), satisfactory to the Trustee that
(i) such amendment is permitted and is not prohibited by this Agreement and that
all requirements for amending this Agreement have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 10.01.
Section 10.02 Recordation of Agreement; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Servicer at the expense of the Trust, but only upon receipt of
an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. It is, further, not the intention of the
parties that such conveyances be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, such assets are held to be the
property of the Depositor, as the case may be, or if for any other reason this
Agreement is held or deemed to create a security interest in either such assets,
then (i) this Agreement shall be deemed to be a security agreement within the
meaning of the Uniform Commercial Code of the State of New York and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The Depositor, for the benefit of the Certificateholders, shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Trust Fund, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement. The Depositor shall arrange for
filing any Uniform Commercial Code continuation statements in connection with
any security interest granted or assigned to the Trustee for the benefit of the
Certificateholders.
Section 10.05 Notices. (a) The Trustee shall use its best efforts to
promptly provide notice to each Rating Agency with respect to each of the
following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Servicer or the Trustee and
the appointment of any successor;
4. The repurchase of Mortgage Loans pursuant to Sections 2.03, 2.07
or 3.28; and
5. The final payment to Certificateholders.
(b) In addition, the Trustee shall promptly make available on its
internet website to each Rating Agency copies of the following:
1. Each report to Certificateholders described in Section 4.03.
All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to (a) in the case of
the Depositor or GS Mortgage Securities Corp. or Xxxxxxx, Xxxxx & Co., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Principal Finance Group/Xxxxxxxxxxx
X. Xxxxxxx and Asset Management Group/Senior Asset Manager (and, in the case of
the Officer's Certificate delivered pursuant to Section 3.22, to
PricewaterhouseCoopers LLP, 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx,
Xxxxxxx 00000, Attention: Xxxxxxxx Xxxxxxx), or such other address as may be
hereafter furnished to the Trustee and the Servicer by the Depositor in writing;
(b) in the case of the Servicer to Ocwen Federal Bank FSB, 0000 Xxxx Xxxxx Xxxxx
Xxxx., Xxxxx 00X, Xxxx Xxxx Xxxxx, Xxxxxxx, 00000, Attention: Secretary or such
other address as may be hereafter furnished to the Depositor and Trustee by the
Servicer in writing; (c) in the case of the Trustee to the Corporate Trust
Office, or such other address as the Trustee may hereafter furnish to the
Depositor and the Servicer; (d) in the case of the Backup Servicer to JPMorgan
Chase Bank, 4 New York Plaza, 6th Floor New York, New York 10004, Attention:
Backup Servicing Team, GSAMP 2004-SEA2; (e) in the case of each of the Rating
Agencies, the address specified therefor in the definition corresponding to the
name of such Rating Agency and (f) in the case of the Responsible Party, Bank
One, N.A. 000 Xxxxxxxx Xxxxxx, X0-0000, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention
Xxxxxxx Xxxxxx. Notices to Certificateholders shall be deemed given when mailed,
first Class postage prepaid, to their respective addresses appearing in the
Certificate Register.
Section 10.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 10.07 Assignment; Sales; Advance Facilities. (a)
Notwithstanding anything to the contrary contained herein, except as provided in
Section 6.02, this Agreement may be assigned by the Servicer with the prior
written consent of the Depositor, the Backup 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 Interest Advances or Servicing Advances and/or (B) an Advancing Person
agrees to fund some or all Interest 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
neither the Trust Fund nor any party hereto shall have a right or claim
(including without limitation any right of offset) 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 Interest Advances and/or
Servicing Advances on the Servicer's behalf, the Servicer shall remain obligated
pursuant to this Agreement to make Interest 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 ("Reimbursement Amounts") shall
consist solely of amounts in respect of Interest 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 Interest 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 Interest Advances and/or Servicing
Advances, and/or whose obligations hereunder are limited to the funding of
Interest Advances and/or Servicing Advances shall not be required to meet the
criteria for qualification of a Subservicer set forth in this Agreement.
(e) Reimbursement Amounts distributed with respect to each Mortgage
Loan shall be allocated to outstanding unreimbursed Interest 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 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 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 Interest 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 10.07 or to any other provision of
this Agreement that may be necessary or appropriate to effect the terms of an
Advance Facility as described generally in this Section 10.07, including
amendments to add provisions relating to a successor Servicer, may be entered
into by the Trustee, the Depositor and the Servicer without the consent of any
Certificateholder, 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 party requesting such opinion 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 10.08 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 10.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 10.09 Inspection and Audit Rights. The Servicer agrees that
on reasonable prior notice, it will permit any representative of the Depositor,
the Backup Servicer or the Trustee during such Person's normal business hours,
to examine all the books of account, records, reports and other papers of such
Person relating to the applicable Mortgage Loans, to make copies and extracts
therefrom, to cause such books to be audited by independent certified public
accountants selected by the Depositor or the Trustee and to discuss its affairs,
finances and accounts relating to such Mortgage Loans with its officers,
employees and independent public accountants (and by this provision the Servicer
hereby authorizes said accountants to discuss with such representative such
affairs, finances and accounts), all at such reasonable times and as often as
may be reasonably requested. Any reasonable out-of-pocket expense of the
Servicer incident to the exercise by the Depositor or the Trustee of any right
under this Section 10.09 shall be borne by the Servicer.
Nothing in this Section 10.09 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 as a result of such obligation shall not constitute a
breach of this Section. Nothing in this Section 10.09 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 10.10 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 10.11 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW)
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
Section 10.12 Limitation of Damages. NOTWITHSTANDING ANYTHING
CONTAINED HEREIN TO THE CONTRARY, THE PARTIES AGREE THAT NO PARTY SHALL BE
LIABLE TO ANY OTHER PARTY FOR ANY PUNITIVE DAMAGES WHATSOEVER, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL
OR EQUITABLE PRINCIPLE, PROVIDED, HOWEVER, THAT SUCH LIMITATION SHALL NOT BE
APPLICABLE WITH RESPECT TO THIRD PARTY CLAIMS MADE AGAINST A PARTY.
* * * * * * *
IN WITNESS WHEREOF, the Depositor, the Trustee, the Backup Servicer,
the Responsible Party and the Servicer 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/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
JPMORGAN CHASE BANK,
solely as Trustee and not in its
individual capacity
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
OCWEN FEDERAL BANK FSB,
as Servicer
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
By:
--------------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Backup Servicer
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
BANK ONE N.A.,
as Responsible Party and Servicer
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: First Vice President
SCHEDULE I
Mortgage Loan Schedule
SCHEDULE II
GSAMP Mortgage Loan Trust 2004-SEA2,
Mortgage Pass-Through Certificates
Representations and Warranties of Ocwen Federal Bank FSB, as Servicer
OCWEN FEDERAL BANK FSB ("Ocwen") hereby makes the representations
and warranties set forth in this Schedule II to the Depositor and the Trustee,
as of the Closing Date, or if so specified herein, as of the Cut-off Date.
(1) Ocwen is a federally chartered savings bank duly organized,
validly existing and in good standing under the laws of the United States
and is duly authorized and qualified to transact any and all business
contemplated by this Pooling and Servicing 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 the Mortgage Loan in accordance with the
terms of this Pooling and Servicing 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 Pooling and Servicing
Agreement and has duly authorized by all necessary action on the part of
Ocwen the execution, delivery and performance of this Pooling and
Servicing Agreement; and this Pooling and Servicing Agreement, assuming
the due authorization, execution and delivery thereof by the Depositor,
the Servicer 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 Pooling and Servicing
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 Pooling and
Servicing Agreement or (y) the business, operations, financial condition,
properties or assets of Ocwen taken as a whole;
(4) Ocwen is an approved seller/servicer for Xxxxxx Xxx and an
approved servicer for 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 Pooling
and Servicing 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 Pooling and
Servicing Agreement or the consummation by Ocwen of the transactions
contemplated by this Pooling and Servicing Agreement, except for such
consents, approvals, authorizations or orders, if any, that have been
obtained prior to the Closing Date; 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 Pooling
and Servicing Agreement.
SCHEDULE IIIA
GSAMP Mortgage Loan Trust 2004-SEA2,
Mortgage Pass-Through Certificates
Representations and Warranties of Bank One, N.A.
The Responsible Party represents, warrants and covenants to the
Depositor and its affiliates, the Trustee, the Servicer and the Backup Servicer,
that as of the Closing Date or as of such date specifically provided herein:
(a) The Responsible Party is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States. The Responsible Party has all licenses necessary to carry out its
business as now being conducted, and is licensed and qualified to transact
business in and is in good standing under the laws of each state in which any
Mortgaged Property is located or is otherwise exempt under applicable law from
such licensing or qualification or is otherwise not required under applicable
law to effect such licensing or qualification and no demand for such licensing
or qualification has been made upon the Responsible Party by any such state, and
in any event the Responsible Party is in compliance with the laws of any such
state to the extent necessary to ensure the enforceability of each Mortgage
Loan;
(b) The Responsible Party has the full power and authority and legal
right to enter into and consummate all transactions contemplated by this
Agreement and to conduct its business as presently conducted. The Responsible
Party has duly authorized the execution, delivery and performance of this
Agreement and any agreements contemplated hereby, has duly executed and
delivered this Agreement, and any agreements contemplated hereby, and this
Agreement and any agreements contemplated hereby, will constitute the legal,
valid and binding obligations of the Responsible Party, enforceable against it
in accordance with their respective terms, except as such enforceability may be
limited by bankruptcy, insolvency, moratorium, reorganization and similar laws,
and by equitable principles affecting the enforceability of the rights of
creditors. All requisite corporate action has been taken by the Responsible
Party to make this Agreement and all agreements contemplated hereby valid and
binding upon the Responsible Party in accordance with their terms;
(c) Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement will conflict with
any of the terms, conditions or provisions of the Responsible Party's articles
of association or by laws or materially conflict with or result in a material
breach of any of the terms, conditions or provisions of any legal restriction or
any agreement or instrument to which the Responsible Party is now a party or by
which it is bound, or constitute a default or result in an acceleration under
any of the foregoing, or result in the material violation of any law, rule,
regulation, order, judgment or decree to which the Responsible Party or its
property is subject;
(d) There is no litigation, suit, proceeding or investigation
pending or, to the Responsible Party's knowledge, threatened, or any order or
decree outstanding, which is reasonably likely to have a material adverse effect
on the execution, delivery, performance or enforceability of this Agreement, or
which is reasonably likely to have a material adverse effect on the financial
condition of the Responsible Party;
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Responsible Party of or compliance by the Responsible Party
with this Agreement except for consents, approvals, authorizations and orders
which have been obtained;
(f) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Responsible Party;
(g) The origination and servicing practices of the Responsible Party
with respect to each Mortgage Note and Mortgage have been legal and in
accordance with applicable laws and regulations in all material respects. The
Responsible Party further represents and warrants that: with respect to payments
that the Responsible Party is entitled to collect, all such payments made by the
Mortgagor are in the possession of, or under the control of, the Responsible
Party or its delegate, and there exist no material deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made; all Mortgage Interest Rate adjustments have been made in material
compliance with state and federal law and the terms of the related Mortgage
Note; and any interest required to be paid pursuant to applicable law has been
properly paid and credited;
(h) The Responsible Party is duly qualified, licensed, registered
and otherwise authorized under all applicable federal, state and local laws, and
regulations, and meets the minimum capital requirements, if applicable, set
forth by the OCC;
(i) Neither this Agreement nor any information, statement, tape,
diskette, report, form, or other document furnished or to be furnished pursuant
to this Agreement or in connection with the transactions contemplated hereby
contains or will contain any untrue statement of material fact or omits or will
omit to state a material fact necessary to make the statements contained herein
or therein not misleading in light of the context in which they were made;
(j) The Responsible Party has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans;
(k) The Responsible Party is an "insured depository institution" as
that term is defined in Section 1813(c)(2) of Title 12 of the United States
Code, as amended.
