EXHIBIT 1
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TRUST AND SERVICING AGREEMENT
Dated as of August 1, 2003
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among
GS MORTGAGE SECURITIES CORP., as Depositor,
GMAC MORTGAGE CORPORATION, as a Servicer,
and
JPMORGAN CHASE BANK, as Trustee
GSRPM MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2003-2
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; RULES OF CONSTRUCTION
1.01 Definitions............................................................4
1.02 Use of Words and Phrases..............................................44
1.03 Captions; Table of Contents...........................................45
1.04 Opinions..............................................................45
1.05 Allocation of Certain Interest Shortfalls.............................45
ARTICLE II ESTABLISHMENT AND ORGANIZATION OF THE TRUST
2.01 Establishment of the Trust............................................46
2.02 Office................................................................46
2.03 Purposes and Powers...................................................46
2.04 Appointment of The Trustee; Declaration of Trust......................46
2.05 Expenses of the Trust.................................................46
2.06 Ownership of the Trust................................................46
2.07 Situs of the Trust....................................................47
2.08 The Mortgage Loans....................................................47
2.09 THE CERTIFICATES......................................................47
2.10 Indemnification With Respect to Certain Taxes and Loss of
Remic Status..........................................................47
ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEPOSITOR AND THE
SERVICERS; REMEDIES UPON BREACHES
3.01 Representations and Warranties of the Depositor.......................48
3.02 Representations and Warranties of GMACM...............................50
3.03 Remedies Upon Breach of Representations and Warranties by the
Depositor or a Seller.................................................52
3.04 Conveyance of the Mortgage Loans......................................54
3.05 Acceptance by Trustee; Certification by Trustee.......................57
3.06 Nonqualified Mortgage Loan............................................59
ARTICLE IV ISSUANCE AND SALE OF CERTIFICATES
4.01 Issuance of Certificates..............................................59
4.02 Sale of Certificates..................................................59
ARTICLE V THE CERTIFICATES
5.01 THE CERTIFICATES......................................................60
5.02 REGISTER; REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.......61
5.03 MUTILIATED, DESTROYED, LOST OR STOLEN CERTIFICATES....................66
5.04 PERSONS DEEMED OWNERS.................................................66
5.05 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.............67
5.06 MAINTENANCE OF OFFICE OR AGENCY.......................................67
ARTICLE VI COVENANTS
6.01 Distributions.........................................................67
6.02 Money for Distributions to be Held in Trust; Withholding..............67
6.03 Protection Of Trust Estate............................................69
6.04 Performance of Obligations............................................69
6.05 Negative Covenants....................................................70
6.06 No Other Powers.......................................................71
6.07 Limitation of Suits...................................................71
6.08 Unconditional Rights of Owners to Receive Distributions...............72
6.09 Rights and Remedies Cumulative........................................72
6.10 Delay or Omission not Waiver..........................................72
6.11 Control By Depositor or Owners........................................72
6.12 Indemnification.......................................................73
ARTICLE VII PAYMENTS TO THE CERTIFICATEHOLDERS
7.01 Establishment of Certificate Account; Deposits in Certificate
Account; Permitted Withdrawals from Certificate Account...............73
7.02 RESERVED..............................................................74
7.03 RESERVED..............................................................74
7.04 Investment of Accounts................................................74
7.05 Eligible Investment...................................................74
7.06 Priority and Subordination of Distributions...........................75
7.07 Allocation of Realized Losses.........................................79
7.08 Statements............................................................80
7.09 Reports of Foreclosure and Abandonment of Mortgaged Property..........85
7.10 RESERVE FUND..........................................................85
ARTICLE VIII SERVICING AND ADMINISTRATION OF MORTGAGE LOANS BY
GMACM
8.01 GMACM.................................................................87
8.02 Collection of Certain Mortgage Loan Payments..........................88
8.03 Liability of GMACM; Indemnification...................................89
8.04 Collection Account....................................................91
8.05 Advances..............................................................94
8.06 Compensating Interest.................................................95
8.07 Escrow Account AND SIMPLE INTEREST EXCESS SUB-ACCOUNT.................96
8.08 Maintenance of Insurance..............................................98
8.09 Due-on-Sale Clauses; Assumption and Substitution Agreements..........100
8.10 Defaulted Mortgage Loans; Modification...............................100
8.11 Trustee to Cooperate; Release of Files...............................103
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8.12 Servicing Compensation...............................................104
8.13 Annual Statement as to Compliance....................................105
8.14 Annual Independent Certified Public Accountants' Reports.............106
8.15 Access to Certain Documentation and Information Regarding the
Mortgage Loans; Staffing.............................................106
8.16 Assignment of Agreement..............................................107
8.17 Removal of servicer; Resignation of servicer.........................107
8.18 Successor Servicers..................................................111
8.19 Inspections of sERVICERS; Errors and Omissions Insurance.............113
8.20 non-solicitation.....................................................114
8.21 MAJORITY Class X Certificateholder Purchase Right....................114
8.22 periodic filings.....................................................115
8.23 CREDIT REPORTING; XXXXX-XXXXX-XXXXXX ACT.............................117
ARTICLE IX RESERVED
ARTICLE X TERMINATION OF TRUST
10.01 Termination of Trust.................................................118
10.02 Termination Upon Option of Certificateholders........................118
10.03 Termination Upon Loss of REMIC Status................................119
10.04 Disposition of Proceeds..............................................121
10.05 FINAL DISTRIBUTION ON THE CERTIFICATES...............................121
ARTICLE XI THE TRUSTEE
11.01 Certain Duties and Responsibilities..................................122
11.02 Certain Rights of the Trustee........................................124
11.03 Not Responsible for Recitals or Issuance of Certificates.............126
11.04 May Hold Certificates................................................126
11.05 Money Held in Trust..................................................126
11.06 Compensation and Reimbursement; No Lien for Fees.....................126
11.07 Corporate Trustee Required; Eligibility..............................126
11.08 Resignation and Removal; Appointment of Successor....................127
11.09 Acceptance of Appointment by Successor Trustee.......................129
11.10 Merger, Conversion, Consolidation or Succession to Business of
the Trustee..........................................................129
11.11 Reporting; Withholding...............................................130
11.12 Liability of the Trustee.............................................130
11.13 Appointment of Co-Trustee or Separate Trustee........................131
ARTICLE XII MISCELLANEOUS
12.01 Compliance Certificates and Opinions.................................133
12.02 Form of Documents Delivered to the Trustee...........................133
12.03 Acts of Owners.......................................................134
12.04 Notices, etc. to Trustee.............................................135
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12.05 Notices and Reports to Owners; Waiver of Notices.....................135
12.06 Rules by Trustee.....................................................136
12.07 Successors and Assigns...............................................136
12.08 Severability.........................................................136
12.09 Benefits of Agreement................................................136
12.10 Legal Holidays.......................................................136
12.11 Governing Law; Submission to Jurisdiction............................136
12.12 Counterparts.........................................................137
12.13 [RESERVED]...........................................................137
12.14 Amendment............................................................137
12.15 Paying Agent; Appointment and Acceptance of Duties...................138
12.16 REMIC Status.........................................................139
12.17 Additional Limitation on Action and Imposition of Tax on the
Trust REMICs.........................................................141
12.18 Tax Matters Person...................................................142
12.19 Notices..............................................................143
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EXHIBITS AND SCHEDULES
Schedule I Schedule of Mortgage Loans
Exhibit A-1 Form of Offered Certificate
Exhibit A-2 Form of Class X Certificate
Exhibit A-3 Form of Residual Certificate
Exhibit B Form of Initial Certification
Exhibit C Form of Power of Attorney
Exhibit D Form of Request for Release of Documents
Exhibit E Form of Certification to be provided with Form 10-K
Exhibit F Reserved
Exhibit G Form of Transfer Affidavit
Exhibit H Form of Transferor Certificate
Exhibit I Form of Rule 144A Letter
Exhibit J List of Original Sellers, Sale Agreements and Assignment Agreements
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TRUST AND SERVICING AGREEMENT (this "Agreement"), relating to GSRPM
MORTGAGE LOAN TRUST 2003-2 (the "Trust"), dated as of August 1, 2003, by and
among GS MORTGAGE SECURITIES CORP., a Delaware corporation, as depositor (the
"Depositor"), GMAC MORTGAGE CORPORATION, a Pennsylvania corporation ("GMACM"),
in its capacity as a servicer (a "Servicer"), and JPMORGAN CHASE BANK, a New
York banking corporation, as trustee (the "Trustee") of the Trust.
WHEREAS, the Depositor wishes to establish the Trust and to provide
for the allocation and sale of the beneficial interests therein and the
maintenance and distribution thereof;
WHEREAS, GMACM and each of the other Servicers currently service the
Mortgage Loans pursuant a Servicing Agreement applicable to each such Servicer;
WHEREAS, GMACM, Countrywide Home Loans, Inc. ("Countrywide") and
Xxxxx Fargo Home Mortgage, Inc. ("Xxxxx Fargo") have agreed, pursuant to this
Agreement, the Countrywide Agreement (as defined herein) and the Xxxxx Fargo
Agreement (as defined herein), respectively, to continue to service the Mortgage
Loans that each currently services which collectively will constitute the
principal assets of the Trust Estate (as defined herein) pursuant to the terms
hereof;
WHEREAS, all things necessary to make the Certificates, when
executed and authenticated by the Trustee, valid instruments, and to make this
Agreement a valid agreement, in accordance with their and its terms, have been
done; and
WHEREAS, JPMorgan Chase Bank is willing to serve in the capacity of
Trustee hereunder;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Depositor, GMACM and the Trustee hereby agree
as follows:
CONVEYANCE
The Depositor hereby bargains, sells, conveys, assigns and transfers
to the Trustee on behalf of the Trust, without recourse (except as otherwise
provided herein) and for the exclusive benefit of the Owners of the
Certificates, all of its rights, title and interests of every kind and nature
whatsoever, whether now owned and existing or hereafter acquired or arising, in
and to the following: (a) the Mortgage Loans listed in Schedule I to this
Agreement, which the Depositor is causing to be delivered to the Trustee
concurrently herewith, together with the related Other Assets, including,
without limitation, the related Servicing Files and other Records and the
Depositor's interest in any Mortgaged Property securing a Mortgage Loan which
has been acquired by foreclosure or deed in lieu of foreclosure, all contract
rights and general intangibles in respect of the foregoing, and all payments
thereon and proceeds of the conversion, voluntary or involuntary, of the
foregoing other than any Prepayment Penalties collected, the Retained Interest
and the Retained Servicing Advances; (b) the rights and interests (but not the
obligations) of Depositor in, to and under the Sale and Warranties
Agreement, each of the Sale Agreements and each of the Assignment Agreements,
(c) such amounts as may be held from time to time by the Trustee in the
Certificate Account, the Basis Risk Reserve Fund or any other accounts for the
benefit of the Owners of the Certificates, together with all cash, securities,
investments or other assets (including Eligible Investments) credited thereto
including any investment earnings thereon, and such cash, securities,
investments or other assets as may be held in any other Account, including the
Collection Account; (d) any and all Proceeds of all the foregoing (including,
but not by way of limitation, any amounts relating to the Mortgage Loans
received from the Sellers through the enforcement of the relevant provisions of
the applicable Sale Agreement, all proceeds of any mortgage insurance, hazard
insurance, flood insurance and title insurance policy relating to the Mortgage
Loans, cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, rights to payment of any and every
kind, and other forms of obligations and receivables which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing). All of the items in clauses (a)-(d) above are collectively referred
to herein as the "Trust Estate".
The Trustee acknowledges such sale, accepts the Trust hereunder in
accordance with the provisions hereof and agrees to perform the duties herein to
the end that the interests of the Owners may be adequately and effectively
protected.
REMIC I
As provided herein, the Trustee will make an election to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets subject to this Agreement as a real estate mortgage investment
conduit (a "REMIC") for federal income tax purposes, and such segregated pool of
assets will be designated as "REMIC I." The Class R-I Interest will represent
the sole class of "residual interests" in REMIC I for purposes of the REMIC
Provisions (as defined herein) under federal income tax law. The following table
irrevocably sets forth the designation, remittance rate (the "Uncertificated
REMIC I Pass-Through Rate") and initial Uncertificated Principal Balance for
each of the "regular interests" in REMIC I (the "REMIC I Regular Interests").
The "latest possible maturity date" (determined solely for purposes of
satisfying Treasury regulation Section 1.860G-1(a) (4)(iii)) for each REMIC I
Regular Interest shall be the 360th Distribution Date. None of the REMIC I
Regular Interests will be certificated.
Designation Uncertificated REMIC Uncertificated Principal Latest Possible
----------- I Pass-Through Rate Balance Maturity Date
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LT-AA Variable(1) $ 91,318,319.40 June 25, 2033
LT-A1 Variable(1) $ 726,410.00 June 25, 2033
LT-M1 Variable(1) $ 56,930.00 June 25, 2033
LT-M2 Variable(1) $ 54,650.00 June 25, 2033
LT-B1 Variable(1) $ 34,160.00 June 25, 2033
LT-B2 Variable(1) $ 13,670.00 June 25, 2033
LT-B3 Variable(1) $ 15,940.00 June 25, 2033
LT-ZZ Variable(1) $ 961.880.60 June 25, 2033
LT-RI-Countrywide Variable(1) N/A (2) June 25, 2033
LT-RI-Xxxxx Variable(1) N/A (2) June 25, 2033
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(1) Calculated as provided in the definition of Uncertificated REMIC I
Pass-Through Rate.
(2) REMIC I Regular Interests LT-RI-Countrywide and LT-RI-Xxxxx will not have
Uncertificated Principal Balances, but will accrue interest on their
respective Uncertificated Notional Amounts.
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REMIC II
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the REMIC I Regular Interests as a REMIC for federal income
tax purposes, and such segregated pool of assets will be designated as REMIC II.
The Class R-II Interest will represent the sole class of "residual interests" in
REMIC II for purposes of the REMIC Provisions under federal income tax law. The
following table irrevocably sets forth the designation, Pass-Through Rate,
aggregate Initial Certificate Principal Balance and Final Scheduled Distribution
Date for each Class of Certificates comprising the interests representing
"regular interests" in REMIC II. The "latest possible maturity date" (determined
solely for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii)) for each Class of Certificates shall be the 360th
Distribution Date.
Designation Pass-Through Rate Aggregate Initial Final Scheduled
----------- ----------------- Certificate Principal Distribution Date
Balance -----------------
-------
Class A-1 (1) $ 72,641,000 June 25, 2033
Class M-1 (1) $ 5,693,000 June 25, 2033
Class M-2 (1) $ 5,465,000 June 25, 2033
Class B-1 (1) $ 3,416,000 June 25, 2033
Class B-2 (1) $ 1,367,000 June 25, 2033
Class B-3 (1) $ 1,594,000 June 25, 2033
Class X (2) $ 911,117.93 June 25, 2033
Retained Interest (3) (4) (5) June 25, 2033
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(1) Interest will accrue at a rate equal to the Pass-Through Rate, as defined
herein.