SCHEDULE IIIB
GSAMP Mortgage Loan Trust 2004-SEA2,
Mortgage Pass-Through Certificates
Representations and Warranties of Bank One, N.A.
The Responsible Party hereby represents and warrants to the
Depositor and its Affiliates, Trustee, Servicer and Backup Servicer, as to each
Mortgage Loan, as of the Closing Date or as of such date specifically provided
herein as follows:
(a) The information designated in the Data Tape Information, is
complete and correct in all material respects as of the Cut-off Date;
(b) With respect to a First Lien Mortgage Loan, the Mortgage creates
a first lien or a first priority ownership interest in an estate in fee simple
in real property securing the related Mortgage Note;
(c) With respect to a Second Lien Mortgage Loan, the Mortgage
creates a second lien or a second priority ownership interest in an estate in
fee simple in real property securing the related Mortgage Note;
(d) There are no material defaults under the terms of the Mortgage
Loan; the Responsible Party has not advanced funds, or induced or solicited any
advance of funds from a party other than the owner of the Mortgaged Property
subject to the Mortgage, directly or indirectly, for the payment of any
principal and interest required by the Mortgage Loan;
(e) Except as otherwise agreed by Purchaser and Responsible Party in
writing, all taxes, governmental assessments, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and which
has been assessed but is not yet due and payable;
(f) The Mortgage Note and the Mortgage are not subject to any right
of rescission, set off, counterclaim or defense, including, without limitation,
the defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render the
Mortgage Note or Mortgage unenforceable, in whole or in part, or subject to any
right of rescission, set off, counterclaim or defense, including the defense of
usury, and no such right of rescission, set off, counterclaim or defense has
been asserted with respect thereto; and the Mortgagor was not a debtor in any
state or federal bankruptcy or insolvency proceeding at the time the Mortgage
Loan was originated;
(g) To the best of the Responsible Party's knowledge as of the date
of origination, pursuant to the terms of the Mortgage, all buildings or other
improvements upon the Mortgaged Property are insured by a generally acceptable
insurer against loss by fire, hazards of extended coverage and such other
hazards as are provided for in the Underwriting Standards in an amount which is
at least equal to the lesser of (i) the maximum insurable value of the
improvements securing such Mortgage Loan and (ii) the greater of (a) the
outstanding principal balance of the Mortgage Loan and (b) an amount such that
the proceeds thereof shall be sufficient to prevent the Mortgagor or the loss
payee from becoming a co-insurer. If required by the Flood Disaster Protection
Act of 1973, as amended, the Mortgaged Property is covered by a flood insurance
policy meeting the requirements of the current guidelines of the Federal
Insurance Administration insurance carrier, in an amount representing coverage
not less than the least of (i) the outstanding principal balance of the Mortgage
Loan, (ii) the maximum insurable value of the improvements securing such
Mortgage Loan and (iii) the maximum amount of insurance which is available under
the Flood Disaster Protection Act of 1973, as amended. All individual insurance
policies contain a standard mortgagee clause naming the Responsible Party and
its successors and assigns as mortgagee, and all premiums thereon have been
paid. The Mortgage obligates the Mortgagor thereunder to maintain all such
insurance at the Mortgagor's cost and expense, and upon the Mortgagor's failure
to do so, authorizes the holder of the Mortgage to maintain such insurance at
the Mortgagor's cost and expense and to seek reimbursement therefor from the
Mortgagor. Where required by state law or regulation, the Mortgagor has been
given an opportunity to choose the carrier of the required hazard insurance,
provided the policy is not a "master" or "blanket" hazard insurance policy
covering a condominium, or any hazard insurance policy covering the common
facilities of a planned unit development. The hazard insurance policy is the
valid and binding obligation of the insurer, is in full force and effect, and
will be in full force and effect and inure to the benefit of the Purchaser upon
the consummation of the transactions contemplated by this Agreement. The
Responsible Party has not engaged in, and has no knowledge of the Mortgagor's or
any servicer's having engaged in, any act or omission which would impair the
coverage of any such policy, the benefits of the endorsement provided for
herein, or the validity and binding effect of such policy, without limitation,
no unlawful fee, commission, kickback or other unlawful compensation or value of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Responsible Party;
(h) Any and all material requirements of any federal, state or local
law including, without limitation, usury, truth in lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity,
transfer of servicing or disclosure laws applicable to the Mortgage Loan have
been complied with in all material respects;
(i) The Mortgage has not been satisfied, canceled or subordinated
(except as identified as a second lien) , in whole or in part, or rescinded, and
the Mortgaged Property has not been released from the lien of the Mortgage, in
whole or in part nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission. Other than as documented in
the Mortgage File, the Responsible Party has not waived the performance by the
Mortgagor of any action, if the Mortgagor's failure to perform such action would
cause the Mortgage Loan to be in default, nor has the Responsible Party waived
any default resulting from any action or inaction by the Mortgagor;
(j) With respect to any First Lien Mortgage Loan, the related
Mortgage is a valid, subsisting, enforceable and perfected first lien on the
Mortgaged Property and, with respect to any second lien Mortgage Loan, the
related Mortgage is a valid, subsisting, enforceable and perfected second lien
on the Mortgaged Property. The Mortgage and the Mortgage Note do not contain any
evidence of any security interest or other interest or right thereto with
respect to any other party and such lien is free and clear of all adverse
claims, liens and encumbrances having priority over the first or second lien, as
applicable, of the Mortgage subject only to (1) with respect to any second lien
Mortgage Loan, the related First Lien Mortgage Loan, (2) the lien of non
delinquent current real property taxes and assessments not yet due and payable,
(3) covenants, conditions and restrictions, rights of way, easements and other
matters of the public record as of the date of recording which are acceptable to
mortgage lending institutions generally and (4) other matters to which like
properties are commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged Property. Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates (1) with
respect to any first lien Mortgage Loan, a valid, subsisting, enforceable and
perfected First Lien and first priority security interest and (2) with respect
to any second lien Mortgage Loan, a valid, subsisting, enforceable and perfected
second lien and second priority security interest, in each case, on the property
described therein, and the Responsible Party has the full right to sell and
assign the same to the Purchaser;
(k) The Mortgage Note and the related Mortgage are original and
genuine (or a lost note affidavit has been provided by Responsible Party) and
each is the legal, valid and binding obligation of the maker thereof,
enforceable in all respects in accordance with its terms subject to bankruptcy,
insolvency, moratorium, reorganization and other laws of general application
affecting the rights of creditors and by general equitable principles and the
Responsible Party has taken all action necessary to transfer such rights of
enforceability to the Purchaser. With respect to any Mortgage Loan as to which a
lost note affidavit has been delivered to the Purchaser certifying that the
original Mortgage Note has been lost or destroyed and not been replaced, if such
Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan
will not be materially adversely affected by the absence of the original
Mortgage Note. All parties to the Mortgage Note and the Mortgage had the legal
capacity to enter into the Mortgage Loan and to execute and deliver the Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have been duly and
properly executed by such parties. No fraud, error, omission or
misrepresentation with respect to a Mortgage Loan has taken place on the part of
the Responsible Party or to the Responsible Party's knowledge, the Mortgagor,
or, on the part of any other party involved in the origination of the Mortgage
Loan except to the extent such fraud would not have a material adverse effect on
such Mortgage Loan. The proceeds of the Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and any and all
requirements as to completion of any on site or off site improvements and as to
disbursements of any escrow funds therefor have been complied with. All costs,
fees and expenses incurred in making or closing the Mortgage Loan and the
recording of the Mortgage were paid or are in the process of being paid, and the
Mortgagor is not entitled to any refund of any amounts paid or due under the
Mortgage Note or Mortgage;
(l) Immediately prior to the Original Purchase Date, the Responsible
Party or its affiliate was the sole owner of record and holder of the Mortgage
Loan and the indebtedness evidenced by the Mortgage Note, and upon recordation
of the related mortgage assignment, the Purchaser or its designee will be the
owner of record of the Mortgage and the indebtedness evidenced by the Mortgage
Note, and upon the sale of the Mortgage Loan to the Purchaser, the Responsible
Party or its delegate will retain the Servicing File in trust for the Purchaser
only for the purpose of servicing of the Mortgage Loans until the Servicing
Transfer Date. Immediately prior to the transfer and assignment to the Purchaser
on the Original Purchase Date, the Mortgage Loan, including the Mortgage Note
and the Mortgage, were not subject to an assignment or pledge, and the
Responsible Party had good and marketable title to and was the sole owner
thereof and had full right to transfer and sell the Mortgage Loan to the
Purchaser free and clear of any encumbrance, equity, lien, pledge, charge, claim
or security interest and has the full right and authority subject to no interest
or participation of, or agreement with, any other party, to sell and assign the
Mortgage Loan pursuant to this Agreement and following the sale of the Mortgage
Loan, the Purchaser will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest created by, through or under the Responsible Party. The
Responsible Party intends to relinquish all rights to possess, control and
monitor the Mortgage Loan, except for the purposes of servicing the Mortgage
Loan until the Servicing Transfer Date;
(m) If required by the underwriting standards at the time of
origination, each Mortgage Loan is covered by an ALTA lender's title insurance
policy, or with respect to any Mortgage Loan for which the related Mortgaged
Property is located in California a CLTA lender's title insurance policy, or
other generally acceptable form of policy or insurance acceptable under the
Underwriting Standards and each such title insurance policy is issued by a title
insurer acceptable under the Underwriting Standards and qualified to do business
in the jurisdiction where the Mortgaged Property is located, insuring (subject
to the exceptions contained in (j)(1), (2), (3) and (4) above) the Responsible
Party, its successors and assigns, as to the first or second, as applicable,
priority lien of the Mortgage in the original principal amount of the Mortgage
Loan. Where required by applicable state law or regulation, the Mortgagor has
been given the opportunity to choose the carrier of the required mortgage title
insurance. Where required by state law or regulation, the Mortgagor has been
given the opportunity to choose the carrier of the required mortgage title
insurance. Additionally, such lender's title insurance policy, if any,
affirmatively insures ingress and egress, and against encroachments by or upon
the Mortgaged Property or any interest therein. The Responsible Party, its
successors and assigns, are the sole insureds of such lender's title insurance
policy, such title insurance policy has been duly and validly endorsed to the
Purchaser or the assignment to the Purchaser of the Responsible Party's interest
therein does not require the consent of or notification to the insurer and such
lender's title insurance policy is in full force and effect and will be in full
force and effect upon the consummation of the transactions contemplated by this