(2) The Class X Certificates will accrue interest as described in the
definition of Pass-Through Rate. The Class X Certificates will not accrue
interest on their Certificate Balance.
(3) The Retained Interest will not be certificated.
(4) The Retained Interest will not have a Pass-Through Rate, but will be
entitled to 100% of amounts distributed on REMIC I Regular Interest
LT-RI-Countrywide and LT-RI-Xxxxx.
(5) The Retained Interest will not have a Certificate Principal Balance, but
will be entitled to 100% of amounts distributed on REMIC I Regular
Interest LT-RI-Countrywide and LT-RI-Xxxxx.
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ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
1.01 DEFINITIONS.
For all purposes of this Agreement, the following terms shall have
the meanings set forth below, unless the context clearly indicates otherwise:
"Accepted Servicing Practices": With respect to any GMACM Mortgage
Loan or REO Property relating to a GMACM Mortgage Loan, those mortgage servicing
practices of mortgage lending institutions which service mortgage loans of the
same type as such Mortgage Loan in the jurisdiction where the related Mortgaged
Property is located, exercising the same care in performing those practices that
GMACM customarily employs and exercises in servicing and administering mortgage
loans for its own account (including, compliance with all applicable federal,
state and local laws).
"Account": The Certificate Account, Escrow Account, Basis Risk
Reserve Fund or Collection Account (including any sub-accounts of any of the
foregoing), established and held in trust by the Servicers or the Trustee for
the benefit of the Certificateholders. The obligation to establish and maintain
the Accounts is not delegable.
"Accrual Period": With respect to any Distribution Date and the
Offered Certificates, the period from and including the immediately preceding
Distribution Date (or, in the case of the first Distribution Date, the Closing
Date) to, but excluding such Distribution Date.
"Accrued Certificate Interest": For any Distribution Date and any
Class of REMIC I Regular Interests and the Class X Certificates, the product of
the Certificate Balance as of the close of the preceding Distribution Date and
the applicable Pass-Through Rate of such Class of Certificates, calculated using
a 30/360 Day Count Fraction minus an amount equal to the portion allocable to
such Class of Certificates as described in Section 1.05, if any, of the sum of
(i) the aggregate of Compensating Interest Shortfalls and (ii) Relief Act
Shortfalls, if any, for such Distribution Date. For any Distribution Date and
any Class of Certificates, other than the Class X Certificates, the product of
the Certificate Balance as of the close of the preceding Distribution Date and
the applicable Pass-Through Rate of such Class of Certificates, calculated using
an Actual/360 Day Count Fraction minus an amount equal to the portion allocable
to any Class of Certificates, if any, as described in Section 1.05, of the sum
of (i) the aggregate of Compensating Interest Shortfalls and (ii) Relief Act
Shortfalls, if any, for such Distribution Date.
"Actual Principal Balance": With respect to any Mortgage Loan as of
any date, its original principal balance, reduced by the principal portion of
all payments that have been made on or before such date, and Realized Losses of
principal on such Mortgage Loan realized prior to such date. The Actual
Principal Balance of a Liquidated Loan will equal zero.
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"Adjustable Rate Mortgage Loan": Each of the Mortgage Loans
identified in the Schedule of Mortgage Loans as having a Mortgage Rate that is
subject to adjustment.
"Adjustment Date": With respect to each Adjustable Rate Mortgage
Loan, the first day of the month in which the Mortgage Rate of an Adjustable
Rate Mortgage Loan changes pursuant to the related Mortgage Note. The first
Adjustment Date following the Cut-off Date as to each Adjustable Rate Mortgage
Loan is set forth in the Schedule of Mortgage Loans.
"Adjusted WAC Rate": With respect to any Distribution Date, the
weighted average of the Net Rates of the Mortgage Loans, calculated based on the
Actual Principal Balance thereof with respect to any GMACM Mortgage Loan and the
Scheduled Principal Balance thereof with respect to any Countrywide Mortgage
Loan or Xxxxx Fargo Mortgage Loan as of the beginning of the related Due Period
for each Mortgage Loan and multiplied by a fraction having as its numerator 30
days and as its denominator, the actual number of days in the Due Period. For
federal income tax purposes, the equivalent of the foregoing shall be expressed
as the weighted average of the Uncertificated REMIC I Pass-Through Rate on the
REMIC I Regular Interests (other than REMIC I Regular Interest LT-RI-Countrywide
and REMIC I Regular Interest LT-RI-Xxxxx), weighted on the basis of the
Uncertificated Principal Balance of each such REMIC I Regular Interest.
"Administrative Cost Rate": A rate of 0.505% per annum with respect
to each Mortgage Loan, in each case calculated on the basis of the same number
of days as the number of days for which interest accrues during a Due Period for
such Mortgage Loan.
"Advance": A Monthly Advance or a Servicing Advance.
"Advance Rate": The prime rate shown as such in the Wall Street
Journal plus 2.00% per annum.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Trust and Servicing Agreement, as it may be
amended from time to time, including the Exhibits and Schedules hereto.
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"Applied Realized Loss Amount": For any Distribution Date and a
Class of Certificates, that amount by which the Certificate Balance thereof is
reduced pursuant to Section 7.07(a) of this Agreement.
"Appraisal": With respect to any Mortgage Loan, the appraisal
conducted by a licensed appraiser or another valuation method commonly used by
prudent lenders.
"Appraised Value": The value of the Mortgaged Property at the time
of the Mortgage Loan's origination as used by the originating lender in
underwriting such Mortgage Loan.
"Assignment": With respect to each Mortgage Loan, the assignment of
mortgage from the Seller, the applicable Original Seller or any other prior
owner of the Mortgage Loan to the Trustee.
"Assignment Agreements": Each of the Assignment, Assumption and
Recognition Agreements described on Exhibit J hereto among the Seller, the
Depositor and the related Original Seller assigning all of the Seller's right,
title and interest in and to the related Mortgage Loans and the related mortgage
loan purchase agreement to the Depositor.
"Authorized Officer": With respect to any Person, any officer of
such Person who is authorized to act for such Person in matters relating to this
Agreement, and whose action is binding upon such Person, which with respect to
the Depositor and each of the Servicers, initially includes those individuals
whose names appear on the lists of Authorized Officers delivered at the Closing;
and, with respect to the Trustee, any officer assigned to the Institutional
Trust Services/Structured Finance Services Group (or any successor thereto),
including any Vice President, Assistant Vice President, Trust Officer or any
Officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers, and in each case having
direct responsibility for the administration of this Agreement.
"Available Distribution Amount": With respect to any Distribution
Date, the sum of (i) the Remittance Amounts received by the Trustee from each
Servicer for such Distribution Date and (ii) any Monthly Advance made by the
Trustee with respect to such Distribution Date minus (i) any Prepayment
Penalties for such Distribution Date, (ii) the Retained Interest for such
Distribution Date and (iii) amounts received during the related Due Period in
respect of Retained Servicing Advances.
"Bankruptcy Code": The United States Bankruptcy Code, 11
U.S.C.ss.101, et seq., as amended.
"Bankruptcy Loan": A Mortgage Loan under which the Mortgagor is
required to make monthly payments pursuant to a Bankruptcy Plan.
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"Bankruptcy Plan": With respect to a Mortgage Loan, the confirmed
bankruptcy plan under the Bankruptcy Code pursuant to which the related
Mortgagor is required to make the monthly payments of principal and interest set
forth in such plan
"Basic Principal Distribution Amount": With respect to any
Distribution Date, the excess of (i) the Principal Remittance Amount over (ii)
the Excess Overcollateralization 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, the excess of (i) the amount of interest such Class of
Offered Certificates would otherwise be entitled to receive on such Distribution
Date had such rate been calculated at the Pass-Through Rate (without regard to
the WAC Cap) for such Distribution Date, over (ii) the amount of interest
payable on such Class of Offered Certificates at the WAC Cap, (B) the Basis Risk
Carry Forward Amount for such Class of Certificates for all previous
Distribution Dates not previously paid and (C) interest on the amount described
in clause (B) at the applicable Pass-Through Rate for such Class of Offered
Certificates for such Distribution Date (without regard to the WAC Cap).
"Basis Risk Reserve Fund": The account established pursuant to
Section 7.10 hereof.
"Book-Entry Certificate": The Class A-1, Class M-1, Class M-2, Class
B-1, Class B-2 and Class B-3 Certificates for so long as the Certificates of
such Class shall be registered in the name of the Depository or its nominee.
"Business Day": Any day other than a Saturday, Sunday or a day on
which banking institutions in New York, New York, New Jersey, California or
Pennsylvania or the city in which the Corporate Trust Office is located are
authorized or obligated by law or executive order to close.
"Certificate Account": The certificate account established in
accordance with Section 7.01 and maintained either (i) in the corporate trust
department of the Trustee, which funds are uninvested, or (ii) in an Eligible
Account subject to a securities account control agreement; provided that the
funds in such account shall not be commingled with other funds held by the
Trustee. As an alternative to the foregoing, the Trustee may maintain the
Certificate Account as a deposit account if the rights of the Trustee in such
deposit account are perfected pursuant to sections 9-104, 9-304, and 9-314 of
the UCC.
"Certificate Balance": As of any date of determination with respect
to any Offered Certificate or Regular Interest (other the Class X Regular
Interest and the Class X Certificates), (A) the initial Certificate Balance
thereof minus (B) all amounts previously distributed as principal thereon, minus
(C) all Applied Realized Loss Amounts previously applied to reduce the
Certificate Balance thereof. The Class R Certificates have no Certificate
Balance. The Class X Certificate Balance shall be equal to the
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excess, if any, of (A) the aggregate Uncertificated Principal Balance of the
REMIC I Regular Interests over (B) the then aggregate Certificate Balance of the
Offered Certificates.
"Certificateholder" or "Holder": Each Person in whose name a
Certificate is registered in the Register, except that, solely for the purposes
of giving any consent, waiver, request or demand pursuant to this Agreement, any
Certificate registered in the name of a Servicer or any Depositor, or any
Affiliate of any of them, shall be deemed not to be outstanding (except that in
determining whether the Trustee shall be protected in relying upon any such
consent, waiver, request or demand, only Certificates that an Authorized Officer
actually knows to be so owned shall be disregarded) and the undivided Percentage
Interest evidenced thereby shall not be taken into account in determining
whether the requisite percentage of Certificates necessary to effect any such
consent, waiver, request or demand has been obtained. When used with respect to
any Class of Certificates, a Certificateholder or Holder of such Class of
Certificates, as the case may be.
"Certificates": The Offered Certificates and the Private
Certificates.
"Certification": As defined in Section 8.22(c).
"Civil Relief Act": The Soldiers' and Sailors' Civil Relief Act of
1940, as amended or applicable similar state or local laws.
"Class": Any class of Certificates.
"Class A-1 Certificate": Any one of the Certificates designated as a
Class A-1 Certificate hereunder and substantially in the form annexed hereto as
Exhibit A-1, executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein.
"Class A-1 Principal Distribution Amount": With respect to any
Distribution Date on or after the Stepdown Date and on which a Trigger Event is
not in effect, the excess of (x) the Certificate Balance of the Class A-1
Certificates immediately prior to such Distribution Date over (y) the lesser of
(A) the product of (i) 51.50% and (ii) the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day of the related Due Period (after giving
effect to scheduled payments of principal due during the related Due Period, to
the extent received or advanced and unscheduled collections of principal
received during the related Due Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced and unscheduled collections of
principal received during the related Due Period) minus the
Overcollateralization Floor.
"Class B Certificate": Any one of the Certificates designated
hereunder as Class B-1, Class B-2 or Class B-3 Certificates.
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"Class B-1 Certificate": Any one of the Certificates designated as a
Class B-1 Certificate hereunder and substantially in the form annexed hereto as
Exhibit A-1, executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein.
"Class B-1 Principal Distribution Amount": With respect to any
Distribution Date on or after the Stepdown Date and on which a Trigger Event is
not in effect, the excess of (x) the sum of (i) the Certificate Balance of the
Class A-1 Certificates (after taking into account the payment of the Class A
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Balance of the Class M-1 Certificates (after taking into account the payment of
the Class M-1 Principal Distribution Amount on such Distribution Date), (iii)
the Certificate Balance of the Class M-2 Certificates (after taking into account
the payment of the Class M-2 Principal Distribution Amount on such Distribution
Date) and (iv) the Certificate Balance of the Class B-1 Certificates immediately
prior to such Distribution Date over (y) the lesser of (A) the product of (i)
83.50% and (ii) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced and unscheduled collections of principal received during the related
Due Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced and unscheduled collections of principal received during the related
Due Period) minus the Overcollateralization Floor.
"Class B-2 Certificate": Any one of the Certificates designated as a
Class B-2 Certificate hereunder and substantially in the form annexed hereto as
Exhibit A-1, executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein.
"Class B-2 Principal Distribution Amount": With respect to any
Distribution Date on or after the Stepdown Date and on which a Trigger Event is
not in effect, the excess of (x) the sum of (i) the Certificate Balance of the
Class A-1 Certificates (after taking into account the payment of the Class A
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Balance of the Class M-1 Certificates (after taking into account the payment of
the Class M-1 Principal Distribution Amount on such Distribution Date), (iii)
the Certificate Balance of the Class M-2 Certificates (after taking into account
the payment of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Balance of the Class B-1 Certificates (after taking
into account the payment of the Class B-1 Principal Distribution Amount on such
Distribution Date) and (iv) the Certificate Principal Balance of the Class B-2
Certificates immediately prior to such Distribution Date over (y) the lesser of
(A) the product of (i) 86.50% and (ii) the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day of the related Due Period (after giving
effect to scheduled payments of principal due during the related Due Period, to
the extent received or advanced and unscheduled collections of principal
received during the related Due
9
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced and unscheduled collections of principal received during the related
Due Period) minus the Overcollateralization Floor.
"Class B-3 Certificate": Any one of the Certificates designated as a
Class B-3 Certificate hereunder and substantially in the form annexed hereto as
Exhibit A-1, executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein.
"Class B-3 Principal Distribution Amount": With respect to any
Distribution Date on or after the Stepdown Date and on which a Trigger Event is
not in effect, the excess of (x) the sum of (i) the Certificate Balance of the
Class A-1 Certificates (after taking into account the payment of the Class A
Principal Distribution Amount on such Distribution Date), (ii) the Certificate
Balance of the Class M-1 Certificates (after taking into account the payment of
the Class M-1 Principal Distribution Amount on such Distribution Date), (iii)
the Certificate Balance of the Class M-2 Certificates (after taking into account
the payment of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Balance of the Class B-1 Certificates (after taking
into account the payment of the Class B-1 Principal Distribution Amount on such
Distribution Date), (v) the Certificate Balance of the Class B-2 Certificates
(after taking into account the payment of the Class B-2 Principal Distribution
Amount on such Distribution Date) and (vi) the Certificate Principal Balance of
the Class B-3 Certificates immediately prior to such Distribution Date over (y)
the lesser of (A) the product of (i) 90.00% and (ii) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced and unscheduled
collections of principal received during the related Due Period) and (B) the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day of
the related Due Period (after giving effect to scheduled payments of principal
due during the related Due Period, to the extent received or advanced and
unscheduled collections of principal received during the related Due Period)
minus the Overcollateralization Floor.
"Class M Certificate": Any one of the Certificates designated
hereunder as Class M-1 Certificates or Class M-2 Certificates.
"Class M-1 Certificate": Any one of the Certificates designated as a
Class M-1 Certificate hereunder and substantially in the form annexed hereto as
Exhibit A-1, executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein.
"Class M-1 Principal Distribution Amount": With respect to any
Distribution Date on or after the Stepdown Date and on which a Trigger Event is
not in effect, the excess of (x) the sum of (i) the Certificate Principal
Balance of the Class A-1
10
Certificates (after taking into account the payment of the Class A Principal
Distribution Amount on such Distribution Date) and (ii) the Certificate
Principal Balance of the Class M-1 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 64.00% and (ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced
and unscheduled collections of principal received during the related Due Period)
and (B) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced
and unscheduled collections of principal received during the related Due Period)
minus the Overcollateralization Floor.
"Class M-2 Certificate": Any one of the Certificates designated as a
Class M-2 Certificate hereunder and substantially in the form annexed hereto as
Exhibit A-1, executed, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein.
"Class M-2 Principal Distribution Amount": With respect to any
Distribution Date on or after the Stepdown Date and on which a Trigger Event is
not in effect, the excess of (x) the sum of (i) the Certificate Principal
Balance of the Class A-1 Certificates (after taking into account the payment of
the Class A Principal Distribution Amount on such Distribution Date), (ii) the
Certificate Balance of the Class M-1 Certificates (after taking into account the
payment of the Class M-1 Principal Distribution Amount on such Distribution
Date), and (iii) the Certificate Principal Balance of the Class M-2 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 76.00% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced and unscheduled collections of principal received
during the related Due Period) and (B) the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day of the related Due Period (after giving
effect to scheduled payments of principal due during the related Due Period, to
the extent received or advanced and unscheduled collections of principal
received during the related Due Period) minus the Overcollateralization Floor.
"Class R Certificate": Any one of the Certificates designated as a
Class R Certificate hereunder and substantially in the form annexed hereto as
Exhibit A-3, executed, authenticated and delivered by the Trustee, evidencing
the Class R-I Interest and the Class R-II Interest and representing the right to
distributions as set forth herein.
"Class R-I Interest": The uncertificated residual interest in REMIC
I.
"Class R-II Interest": The uncertificated residual interest in REMIC
II.
"Class X Certificate": Any one of the Certificates designated as a
Class X Certificate hereunder and substantially in the form annexed hereto as
Exhibit A-2,
11
executed, authenticated and delivered by the Trustee and representing the right
to distributions as set forth herein.
"Class X Distribution Amount": Shall mean the amount to be
distributed to the Class X Certificates pursuant to Section 7.06(b)(vi).
"Closing": As defined in Section 4.02.
"Closing Date": August 28, 2003.
"Code": The Internal Revenue Code of 1986, as amended, together with
any regulations promulgated thereunder and in effect from time to time.
"Collection Account": Each of the Accounts created by GMACM pursuant
to Section 8.04 hereto, each custodial account created by Countrywide pursuant
to Section 3.4 of the Countrywide Agreement and each custodial account created
by Xxxxx Fargo pursuant to Section 4.04 of the Xxxxx Fargo Agreement.
"Collections": All cash collections and other cash proceeds of a
Mortgage Loan received by a Servicer or any other Person, including all payments
made by the related Mortgagor and all cash proceeds of the Related Security.
"Commission": The Securities and Exchange Commission.
"Compensating Interest": With respect to each Distribution Date and
(i) GMACM, the obligation set forth in Section 8.06 hereof, (ii) Xxxxx Fargo,
the amount deposited into the related Collection Account pursuant to Section
4.04(8) of the Xxxxx Fargo Agreement during the related Prepayment Period, and
(iii) Countrywide the amount deposited into the related Collection Account
pursuant to Section 3.4(vii) of the Countrywide Agreement during the related
Prepayment Period.
"Compensating Interest Shortfall": For any Distribution Date, the
amount by which the aggregate amount of Compensating Interest made by each
Servicer for such Distribution Date is less than 30 days' interest on the
aggregate Principal Prepayments received by the Servicers during the related
Prepayment Period.
"Contracts": Any one of the manufactured housing installment sale
contracts or installment loan agreements described in the Schedule of Mortgage
Loans. The Contracts include all related security interests and any and all
rights to receive payments which are due pursuant thereto after the Cut-off
Date, but exclude any rights to receive payments which were due pursuant thereto
on or prior to the Cut-off Date.
"Conventional Mortgage Loan": Any Mortgage Loan, other than a Simple
Interest Mortgage Loan, on which 30 days of interest is owed irrespective of the
day in which payment is received.
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"Corporate Trust Office": The principal office of the Trustee at 0
Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Institutional Trust
Services/Structured Finance Services, GSRPM Mortgage Pass-Through Certificates,
2003-2, or at such other addresses as the Trustee may designate from time to
time by notice to the Certificateholders, the Depositor and GMACM.
"Corresponding Certificate": With respect to each REMIC II Regular
Interest set forth below, the Regular Certificate set forth in the table below:
REMIC I Regular Interest REMIC II Certificate
LT-A1 Class A-1
LT-M1 Class M-1
LT-M2 Class M-2
LT-B1 Class B-1
LT-B2 Class B-2
LT-B3 Class B-3
"Countrywide": Countrywide Home Loans, Inc. as servicer of the
Countrywide Mortgage Loans.
"Countrywide Agreement": The Servicing Agreement dated as of
September 25, 2001 between Countrywide and Xxxxxxx Xxxxx Mortgage Company.
"Countrywide Mortgage Loans": The Mortgage Loans included as part of
Schedule I-A hereto that are serviced by Countrywide pursuant to the Countrywide
Agreement.
"Credit Enhancement Percentage": For any Distribution Date, the
percentage obtained by dividing (i) the sum of (a) the aggregate Certificate
Balance of the Subordinate Certificates immediately prior to such Distribution
Date and (b) the Overcollateralization Amount for such Distribution Date by (ii)
the aggregate Stated Principal Balance of the Mortgage Loans, calculated prior
to taking into account distributions of principal on the Mortgage Loans during
the related Due Period.
"Cumulative Realized Losses": As of any date of determination, the
aggregate amount of Realized Losses on the Mortgage Loans since the Cut-off
Date.
"Curtailment": Any payment of principal received during a Due Period
as part of a payment that is not intended to satisfy the Mortgage Loan in full,
and which is neither intended as a Prepaid Installment nor is intended to cure a
delinquency.
"Custodial File": The documents described in Section 3.04(b) and
(c).
"Custodian": Initially, the Trustee, and thereafter, the Trustee or
any other Person appointed by the Trustee to act a custodian hereunder.
"Cut-off Date": As of August 1, 2003.
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"Day Count Fraction": The assumption used to calculate the number of
days for which interest accrues during an Accrual Period, which may be, as
specified herein (x) 30/360 (assuming that a year consists of 12 months of 30
days each) or (y) actual/360 (assuming the actual number of days in an Accrual
Period, including days that are not Business Days, and a year of 360 days).
"Deed in Lieu": Any Servicer's acceptance of a deed in lieu of
foreclosure.
"Defaulted Mortgage Loan": A Mortgage Loan that is a 90-Day
Delinquent Mortgage Loan.
"Deficiency": The difference between the sum of all amounts due
under a Mortgage Loan and the Net Liquidation Proceeds realized on such Mortgage
Loan.
"Deficient Valuation": A valuation by a court of competent
jurisdiction of the Mortgaged Property in an amount less than the then
outstanding indebtedness under the Mortgage Loan, which valuation results from a
proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.02(e).
"Delinquent": Any Mortgage Loan as to which the scheduled monthly
payment of principal and interest payable by the Mortgagor under a Mortgage Note
or a Repayment Plan due on a Due Date is not paid by the close of business on
the next scheduled Due Date for such Mortgage Loan (i.e., a Mortgage Loan for
which the Mortgagor failed to make such payment due on August 1, 2003 will be
reported as "30 days Delinquent" on September 2, 2003, if such Mortgagor failed
to make such payment by the close of business on September 1, 2003). The terms
"60 days Delinquent," "90 days Delinquent" and the like have meanings
correlative to the foregoing with respect to the applicable number of months
succeeding the most recent payment.
"Depositor": GS Mortgage Securities Corp., or any successor thereto.
"Depository": The Depository Trust Company or any successor
Depository hereafter named. The nominee of the initial Depository, for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
CEDE & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934, as amended.
"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
14
short-term unsecured debt obligations that are rated P-1 by Moody's, F1+ by
Fitch and A-1 by Standard & Poor's.
"Determination Date": With respect to each Distribution Date and (i)
GMACM, the 20th day of the calendar month in which such Distribution Date occurs
or, if such day is not a Business Day, the immediately preceding Business Day,
(ii) Xxxxx Fargo, the day preceding the related Remittance Date, or if such day
is not a Business Day, the immediately preceding Business Day or (iii)
Countrywide, the 15th day of the month in which such Distribution Date occurs
or, if such day is not a Business Day, the Business Day immediately following
such 15th day.
"Direct Participant": Any broker-dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book entry transfers and pledges of securities deposited with the Depository.
"Disqualified Organization": Any of the following: (i) the United
States, any State or political subdivision thereof, any possession of the United
States, or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for Xxxxxxx Mac, a majority of its board of directors is not
selected by such governmental unit), (ii) any foreign government, any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (v) an "electing
large partnership" and (vi) any other Person so designated by the Trustee based
upon an Opinion of Counsel that the holding of an Ownership Interest in a
Residual Certificate by such Person may cause any Trust REMIC or any Person
having an Ownership Interest in any Class of Certificates (other than such
Person) to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the Transfer of an Ownership Interest in
a Residual Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Distribution Date": Any date on which the Trustee is required to
make distributions to the Owners, which shall be the 25th day of each month or
if such day is not a Business Day, the next Business Day thereafter, commencing
in the month following the Closing Date.
"Due Date": For any Mortgage Loan, the date in each month on which
the Monthly Payment is due under the related Mortgage Note or, if such Mortgage
loan is subject to a Repayment Plan, under the related Repayment Plan.
"Due Period": For any Distribution Date, the period beginning on and
including the second day of the preceding calendar month and ending at the close
of business on the first day of the current calendar month.
15
"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 which
is subject to regulations regarding fiduciary funds on deposit therein
substantially similar to 12 CFR ss. 9.10(b), and which, in either case, has
corporate trust powers and has a combined capital and surplus of at least
$50,000,000 and is subject to supervision or examination by federal or state
authority, acting in its fiduciary capacity or (iii) any other account
acceptable to each Rating Agency. Eligible Accounts may bear interest, and may
include, if otherwise qualified under this definition, accounts maintained with
the Trustee.
"Eligible Investments": As defined in Section 7.05.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA-Restricted Certificate": The Class M Certificates, Class B
Certificates, Class X Certificates and the Class R Certificates.
"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.
"Escrow Account": The separate trust account or accounts created and
maintained pursuant to Section 8.07.
"Escrow Payments": The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire, hazard and flood
insurance premiums and other payments required to be escrowed by the Mortgagor
with the mortgagee pursuant to any Mortgage Loan.
"Event of Default": Any "with cause" event as set forth in Section
8.17(b).
"Excess Overcollateralization Amount": For any Distribution Date is
the excess, if any, of (i) the Overcollateralization Amount over (ii) the
Specified Overcollateralization Amount.
"Exchange Act": The Securities and Exchange Act of 1934, as amended.
16
"Extra Principal Distribution Amount": For any Distribution Date
will be the lesser of (i) the Net Monthly Excess Cash Flow for such Distribution
Date and (ii) the Overcollateralization Deficiency Amount.
"Xxxxxx Xxx": Xxxxxx Xxx, a federally-chartered and privately-owned
corporation existing under the Federal National Mortgage Association Charter
Act, as amended, or any successor thereof.
"Xxxxxx Mae Guide": Xxxxxx Mae's Servicing Guide, as the same may be
amended by Xxxxxx Mae from time to time.
"Xxxxxx Xxx Guidelines": The guidelines set forth by Xxxxxx Mae in
the Xxxxxx Xxx Guide.
"FDIC": The Federal Deposit Insurance Corporation, a corporate
instrumentality of the United States, or any successor thereto.
"Final Certification": As defined in Section 3.05.
"Final Determination": A final determination by the Internal Revenue
Service or by a court of competent jurisdiction, in either case from which no
appeal is taken within the permitted time for such appeal or, if any appeal is
taken, a final determination of such appeal from which no further appeal can be
taken, to the effect that any REMIC in the Trust does not and will no longer
qualify as a REMIC pursuant to Section 860D of the Code.
"Final Distribution Date": The Distribution Date in June 2033.
"Final Recovery Determination": A determination by the related
Servicer with respect to a Defaulted Mortgage Loan (i) in the case of Xxxxx
Fargo and Countrywide, in accordance with the applicable Servicing Agreement and
(ii) in the case of GMACM, in accordance with the general guidelines set forth
in the Xxxxxx Xxx Guide and the Xxxxxxx Mac Guide or in the event the Xxxxxx Xxx
Guide and the Xxxxxxx Mac Guide conflict, in accordance with the Xxxxxx Xxx
Guide, that it has recovered, whether through Trustee's sale, foreclosure sale,
pre-foreclosure sale or otherwise, all amounts it expects to recover from or on
account of such defaulted Mortgage Loan.
"Fitch": Fitch, Inc. doing business as Fitch Ratings or any
successor thereto.
"Forbearance Plan": With respect to a Mortgage Loan, a plan for
which the related mortgagor is required to make monthly payments in an amount at
least equal to the sum of (i) the amount of the monthly payment of principal and
interest in accordance with the original amortization schedule for such Mortgage
Loan and (ii) an additional amount to be applied to pay down the total amount of
scheduled monthly payments due thereon on or before the Cut-off Date but not
received prior to the Cut-off Date.
17
"Foreclosure Restricted Mortgage Loan": Any Mortgage Loan listed on
Schedule II, unless such Mortgage Loan has become current for three consecutive
Monthly Payments after the Closing Date.
"Xxxxxxx Mac": Federal Home Loan Mortgage Corporation, or any
successor thereof.
"Xxxxxxx Mac Guide": Xxxxxxx Mac's Servicing Guide, as the same may
be amended by Xxxxxxx Mac from time to time.
"Xxxxxxx Mac Guidelines": The guidelines set forth by Xxxxxxx Mac in
the Xxxxxxx Mac Guide.
"GMACM Mortgage Loans": The Mortgage Loans listed on Schedule I
hereto that are serviced by GMACM pursuant to this Agreement.
"Gross Margin": With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage set forth in the related Mortgage Note that is added to the
Index on each Adjustment Date in accordance with the terms of the related
Mortgage Note used to determine the Mortgage Rate for such Adjustable Rate
Mortgage Loan.
"HOEPA": As defined in Section 8.02(a).
"Indemnity Proceeds": Any amounts collected by GMACM, the Trustee or
the Depositor pursuant to the provisions of the applicable Sale Agreement.