Agreement. No claims have been made under such lender's title insurance policy,
and no prior interest holder of the related Mortgage, including the Responsible
Party, has done, by act or omission, anything which would impair the coverage of
such lender's title insurance policy, except as otherwise noted in the Mortgage
Loan Schedule;
(n) There is no material default, breach, violation or event of
acceleration existing under the Mortgage or the related Mortgage Note and no
material event has occurred which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute a default, breach,
violation or event permitting acceleration; and neither the Responsible Party
nor any prior mortgagee has waived any default, breach, violation or event
permitting acceleration, provided delinquency of payment shall not constitute an
event of default for purposes of the foregoing. With respect to each Second Lien
Mortgage Loan, (i) there is no default, breach, violation or event of
acceleration existing under the First Lien, (ii) no event has occurred which,
with the passage of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event of acceleration
thereunder, and either (A) the prior mortgage contains a provision which allows
or (B) applicable law requires, the mortgagee under the Second Lien Mortgage
Loan to receive notice of, and affords such mortgagee an opportunity to cure any
default by payment in full or otherwise under the prior mortgage, provided
delinquency of payment shall not constitute an event of default for purposes of
the foregoing;
(o) The Mortgage Loan complies with all the material terms,
conditions and requirements of the underwriting standards in effect at the time
of origination of such Mortgage Loan. The Responsible Party has not made any
representations to a Mortgagor that are inconsistent with the mortgage
instruments used. The Mortgage Loan bears interest at the Mortgage Interest Rate
set forth in the Data Tape Information. The Mortgage contains the usual and
enforceable provisions of the originator at the time of origination for the
acceleration of the payment of the unpaid principal amount of the Mortgage Loan
if the related Mortgaged Property is sold without the prior consent of the
mortgagee thereunder;
(p) At origination of the Mortgage Loan there was, and to
Responsible Party's knowledge, there currently is, no proceeding pending for the
total or partial condemnation of the Mortgaged Property. There have not been any
condemnation proceedings with respect to the Mortgaged Property and, to the
Responsible Party's knowledge, there are no such proceedings scheduled to
commence at a future date. The Mortgaged Property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty so as
to affect adversely the value of the Mortgaged Property as security for the
Mortgage Loan or the use for which the premises were intended and, to the best
of the Responsible Party's knowledge, each Mortgaged Property is in good repair;
(q) The related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits of
the security provided thereby. Upon default by a Mortgagor on a Mortgage Loan
and foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver good
and merchantable title to the Mortgaged Property. To the best of the Responsible
Party's knowledge, there is no homestead or other exemption available to the
Mortgagor which would interfere with the right to sell the Mortgaged Property at
a trustee's sale or the right to foreclose the Mortgage;
(r) If the Mortgage constitutes a deed of trust, a trustee,
authorized and duly qualified if required under applicable law to act as such,
has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses, except as may be required by local law, are
or will become payable by the Purchaser to the trustee under the deed of trust,
except in connection with a trustee's sale or attempted sale after default by
the Mortgagor;
(s) The Servicing File contains an appraisal by a Qualified
Appraiser or an AVM, tax assessment or a broker's price opinion of the related
Mortgaged Property in accordance with the Underwriting Standards;
(t) The related Mortgage Note is not and has not been secured by any
collateral except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage and such
collateral does not serve as security for any other obligation;
(u) The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any separate
account established by the Responsible Party, the Mortgagor, or anyone on behalf
of the Mortgagor, or paid by any source other than the Mortgagor nor does it
contain any other similar provisions which may constitute a "buydown" provision.
The Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature;
(v) The Mortgagor is not in bankruptcy except as otherwise provided
in the Data Tape Information;
(w) As to Mortgage Loans that are not secured by an interest in a
leasehold estate, the Mortgaged Property is located in the state identified in
the Mortgage Loan Schedule and consists of a single parcel of real property with
a detached single family residence erected thereon, or a townhouse, or a two-to
four-family dwelling, or an individual condominium unit in a condominium
project, or an individual unit in a planned unit development or a de minimis
planned unit development or a Manufactured Home; provided, however, that no
residence or dwelling is a single parcel of real property with a cooperative
housing corporation erected thereon. No portion of the Mortgaged Property has
been used for commercial purposes;
(x) The Mortgage Loan was (i) originated by a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 203 and 211
of the National Housing Act, a savings and loan association, a savings bank, a
commercial bank, credit union, insurance company or other similar institution
which is supervised and examined by a federal or state authority or (ii) closed
in the name of a loan broker or correspondent under the circumstances described
in the following sentence. If such Mortgage Loan was originated through a loan
broker or correspondent, such Mortgage Loan met the Responsible Party's
underwriting criteria at the time of origination and was originated in
accordance with the Responsible Party's policies and procedures and the
Responsible Party acquired such Mortgage Loan from the loan broker or
correspondent contemporaneously with the origination thereof. No Mortgage Loan
contains terms or provisions which would result in negative amortization.
Principal payments on the Mortgage Loan commenced no more than sixty (60) days
after funds were disbursed in connection with the Mortgage Loan. The Mortgage
Note is payable on the same day of each month in equal monthly installments of
principal and interest, with interest calculated on a daily simple interest
accrual basis, sufficient to amortize the Mortgage Loan fully by the stated
maturity date, over an original term of not more than thirty years from
commencement of amortization with respect to each Mortgage Loan which bears a
fixed Mortgage Interest Rate during the life of the loan; provided, however, in
the case of a balloon Mortgage Loan, the Mortgage Loan matures at least five (5)
years after the first payment date thereby requiring a final payment of the
outstanding principal balance prior to the full amortization of the Mortgage
Loan;
(y) As of the date of origination, and to the Responsible Party's
knowledge, on the Closing Date, the Mortgaged Property is lawfully occupied
under applicable law, and all inspections, licenses and certificates required to
be made or issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same, including but
not limited to certificates of occupancy and fire underwriting certificates, had
been made or obtained from the appropriate authorities;
(z) If the Mortgaged Property is a condominium unit or a planned
unit development (other than a de minimis planned unit development), or stock in
a cooperative housing corporation, such condominium, cooperative or planned unit
development project meets the Responsible Party's eligibility requirements as
set forth in the Underwriting Standards;
(aa) To Responsible Party's knowledge, there is no pending action or
proceeding directly involving the Mortgaged Property in which compliance with
any environmental law, rule or regulation is an issue, there is no violation of
any environmental law, rule or regulation with respect to the Mortgaged
Property; and nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation constituting a prerequisite to
use and enjoyment of the Mortgaged Property; there does not exist on the related
Mortgaged Property any hazardous substances, hazardous wastes or solid wastes,
as such terms are defined in the Comprehensive Environmental Response
Compensation and Liability Act, the Resource Conservation and Recovery Act of
1976, or other federal, state or local environmental legislation;
(bb) No Mortgage Loan was made in connection with the construction
or rehabilitation of a Mortgaged Property or facilitating the trade-in or
exchange of a Mortgaged Property;
(cc) Each Mortgage Loan has been serviced in all material respects
in compliance with Accepted Servicing Practices and the related Servicing File
is sufficient to service such Mortgage Loan in accordance with Accepted
Servicing Practices. The Responsible Party or servicer has reported the
Mortgagor credit files to each of the three credit repositories on a monthly
basis;
(dd) With respect to any ground lease to which a Mortgaged Property
may be subject: (i) the Mortgagor is the owner of a valid and subsisting
leasehold interest under such ground lease and the lessor under the lease holds
a fee simple interest in the land; (ii) such ground lease is in full force and
effect, unmodified and not supplemented by any writing or otherwise except as
contained in the Mortgage File; (iii) the terms of such lease do not (a) allow
the termination of the lease in the event of damage or destruction as long as
the Mortgage is in existence, (b) prohibit the holder of the Mortgage from being
insured (or receiving proceeds of insurance) under the hazard insurance policy
or policies relating to the Mortgaged Property or (c) permit any increase in
rent other than pre-established increases set forth in the lease, (iv) all rent,
additional rent and other charges reserved therein have been fully paid to the
extent payable as of the Closing Date; (v) the Mortgagor enjoys the quiet and
peaceful possession of the leasehold estate, subject to any sublease; (vi) the
Mortgagor is not in default under any of the terms of such ground lease, and
there are no circumstances which, with the passage of time or the giving of
notice, or both, would result in a default under such ground lease; (vii) the
lessor under such ground lease is not in default under any of the terms or
provisions of such ground lease on the part of the lessor to be observed or
performed; (viii) the lessor under such ground lease has satisfied any repair or
construction obligations due as of the Closing Date pursuant to the terms of
such ground lease; (ix) the execution, delivery and performance of the Mortgage
do not require the consent (other than those consents which have been obtained
and are in full force and effect) under, and will not contravene any provision
of or cause a default under, such ground lease; (x) the ground lease term
extends, or is automatically renewable, for at least five years beyond the
maturity date of the related Mortgage Loan; and (xi) the Purchaser has the right
to cure defaults on the ground lease.
(ee) With respect to any broker fees collected and paid on any of
the Mortgage Loans, all broker fees have been properly assessed to the borrower
and no claims will arise as to broker fees that are double charged and for which
the borrower would be entitled to reimbursement;
(ff) Except as otherwise provided in this Agreement, the Mortgage
Note, the Mortgage, the Assignment of Mortgage and the other documents set forth
in Exhibit A and required to be delivered on the Closing Date, or as otherwise
provided herein, have been delivered to the Purchaser or its designee;
(gg) Except as otherwise noted in the Mortgage Loan Schedule, as of
the date of origination, no Mortgage Loan had an LTV in excess of 125%. No
Mortgage Loan that is a Second Lien Mortgage Loan has a CLTV in excess of 125%;
(hh) With respect to any second lien Mortgage Loan, the Responsible
Party has not received notice of: (i) any proceeding for the total or partial
condemnation of any Mortgaged Property, (ii) any subsequent, intervening
mortgage, lien, attachment, lis pendens or other encumbrance affecting any
Mortgaged Property or (iii) any default under any mortgage, lien or other
encumbrance senior to the Mortgage related thereto;
(ii) No Mortgage Loan is a "home equity line of credit", except as
otherwise noted in the Mortgage Loan Schedule;
(jj) No Mortgage Loan meets the definition of mortgage set forth in
Section 1602 (aa) of the Truth-in-Lending Act.