"Independent": When used with respect to any specified Person, any
such Person who (a) is in fact independent of the Depositor, the Seller, the
applicable Original Seller, the applicable Servicer and their respective
Affiliates, (b) does not have any direct financial interest in or any material
indirect financial interest in the Depositor, the Seller, the applicable
Original Seller, the applicable Servicer or any Affiliate thereof, and (c) is
not connected with the Depositor, the Seller, the applicable Original Seller,
the applicable Servicer or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; provided, however, that a Person shall not fail to be Independent of
the Depositor, the Seller, the applicable Original Seller, the applicable
Servicer or any Affiliate thereof merely because such Person is the beneficial
owner of 1% or less of any class of securities issued by the Depositor, the
Seller, the applicable Original Seller, the applicable Servicer or any Affiliate
thereof, as the case may be.
"Index": As to each Adjustable Rate Mortgage Loan, the index from
time to time in effect for the adjustment of the Mortgage Rate set forth as such
in the related Mortgage Note.
"Initial Certification": As defined in Section 3.05.
18
"Insurance Policy": Any hazard, flood, title or Primary Insurance
Policy relating to a Mortgage Loan plus any amount remitted under Section 8.08.
"Insurance Proceeds": Payments received with respect to any
Insurance Policy.
"Interim Certification": As defined in Section 3.05.
"Involuntary Payoff": The amount of Net Liquidation Proceeds
received with respect to a Liquidated Loan.
"Law": Any law (including common law and the laws of equity),
constitution, statute, treaty, regulation, rule, administrative guideline,
ordinance, judgment, order, injunction, writ, decree or award of any
Governmental Authority, including, without limitation, any rules, regulations or
guidelines promulgated or issued by Xxxxxx Xxx, Xxxxxxx Mac or any other
Governmental Authority applicable to the Seller or any of the Mortgage Loans or
Sale Agreements.
"LIBOR": The per annum rate calculated by the Trustee as set forth
below:
(i) on each LIBOR Determination Date, LIBOR for such Accrual Period
will be the rate for deposits in United States dollars for a one-month
period which appears on the display designated as "Page 3750" on the Dow
Xxxxx Telerate Service as of 11:00 a.m., London time, on such date;
(ii) with respect to a LIBOR Determination Date on which no such
rate appears on Telerate page 3750 as described above, LIBOR for the
applicable Accrual Period will be determined on the basis of the rates at
which deposits in United States dollars are offered by the Reference Banks
at approximately 11:00 a.m., London time, on such date for a one-month
period (each, a "Reference Bank Rate") and in an amount that is
representative for a single transaction in the London-interbank market at
that time. The Trustee shall request the principal London office of each
of the Reference Banks to provide a quotation of its Reference Bank Rate.
If at least two such quotations are provided, LIBOR for such Accrual
Period will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR for such Accrual Period will be the
arithmetic mean of the rates quoted by major banks in New York City,
selected by the Trustee, at approximately 11:00 a.m., New York City time,
on such date for loans in United States dollars to leading European banks
for a one-month period and in an amount that is representative for a
single transaction in such market at that time.
All percentages resulting from any calculations referred to in this
definition will be rounded upwards to the nearest multiple of 1/100,000 of 1%
and all U.S. dollar amounts used in or resulting from such calculations will be
rounded to the nearest cent (with one-half cent or more being rounded upwards).
19
"LIBOR Determination Date":
(i) August 26, 2003 for the period beginning on and including the
Closing Date and ending on and excluding the first Distribution Date; and
thereafter,
(ii) the second London Business Day prior to the first day of each
Accrual Period following the first Accrual Period.
"Lifetime Rate Cap": The provision of each Mortgage Note related to
an Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Rate thereunder. The Mortgage Interest Rate during the terms of each Adjustable
Rate Mortgage Loan shall not at any time exceed the Mortgage Rate at the time of
origination of such Adjustable Rate Mortgage Loan by more than the amount per
annum set forth on the Schedule of Mortgage Loans.
"Liquidated Loan": A Mortgage Loan with respect to which (i) a Final
Recovery Determination has been made by GMACM or which GMACM has charged off
pursuant to the terms of this Agreement, (i) Countrywide has taken action
pursuant to Section 3.2 of the Countrywide Agreement and (iii) Xxxxx Fargo has
taken action pursuant to Section 4.02 of the Xxxxx Fargo Agreement.
"Liquidation Expenses": Expenses which are incurred by a Servicer in
connection with the liquidation of any defaulted Mortgage Loan, such expenses
including, without limitation, reasonable legal fees and expenses and any
unreimbursed Advances made by the related Servicer with respect to such Mortgage
Loan.
"Liquidation Proceeds": With respect to any Liquidated Loan and (i)
GMACM, any amounts (including the proceeds of any insurance policy) recovered in
connection with such Liquidated Loan, whether through trustee's sale,
foreclosure sale, short sale or otherwise, (ii) Countrywide, cash received in
connection with the liquidation of a defaulted Countrywide Mortgage Loan,
whether through the sale or assignment of the Countrywide Mortgage Loan,
trustee's sale, foreclosure sale or otherwise, or in connection with the sale of
the related Mortgaged Property if such Mortgaged Property is acquired in
satisfaction of the Mortgage, and (iii) Xxxxx Fargo, cash (other than insurance
proceeds or condemnation proceeds) received in connection with the liquidation
of a defaulted related Xxxxx Fargo Mortgage Loan, whether through the sale or
assignment of such Xxxxx Fargo Mortgage Loan, trustee's sale, foreclosure sale,
sale of REO Property, or otherwise, or the sale of the related Mortgaged
Property if such Mortgaged Property is acquired in satisfaction of such Xxxxx
Fargo Mortgage Loan.
"Loan Purchase Price": With respect to any date of determination and
(i) any GMACM Mortgage Loan, the Actual Principal Balance of such GMACM Mortgage
Loans as of the end of the most recently ended Due Period or prior to the date
of purchase, plus all unpaid accrued interest on the Actual Principal Balance
thereof as of the beginning of the related Due Period computed at the then
applicable mortgage rate, together with, (without duplication) plus the
aggregate amounts of (A) Servicing
20
Advances theretofore made with respect to such GMACM Mortgage Loan, (B) in the
case of Monthly Advances thereon made by the Trustee, interest therein at the
prime rate shown as such in the Wall Street Journal plus 2.00% per annum and (C)
any costs and damages incurred by the Trust in connection with any violation by
such Mortgage Loan of any predatory or abusive-lending law; and (ii) with
respect to any Countrywide Mortgage Loan or Xxxxx Fargo Mortgage Loan, a price
equal to (A) the Scheduled Principal Balance of the Mortgage Loan plus (B)
interest on such Scheduled Principal Balance at the mortgage rate minus the sum
of the Servicing Fee Rate applicable to Countrywide or Xxxxx Fargo and such
Mortgage Loan, as the case may be, and the Retained Interest Rate from the date
on which interest has last been paid and distributed to the Trust to the last
day of the month of repurchase, plus (C) any costs and damages incurred by the
Trust in connection with any violation by such Mortgage Loan of any predatory or
abusive-lending law, less amounts received or advanced in respect of such
repurchased Countrywide Mortgage Loan or Xxxxx Fargo Mortgage Loan which are
being held in the relevant Collection Account for distribution in the month of
repurchase, to the extent such amounts are actually paid to the Trust upon the
repurchase of the related Countrywide Mortgage Loan or Xxxxx Fargo Mortgage
Loan.
"Loan-to-Value Ratio": As of any particular date, the percentage
obtained by dividing the Principal Balance of the related Mortgage Loan as of
its date of origination or acquisition by the related Seller by the Appraised
Value of the Mortgaged Property.
"London Business Day": Any day on which banks in London, England and
New York City, New York are open for business to deal in deposits of United
States dollars in the London interbank market.
"Losses": As defined in Section 2.11(a).
"Lost Note Affidavit": An affidavit referencing a lost Mortgage
Note.
"Lower-Tier Regular Interest": Any regular interest issued by REMIC
I.
"Majority Class X Certificateholder": The holder of a Class X
Certificate evidencing more than a 50% Percentage Interest.
"Marker Rate": With respect to the Class X Certificates and any
Distribution Date, a per annum rate equal to two (2) multiplied by the weighted
average of the Pass-Through Rates for each REMIC I Regular Interest (other than
REMIC I Regular Interest LT-AA), with the rates on each such REMIC I Regular
Interest subject to a cap equal to the Pass-Through Rate for the Corresponding
Class for such REMIC I Regular Interest, and the rate on REMIC I Regular
Interest LT-ZZ subject to a cap of zero for purposes of this calculation.
"MERS": Mortgage Electronic Registration Systems, Inc.
21
"MERS Designated Mortgage Loan": Any Mortgage Loan as to which MERS
is acting as mortgagee, solely as nominee for the owner of such Mortgage Loan
and its successors and assigns and identified as such on the Schedule of
Mortgage Loans.
"Minimum Mortgage Rate": With respect to each Adjustable Rate
Mortgage Loan, the percentage set forth in the related Mortgage Note as the
minimum Mortgage Rate thereunder.
"Monthly Advance": With respect to any Distribution Date, (i) an
advance by GMACM pursuant to Section 8.05(c) hereof, (ii) an advance by the
Trustee pursuant to Section 8.05(f) hereof, (iii) an advance by Xxxxx Fargo
pursuant to Section 5.03 of the Xxxxx Fargo Agreement or (iv) an advance by
Countrywide pursuant to Section 4.3 of the Countrywide Agreement.
"Monthly Payment": The scheduled monthly payment of principal and
interest required to be made by a Mortgagor on the related Mortgage Loan, as set
forth in the related Mortgage Note or pursuant to a Repayment Plan.
"Moody's": Xxxxx'x Investor Service, Inc., and its successors.
"Mortgage": The mortgage, deed of trust or other instrument creating
a first lien on an estate in fee simple or leasehold estate interest in real
property securing a Mortgage Note.
"Mortgage Loan Documents": With respect to any Mortgage Loan, all
agreements, instruments, promissory notes, financing statements, mortgages,
security agreements, assignments, Lost Note Affidavits and other documents
executed and delivered by any Person in connection with such Mortgage Loan,
whether such documents are in the possession or under the control of the
Trustee, the Custodian, a Servicer or any other Person.
"Mortgage Loans": Such of the mortgage loans and Contracts
transferred and assigned to the Trust pursuant to Section 3.04(a), as from time
to time are held as a part of the Trust Estate, the Mortgage Loans originally so
held being identified in the Schedule of Mortgage Loans. The term "Mortgage
Loan" includes, without limitation, any Mortgage Loan which is current or
Delinquent, which relates to a foreclosure or which relates to a Mortgaged
Property which is REO Property prior to such Mortgaged Property's disposition by
the Trust.
"Mortgage Note": The note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Rate": The rate of interest borne by each Mortgage Note
according to its terms.
"Mortgaged Property": The real property (or leasehold estate, if
applicable) securing repayment of the debt evidenced by a Mortgage Note.
22
"Mortgagor": The obligor on a Mortgage Note.
"Net Liquidation Proceeds": As to any Liquidated Loan, Liquidation
Proceeds net of Liquidation Expenses relating to such Mortgage Loan. If Net
Liquidation Proceeds with respect to any Liquidated Loan that is a GMACM
Mortgage Loan, are less than zero, then GMACM or the Trustee, as applicable,
shall be entitled to be reimbursed for Nonrecoverable Advances made by GMACM or
the Trustee, as applicable, with respect to such Mortgage Loan pursuant to
Section 8.04(d)(i).
"Net Monthly Excess Cash Flow": With respect to any Distribution
Date, the excess of (x) the Available Distribution Amount for such Distribution
Date over (y) the sum for such Distribution Date of (A) the aggregate Accrued
Certificate Interest for the Offered Certificates for such Distribution Date,
(B) the aggregate unpaid Accrued Certificate Interest for the Class A-1
Certificates for such Distribution Date and (C) the Principal Remittance Amount.
"Net Rate": With respect to each Mortgage Loan, the Mortgage Rate of
such Mortgage Loan less the Administrative Cost Rate.
"Net Simple Interest Excess": As of any Remittance Date, the excess,
if any, of the aggregate amount of Simple Interest Excess over the amount of
Simple Interest Shortfall.
"Net Simple Interest Shortfall": As of any Remittance Date, the
excess, if any, of the aggregate amount of Simple Interest Shortfall over the
amount of Simple Interest Excess.
"Net WAC Rate": For any Distribution Date, the weighted average of
the Net Rates of the Mortgage Loans, calculated based on the Stated Principal
Balances of the Mortgage Loans as of the beginning of the related Due Period for
each Mortgage Loan.
"Nonrecoverable Advance": With respect to (a) any GMACM Mortgage
Loan, (i) any Advance previously made by GMACM or the Trustee which, in the good
faith business judgment of GMACM or the Trustee, as applicable, will not be
reimbursed from proceeds of that Mortgage Loan pursuant to this Agreement, or
(ii) any Advance proposed to be made in respect of a GMACM Mortgage Loan which,
in the good faith business judgment of GMACM or the Trustee, as applicable,
would not ultimately be recoverable from proceeds of such Mortgage Loan, (b) any
Countrywide Mortgage Loan, any Monthly Advance made by Countrywide in respect of
such Mortgage Loan that is determined to be nonrecoverable by Countrywide
pursuant to Section 4.3 of the Countrywide Agreement; (c) any Xxxxx Fargo
Mortgage Loan, any Monthly Advance made by Xxxxx Fargo in respect of such
Mortgage Loan that is determined to be nonrecoverable by Xxxxx Fargo pursuant to
Section 5.03 of the Xxxxx Fargo Agreement.
"Non-U.S. Persons": Any Person other than a United States Person.
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"Notice": As defined in Section 7.03(a).
"Notice of Final Distribution: The notice to be provided pursuant to
Section 10.04 to the effect that a final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
"Offered Certificates": The Class A-1 Certificates, the Class M
Certificates and the Class B Certificates.
"Officer's Certificate": A certificate signed by any Authorized
Officer of any Person delivering such certificate and delivered to the Trustee.
"Operative Documents": Collectively, this Agreement, the
Certificates, the Sale and Warranties Agreement and the Assignment Agreements.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor or a Servicer acceptable to
the Trustee, except that any opinion of counsel relating to (a) the
qualification of any of any REMIC as a REMIC or (b) compliance with the REMIC
Provisions must be an opinion of Independent counsel.
"Optional Buyout Loan": A Mortgage Loan purchased from the Trust by
the Majority Class X Certificateholder pursuant to Section 8.21.
"Optional Termination Date": The first Distribution Date immediately
following the date on which the Pool Balance has declined to an amount equal to
or less than 10% of the Original Pool Balance.
"Original Pool Balance": The Pool Balance of the Mortgage Loans as
of the Cut-off Date.
"Original Principal Balance": The Principal Balance of a Mortgage
Loan as of the Cut-off Date.
"Original Seller": Each of the Persons set forth as an original
seller on Exhibit J hereto, its successors and assigns.
"Other Assets": With respect to any Mortgage Loan, any and all
Related Security and Collections relating to such Mortgage Loan and any and all
Proceeds of such Mortgage Loan, Related Security and/or Collections.
"Outstanding": With respect to all Certificates of a Class, as of
any date of determination, all such Certificates theretofore executed and
delivered hereunder except:
(i) Certificates theretofore canceled by the Registrar or delivered
to the Registrar for cancellation;
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(ii) Certificates or portions thereof for which full and final
payment of money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent in trust for the Owners of such
Certificates;
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to this Agreement,
unless proof satisfactory to the Trustee is presented that any such
Certificates are held by a bona fide purchaser;
(iv) Certificates alleged to have been destroyed, lost or stolen for
which replacement Certificates have been issued as provided for in Section
5.03; and
(v) Certificates as to which the Trustee has made the final
distribution thereon, whether or not such Certificate is ever returned to
the Trustee.
"Overcollateralization Amount": As of any Distribution Date, the
excess, if any, of (x) the Pool Balance as of the close of business on the last
day of the related Due Period, over (y) the aggregate Certificate Balance of the
Certificates (other than the Class X Certificates) on such Distribution Date,
assuming that the Principal Remittance Amount for such Distribution Date was
distributed in reduction of the Certificate Balance of the Certificates on such
Distribution Date.
"Overcollateralization Deficiency Amount": For any Distribution
Date, the excess, if any, of (1) the Specified Overcollateralization Amount for
such Distribution Date, over (2) the Overcollateralization Amount for such
Distribution Date.
"Overcollateralization Floor": 0.50% of the Original Pool Balance.
"Overcollateralization Reduction Amount": On any Distribution Date,
the lesser of (i) the Excess Overcollateralization Amount over (ii) the
Principal Remittance Amount.
"Owner": The Person in whose name a Certificate is registered in the
Register to the extent described in Section 5.02; provided that solely for the
purposes of determining the exercise of any voting rights hereunder, if any
Offered Certificates are beneficially owned by a Seller, the Depositor or any
Affiliate thereof, such Seller, the Depositor or such Affiliate shall not be
considered an Owner hereunder.
"Ownership Interest": As to any Certificate, any ownership or
security 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, as owner or as pledgee.
"Pass-Through Rate": For each Class of Certificates (other than the
Class X Certificates), the following per annum rate at which interest accrues
during the related Accrual Period on the applicable Certificate Balance:
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(a) with respect to the Class A-1 Certificate, the lesser of (i)
LIBOR for such Distribution Date plus 0.700% and (ii) the Adjusted WAC Rate for
such Distribution Date;
(b) with respect to the Class M-1 Certificate, the lesser of (i)
LIBOR for such Distribution Date plus 0.900% and (ii) the Adjusted WAC Rate for
such Distribution Date;
(c) with respect to the Class M-2 Certificate, the lesser of (i)
LIBOR for such Distribution Date plus 1.950% and (ii) the Adjusted WAC Rate for
such Distribution Date;
(d) with respect to the Class B-1 Certificate, the lesser of (i)
LIBOR for such Distribution Date plus 4.000% and (ii) the Adjusted WAC Rate for
such Distribution Date;
(e) with respect to the Class B-2 Certificate, the lesser of (i)
LIBOR for such Distribution Date plus 4.250% and (ii) the Adjusted WAC Rate for
such Distribution Date;
(f) with respect to the Class B-3 Certificate, the lesser of (i)
LIBOR for such Distribution Date plus 4.250% and (ii) the Adjusted WAC Rate for
such Distribution Date;
provided, however, that on and after the Step-Up Date, the
Pass-Through Rate for each Class of Offered Certificates shall be the Step-Up
Rate for such Class. For each Class of Certificates (other than the Class X
Certificates), the Pass-Through Rate will be calculated using an actual/360 Day
Count Fraction.
With respect to the Class X Certificates, rate per annum equal to
the percentage equivalent of a fraction, the numerator of which is the sum of
the amounts calculated pursuant to clauses (A) through (H) below, and the
denominator of which is the Uncertificated Principal Balance of the REMIC I
Regular Interests. For purposes of calculating the Pass-Through Rate for the
Class X Certificates, the numerator is equal to the sum of the following
components:
(A) the Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-AA minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC I Regular Interest LT-AA;
(B) the Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-A1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC I Regular Interest LT-A1;
(C) the Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-M1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC I Regular Interest LT-M1;
26
(D) the Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-M2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC I Regular Interest LT-M2;
(E) the Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-B1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC I Regular Interest LT-B1;
(F) the Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-B2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC I Regular Interest LT-B2;
(G) the Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-B3 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC I Regular Interest LT-B3 and
(H) the Uncertificated REMIC I Pass-Through Rate for REMIC I Regular
Interest LT-ZZ minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC I Regular Interest LT-ZZ.
"Paying Agent": Initially, the Trustee, and thereafter, the Trustee
or any other Person that meets the eligibility standards for the Paying Agent
specified in Section 12.15 and is authorized by the Trustee and the Depositor to
make payments on the Certificates on behalf of the Trustee.
"Percentage Interest": With respect to a Class A-1 Certificates, a
Class of the Class M Certificates or a Class of the Class B Certificates, a
fraction, expressed as a percentage, the numerator of which is the initial
Certificate Balance represented by such Certificate and the denominator of which
is the aggregate initial Certificate Balance represented by all the Certificates
in such Class. With Class X Certificates and Class R Certificates, the portion
of such Class evidenced thereby, expressed as a percentage, as stated on the
face of such Certificate, all of which shall total 100%.
"Periodic Rate Cap": With respect to each Adjustable Rate Mortgage
Loan and any Adjustment Date therefor, the fixed percentage set forth in the
related Mortgage Note, which is the maximum amount by which the Mortgage Rate
for such Adjustable Rate Mortgage Loan may increase or decrease (without regard
to the Lifetime Rate Cap or the Minimum Mortgage Rate) on such Adjustment Date
from the Mortgage Rate in effect immediately prior to such Adjustment Date.
"Permitted Transferee": Any Transferee of a Residual Certificate
other than a Disqualified Organization or a Non-U.S. Person.
27
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": Any employee benefit plan or certain other retirement plans
and arrangements, including individual retirement accounts and annuities, Xxxxx
plans and bank collective investment funds and insurance company general or
separate accounts in which such plans, accounts or arrangements are invested,
that are subject to ERISA or Section 4975 of the Code.
"Pool Balance": As of any date, the sum of the aggregate Scheduled
Principal Balance of the Xxxxx Fargo Mortgage Loans and the Countrywide Mortgage
Loans, and the Actual Principal Balance of the GMACM Mortgage Loans as of the
end of the preceding Due Period or, if so specified, as of the Cut-off Date.
"Prepaid Installment": With respect to any Mortgage Loan, any
Monthly Payment thereon received by the relevant Servicer prior to the scheduled
due date for such installment, intended by the Mortgagor as an early payment
thereof and not as a Principal Prepayment or Curtailment with respect to such
Mortgage Loan.
"Prepayment Penalty": With respect to any Mortgage Loan other than a
Countrywide Mortgage Loan, any prepayment penalty, premium or charge payable by
the Mortgagor pursuant to the terms of the Mortgage Note in connection with any
voluntary prepayment in full of the principal of the Mortgage Loan to the extent
permitted by law.
"Prepayment Period": With respect to any Distribution Date, the
calendar month preceding the month in which such Distribution Date occurs.
"Preservation Expenses": Expenditures made by the related Servicer
(or its predecessor or the assignee thereof) in connection with a foreclosed
Mortgage Loan prior to the liquidation thereof, including, without limitation,
expenditures for real estate property taxes, hazard insurance premiums, property
restoration or preservation.
"Primary Insurance Policy": Insurance obtained from a private
insurer which insures the holder of a Mortgage Note against loss in the event
the Mortgagor defaults under the Note, including all riders and endorsements
thereto.
"Principal Balance": means (i) with respect to any GMACM Mortgage
Loan, the Actual Principal Balance of such GMACM Mortgage Loan; and (ii) with
respect to any Countrywide Mortgage Loan or Xxxxx Fargo Mortgage Loan, the
Scheduled Principal Balance of such Countrywide Mortgage Loan or Xxxxx Fargo
Mortgage Loan, as the case may be.
"Principal Distribution Amount": For any Distribution Date, the sum
of (i) the Basic Principal Distribution Amount and (ii) the Extra Principal
Distribution Amount.
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"Principal Prepayment": Any full or partial payment or other
recovery of principal on a Mortgage Loan which is received in advance of its
scheduled Due Date, excluding any Prepayment Penalty and which is not
accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
"Principal Prepayment in Full": Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
"Principal Remittance Amount: With respect to any Distribution Date,
the amount equal to the sum of the following amounts (without duplication) with
respect to the related Due Period: (i) with respect to each Xxxxx Fargo Mortgage
Loan and each Countrywide Mortgage Loan, each scheduled payment of principal on
a Mortgage Loan due during such Due Period received on or prior to the related
Determination Date (including the portion of Insurance Proceeds or Condemnation
Proceeds allocable to principal), and all Principal Prepayments received during
the related Prepayment Period, (ii) the Liquidation Proceeds on the Mortgage
Loans allocable to principal received during the related Due Period, (iii) the
portion of the Loan Purchase Price allocable to principal with respect to each
Mortgage Loan, the repurchase obligation for which arose during the related Due
Period (iv) the principal portion of any Monthly Advances made by the Servicers
with respect to such Distribution Date, (v) with respect to each GMACM Mortgage
Loan, each payment of principal received on or prior to the related
Determination Date (including the portion of Insurance Proceeds or Condemnation
Proceeds allocable to principal), and all Principal Prepayments received during
the related Prepayment Period, (vi) the Substititution Adjustment Amounts, if
any, received during such Due Period and (vii) the allocable portion of the
proceeds received with respect to the termination of the Trust Fund (to the
extent such proceeds relate to principal).
"Private Certificates": Collectively, the Class X Certificates and
Residual Certificates.
"Proceeds": Whether or not capitalized, "proceeds" as such term is
defined in Section 9-306(1) of the UCC, including all cash and non-cash proceeds
and further including all accounts, accounts receivable, contract rights, money,
claims for money (whether or not earned by performance), checks, deposit
accounts, documents, instruments, chattel paper, investment property (including
securities, securities entitlements, securities accounts, commodity contracts
and commodity accounts), general intangibles, insurance proceeds and other
property (including fixtures, products and accessions).
"Prohibited Transaction": The meaning set forth from time to time in
the definition thereof at Section 860F(a)(2) of the Code and applicable to the
Trust.
"Prospectus Supplement ": The Prospectus Supplement dated August 25,
2003 to the Prospectus dated August 18, prepared by the Depositor with respect
to the public offering of the Offered Certificates
29
"Purchase Option Period": As defined in Section 10.03.
"Purchaser": The Depositor, in its capacity as the purchaser, under
the relevant Sale Agreement, together with the Trustee as the assignee of the
Depositor hereunder.
"Qualified Institution": With respect to each Collection Account and
the Certificate Account, an account maintained by a federal or state chartered
depository institution acceptable to the Depositor having combined capital and
surplus of at least $50,000,000; provided, however, that if any Collection
Account or the Certificate Account is not maintained with the Trustee, (i) such
institution shall have a long-term debt rating of at least "A2" by Xxxxx'x,
"AA-" by Standard & Poor's, and, if rated by Fitch, at least "AA-" by Fitch,
(ii) a short-term debt rating of at least "A-1" by Standard & Poor's, "P-1" by
Xxxxx'x and if rated by Fitch, at least "F1" by Fitch and (iii) if such
Collection Account or the Certificate Account is moved to a new institution, the
relevant Servicer shall provide the Trustee, the Owners with a statement
identifying the location of such Collection Account or the Certificate Account.
"Qualified Liquidation": The meaning set forth from time to time in
the definition thereof at Section 860F(a)(4) of the Code and applicable to the
Trust.
"Qualified Mortgage": The meaning set forth from time to time in the
definition thereof at Section 860G(a)(3) of the Code and applicable to the
Trust.
"Rating Agencies": Xxxxx'x and Standard & Poor's or any successors
thereto. If such agencies or their successors are no longer in existence,
"Rating Agencies" shall be such nationally recognized statistical rating
agencies, or other comparable Persons, designated by the Depositor, notice of
which designation shall be given to the Trustee and the Servicers.
"Realized Loss": With respect to each Liquidated Loan, an amount
equal to (i) the Principal Balance of the Mortgage Loan, plus all accrued and
unpaid interest thereon and outstanding Servicing Advances, Retained Servicing
Advances and other expenses related thereto, as of the date of such liquidation,
minus (ii) the Net Liquidation Proceeds (not less than zero for purposes of
calculating Realized Losses) relating to such Liquidated Loan (such Net
Liquidation Proceeds to be applied first to interest and then to the Principal
Balance of the Liquidated Loan). With respect to each Mortgage Loan which has
become the subject of a Deficient Valuation, the Realized Loss shall be
calculated as the difference between the Principal Balance of the Mortgage Loan
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as determined pursuant to such Deficient Valuation. With respect
to any payment by the Trust of Trust Expenses, a Realized Loss shall be deemed
to have occurred whenever such Trust Expenses are paid.
"Realized Loss Amount": For any Distribution Date, as defined in
Section 7.07.
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"Record Date": With respect to each Distribution Date and (i) a
Book-entry Certificate, the Business Day immediately preceding such Distribution
Date or (ii) a Definitive Certificate, the last day of the month immediately
preceding the month in which such Distribution Date occurs.
"Records": With respect to any Mortgage Loan, all Mortgage Loan
Documents and other material documents held or maintained by or for the
Depositor, the Trustee, the Custodian, the relevant Servicer or any other Person
with respect to such Mortgage Loan and/or the related Mortgagor, including the
Custodial File and any and all Servicing Records.
"Reference Banks": Four major banks in the London interbank market
selected by the Trustee with consultation from the Depositor.
"Register": The register maintained by the Registrar in accordance
with Section 5.02, in which the names of the Owners are set forth.
"Registrar": The Trustee, acting in its capacity as Registrar
appointed pursuant to Section 5.02, or any duly appointed and eligible successor
thereto.
"Regular Certificate": Any Class A-1 Certificate, Class M
Certificate, Class B Certificate or Class X Certificate.
"Regular Interest": A "regular interest" in a REMIC within the
meaning of Section 860G(a)(1) of the Code.
"Related Security": With respect to any Mortgage Loan, all right,
title and interest of each and all of the Seller, the Original Sellers and the
Depositor in and to:
(i) the related Mortgaged Property securing such Mortgage Loan;
(ii) all other security interests or liens and property subject
thereto from time to time, if any, purporting to secure payment of such
Mortgage Loan, whether pursuant to the related Mortgage Loan Documents or
otherwise, together with all financing statements and similar documents
signed by a Mortgagor describing any collateral securing such Mortgage
Loan;
(iii) all guarantees, indemnities, warranties, insurance policies
(including any premium refunds and other proceeds thereof) and other
agreements or arrangements of any kind from time to time supporting or
securing payment of such Mortgage Loan, whether pursuant to the Mortgage
Loan Documents related to such Mortgage Loan or otherwise; and
(iv) all Records related to such Mortgage Loan.