(kk) Unless otherwise set forth on the Data Tape Information, the
Mortgagor has made all payments required to be made up to the Closing Date for
the Mortgage Loan under the terms of the Mortgage Note;
(ll) The terms of the Mortgage Note and Mortgage have not been
impaired, waived, altered or modified in any respect, from the date of
origination except by a written instrument, if necessary to protect the
interests of the Purchaser, and which has been delivered to the Custodian or to
such other Person as the Purchaser shall designate in writing, and the terms of
which are reflected in the Data Tape Information. The substance of any such
waiver, alteration or modification is reflected on the Data Tape Information, if
applicable;
(mm) To the best of the Responsible Party's knowledge, there are no
mechanics' or similar liens or claims (except those which have been expressly
insured over in the related title insurance policy) which have been filed for
work, labor or material (and no rights are outstanding that under law could give
rise to such liens) affecting the related Mortgaged Property which are or may be
liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(nn) If required by the underwriting standards at the time of
origination to be covered by a lender's title insurance policy, all improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(oo) [Reserved].
(pp) The origination, servicing and collection practices used by the
Servicer, the Responsible Party, and any prior servicer with respect to the
Mortgage Loan have been in all respects in compliance with Accepted Servicing
Practices, applicable laws and regulations, and have been in all respects legal
and proper and prudent in the mortgage origination and servicing business;
(qq) Except as otherwise set forth on the Data Tape Information, the
Mortgagor has not notified the Responsible Party, and the Responsible Party has
no knowledge of any relief requested or allowed to the Mortgagor under the
Servicemembers Civil Relief Act or any similar state statute;
(rr) Except if the Mortgage Loan is identified on the Data Tape
Information as being "Section 00," xxxx of the Mortgage Loans are High Cost
Loans. No predatory or deceptive lending practices, including, without
limitation, the extension of credit without regard to the ability of the
Mortgagor to repay and the extension of credit which has no apparent benefit to
the Mortgagor, were employed in the origination of the Mortgage Loan;
(ss) In connection with the origination of any Mortgage Loan, no
proceeds from any Mortgage Loan were used to finance a single-premium credit
life insurance policy;
(tt) The Mortgage Loan is a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code;
(uu) No Mortgage Loan secured by property located in the State of
Georgia was originated on or after October 1, 2002 and on or prior to March 7,
2003. There is no Mortgage Loan that was originated on or after March 7, 2003
that is a "high cost home loan" as defined under the Georgia Fair Lending Act;
and;
(vv) To the best of the Responsible Party's knowledge, the Mortgage
Loan is not subject to any outstanding litigation for fraud, origination,
predatory lending, servicing or closing practices; and
(ww) In the case of any Mortgaged Properties that are Manufactured
Homes (a "Manufactured Home Mortgage Loan"), (i) such Manufactured Home Mortgage
Loan conforms with the applicable Underwriting Standards requirements regarding
mortgage loans related to manufactured dwellings, (ii) the related manufactured
dwelling is permanently affixed to the land, (iii) the related manufactured
dwelling and the related land are subject to a Mortgage properly filed in the
appropriate public recording office and naming Responsible Party as mortgagee,
(iv) the applicable laws of the jurisdiction in which the related Mortgaged
Property is located will deem the manufactured dwelling located on such
Mortgaged Property to be a part of the real property on which such dwelling is
located, and (v) such Manufactured Home Mortgage Loan is (x) a qualified
mortgage under Section 860G(a)(3) of the Internal Revenue Code of 1986, as
amended and (y) secured by manufactured housing treated as a single family
residence under Section 25(e)(10) of the Code.
(xx) No Mortgage Loan is secured by the pledge of stock allocated to
a dwelling unit in a residential cooperative housing corporation.
(yy) There are no funds held in escrow, other than as set forth on
the Mortgage Loan Schedule, in connection with any Mortgage Loan No amounts or
payments are or have been required to be escrowed by the Mortgagor with the
Mortgagee pursuant to the terms of any Mortgage Note or Mortgage.
SCHEDULE IV
GSAMP Mortgage Loan Trust 2004-SEA2,
Mortgage Pass-Through Certificates
Class A-IO Scheduled Notional Amount
------------ ---------------
Class A-IO
Scheduled
Distribution Notional Amount
Date ($)
------------ ---------------
07/04 220,093,000
08/04 209,190,000
09/04 198,827,000
10/04 188,975,000
11/04 179,610,000
12/04 170,707,000
01/05 162,244,000
02/05 154,199,000
03/05 146,552,000
04/05 139,282,000
05/05 132,372,000
06/05 125,803,000
07/05 89,669,000
08/05 85,218,000
09/05 80,987,000
10/05 76,965,000
11/05 73,142,000
12/05 69,509,000
01/06 44,035,000
02/06 0
03/06 0
04/06 0
05/06 0
06/06 0
07/06 0
EXHIBIT A-1
FORM OF CLASS A (OTHER THAN CLASS A-IO),
CLASS M AND CLASS B CERTIFICATES
[To be added to Class M and Class B Certificates: NEITHER THIS CERTIFICATE NOR
ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE
TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A
PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR, IF THE
TRANSFEREE IS AN INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT IS USING THE
ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AND THE
SERVICER, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL
NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE
MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT
SUBJECT THE TRUSTEE 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 TRUSTEE 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.
Certificate No. :
Cut-off Date : June 1, 2004
First Distribution Date : July 26, 2004
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate
Balances or Notional Amount
of all Certificates of this
Class : Class Principal Amount
Class A-1 $ 52,000,000
Class A-2A $ 355,360,000
Class A-2B $ 69,040,000
Class A-IO Notional Amount
Class M-1 $ 46,554,000
Class M-2 $ 43,450,000
Class M-3 $ 15,518,000
Class M-4 $ 10,863,000
Class M-6 $ 9,931,000
Class B-1 $ 11,794,000
Class B-2 $ 6,207,000
CUSIP : Class CUSIP No.
Class A-1
Class A-2A
Class A-2B
Class A-IO
Class M-1
Class M-2
Class M-3
Class M-4
Class M-5
Class B-1
Class B-2
ISIN : Class ISIN
Class A-1
Class A-2A
Class A-2B
Class A-IO
Class M-1
Class M-2
Class M-3
Class M-4
Class M-5
Class B-1
Class B-2
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2004-SEA2
Mortgage Pass-Through Certificates, Series 2004-SEA2
[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 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 June 1,
2004 (the "Agreement"), among GS Mortgage Securities Corp., as depositor (the
"Depositor"), Ocwen Federal Bank FSB, as servicer, (the "Servicer"), Bank One,
N.A., as servicer and responsible Party (the "Responsible Party") and JPMorgan
Chase Bank, as trustee and Backup servicer (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.
[To be added to Class M and Class B Certificates: No transfer of a
Certificate of this Class shall be made unless the Trustee shall have received
either (i) a representation letter from the transferee of such Certificate,
acceptable to and in form and substance satisfactory to the Trustee, to the
effect that such transferee is not an employee benefit plan subject to Section
406 of ERISA, Section 4975 of the Code or any materially similar provisions of
applicable Federal, state or local law ("Similar Law"), or a person acting on
behalf of or investing plan assets of any such plan, which representation letter
shall not be an expense of the Trustee, the Servicer or the Trust Fund, or (ii)
if the transferee is an insurance company, a representation letter that it is
purchasing such Certificates with the assets of its general account and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60, or (iii) in the case of a Certificate presented for registration
in the name of an employee benefit plan subject to ERISA, or a plan or
arrangement subject to Section 4975 of the Code (or comparable provisions of any
subsequent enactments) or a plan subject to Similar Law, or a trustee of any
such plan or any other person acting on behalf of any such plan or arrangement
or using such plan's or arrangement's assets, an Opinion of Counsel satisfactory
to the Trustee and the Servicer, which Opinion of Counsel shall not be an
expense of the Trustee, the Servicer or the Trust Fund, addressed to the
Trustee, to the effect that the purchase or holding of such 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 or
the Servicer to any obligation in addition to those expressly undertaken in this
Agreement or to any liability.]
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
JPMORGAN CHASE BANK,
not in its individual capacity, but
solely as
Trustee
By:
--------------------------------------
Authenticated:
By:
-------------------------------
Authorized Signatory of
JPMORGAN CHASE BANK,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2004-SEA2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2004-SEA2 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first Class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes, or such other location specified in the notice to Certificateholders
of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer, the Responsible Party and the Trustee with the
consent of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto____________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:___________________________________________
_______________________________________________________________________________.
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 A-2
FORM OF CLASS A-IO CERTIFICATE
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER
ASSETS.
Certificate No. :
Cut-off Date : June 1, 2004
First Distribution Date : July 26, 2004
Initial Notional Amount of
this Certificate
("Denomination")
Original Class A-IO
Notional Amount :
CUSIP
ISIN
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2004-SEA2
Mortgage Pass-Through Certificates, Series 2004-SEA2
Class A-IO
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Payments in reduction of the Class A-IO Notional Amount in respect
of this Certificate are distributable monthly as set forth herein. Accordingly,
the Class A-IO Notional Amount represented by this Certificate may be less than
the Denomination 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 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
Initial Notional Amount of this Certificate by the Original Class A-IO Notional
Amount) in certain monthly distributions pursuant to a Pooling and Servicing
Agreement, dated as of June 1, 2004 (the "Agreement"), among GS Mortgage
Securities Corp., as depositor (the "Depositor"), Ocwen Federal Bank FSB, as
servicer, (the "Servicer"), Bank One, N.A., as servicer and responsible party
(the "Responsible Party") and JPMorgan Chase Bank, as trustee and Backup
servicer (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
JPMORGAN CHASE BANK,
not in its individual capacity,
but solely as Trustee
By:
--------------------------------------
Authenticated:
By:
-------------------------------
Authorized Signatory of
JPMORGAN CHASE BANK,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2004-SEA2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2004-SEA2 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first Class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes, or such other location specified in the notice to Certificateholders
of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer, the Responsible Party and the Trustee with the
consent of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address: __________________________________________
_______________________________________________________________________________.
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
[RESERVED]
EXHIBIT C
FORM OF CLASS R 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 TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS
OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. In the event that such
representation is violated, or any attempt IS MADE to transfer to a plan or
arrangement subject to Section 406 of ERISA, a plan subject to Section 4975 of
the Code OR A PLAN SUBJECT TO SIMILAR LAW, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement,
such attempted transfer or acquisition shall be void and of no effect.