"Relief Act Shortfall": With respect to any Due Period and any
Mortgage Loan as to which the interest rate has been reduced during such Due
Period by
31
application of the Civil Relief Act, the excess, if any, of (i) the interest
payable on such Mortgage Loan at its Mortgage Rate over (ii) the interest
payable thereon at the rate imposed by the Civil Relief Act.
"REMIC": A "real estate mortgage investment conduit" within the
meaning of Section 860A through 860G of the Code.
"REMIC I": The segregated pool of assets subject hereto,
constituting a portion of the primary trust created hereby and to be
administered hereunder, with respect to which a separate REMIC election is to be
made (other than with respect to the items in clause (v) and the proceeds
thereof), consisting of: (i) the Mortgage Loans and the related Mortgage Files;
(ii) all payments on and collections in respect of the Mortgage Loans due after
the Cut-off Date (other than Monthly Payments due in August 2003) as shall be on
deposit in the Certificate Account and identified as belonging to the Trust
Estate; (iii) property which secured a Mortgage Loan and which has been acquired
for the benefit of the Certificateholders by foreclosure or deed in lieu of
foreclosure; (iv) Insurance Policies pertaining to the Mortgage Loans, if any;
and (v) all proceeds of clauses (i) through (iv) above. The Basis Risk Reserve
Fund will not be an asset of any REMIC.
REMIC I Interest Loss Allocation Amount: With respect to any
Distribution Date, an amount equal to (a) the product of (i) the aggregate
Uncertificated Principal Balance of the REMIC I Regular Interests then
outstanding and (ii) the Uncertificated Pass-Through Rate for REMIC I Regular
Interest LT-AA minus the Marker Rate, divided by (b) 12.
REMIC I Overcollateralized Amount: With respect to any date of
determination, (i) 1% of the aggregate Uncertificated Principal Balances of the
REMIC I Regular Interests minus (ii) the Uncertificated Principal Balances of
the REMIC I Regular Interests (other than REMIC I Regular Interests LT-AA and
REMIC I Regular Interest LT-ZZ), in each case as of such date of determination.
REMIC I Overcollateralization Target Amount: 1% of the Specified
Overcollateralization Amount.
REMIC I Principal Loss Allocation Amount: With respect to any
Distribution Date, an amount equal to the product of (i) the aggregate Stated
Principal Balance of the Mortgage Loans then outstanding and (ii) 1 minus a
fraction, the numerator of which is two times the sum of the Uncertificated
Principal Balances of REMIC I Regular Interests LT-A1, LT-M1, LT-M2, LT-B1,
LT-B2 and LT-B3 and the denominator of which is the sum of the Uncertificated
Principal Balances of REMIC I Regular Interests LT-A1, LT-M1, LT-M2, XX-X0,
XX-X0, XX-X0 and LT-ZZ.
REMIC I Regular Interests: REMIC I Regular Interest LT-AA, REMIC I
Regular Xxxxxxxx XX-X0, REMIC I Regular Interest LT-M1, REMIC I Regular Interest
LT-M2, REMIC I Regular Interest LT-B1, REMIC I Regular Interest LT-B2, REMIC I
Regular Interest LT-B3, REMIC I Regular Interest LT-ZZ, REMIC I Regular Interest
LT-RI-Countrywide and REMIC I Regular Interest LT-RI-Xxxxx
32
REMIC I Regular Interest LT-AA: A regular interest in REMIC I that
is held as an asset of REMIC II, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other terms as are
described herein.
REMIC I Regular Interest LT-A1: A regular interest in REMIC I that
is held as an asset of REMIC II, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other terms as are
described herein.
REMIC I Regular Interest LT-B1: A regular interest in REMIC I that
is held as an asset of REMIC II, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other terms as are
described herein.
REMIC I Regular Interest LT-B2: A regular interest in REMIC I that
is held as an asset of REMIC II, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other terms as are
described herein.
REMIC I Regular Interest LT-B3: A regular interest in REMIC I that
is held as an asset of REMIC II, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other terms as are
described herein.
REMIC I Regular Interest LT-RI-Countrywide: A regular interest in
REMIC I that is held as an asset of REMIC II, that has notional amount equal to
the related Uncertificated Notional Amount, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other terms as are
described herein.
REMIC I Regular Interest LT-RI-Xxxxx: A regular interest in REMIC I
that is held as an asset of REMIC II, that has notional amount equal to the
related Uncertificated Notional Amount, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other terms as are
described herein.
REMIC I Regular Interest LT-M1: A regular interest in REMIC I that
is held as an asset of REMIC II, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other terms as are
described herein.
REMIC I Regular Interest LT-M2: A regular interest in REMIC I that
is held as an asset of REMIC II, that has an initial principal balance equal to
the related Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other terms as are
described herein.
REMIC I Regular Interest LT-ZZ: A regular interest in REMIC I that
is held as an asset of REMIC II, that has an initial principal balance equal to
the related
33
Uncertificated Principal Balance, that bears interest at the related
Uncertificated REMIC I Pass-Through Rate, and that has such other terms as are
described herein.
REMIC I Regular Interest LT-ZZ Maximum Interest Deferral Amount:
With respect to any Distribution Date, the sum of (a) the excess of (i)
Uncertificated Accrued Interest calculated with the Uncertificated Pass-Through
Rate for REMIC I Regular Interest LT-ZZ and an Uncertificated Principal Balance
equal to the excess of (x) the Uncertificated Principal Balance of REMIC I
Regular Interest LT-ZZ over (y) the REMIC I Overcollateralized Amount, in each
case for such Distribution Date, over (ii) Uncertificated Accrued Interest on
REMIC I Regular Interests LT-A1, LT-M1, LT-M2, LT-B1, LT-B2 and LT-B3, with the
rate on each such REMIC I Regular Interest subject to a cap equal to the
Pass-Through Rate on the Corresponding Class for the purpose of this
calculation.
REMIC II: The segregated pool of assets subject hereto, constituting
a portion of the primary trust created hereby and to be administered hereunder,
with respect to which a separate REMIC election is to be made, consisting of the
REMIC I Regular Interests.
REMIC II Regular Certificates: Any of the Class A-1, Class M-1,
Class M-2, Class B-1, Class B-2, Class B-3 or Class X Certificates.
REMIC II Regular Interests: The REMIC II Regular Certificates and
the Retained Interest.
"REMIC Opinion": A written opinion of independent counsel
experienced in federal income tax matters, who may not be a salaried counsel for
the Depositor or any Servicer, acceptable to the Trustee, relating to (a) the
qualification of any Trust REMIC as a REMIC or (b) compliance with the REMIC
Provisions.
"REMIC Provisions": Provisions of the Code relating to real estate
mortgage investment conduits, which appear at Sections 860A through 860G of the
Code, related provisions and regulations (whether in proposed, temporary or
final form), announcements and rulings thereunder, as the foregoing may be in
effect from time to time.
"Remittance Amount": With respect to any Remittance Date and (x)
GMACM, the sum, without duplication, of (i) all Monthly Payments, Curtailments,
Principal Prepayments and other payments of interest or principal received
during the related Due Period with respect to the GMACM Mortgage Loans (less the
Servicing Fees with respect to such Mortgage Loans, which Servicing Fee is
reduced by Compensating Interest), (ii) Monthly Advances and Compensating
Interest payable by GMACM for such Remittance Date pursuant to Sections 8.05 and
8.06 hereto, (iii) any Loan Purchase Price actually collected by GMAMC during
the Due Period, (iv) any Indemnity Proceeds actually collected by GMACM during
the related Due Period and (v) Net Liquidation Proceeds attributed to GMACM
Mortgage Loans liquidated during the related Due Period, in all cases after
taking into account items which are withdrawn from the
34
Collection Account pursuant to Section 8.04(d) hereto, (y) Xxxxx Fargo, the
amount remitted to the Trustee on such date pursuant to Section 5.01 of the
Xxxxx Fargo Agreement, and (z) Countrywide, the amount remitted to the Trustee
on such date pursuant to Section 4.1 of the Countrywide Agreement.
"Remittance Date": With respect to each Distribution Date and (i)
the GMACM Mortgage Loans, the second Business Day immediately preceding the
Distribution Date, (ii) the Xxxxx Fargo Mortgage Loans, the 18th day of each
calendar month, or if such day is not a Business Day, the immediately preceding
Business Day and (iii) the Countrywide Mortgage Loans, the 18th day of each
calendar month, or if such day is not a Business Day, the Business Day
immediately following such 18th day.
"Repayment Plan": With respect to any Mortgage Loan a Forbearance
Plan, Bankruptcy Plan or other plan entered into by the servicer and the
Mortgagor for the repayment of such Mortgage Loan.
"REO Property": A Mortgaged Property acquired by the relevant
Servicer on behalf of the Trust through foreclosure or deed-in-lieu of
foreclosure in connection with a defaulted Mortgage Loan.
"Representation Letter": Letters to, or agreements with, the
Depository to effectuate a book-entry system with respect to the Certificates
registered in the Register under the nominee name of the Depository.
"Residual Certificates": The Class R Certificates.
"Residual Interest": The sole class of "residual interests" in a
REMIC within the meaning of Section 860G(a)(2) of the Code.
"Responsible Officer": With respect to the Trustee, any officer of
the Institutional Trust Services/Structured Finance Services Department of the
Trustee, including any Senior Vice President, any Vice President, any Assistant
Vice President, any Trust Officer or Assistant Trust Officer, or any other
officer of the Trustee with direct responsibility for the administration of this
Agreement.
"Retained Certificates": The Class X and Class R Certificates.
"Retained Interest": An uncertificated interest in the Trust Estate
evidencing a Regular Interest in REMIC II for purposes of the REMIC Provisions
which equals, with respect to each Distribution Date and each Xxxxx Fargo
Mortgage Loan and Countrywide Mortgage Loan, the product of (A) one-twelfth of
the related Retained Interest Rate and (B) the Scheduled Principal Balance of
such Mortgage Loan at the beginning of such Due Period.
"Retained Interest Rate": With respect to each Mortgage Loan and any
Distribution Date, the amount by which 0.50% per annum exceeds the Servicing Fee
Rate of the applicable Servicer with respect to such Mortgage Loan on such
Distribution Date.
35
"Retained Loans": Mortgage loans acquired by the Depositor pursuant
to the Sale Agreements that were not transferred and assigned to the Trust
pursuant to Section 3.04(a).
"Retained Servicing Advances": With respect to each GMACM Mortgage
Loan, all reasonable and necessary "out-of-pocket" costs and expenses incurred
by any Person in the servicing of such Mortgage Loan prior to the Closing Date,
including, but not limited to, the cost of (i) Preservation Expenses, (ii) any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of REO Property, (iv) obtaining broker price
opinions, (v) locating missing Mortgage Loan Documents and (vi) maintaining,
transferring or establishing life of loan tax and flood service contracts.
"Rule 144A Letter": As defined in Section 5.02(b) hereof.
"Sale Agreement" Each of the Sale Agreements described on Exhibit J
hereto pursuant to which the Seller purchased the Mortgage Loans from the
Original Sellers.
"Sale and Warranties Agreement": The Sale and Warranties Agreement
dated as of August 1, 2003 among Xxxxxxx Sachs Mortgage Company, the Depositor
and the Trust.
"Schedule of Mortgage Loans": The schedule of Mortgage Loans listing
each Mortgage Loan to be conveyed on the Closing Date and attached hereto as
Schedule I to this Agreement. Such Schedule of Mortgage Loans shall identify,
inter alia, each Mortgage Loan by the relevant Servicer's loan number and the
Mortgagor's name and address (including the state) of the Mortgaged Property and
shall set forth as to each Mortgage Loan the lien status thereof, the Original
Principal Balance, the Mortgage Rate thereof, the current scheduled monthly
payment of principal and interest and the maturity of the related Mortgage Note,
whether or not such Mortgage Loan (including the related Mortgage Note) has been
modified and whether such Mortgage Loan is a Simple Interest Mortgage Loan. Such
Schedule shall also identify the Lifetime Rate Cap, the Minimum Mortgage Rate,
the Index, the Gross Margin and the Periodic Rate Cap with respect to each
Adjustable Rate Mortgage Loan and the Original Seller and Servicer of each
Mortgage Loan.
"Scheduled Principal Balance": With respect to any Xxxxx Fargo
Mortgage Loan or Countrywide Mortgage Loan as of any date other than the Cut-off
Date, its original principal balance, reduced by the principal portion of all
payments that have been made or advanced on or before such date, and Realized
Losses of principal on such Mortgage Loan. The Scheduled Principal Balance of a
liquidated Mortgage Loan will equal zero. The Scheduled Principal Balance of a
Xxxxx Fargo Mortgage Loan or Countrywide Mortgage Loan as of the Cut-off Date is
its original principal balance, reduced by the principal portion of all payments
that have been made or were scheduled to have been made on or prior to the
Cut-off Date, and all reductions of principal as a result of modification of
such Mortgage Loan on or prior to such date.
36
"Securities Act": The Securities Act of 1933, as amended.
"Seller": Xxxxxxx Xxxxx Mortgage Company, its successors and
assigns.
"Senior Lien": With respect to any Second Mortgage Loan, the
mortgage loan relating to the corresponding Mortgaged Property having a first
priority lien.
"Senior Trustee Expenses": The meaning provided in Section 2.05.
"Servicer": Each of GMACM, Xxxxx Fargo and Countrywide and their
respective permitted successors and assigns.
"Servicer Termination Event": The meaning provided in (i) Section
8.17 with respect to GMACM; (ii) the events of default described Section 7.1 of
the Countrywide Agreement with respect to Countrywide; and (iii) the events of
default described in Section 10.01 of the Xxxxx Fargo Agreement with respect to
Xxxxx Fargo.
"Servicing Advance": With respect to (i) GMACM, as defined in
Section 8.05; (ii) Xxxxx Fargo, as defined in the Xxxxx Fargo Agreement, and
(iii) Countrywide, as defined in the Countrywide Agreement.
"Servicing Agreement": Each of (a) with respect to the GMACM
Mortgage Loans, this Agreement; (b) with respect to the Countrywide Mortgage
Loans, the Countrywide Agreement; and (c) with respect to the Xxxxx Fargo
Mortgage Loans, the Xxxxx Fargo Agreement.
"Servicing Claim": With respect to (i) GMACM, as defined in Section
8.03(a); (ii) with respect to Xxxxx Fargo, those claims, losses, damages,
penalties, fines, forfeitures, reasonable legal fees, costs, judgments and
expenses subject to indemnification under Section 8.01 of the Xxxxx Fargo
Agreement and (iii) with respect to Xxxxx Fargo. any claims, penalties, fines,
forfeitures, damages, liabilities, losses and expenses, including reasonable
attorney's fees subject to indemnification under Section 6.1 of the Countrywide
Agreement with respect to Countrywide; and
"Servicing Compensation": With respect to any GMACM Mortgage Loan
and each Remittance Date, the amount equal to the sum of (i) the Servicing Fee
payable to GMACM and (ii) all income derived from the GMACM Mortgage Loans other
than payments of principal, interest and Escrow Payments (excluding Servicing
Fees and prepayment penalties attributable to the Mortgage Loans), including but
not limited to interest received on funds deposited in the Collection Account or
any Escrow Account (to the extent permitted by applicable law), all late
charges, assumption fees, escrow account benefits, reinstatement fees, fees
received with respect to checks on bank drafts returned by the related bank for
insufficient funds, assumption fees, and similar types of fees arising from or
in connection with any Mortgage Loan to the extent not otherwise payable to the
Mortgagor under applicable law or pursuant to the terms of the related Mortgage
Note.