Certificate No. : 1
Cut-off Date : June 1, 2004
First Distribution Date : July 26, 2004
Percentage Interest of :
this Certificate
("Denomination") 100%
CUSIP :
ISIN :
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2004-SEA2
Mortgage Pass-Through Certificates, Series 2004-SEA2
Class R
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 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 or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that [______] is the registered owner of the
Percentage Interest specified above of any monthly distributions due to the
Class R Certificates pursuant to a Pooling and Servicing Agreement dated as of
June 1, 2004 (the "Agreement"), among GS Mortgage Securities Corp., as depositor
(the "Depositor"), Ocwen Federal Bank FSB, as servicer, (the "Servicer"), Bank
One, N.A., as servicer and responsible party (the "Responsible Party") and
JPMorgan Chase Bank, as trustee and Backup servicer (the "Trustee"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class R
Certificate at the offices designated by the Trustee for such purposes.
No transfer of a Class R Certificate shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, a plan or arrangement subject to
Section 4975 of the Code or a plan subject to Similar Law, or a person acting on
behalf of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer, which representation letter shall not be an
expense of the Trustee, 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 Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class R Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R Certificate shall be a
Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee, (ii) no Ownership
Interest in this Class R Certificate may be registered on the Closing Date or
thereafter transferred, and the Trustee shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered to
the Trustee under Section 5.02(b) of the Agreement, the Trustee shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of this Class R
Certificate, (C) not to cause income with respect to the Class R Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person and (D) not to Transfer the Ownership Interest in this Class R
Certificate or to cause the Transfer of the Ownership Interest in this Class R
Certificate to any other Person if it has actual knowledge that such Person is
not a Permitted Transferee and (iv) any attempted or purported Transfer of the
Ownership Interest in this Class R Certificate in violation of the provisions
herein shall be absolutely null and void and shall vest no rights in the
purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
JPMORGAN CHASE BANK,
not in its individual capacity,
but solely as Trustee
By:
--------------------------------------
Authenticated:
By:
-------------------------------
Authorized Signatory of
JPMORGAN CHASE BANK,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2004-SEA2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2004-SEA2 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first Class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer, the Responsible Party and the Trustee with the
consent of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address: __________________________________________
_______________________________________________________________________________.
Dated:______
--------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to______________________.
Applicable statements should be mailed to______________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT D
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
DIRECT OR INDIRECT INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND
CERTAIN OTHER ASSETS.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (ii) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I
AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AND THE SERVICER, 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 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 TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. :
Cut-off Date : June 1, 2004
First Distribution Date : July 26, 2004
Percentage Interest of this
Certificate ("Denomination") :
CUSIP :
ISIN: :
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2004-SEA2
Mortgage Pass-Through Certificates, Series 2004-SEA2
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 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 June 1,
2004 (the "Agreement"), among GS Mortgage Securities Corp., as depositor (the
"Depositor"), Ocwen Federal Bank FSB, as servicer, (the "Servicer"), Bank One,
N.A., as servicer and responsible party (the "Responsible Party") and JPMorgan
Chase Bank, as trustee and Backup servicer (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 Trustee for such purposes.
No transfer of a Class X Certificate shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan or arrangement subject to Section 406 of ERISA, a plan or
arrangement subject to Section 4975 of the Code or a plan subject to Similar
Law, or a person acting on behalf of any such plan or arrangement nor using the
assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Trustee, the Servicer or
the Trust Fund, or (ii) if the transferee is an insurance company, a
representation letter that it is purchasing such Certificates with the assets of
its general account and that the purchase and holding of such Certificates are
covered under Sections I and III of PTCE 95-60, or (iii) in the case of a 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 Trustee and the Servicer, which Opinion
of Counsel shall not be an expense of the Trustee, the Servicer or the Trust
Fund, addressed to the Trustee, to the effect that the purchase or holding of
such 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 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 Trustee 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 Trustee shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered to
the Trustee under Section 5.02(b) of the Agreement, the Trustee shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class 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 Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
JPMORGAN CHASE BANK,
not in its individual capacity,
but solely as Trustee
By:
--------------------------------------
Authenticated:
By:
-------------------------------
Authorized Signatory of
JPMORGAN CHASE BANK,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2004-SEA2
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2004-SEA2 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first Class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer, the Responsible Party and the Trustee with the
consent of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address: __________________________________________
_______________________________________________________________________________.
Dated:______
--------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to______________________.
Applicable statements should be mailed to______________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
---------------------
---------------------
Re: Pooling and Servicing Agreement among GS Mortgage Securities Corp.,
as Depositor, Ocwen Federal Bank FSB, as Servicer, Bank One, N.A. as
servicer and responsible party and JPMorgan Chase Bank, as Trustee
and Backup Servicer, XXXXX Xxxxx, 0000-XXX0
Xxxxxxxxx:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, for each Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Mortgage Loan listed in the attached schedule of exceptions), it has
received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed Assignment of Mortgage (which may be included
in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability, recordability or
genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or the perfection or priority of any Mortgage. Notwithstanding anything
herein to the contrary, the Trustee has made no determination and makes no
representations as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as Noteholder or assignee
thereof, in and to that Mortgage Note or (ii) any assignment is in recordable
form or sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
JPMORGAN CHASE BANK,
as Trustee
By:
--------------------------------------
Name:
Title:
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF TRUSTEE
[date]
[Depositor]
[Servicer]
---------------------
---------------------
Re: Pooling and Servicing Agreement among GS Mortgage Securities Corp.,
as Depositor, Ocwen Federal Bank FSB, as Servicer, Bank One, N.A. as
servicer and responsible party and JPMorgan Chase Bank, as Trustee
and Backup servicer, GSAMP Trust, 2004-SEA2
--------------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on the
attached Document Exception Report) it has received:
(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.
(iii) A duly executed Assignment of Mortgage in the form provided in
Section 2.01 of the Pooling and Servicing Agreement; or, if the Trustee
otherwise knows that the related Mortgage has not been returned from the
applicable recording office, a copy of the Assignment of Mortgage
(excluding information to be provided by the recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from
the originator to the last endorsee.
(v) The original or duplicate original 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 (3) of
the Mortgage Loan Schedule and the Data Tape Information accurately reflects
information set forth in the Custodial File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Pooling and Servicing Agreement. The Trustee makes
no representations as to: (i) the validity, legality, sufficiency,
enforceability, recordability or genuineness of any of the documents contained
in each Mortgage File of any of the Mortgage Loans identified on the Mortgage
Loan Schedule or (ii) the collectability, insurability, effectiveness or
suitability of any such Mortgage Loan or the perfection or priority of any
Mortgage. Notwithstanding anything herein to the contrary, the Trustee has made
no determination and makes no representations as to whether (i) any endorsement
is sufficient to transfer all right, title and interest of the party so
endorsing, as Noteholder or assignee thereof, in and to that Mortgage Note or
(ii) any assignment is in recordable form or sufficient to effect the assignment
of and transfer to the assignee thereof, under the Mortgage to which the
assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
JPMORGAN CHASE BANK,
as Trustee
By:
--------------------------------------
Name:
Title:
EXHIBIT G
RESIDUAL TRANSFER AFFIDAVIT
GSAMP Trust 2004-SEA2,
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 June 1, 2004 (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Ocwen Federal Bank FSB, as servicer, (the
"Servicer"), Bank One, N.A., as servicer and responsible party (the "Responsible
Party") and JPMorgan Chase Bank, as trustee and Backup servicer (the "Trustee").
Capitalized terms used, but not defined herein or in Exhibit 1 hereto, shall
have the meanings ascribed to such terms in the Agreement. The Transferee has
authorized the undersigned to make this affidavit on behalf of the Transferee
for the benefit of the Depositor and the Trustee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit H to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee has historically paid its debts as they have come
due, intends to pay its debts as they come due in the future, and understands
that the taxes payable with respect to the Certificate may exceed the cash flow
with respect thereto in some or all periods and intends to pay such taxes as
they become due. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check one of the following:
[_] The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on such
Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates
losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[_] The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to
which income from the Certificate will only be taxed in the
United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Certificate only to another
"eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii)
and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury
Regulations; and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and
reinvestment assumptions, tax rates and other factors specific
to the Transferee) that it has determined in good faith.
[_] None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any Federal, state or local law that is substantially similar to
Title I of ERISA or Section 4975 of the Code, and the Transferee is not acting
on behalf of or investing plan assets of such a plan.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this __ day of ________, 20__.
Print Name of Transferee
By:
--------------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
---------------------------------------
[Assistant] Secretary
Personally appeared before me the above-named __________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ___________ of the Transferee, and acknowledged that he executed the same
as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this __ day of ________, 20__.
-----------------------------------------
NOTARY PUBLIC
My Commission expires the __ day
of _________, 20__
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
JPMorgan Chase Bank,
as Trustee
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: GSAMP Trust, 2004-SEA2, Mortgage Pass-Through Certificates, Class
[__]
--------------------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (C) we have no
reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
-----------------------------------------
Print Name of Transferor
By:
--------------------------------------
Authorized Officer
EXHIBIT I
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
JPMorgan Chase Bank,
as Trustee
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: GSAMP Trust 2004-SEA2, Mortgage Pass-Through Certificates,
Class
[__]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either we are not an employee benefit plan that
is subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code"), or a plan subject to
any Federal, state or local law materially similar to the foregoing provisions
of ERISA or the Code, nor are we acting on behalf of any such plan or
arrangement nor using the assets of any such plan or arrangement to effect such
acquisition, or, with respect to a Subordinated Certificate or a Class X
Certificate, the purchaser is an insurance company that is purchasing this
certificate with funds contained in an "insurance company general account" (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60")) and that the purchase and holding of such Certificates are
covered under Sections I and III of PTCE 95-60, (e) we have not, nor has anyone
acting on our behalf offered, transferred, pledged, sold or otherwise disposed
of the Certificates, any interest in the Certificates or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Certificates, any interest in the Certificates or any other
similar security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Securities Act or
that would render the disposition of the Certificates a violation of Section 5
of the Securities Act or require registration pursuant thereto, nor will act,
nor has authorized or will authorize any person to act, in such manner with
respect to the Certificates, and (f) we are a "qualified institutional buyer" as
that term is defined in Rule 144A under the Securities Act and have completed
either of the forms of certification to that effect attached hereto as Annex 1
or Annex 2. We are aware that the sale to us is being made in reliance on Rule
144A. We are acquiring the Certificates for our own account or for resale
pursuant to Rule 144A and further, understand that such Certificates may be
resold, pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
ANNEX 1 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $____________(1) in securities (except
for the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or
territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is
attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
____ 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.
(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.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
-----------------------------------------
Print Name of Transferee
By:
--------------------------------------
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
____ The Buyer owned $____________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
-----------------------------------------
Print Name of Transferee
By:
--------------------------------------
Name:
Title:
IF AN ADVISER:
-----------------------------------------
Print Name of Buyer
Date:
EXHIBIT J
FORM OF REQUEST FOR RELEASE
(for Trustee)
To: [Address]
Re:
In connection with the administration of the Mortgage Loans held by
you as the Trustee on behalf of the Certificateholders we request the release,
and acknowledge receipt, of the (Custodial File/[specify documents]) for the
Mortgage Loan described below, for the reason indicated.
Mortgagor's Name, Address & Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
____1. Mortgage Loan Paid in Full. (The Company hereby certifies that all
amounts received in connection therewith have been credited to the
Collection Account as provided in the Pooling and Servicing
Agreement.)
____2. Mortgage Loan Repurchase Pursuant to Section 2.03 of the Pooling and
Servicing Agreement. (The Company hereby certifies that the
repurchase price has been credited to the Collection Account as
provided in the Pooling and Servicing Agreement.)
____3. Mortgage Loan Liquidated by _________________. (The Company hereby
certifies that all proceeds of foreclosure, insurance, condemnation
or other liquidation have been finally received and credited to the
Collection Account pursuant to the Pooling and Servicing Agreement.)
____4. Mortgage Loan in Foreclosure.
____5. Other (explain).__________________________________________________
If box 1, 2 or 3 above is checked, and if all or part of the Custodial File was
previously released to us, please release to us our previous request and receipt
on file with you, as well as any additional documents in your possession
relating to the specified Mortgage Loan.
Address to which Trustee should
Deliver the Trustee's Mortgage File: _________________________________________
_________________________________________
_________________________________________
By:
--------------------------------------
(authorized signer)
Issuer:__________________________________
Address:_________________________________
_________________________________
Date:____________________________________
Trustee
Acknowledged receipt by:
JPMorgan Chase Bank, as Trustee
By:
--------------------------------------
Name:
Title:
Date
EXHIBIT K
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 Trustee, as applicable:
1. The original Mortgage Note endorsed "Pay to the order of
___________________ without recourse," and signed in the name of the Responsible
Party by an authorized officer, with all intervening endorsements showing a
complete chain of title from the originator to the Responsible Party. If the
Mortgage Loan was acquired by the Responsible Party in a merger, the endorsement
must be by "[Responsible Party], successor by merger to the [name of
predecessor]". If the Mortgage Loan was acquired or originated by the
Responsible Party while doing business under another name, the endorsement must
be by "[Responsible Party] formerly known as [previous name]". If the original
note is unavailable, Responsible Party will provide a Lost Note Affidavit (in
form acceptable to the Purchaser) stating that the original Mortgage Note was
lost or destroyed, together with a copy of such Mortgage Note and indemnifying
the Purchaser against any and all claims arising as a result of any person or
entity claiming they are the holder of the note or that the note has been paid
off and returned.
2. Except as provided below, the original Mortgage with evidence of
recording thereon, or a copy thereof certified by the public recording office in
which such mortgage has been recorded or, if the original Mortgage has not been
returned from the applicable public recording office, a true certified copy of
the original Mortgage together with a certificate of the Responsible Party
certifying that the original Mortgage has been delivered for recording in the
appropriate public recording office of the jurisdiction in which the Mortgaged
Property is located.
3. The original Assignment of Mortgage, from the Responsible Party
in accordance with Purchaser's instructions, which assignment shall, but for any
blanks requested by the Purchaser, be in form and substance acceptable for
recording, or a copy certified by the Responsible Party as a true and correct
copy of the original Assignment which has been sent for recordation. If the
Mortgage Loan was acquired or originated by the Responsible Party while doing
business under another name, the Assignment must be by "[Responsible Party]
formerly known as [previous name]".
4. The original or a certified copy of any guarantee executed in
connection with the Mortgage Note if applicable.
5. The originals, or certified copies, of all assumption,
modification or consolidation agreements, if any, with evidence of recording
thereon, where such assumption, modification or consolidation agreement has been
recorded, and all originals or copies of extension agreements, to the extent
that Responsible Party is in possession;
6. the originals of all intervening assignments of mortgage (if any)
evidencing a complete chain of assignment from the Responsible Party to the Last
Endorsee with evidence of recording thereon or if any such intervening
assignment has not been returned from the applicable recording office or has
been lost or if such public recording office retains the original recorded
assignments of mortgage, the Responsible Party shall deliver or cause to be
delivered to the applicable Custodian, a photocopy of such intervening
assignment, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (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 (ii) in the
case of an intervening assignment where a public recording office retains the
original recorded intervening assignment or in the case where an intervening
assignment is lost after recordation in a public recording office, a copy of
such intervening assignment certified by such public recording office to be a
true and complete copy of the original recorded intervening assignment;
7. where a policy of title insurance was required pursuant to the
applicable Underwriting Standards, 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
8. Any security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage.
Notwithstanding anything to the contrary herein, the Responsible
Party may provide one certificate for all of the Mortgage Loans indicating that
the documents were delivered for recording.
EXHIBIT L
Servicer REPORTING REQUIREMENTS
Data File Layout
----------------------------------------------------------------------------------------------------------------
XXXXXXX XXXXX LOAN SERVICER INFORMATION REQUEST LIST
----------------------------------------------------------------------------------------------------------------
FIELD NAME FIELD DESCRIPTION FORMAT
----------------------------------------------------------------------------------------------------------------
ONE TIME, STATIC FIELDS
----------------------------------------------------------------------------------------------------------------
Loan Number Loan Number currently being used to service this loan. Text
Prior Loan Number Prior Loan Number (if any). If servicing has transferred this Text
should contain the Loan Number used by the previous servicer.
Custodian File Number Custodian ID used to file Text
documents. This can be the custodian's
only id or a category used to arrange
documents into proper pools.
Custodian Loan Number Custodian secondary ID used to Text
file documents. Often this is used in
conjunction with Custodian File Number to
uniquely identify loans.
Origination Date Origination Date shown on loan documents. Date
Original Balance Original amount of loan granted to borrower. In the case of Numeric
construction loans this should be the full
amount extended on which the monthly payments
are based.
First Payment Date This is the contractual date when
the first payment was to be made. If the loan
has been modified this should be the first
scheduled payment date following the
modification.
Original Maturity Date This is the contractual date Date
when the 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 The number of months from First Payment Date to Maturity Date Number
inclusive.
Balloon Flag Code/literal to identify balloon loans. Example: Y, N. Text
Loan Type Code/literal to identify the loan type. See Enumerations Text
worksheet.
Amortization Type Generic category to describe loan type. See Enumerations Text
worksheet.
Original Amortization Term Original Amortization Term Number
of the loan 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 Method The basis on which interest is calculated. See Enumerations
worksheet.
Daily Simple Interest Flag Flag to identify loans
where interest is due is calculated based on
the date that each payment is actually
received.
Original Principal and Interest Original contrStated Principal and interest Number
payment amount.
Original Interest Rate Original contractual interest rate for loan.
ARM Index Description Code/literal used to identify the specific underlying index that Text
adjustable rate loans will reset from. See Enumerations worksheet.
Margin The spread above the index value that a new Number
rate on adjustable rate loans will be
set to; subject to caps and rounding.
ARM Rounding Feature Code/literal used to identify the method to be used when computing new rate on
adjustable rate loans. See Enumerations worksheet.
Lookback Days The actual number of days prior to the Next Rate Reset Date that Number
the underlying index will be referenced for determining new rate
on adjustable rate loans. Examples: 45, 30, 0.
First Payment Reset Date The first date that any Date
payment reset was/is scheduled to occur.
Typically is one month after First Rate Reset
Date.
First Rate Reset Date The first date that any rate Date
reset was/is scheduled to occur.
Typically is one month prior to First Payment
Reset Date.
Initial Rate Reset Period Number of payments to be Number
made prior to the first rate reset. For
a typical 5/1 ARM, this would contain the
value 60. For non hybrid loans this would
equal the Rate Reset Period.
Rate Reset Period Number of payments to be made Number
between rate changes following the
initial rate reset period. For a typical 5/1
ARM this would contain the value 12.
Initial Payment Reset Period Number of payments to be
made prior to the first payment reset. For a
typical 5/1 ARM, this would contain the value
60. For non hybrid loans this would equal the
Payment Reset Period.
Payment Reset Period Number of payments to be made
between payment changes following the Initial
Payment Reset Period. For a typical 5/1 ARM
this would contain the value 12.
Initial Rate Adjustment Cap Maximum rate change allowed on First Rate Reset Number
Date.
Rate Adjustment Cap Maximum rate increase allowed subsequent to Number
First Rate Reset Date.
Periodic Floor Maximum rate decrease allowed Number
subsequent to First Rate Reset Date.
Lifetime Caps The maximum amount the Number
rate is allowed to increase by over the
life of the loan.
Lifetime Floor The minimum amount the rate is allowed to increase by over the Number
life of the loan.
Max Rate The absolute maximum rate allowed for the loan. Number
Min Rate The absolute minimum rate allowed for the loan. Number
Negative Amortization Flag Code/literal to identify loans where negative amortization is Text
allowed. Example: Y=neg am allowed, N=no neg
am allowed.
Negam Percent Cap Maximum percentage of original balance that a loan may negatively Number
amortize by. Example: 1.25, 1,10.
Payment Cap Periodic Cap for monthly principal & interest payment increase. Example 7.5%.
Servicing Fee Servicing Fee rate due servicer. Example: 0.25%. Number
Property Type Code/literal that identifies the type of property securing the Text
loan. See Enumerations worksheet.
Property Address Property address, not billing address. Text
Property City Property city. Text
Property State Property state. Text
Property Zip Property zip. Number
Borrower Name Name of borrower. Preferably in a fixed format. Example: Text
XXXXX XXXX W.
CoBorrower Name Name of Co borrower. Preferably in a fixed format. Example: Text
XXXXX XXXX W.
Borrower Social Security Eleven character ID. Example: 000-00-0000. Number
Number/TIN
CoBorrower Social Security Eleven character ID. Example: 000-00-0000. Number
Number/TIN
Original FICO score Credit bureau score obtained at application. Number
Original Credit Grade Internal credit grade assigned at origination. Text
Original Loan To Value Ratio Ratio representing the Original Loan Balance to the lower of the Original
Appraised Value or Original Purchase Price. Example: 80.00.
Original Combined Loan To Value Ratio representing the sum of the Original Loan Balance plus Original Senior
Ratio Lien Amount to the lower of the Original Appraised Value or Original Purchase
Price. Example: 80.00.