37
"Servicing Fee": With respect to each Due Period and (i) each GMACM
Mortgage Loan, the product of (A) the related Servicing Fee Rate, (B) the Actual
Principal Balance of such Mortgage Loan at the beginning of such Due Period and
(C) the number of days during the Due Period for such Mortgage Loan that ended
in such Due Period, for which interest accrued on such Mortgage Loan, divided by
360, (ii) each Xxxxx Fargo Mortgage Loan, (A) one-twelfth of the related
Servicing Fee Rate, (B) the Scheduled Principal Balance of such Mortgage Loan at
the beginning of such Due Period, and (iii) each Countrywide Mortgage Loan, (A)
one-twelfth of the related Servicing Fee Rate, (B) the Scheduled Principal
Balance of such Mortgage Loan at the beginning of such Due Period. Except as
otherwise provided in Section 8.12 of this Agreement, the right of GMACM to
payment of the Servicing Fee is limited to, and the Servicing Fee is payable
solely from, the interest portion of such Monthly Payment collected by GMACM,
and is payable solely when such portion is collected.
"Servicing Fee Rate": With respect to each (i) GMACM Mortgage Loan,
0.50% per annum, (ii) Xxxxx Fargo Mortgage Loan, 0.25% per annum and (ii)
Countrywide Mortgage Loan, (x) as to any Countrywide Mortgage Loan that is an
Adjustable Rate Mortgage Loan, 0.375% per annum and (y) as to any Countrywide
Mortgage Loan that is an Fixed Rate Mortgage Loan, 0.25% per annum.
"Servicing File": With respect to any Mortgage Loan, the file
(maintained in any form or format whatsoever, including in electronic form)
containing: (i) copies of certain documents executed or delivered in connection
with the closing of such Mortgage Loan, including without limitation copies of
the Mortgage Note, Mortgage and any assignments of such Mortgage, and (ii) any
servicing documentation which relates to such Mortgage Loan of the type
customarily included by the Servicers in their servicing files.
"Servicing Records": With respect to any Mortgage Loan, all books
and records in any form or format whatsoever (including records kept in
electronic form) that have been maintained by or for the Custodian, the relevant
Servicer with respect to such Mortgage Loan, including all documents (whether
originals or copies), files, records, databases, computer tapes, floppy disks,
tax bills, assessment notices, binders and other proof of insurance coverage,
insurance policies, insurance premium notices, appraisals, other closing
documentation, payment history records, agreements and any other records in any
way relating to or evidencing the servicing of any such Mortgage Loan.
"Simple Interest Excess": As of any Remittance Date for each Simple
Interest Qualifying Loan, the excess, if any, of (i) the portion of the Monthly
Payment received from the Mortgagor for such Mortgage Loan allocable to interest
with respect to the related Due Period, over (ii) 30 days' interest on such
Mortgage Loan at the then applicable Mortgage Rate.
38
"Simple Interest Excess Sub-Account": The sub-account of the
Collection Account established by GMACM, pursuant to Section 8.07(d). The Simple
Interest Excess Sub-Account shall be an Eligible Account.
"Simple Interest Mortgage Loan": Any Mortgage Loan for which the
interest due thereon is calculated based on the actual number of days elapsed
between the date on which interest was last paid through the date on which the
most current payment is received.
"Simple Interest Qualifying Loan": As of any Determination Date, any
Simple Interest Mortgage Loan that was neither prepaid in full during the
related Due Period, nor delinquent with respect to a payment that became due
during the related Due Period as of the close of business on the Determination
Date following such Due Period.
"Simple Interest Shortfall": As of any Remittance Date for each
Simple Interest Qualifying Loan, the excess, if any, of (i) 30 days' interest on
such Mortgage Loan at the then applicable Mortgage Rate, over (ii) the portion
of the Monthly Payment received from the Mortgagor for such Mortgage Loan
allocable to interest with respect to the related Due Period.
"Specified Overcollateralization Amount": For any Distribution Date:
(i) prior to the Stepdown Date, 5.00% of the Original Pool Balance,
and
(b) on and after the Stepdown Date, the greater of:
(1) 10.00% of the Pool Balance as of the last day of the
related Due Period, and
(2) the Overcollateralization Floor;
provided that (i) upon the occurrence and during the continuance of a Trigger
Event, the Specified Overcollateralization Amount will equal the Specified
Overcollateralization Amount as of the immediately preceding Distribution Date
(after giving effect to distributions on such date) and (ii) the Specified
Overcollateralization Amount shall never exceed the then aggregate Certificate
Balance of the Certificates.
"Standard & Poor's": Standard & Poor's Ratings Services, a Division
of The XxXxxx-Xxxx Companies, Inc. or any successor thereto.
"Startup Day": The Closing Date.
"Stated Principal Balance": As to each Mortgage Loan and as of any
date of determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date, minus (ii) all amounts previously remitted to the Trustee with respect to
the related Mortgage Loan representing
39
payments or recoveries of principal including advances in respect of scheduled
payments of principal. For purposes of any Distribution Date, the Stated
Principal Balance of any Mortgage Loan will give effect to any scheduled
payments of principal received by the Servicer on or prior to the related
Determination Date or advanced by the Servicer or the Trustee for the related
Remittance Date and any unscheduled principal payments and other unscheduled
principal collections received during the related Due Period.
"Stepdown Date": For each Certificate, the earlier to occur of:
(1) the later to occur of:
(A) the Distribution Date in September 2006,
(B) the first Distribution Date on which the Credit
Enhancement Percentage for the Class A-1
Certificates is greater than or equal to 48.50%,
and
(2) the Distribution Date on which the aggregate Certificate
Balance of the Class A-1 Certificates has been reduced
to zero.
"Step-Up Date": With respect to the Class A-1, Class M and Class B
Certificates, the beginning of the Accrual Period relating to the first
Distribution Date after the Optional Termination Date if the optional
termination shall not have been exercised on such date pursuant to Section
10.02.
"Step-Up Rate": The rate to which the Pass-Through Rates of the
Class A-1, Class M and Class B Certificates will increase pursuant to Section
10.02 if the Holders of Class X Certificates does not exercise its right to
cause the termination of the Trust on the first Distribution Date on which such
right is exercisable. The Step-Up Rate may not exceed the Adjusted WAC Rate.
"Substitution Adjustment Amount": With respect to any Distribution
Date, that amount received by the related Servicer with respect to the
substitution of a Mortgage Loan pursuant to the related Sale Agreement during
the related Due Period equal to that amount by which the outstanding principal
balance of the substituted Mortgage Loan is less than the outstanding principal
balance of the replaced Mortgage Loan.
"Tax Matters Person": With respect to any Trust REMIC, the Person
designated as the "Tax Matters Person" of such Trust REMIC pursuant to Treasury
Regulation Section 1.860F-4(d).
"Telerate Page 3750": The display designated as page "3750" on the
Dow Xxxxx Telerate Capital Markets Report (or such other page as may replace
page 3750 on that report for the purpose of displaying London interbank offered
rates of major banks).
40
"Termination Notice": As defined in Section 10.03.
"Three-Month Rolling Average Twelve Month Velocity Percentage": With
respect to any Distribution Date commencing on the fourth Distribution Date, the
arithmetic average of the applicable Twelve Month Velocity Percentage for such
Distribution Date and each of the two preceding Distribution Dates.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(c) hereof.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer of any
Ownership Interest in a Certificate.
"Transferor Certificate": As defined in Section 5.02(b) hereof.
"Trigger Event": With respect to any Distribution Date, a Trigger
Event exists if (i) the quotient (expressed as a percentage) of (1) the
Three-Month Rolling Average Twelve Month Velocity Percentage equals or exceeds
50% of the Credit Enhancement Percentage for such 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
Prepayment Period divided by (y) the Original Pool Balance, exceeds the
applicable percentages set forth below with respect to such Distribution Date:
-----------------------------------------------------------------------------------------
Distribution Date Occurring In Loss Percentage
------------------------------ ---------------
-----------------------------------------------------------------------------------------
September 2006 through August 2007 6.50% for the first month, plus an additional
1/12th of 1.50% for each month thereafter, to
8.00%
-----------------------------------------------------------------------------------------
September 2007 through August 2008 8.00% for the first month, plus an additional
1/12th of 0.75% for each month thereafter, to
8.75%
-----------------------------------------------------------------------------------------
September 2008 through August 2009 8.75% for the first month, plus an additional
1/12th of 0.75% for each month thereafter, to
9.50%
-----------------------------------------------------------------------------------------
September 2009 and thereafter 9.50%
-----------------------------------------------------------------------------------------
41
"Trust": GSRPM Mortgage Loan Trust 2003-2 the trust created under
this Agreement.
"Trust Estate": As defined in the conveyance clause under this
Agreement.
"Trust Expenses": All extraordinary, unanticipated expenses of the
Trust (including expenses of enforcing the Mortgage Loans), Advances (other than
those not permitted to be recovered from the Trust Estate) that are not
recovered from the related Mortgage Loan, Servicing Advances, to the extent not
made by the relevant Servicer, Retained Servicing Advances, indemnity
obligations of the Trust, and other expenses permitted to be incurred hereunder
and recovered from the Trust Estate.
"Trust REMIC": REMIC I or REMIC II.
"Trustee": JPMorgan Chase Bank, a New York banking corporation, the
Corporate Trust Department of which is located on the date of execution of this
Agreement at 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention:
Institutional Trust Services/Structured Finance Services, GSRPM Mortgage
Securities Corp., Series 2003-2 not in its individual capacity but solely as
Trustee under this Agreement, and any successor hereunder.
"Trustee Fee": The fee payable monthly to the Trustee on each
Distribution Date in an amount equal to the product of (i) the Trustee Fee Rate
and (ii) the Principal Balance of each Mortgage Loan at the beginning of the Due
Period related to such Distribution Date.
"Trustee Fee Rate": 0.0050% per annum.
"Twelve Month Velocity Percentage": With respect to any Distribution
Date is equal to a fraction the numerator of which is equal to the aggregate
outstanding principal balance of all Mortgage Loans that have not made at least
80% of their scheduled Monthly Payments due in the twelve month period prior to
such Distribution Date and the denominator of which is equal to the aggregate
outstanding principal balance of all Mortgage Loans outstanding as of such
Distribution Date.
"UCC": The Uniform Commercial Code, as in effect in the relevant
jurisdiction, as amended from time to time.
"Uncertificated Accrued Interest": With respect to any
Uncertificated Regular Interest for any Distribution Date, one month's interest
at the related Uncertificated Pass-Through Rate for such Distribution Date,
accrued on the Uncertificated Principal Balance or Uncertificated Notional
Amount, immediately prior to such Distribution Date. Uncertificated Accrued
Interest for the Uncertificated Regular Interests shall accrue on the basis of a
360-day year consisting of twelve 30-day months. For purposes of calculating the
amount of Uncertificated Accrued Interest for the REMIC I Regular Interests for
any Distribution Date, any Prepayment Interest Shortfalls (to the
42
extent not covered by Compensating Interest) relating to the Mortgage Loans for
any Distribution Date shall be allocated first, to Uncertificated Accrued
Interest payable to REMIC I Regular Interest LT-AA and REMIC I Regular Interest
LT-ZZ up to an aggregate amount equal to the REMIC I Interest Loss Allocation
Amount, 98% and 2%, respectively, and thereafter any remaining Prepayment
Interest Shortfalls (to the extent not covered by Compensating Interest)
relating to the Mortgage Loans for any Distribution Date shall be allocated
among REMIC I Regular Interests XX-XX, XX-X0, LT-M1, LT-M2, XX-X0, XX-X0, XX-X0
and LT-ZZ, pro rata based on, and to the extent of, Uncertificated Accrued
Interest, as calculated without application of this sentence.
"Uncertificated Notional Amount": With respect to REMIC I Regular
Interest LT-RI-Countrywide, an amount equal to the aggregate Stated Principal
Balance of the Mortgage Loans serviced by Countrywide. With respect to REMIC I
Regular Interest LT-RI-Xxxxx, an amount equal to the aggregate Stated Principal
Balance of Mortgage Loans serviced by Xxxxx Fargo.
"Uncertificated Principal Balance": The principal amount of any
Uncertificated Regular Interest outstanding as of any date of determination. The
Uncertificated Principal Balance of each Uncertificated Regular Interest shall
be reduced by all distributions of principal made on such Uncertificated Regular
Interest, as applicable, on such Distribution Date and, if and to the extent
necessary and appropriate, shall be further reduced in such Distribution Date by
Realized Losses. The Uncertificated Principal Balance of each Uncertificated
Regular Interest shall never be less than zero.
"Uncertificated REMIC I Pass-Through Rate": With respect to any
REMIC I Regular Interest (other than REMIC I Regular Interest LT-RI- Countrywide
and REMIC I Regular Interest LT-RI-Xxxxx), a per annum rate equal to the
weighted average of the Net Rates of the Mortgage Loans, calculated based on the
Actual Principal Balance thereof with respect to any GMACM Mortgage Loans and
the Scheduled Principal Balance thereof with respect to any Countrywide Mortgage
Loans or Xxxxx Fargo Mortgage Loans as of the beginning of the related Due
Period for each Mortgage Loan and multiplied by a fraction having as its
numerator 30 days and as its denominator, the actual number of days in the Due
Period. With respect to REMIC I Regular Interest LT-RI-Countrywide and REMIC I
Regular Interest LT-RI-Xxxxx, a per annum rate equal to the excess of (a) 0.50%
over (b) the related Servicing Fee Rate.
"Uncertificated Regular Interests": The REMIC I Regular Interests
and the Retained Interest.
"Underwriter ": Xxxxxxx, Sachs & Co., in its capacity as Underwriter
under the Underwriting Agreement, dated as of August 25, 2003, between the
Depositor and the Underwriter.
"United States Person": A citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof (except, in the
case of a partnership, to the extent provided in regulations) provided that, for
purposes solely of the restrictions on
43
the transfer of any Class R Certificate, no partnership or other entity treated
as a partnership for United States federal income tax purposes shall be treated
as a United States Person unless all persons that own an interest in such
partnership either directly or through any entity that is not a corporation for
United States federal income tax purposes are required to be United States
Persons, or an estate whose income is subject to United States federal income
tax regardless of its source, or 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 United States persons have the authority to control all substantial
decisions of the trust. To the extent prescribed in regulations by the Secretary
of the Treasury, which have not yet been issued, a trust which was in existence
on August 20, 1996 (other than a trust treated as owned by the grantor under
subpart E of part I of subchapter J of chapter I of the Code), and which was
treated as a United States person on August 20, 1996 may elect to continue to be
treated as a United States person notwithstanding the previous sentence. The
term "United States" shall have the meaning set forth in Section 7701 of the
Code.