Original Appraised Value Appraised value at time of application. Number
Original Appraisal Date Date of the original Appraisal Date
Original Appraisal Firm Name of the Appraisal firm Text
Original Purchase Price Price paid for home. Number
Purchase BPO BPO at the time of Purchase by GS. Number
Purchase BPO Date Date of the Purchase BPO Date
Lien Position Number used to identify the lien position in effect at the time Number
of application. Example: 1, 2, 3
Original Senior Lien Amount Amount of senior liens outstanding when loan was originated. Number
PMI Provider Name or code for company providing private mortgage insurance.
PMI Coverage Percentage Percentage of insurance provided by PMI agreement.
PMI Certificate ID Unique ID to identify PMI insurance certificate.
Occupancy Type Occupancy status at time of application. See Enumerations Text
worksheet.
Purpose of Loan Code/literal used to identify the original purpose of the loan. Text
See Enumerations worksheet.
Prepayment Flag Code/Flag to determine if loan was originated with a prepayment Text
penalty.
Prepayment Penalty Type Code/literal to identify characteristics of penalty. Example: 6 Text
MO INT ON 80% XXXX, 5/4/3/2/1, 3%.
Prepayment Term Original number of months that penalty was imposed. Number
Front Ratio Front End Ratio at time of application. Mortgage debt to borrower Number
income.
Back Ratio Back End Ratio at time of application. Total debt to borrower Number
income.
----------------------------------------------------------------------------------------------------------------
MONTHLY LOAN DATA UPDATES
----------------------------------------------------------------------------------------------------------------
As Of Date As Of Date for data sent. Date
Loan Number Loan Number currently being used to service this loan. Number
Investor Number This is the servicer assigned number for reporting purposes. Number
Investor Category This is the servicer assigned category for reporting purposes.
Current Maturity Date This is the actual date when the last payment on the loan is Date
scheduled to be made. For balloons it should be the balloon date.
For modified loans it should be the modified maturity date.
Remaining Term The Remaining Term of the loan Number
Current Principal & Interest Principal & Interest in effect for currently outstanding payment. Number
Payment
Current Interest Rate Interest Rate in effect for currently outstanding payment. Number
Next Payment Reset Date The next date that any payment reset is scheduled to occur. Date
Typically is one month after Next Rate Reset Date.
Next Rate Reset Date The next date that any rate
reset is scheduled to occur. Date Typically is
one month prior to Next Payment Reset Date.
Next Due Date Date next payment is due.
Interest Paid To Date Date interest is paid to. Typically for 30/360 loans it is one month prior to
Next Due Date.
Last Payment Date Date last payment was made. Date
Current Balance Actual outstanding balance of loan. Number
Current Balance Net Present The net present value of the current balance Number
Value
Days Past Due Number of days loan is past due.
Delinquency Convention Indicates if ABS or MBS method for
reporting delinquencies is used.
Delinquency Status Indicates delinquency reported. Example: 30, 60, 90. Number
Status of Loan Code/literal used to identify loan status. See Enumerations Text
worksheet.
12 Month Pay String 12 character string representing the timing of payments received on a rolling 12
month basis. String should begin with January and end with December.
Time 30 Days Delinquent in Past Indicates the number of times a loan payment has been made 30 or more days
12 Months delinquent in the past 12 months.
Time 60 Days Delinquent in Past Indicates the number of times a loan payment has been made 60 or more days
12 Months delinquent in the past 12 months.
Time 90 Days Delinquent in Past Indicates the number of times a loan payment has been made 90 or more days
12 Months delinquent in the past 12 months.
Last Modification Date Date that loan was last modified.
Last Extension Date Date loan term was last extended.
Total Extension Months Number of months loan has been extended in total.
Restructured Interest Total amount of restructured interest.
Property Sale Date Date property sold. Date
Debt To Income Ratio Debt To Income Ratio Number
Senior Lien Amount Most recently recorded senior lien amount. Number
Recent Property Valuation Most recent appraised value or BPO value. Number
Recent Property Valuation Date Date of most recent valuation. Date
Valuation Method Identify method used to obtain new valuation. See Enumerations Text
worksheet.
Valuation Firm Name of the Firm who appraised the property Text
Current FICO Current FICO score. Number
FICO Date FICO Date. Date
----------------------------------------------------------------------------------------------------------------
MONTHLY SERVICING UPDATES
----------------------------------------------------------------------------------------------------------------
Borrower Payments
----------------------------------------------------------------------------------------------------------------
Total Monthly Payment Total cash received from borrower. Number
Total Monthly Payment Principal Cash applied to principal. Number
Total Monthly Payment Interest Cash applied to interest. Number
Total Monthly Payment Penalties Cash applied to fees. Text
/ Fees
Total Monthly Escrow Payment Cash applied to escrow account. Number
Total Monthly Prepayment Amount Total amount borrower prepaid Number
Payment Date Date the payment was made. Date
Scheduled X&X Xxxxxxxx Xxxxxxxxx X&X payment for the month Number
----------------------------------------------------------------------------------------------------------------
Servicer Payments
----------------------------------------------------------------------------------------------------------------
Monthly Escrow Advances Net escrow advances made or Number
recovered by servicer. Positive value
denotes payments made by servicer.
Monthly Corporate Advances Net corporate advances made Number
or recovered by servicer. Positive
value denotes payments made by servicer.
Monthly Non Recoverable Net Non Recoverable Corporate Advances made or recovered by Number
Corporate Advances Servicer. Positive value denotes payments made by Servicer.
Principal Advances Total outstanding principal advances made by servicer. Number
Interest Advances Total outstanding interest advances made by servicer. Number
----------------------------------------------------------------------------------------------------------------
Account Balances
----------------------------------------------------------------------------------------------------------------
Beginning Scheduled Balance Beginning scheduled loan balance. If the loan is serviced on a Number
scheduled balance basis
Ending Scheduled Balance Ending scheduled loan balance. If the loan is serviced on a
scheduled balance basis
Escrow Balance Current balance of escrow account (borrower's positive funds). Number
Escrow Advance Balance Total outstanding escrow advance balance. Number
Recoverable Corporate Advance Total outstanding Recoverable corporate advance balance amount. Number
Balance
Non Recoverable Corporate Total outstanding Non Recoverable corporate advance balance Number
Advance Balance amount.
Suspense Account Balance Total suspense account balance Number
Accrued Interest Total Accrued Interest on loan. Number
----------------------------------------------------------------------------------------------------------------
Account Management Statistics
----------------------------------------------------------------------------------------------------------------
Forced Placed Insurance Flag Code indicating loan is on forced placed insurance.
Annual Forced Placed Insurance Amount of forced placed policy.
Stop Advance Flag Code indicating loan has been placed in a stop advance status. Text
Example: Y=Stop Advance.
Stop Advance Recovered Amount of principal and interest advances recovered at stop date.
Stop Advance Start Date Date loan was initially placed on a stop advance status. Date
Stop Advance Reversal Date Date stop advance status was reversed. Date
Stop Advance Reversal Amount Amount of advances reversed. Number
Last Contact Date Date of Servicer's last contact with the borrower. Date
Last Attempt Date Date of the Servicer's last attempt to contact the borrower. Date
Bankruptcy Flag Flag indicating loan is in bankruptcy. Text
Bankruptcy Chapter Chapter of bankruptcy (7, 11, 12, 13). Text
Bankruptcy Start Date Bankruptcy filing date. Date
Bankruptcy End Date Dismissal/Discharge date. Date
Bankruptcy Post Petition Due Payment due date of Bankruptcy payment plan. In essence the new Date
Date due date.
Motion for Relief Request Date Motion for Relief Request Date. Date
Motion for Relief Filing Date Date
Motion for Relief Hearing Date Motion for Relief Hearing Date. Date
Motion for Relief Granted Date Motion for Relief Granted Date. Date
Motion for Relief Denied Date Date the motion was Denied (if applicable) Date
In Demand Flag Code indicating demand letter has been sent. Text
In Demand Start Date Date demand letter was sent. Date
In Demand End Date Expiration of demand letter. Date
Foreclosure Start Date Date foreclosure flag placed on loan. Date
Due Date At Referral The revised due date on any payment modification. Date
Foreclosure Estimated End Date On loans that are in Foreclosure the Servicers estimate of when the FCL will be
completed.
Foreclosure Sale Date Date of actual foreclosure sale. Date
Foreclosure end date Date of recording of foreclosure deed. Date
First Legal Date Date of first legal action taken on foreclosure. Date
Foreclosure Resolution Flag Indicates if the loan has moved out of foreclosure (i.e., Did not Number
go to REO).
Foreclosure Resolution Type Method used by the servicer to
prevent the foreclosed loan from moving into
REO (i.e., Reinstated, Paid Off, Worked out
Repayment plan....).
Foreclosure On Hold Flag indicating that the loan is in foreclosure but on hold.
Foreclosure Hold Start Date Date indicating when the loan's foreclosure proceedings were put Date
on hold.
Bankruptcy Cash Delays Number of days an active foreclosure has been in BK subsequent to its initial
foreclosure start date.
Forbearance Cash Delays Number of days an active
foreclosure has been in forbearance subsequent
to its initial foreclosure start date.
Non - Cash Delays 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 or Xxxxxxx
time line]
Forbearance Start Date Date forbearance plan was initiated. Date
Forbearance Payment Amount of payment under Forbearance plan. Number
Forbearance End Date Date forbearance plan scheduled to be complete. Date
Eviction Start Date Date eviction flag placed on loan. Date
Eviction End Date Date property is vacated. Date
REO Start Date Date REO flag placed on loan (including any redemption periods). Date
REO End Date Date property is sold. Date
REO Sub Status Status while within REO. See Enumerations worksheet.
Not Acquired Date Date that the REO enters "Not Acquired" sub status Date
Eviction Date Date that the REO enters "Eviction" sub status Date
Possession Date Date that the REO enters "Possession" sub status Date
Listed Date Date that the REO enters "Listed" sub status Date
Under Contract Date Date that the REO enters "Under Contract" sub status Date
Estimated Closing Date Servicer estimated closing date on loan Date
Days In REO Number of Days from the REO becomes marketable to the As of Date Number
Estimated Sales Price Servicer estimated REO Sales Price Number
Possession Date Date when the servicer takes possession of the property. Date we have full
access to the property, eviction completed
Redemption End Date Legal time period, determined by
State, when borrower can redeem their
property. Property not available for sale
until redemption completed (no beginning date,
just an end date)
Initial Listing Price First listing price of property. Number
Initial Listing Date Date of the first listing price of property Date
Current List Price Most recent listing price of property. Number
Current List Date Date of the most recent listing price of property. Date
Reason For Default Servicer Code representing the Reason for Default. See Enumerations worksheet.
----------------------------------------------------------------------------------------------------------------
LIQUIDATED LOANS (Liquidated and Paid Off loans)
----------------------------------------------------------------------------------------------------------------
Termination Type Type of liquidation. See Enumerations worksheet. Text
Balance at Termination Stated Principal balance at time of termination. Number
Scheduled Sale Date Dates of planned sales for properties in Foreclosure Date
Property Sales Price Sales price if liquidation was short sale or REO sale. Number
Liquidation Date Date property liquidated. Date
Gross Total Proceeds Gross Total Proceeds. Number
Net Total Proceeds Gross total proceeds less expenses.
Principal Advanced Total of principal advanced at time of liquidation. Number
Interest Advanced Total of interest advanced at time of liquidation. Number
Deferred Interest Amount of deferred interest on the loan @ liquidation Number
Accrued Servicing Fee Recovered Servicing fee recovered at time of liquidation. Number
Corporate Advances Recovered at The amount of the Total Corporate Advance balance recovered at Number
Termination termination
Escrow Advances Recovered at The amount of the Total Escrow Advance balance recovered at Number
Termination termination
Commission The broker commission amount on liquidation Number
Seller Concession The dollar amt of seller concessions upon liquidation. Number
Taxes Taxes paid on liquidation Number
Repairs Cost of Repairs to property Number
Water and Sewer Water & Sewer costs Number
Expenses Recovered at The amount of the Total Expenses recovered at termination Number
Termination
Corporate Advances at Corporate advance balance at time of liquidation. Number
Termination
Escrow Advances at Termination Escrow advance balance at time of liquidation. Number
Days from Acquisition to Close Days from Acquisition to Close Number
Days from Possession to Close Days from Possession to Close Number
Charge-off amount Loss amount. Number
Severity Severity percentage.
Severity Formula Formula for calculating Severity percentage. Text
Potential Deficiency Judgment Flag indicating loan is referred for deficiency collections. Text
Flag
Potential Deficiency Amount Deficiency balance reported to borrower/IRS. Number
Deficiency Proceeds (this Deficiency proceeds collected in current month. Number
period)
Deficiency Proceeds Total (to Deficiency proceeds collected to date. Number
date)
Deficiency Vendor Expense Deficiency vendor out of pocket expenses. Number
Deficiency Servicer Expense Deficiency vendor collection fee Number
Hazard Insurance Claim Date Date hazard claim filed. Date
Hazard Insurance Claim Due Date Date hazard claim due. Number
Hazard Insurance Claim Amount Amount of hazard claim. Date
Hazard Insurance Claim Paid Amount of hazard claim paid to investor. Number
Amount
MI Insurance Claim Date Date MI claim filed.
MI Insurance Claim Due Date Date MI claim is due to be paid.
MI Insurance Claim Amount Expected MI proceeds.
MI Insurance Claim Paid Amount Actual MI proceeds received.
Servicer Hold Back Amount Amount servicer withholds for future trailing expenses.
----------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------
Amortization Type
--------------------------------------------------------------------------------
BN10 Balloon, 10 Year
BN5 Balloon, 5 Year
BN7 Balloon, 7 Year
FIX Fixed
FX10 Fixed - 10 Year
FX15 Fixed, 15 Year
FX5 Fixed - 5 Year
FXST Fixed - Short Term
H101 Hybrid, 10/1
H106 Hybrid, 10/6 month
H21 Hybrid, 2 Year
H228 Hybrid 2/28
H31 Hybrid, 3/1
H327 Hybrid 3/27
H51 Hybrid, 5/1
H71 Hybrid, 7/1
OTH Other
STEP Step Coupon
--------------------------------------------------------------------------------
ARM Index Description
--------------------------------------------------------------------------------
10YC 10 Year CMT
1ML 1 Month Libor
1YC 1 Year CMT
1YL 1 Year Libor
2ML 2 Month Libor
2YC 2 Year CMT
3ML 3 Month Libor
3MT 3 Month TBill
3YC 3 Year CMT
5YC 5 Year CMT
6MCD 6 Month CD
6ML 6 Month Libor
6MT 6 Month TBill
COFI COFI
FHLM FHLMC Commitment Rate
FNMA FNMA Commitment Rate
OTH Other Rate
PRI PRIME
--------------------------------------------------------------------------------
ARM Rounding Feature
--------------------------------------------------------------------------------
DEC3 Nearest 1000th
H8 Higher Eighth
N8 Nearest Eighth
NONE None
--------------------------------------------------------------------------------
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 M
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM 10-K
Re: GSAMP Trust 2004-SEA2 (the "Trust") Mortgage Pass-Through
Certificates, Series 2004-SEA2, issued pursuant to the Pooling and
Servicing Agreement, dated as of June 1, 2004 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Ocwen Federal Bank FSB, as servicer
("Ocwen"), Bank One, N.A. as servicer and responsible party (the
"Responsible Party") and JPMorgan Chase Bank, as trustee and Backup
servicer (the "Trustee")
--------------------------------------------------------------------
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K ("Annual Report"), and all
reports on Form 8-K containing distribution reports (collectively with
this Annual Report, the "Reports") filed in respect of periods included in
the year covered by this Annual Report, of the Trust;
2. Based on my knowledge, the information in the Reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this Annual Report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to the Trustee by the Servicer under the Pooling and
Servicing Agreement for inclusion in the Reports is included in the
Reports;
4. Based on my knowledge and upon the annual compliance statement included in
this Annual Report and required to be delivered to the Trustee in
accordance with the terms of the Pooling and Servicing Agreement, and
except as disclosed in the Reports, the Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement; and
5. The Reports disclose all significant deficiencies relating to the
Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a
review in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar procedure, as set forth in the Pooling and
Servicing Agreement, that is included in the Reports.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: the Trustee and the
Servicer.
Date: _________________________
-------------------------------
[Signature] [Title]
EXHIBIT N
FORM OF TRUSTEE CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAMP Trust 2004-SEA2 (the "Trust") Mortgage Pass-Through
Certificates, Series 2004-SEA2, issued pursuant to the Pooling and
Servicing Agreement, dated as of June 1, 2004 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Ocwen Federal Bank FSB, as servicer
("Ocwen"), Bank One, N.A. as servicer and responsible party (the
"Responsible Party") and JPMorgan Chase Bank, as trustee and Backup
servicer (the "Trustee")
--------------------------------------------------------------------
The Trustee certifies to the Depositor and its officers, directors
and affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. The Trustee has reviewed the annual report on Form 10-K (the "Annual
Report") for the fiscal year [___], and all reports on Form 8-K containing
distribution reports filed in respect of periods included in the year
covered by the Annual Report (collectively with the Annual Report, the
"Reports"), of the Trust;
2. Based on the Trustee's knowledge and, to the extent information was
provided to the Trustee by the Servicer, based solely upon the information
provided to us by the Servicer, the information in the Reports, taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as
of the last day of the period covered by the Annual Report; and
3. Based on the Trustee's knowledge, the distribution or servicing
information required to be provided to the Trustee by the Servicer under
the Pooling and Servicing Agreement for inclusion in the Reports is
included in the Reports.
Date: _________________________
JPMORGAN CHASE BANK
By:
----------------------------
Name: _________________________
Title: ________________________
EXHIBIT O
FORM OF SERVICER CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAMP Trust 2004-SEA2 (the "Trust") Mortgage Pass-Through
Certificates, Series 2004-SEA2, issued pursuant to the Pooling and
Servicing Agreement, dated as of June 1, 2004 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Ocwen Federal Bank FSB, as servicer
("Ocwen"), Bank One, N.A. as servicer and responsible party (the
"Responsible Party") and JPMorgan Chase Bank, as trustee and Backup
servicer (the "Trustee")
--------------------------------------------------------------------
The Servicer, certifies to the Depositor and the Trustee, and their
respective officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification,
that:
1. Based on our knowledge, the information prepared by the Servicer and
relating to the mortgage loans serviced by the Servicer pursuant to
the Pooling And Servicing Agreement and provided by the Servicer to
the Trustee in its reports to the Trustee is accurate and complete
in all material respects as of the last day of the period covered by
such report;
2. Based on our knowledge, the servicing information required to be
provided to the Trustee by the Servicer pursuant to the Pooling and
Servicing Agreement has been provided to the Trustee;
3. Based upon the review required under the Pooling and Servicing
Agreement, and except as disclosed in its annual compliance
statement required to be delivered pursuant to the Pooling and
Servicing Agreement, the Servicer as of the last day of the period
covered by such annual compliance statement has fulfilled its
obligations under the Pooling and Servicing Agreement; and
4. The Servicer has disclosed to its independent auditor, who issues
the independent auditor's report on the Uniform Single Attestation
Program for Mortgage Bankers for the Servicer, any significant
deficiencies relating to the Servicer's compliance with minimum
servicing standards.
OCWEN FEDERAL BANK FSB
Date: _________________________
-------------------------------
[Signature] [Title]
EXHIBIT P
DUTIES OF BACKUP SERVICER
o Backup Servicer will receive each month Loan Level Data via data file
layout as displayed on Exhibit L ("Data") and shall
>> Establish Beginning Loan Count
>> Establish Beginning Sum of Principal Balances
>> Establish Beginning Sum of Escrow Balances
>> Establish Beginning Sum of Corporate Advances
o Review of Weekly Loan Level Transaction Information Loan Level Transaction
Information to be compiled from Servicer's on-line system by Backup
Servicer on a weekly basis. Weekly totals of "Monetary Transactions", as
defined below, (cash & non-cash) would be summed at month end and compared
to the unit count and balances on the end of month data. Monetary
Transactions are defined as follows:
>> Loans Added/Substituted
>> Payment Transactions
>> Loans Removed
|X| Paid in Full
|X| Charge-offs
|X| Other Exception Processing
o Receipt of Month End Data
>> Data to be received on the first business day of each month from
Servicer.
>> Loan Level Transaction Information should contain all Monetary
Transactions for the month.
>> Count and balances on Trial Balance to be compared to weekly
compilation prepared by Hot Back-up Servicer and Servicer's month
end data.
|X| Reconcile any discrepancies
o Review of Loan Level Transaction Information on Servicer's website to
confirm principal and interest payment application.
>> Backup Servicer will do a sampling for three months and the
Depositor shall determine if future samplings need to be done based
on the results.
>> Annual audit will be performed to confirm principal and interest
payment application is continuing to be done correctly by Servicer.
>> Officer's Certificate of payment audit results will be sent to
Trustee for the three month period and annually thereafter.
Certificate will be due on the fifteenth (15th) business day after
the referenced period.
Backup Servicer will generate an officer's certificate confirming the accuracy
of the monthly Monetary Transactions of the data on a monthly basis and send to
the Trustee by the fifteenth (15th) business day following each month end.