"Unpaid Interest Amount": As of any Distribution Date and with
respect to any Class of Certificates (other than the Class R Certificates or
Class X Certificates), the sum of (i) the amount, if any, by which (X) the sum
of (a) the Accrued Certificate Interest for such Class for such Distribution
Date plus (b) the Unpaid Interest Amount for such Class as of the immediately
preceding Distribution Date exceeds (Y) the amount paid to the
Certificateholders of such Class on such Distribution Date with respect to
interest and (ii) to the extent permitted by law, interest on the amount
determined pursuant to clause (i)(b) at the applicable Pass-Through Rate for the
number of days in the related Accrual Period.
"WAC Cap": As to any Distribution Date, the Adjusted WAC Rate.
"Weighted Average Net Rate": With respect to any Distribution Date,
the weighted average Net Rate of the Mortgage Loans as of the first day of the
immediately preceding calendar month.
"Xxxxx Fargo" Xxxxx Fargo Home Mortgage, Inc. as Servicer of the
Xxxxx Fargo Mortgage Loans.
"Xxxxx Fargo Agreement": Collectively, the Seller's Warranties and
Servicing Agreements between Xxxxxxx Xxxxx Mortgage Company and Xxxxx Fargo,
dated as of August 1, 2002, November 1, 2002 and February 1, 2003.
"Xxxxx Fargo Mortgage Loans": The Mortgage Loans included as part of
Schedule I-A hereto that are serviced by Xxxxx Fargo pursuant to the Xxxxx Fargo
Agreement.
1.02 USE OF WORDS AND PHRASES. The terms "herein," "hereby,"
"hereunder," "hereof," "hereinbefore," "hereinafter" and other equivalent words
refer to this Agreement as a whole and not solely to the particular section of
this
44
Agreement in which any such word is used. The definitions set forth in Section
1.01 include both the singular and the plural. Whenever used in this Agreement,
any pronoun shall be deemed to include both singular and plural and to cover all
genders.
1.03 CAPTIONS; TABLE OF CONTENTS.
The captions or headings in this Agreement and the Table of Contents
are for convenience only and in no way define, limit or describe the scope and
intent of any provisions of this Agreement.
1.04 OPINIONS.
Each opinion with respect to the validity, binding nature and
enforceability of documents or Certificates may be qualified to the extent that
the same may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity (whether considered in a
proceeding or action in equity or at law) and may state that no opinion is
expressed on the availability of the remedy of specific enforcement, injunctive
relief or any other equitable remedy. Any opinion required to be furnished by
any Person hereunder must be delivered by counsel upon whose opinion the
addressee of such opinion may reasonably rely, and such opinion may state that
it is given in reasonable reliance upon an opinion of another, a copy of which
must be attached, concerning the laws of a foreign jurisdiction.
1.05 ALLOCATION OF CERTAIN INTEREST SHORTFALLS.
For purposes of calculating the amount of Accrued Certificate
Interest for the Class A-1 Certificates, the Class M Certificates, the Class B
Certificates and the Class X Certificates for any Distribution Date, the
aggregate amount of any Compensating Interest Shortfalls and any Relief Act
Shortfalls incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated first, to the Class X Certificates based on, and to the
extent of, one month's interest at the then applicable respective Pass-Through
Rate and, thereafter, among the Class B-3 Certificates, Class B-2 Certificates,
the Class B-1 Certificates, the Class M-2 Certificates, the Class M-1
Certificates and the Class A-1 Certificates, on a pro rata basis, based on, and
to the extent of, one month's interest at the then applicable respective
Pass-Through Rate on the respective Certificate Balance of each such
Certificate.
For purposes of calculating the amount of Uncertificated
Accrued Interest for the REMIC II Regular Interests for any Distribution Date,
the aggregate amount of any Prepayment Interest Shortfalls and any Relief Act
Shortfalls incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated as provided in Section 7.07(b) hereof.
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ARTICLE II
ESTABLISHMENT AND ORGANIZATION OF THE TRUST
2.01 ESTABLISHMENT OF THE TRUST.
The parties hereto do hereby create and establish, pursuant to the
laws of the State of New York and this Agreement, the Trust, which, for
convenience, shall be known as "GSRPM Mortgage Loan Trust 2003-2."
2.02 OFFICE.
The office of the Trust shall be in care of the Trustee, at the
Corporate Trust Office, or at such other address as the Trustee may designate by
notice to the Depositor and the Servicers.
2.03 PURPOSES AND POWERS.
The purpose of the Trust is to engage in the following activities
and only such activities: (i) the issuance of the Certificates, the REMIC I
Regular Interests, the R-I Interest and the R-II Interests and the acquiring,
owning and holding of Mortgage Loans and the Trust Estate in connection
therewith; (ii) activities that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected therewith,
including the investment of moneys in accordance with this Agreement; and (iii)
such other activities as may be required in connection with conservation of the
Trust Estate and distributions to the Owners; provided, however, that nothing
contained herein shall permit the Trustee to take any action which would
adversely affect the status of any Trust REMIC as a REMIC.
2.04 APPOINTMENT OF THE TRUSTEE; DECLARATION OF TRUST.
The Depositor hereby appoints the Trustee, as trustee of the Trust
effective as of the Closing Date, to have all the rights, powers and duties set
forth herein. The Trustee hereby acknowledges and accepts such appointment,
represents and warrants its eligibility as of the Closing Date to serve as
trustee pursuant to Section 11.07 and declares that it will hold the Trust
Estate in trust upon and subject to the conditions set forth herein for the
benefit of the Owners.
2.05 EXPENSES OF THE TRUST.
Such expenses of the Trust as are authorized to be paid hereunder,
including (i) the Trustee Fee and (ii) all amounts owing to the Trustee on
account of reimbursement of unanticipated out-of-pocket expenses and any
indemnification owed to the Trustee (the amounts in this clause (ii), "Senior
Trustee Expenses") shall be paid out of the Certificate Account in the priority
set forth in Section 7.06(b)(i). The Trustee shall not be permitted to be
reimbursed for any third-party expenses, other than as set forth in the
preceding sentence, incurred by it for any custodial services required to be
performed by it hereunder.
2.06 OWNERSHIP OF THE TRUST.
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On the Closing Date, the ownership interests in the Trust shall be
transferred as set forth in Section 4.02, such transfer to be evidenced by sale
of the Certificates as described in Section 4.02. Thereafter, transfer of any
ownership interest shall be governed by Article V of this Agreement.
2.07 SITUS OF THE TRUST.
It is the intention of the parties hereto that the Trust constitute
a trust under the laws of the State of New York. The Trust will be created and
administered in, and all Accounts maintained by the Trustee on behalf of the
Trust will be located in, the State of New York. The Trust will not have any
employees and will not have any real or personal property (other than such real
or personal property acquired pursuant to Section 8.10) located in any state
other than in the State of New York and payments will be received by the Trustee
only in the State of New York and payments from the Trustee will be made only
from the State of New York.
2.08 THE MORTGAGE LOANS.
The Mortgage Loans acquired by the Trust on the Closing Date and
constituting a part of the Trust Estate shall be maintained by the Trustee.
2.09 THE CERTIFICATES.
Each Class of Certificates, other than the Class R Certificates,
will consist of a unit comprising a REMIC II Interest (which will be designated
as a regular interest).
2.10 INDEMNIFICATION WITH RESPECT TO CERTAIN TAXES AND LOSS OF REMIC
STATUS.
(a) In the event that either of REMIC I or REMIC II fails to qualify
as a REMIC, loses its status as a REMIC, or incurs state or local taxes, or a
tax as a result of a Prohibited Transaction or contribution subject to taxation
under the REMIC Provisions due to the willful misfeasance, bad faith or
negligent performance by the Trustee of its duties and obligations specifically
set forth herein, or by reason of the Trustee's reckless disregard of its
obligations and duties hereunder, the Trustee shall indemnify the Trust against
any and all losses, claims, damages, liabilities or expenses ("Losses")
resulting therefrom; provided, however, that the Trustee shall not be liable for
any such Losses or portion thereof attributable to the action or inaction of any
relevant Servicer, the Depositor, or the Holders of the Residual Certificates
nor for any such Losses or portion thereof resulting from misinformation
provided by the Holders of the Residual Certificates, any relevant Servicer, or
the Depositor, on which the Trustee has relied. The foregoing shall not be
deemed to limit or restrict the rights and remedies of successor Holders of the
Residual Certificates at law or in equity.
(b) In the event that either of REMIC I or REMIC II fails to qualify
as a REMIC, loses its status as a REMIC, or incurs state or local taxes, or a
tax as a result of a prohibited transaction or contribution subject to taxation
under the REMIC Provisions
47
due to the willful misfeasance, bad faith or negligent performance of the
relevant Servicer in the performance of its duties and obligations set forth
herein, or by reason of such Servicer's reckless disregard of its obligations
and duties thereunder, such Servicer shall indemnify the Trust against any and
all Losses resulting therefrom; provided, however, that such Servicer shall not
be liable for any such Losses attributable to the action or inaction of the
Trustee, any other Servicer, the Depositor, the Holder of the Residual
Certificates nor for any such Losses resulting from misinformation provided by
the Trustee, any other Servicer, the Depositor or the Holder of the Residual
Certificates on which such Servicer reasonably has relied, nor any Losses
occurring if the portion of the Trust portfolio serviced by such Servicer, if
considered without regard to the remaining Mortgage Loans or REO Properties in
the Trust, would not cause any of the events set forth above that cause Losses.
The foregoing shall not be deemed to limit or restrict the rights and remedies
of any successor Holder of the Residual Certificates at law or in equity.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE DEPOSITOR
AND THE SERVICERS; REMEDIES UPON BREACHES
3.01 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
The Depositor hereby represents, warrants and covenants to the
Trustee, the Servicers and the Owners that as of the Closing Date:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the law of the State of Delaware. The Depositor
has the power and authority to execute, deliver and perform its
obligations under this Agreement and to enter into the transactions
contemplated hereby under the laws of the State of Delaware.
(b) The execution and delivery by the Depositor of this Agreement
and the other Operative Documents to which it is a party and the
performance and compliance with the terms hereof and thereof by the
Depositor have been duly authorized by all required action on the part of
the Depositor and will not violate the Depositor's constitutive documents
or constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in a breach of, any
material contract, agreement or other instrument to which the Depositor is
a party or by which the Depositor is bound or violate any statute or any
order, rule or regulation of any court, governmental agency or body or
other tribunal having jurisdiction over the Depositor or any of its
properties.
(c) This Agreement and the other Operative Documents to which the
Depositor is a party, assuming due authorization, execution and delivery
by the
48
other parties hereto and thereto, each constitutes a valid, legal and
binding obligation of the Depositor, enforceable against it in accordance
with the terms hereof and thereof, except as the enforcement thereof may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
by general principles of equity (whether considered in a proceeding or
action in equity or at law).
(d) 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, which default would materially
and adversely affect the condition (financial or other) or operations of
the Depositor or its properties or the consequences of which would
materially and adversely affect its performance hereunder or under the
other Operative Documents to which the Depositor is a party.
(e) No litigation is pending with respect to which the Depositor has
received service of process or, to the best of the Depositor's knowledge,
threatened against the Depositor which litigation might have consequences
that would prohibit its entering into this Agreement or any other
Operative Documents to which it is a party or that would materially and
adversely affect the condition (financial or otherwise) or operations of
the Depositor or its properties or might have consequences that would
materially and adversely affect its performance hereunder and under the
other Operative Documents to which the Depositor is a party.
(f) No certificate of an officer, statement furnished in writing or
report delivered pursuant to the terms hereof by the Depositor contains
any untrue statement of a material fact or omits to state any material
fact necessary to make the certificate, statement or report not
misleading.
(g) All actions, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights and
licenses required to be taken, given or obtained, as the case may be, by
or from any federal, state or other governmental authority or agency
(other than any such actions, approvals, etc. under any state securities
laws, real estate syndication or "Blue Sky" statutes, as to which the
Depositor makes no such representation or warranty), that are necessary or
advisable in connection with the purchase and sale of the Certificates and
the execution and delivery by the Depositor of the Operative Documents to
which it is a party, have been duly taken, given or obtained, as the case
may be, are in full force and effect on the date hereof, are not subject
to any pending proceedings or appeals (administrative, judicial or
otherwise) and either the time within which any appeal therefrom may be
taken or review thereof may be obtained has expired or no review thereof
may be obtained or appeal therefrom taken, and are adequate to authorize
the consummation of the transactions contemplated by this Agreement and
the other Operative Documents on the part
49
of the Depositor and the performance by the Depositor of its obligations
under this Agreement and such of the other Operative Documents to which it
is a party.
(h) Immediately prior to the sale, assignment, transfer and
conveyance described in Section 3.04(a)(i), the Depositor will hold good
title to, and be the sole owner of, the Mortgage Loans referred to therein
free and clear of any liens, charges, mortgages, encumbrances or rights of
others (other than liens which will be simultaneously released).
(i) The Depositor has valid business reasons for entering into the
transactions contemplated by this Agreement (including, without
limitation, the sale of its interests in the Mortgage Loans and other
assets in the Trust Estate to the Trustee).
(j) The Depositor is not insolvent, nor will it be made insolvent by
the transfer of the Mortgage Loans and other assets in the Trust Estate,
nor is the Depositor aware of any pending insolvency.
(k) The sale, assignment, transfer and conveyance of the Mortgage
Notes and the Mortgages by the Depositor hereunder are not subject to the
bulk transfer laws or any similar statutory provisions in effect in any
applicable jurisdiction.
(l) The Depositor is not transferring the Mortgage Loans and other
assets in the Trust Estate to the Trustee with any intent to hinder, delay
or defraud its creditors.
(m) The Depositor received fair consideration and reasonably
equivalent value in exchange for the sale, assignment, transfer and
conveyance of its interests in the Mortgage Loans and other assets in the
Trust Estate to the Trustee.
It is understood and agreed that the representations and warranties
set forth in this Section 3.01 shall survive delivery of the respective Mortgage
Loans to the Trustee.
3.02 REPRESENTATIONS AND WARRANTIES OF GMACM.
GMACM hereby represents, warrants and covenants to the Trustee, the
Depositor and the Owners that as of the Closing Date:
(i) GMACM is a corporation duly organized, validly existing, and in
good standing under the laws of the Commonwealth of Pennsylvania and is in
compliance with the laws of each state in which any Mortgaged Property
related to a GMACM Mortgage Loan is located to the extent necessary, in
its role as a Servicer, to perform its obligations hereunder.
(ii) Neither the execution and delivery by GMACM of this Agreement,
nor the
50
consummation by it of the transactions contemplated hereby, nor the
performance of and compliance by GMACM with the provisions hereof, will
conflict with or result in a breach or violation of, or constitute a
default (or an event which, with notice or the lapse of time, or both,
would constitute a default) under, the organizational documents (its
charter and by-laws) of GMACM, or any of the provisions of any Law binding
on GMACM, or any of its properties, or any of the provisions of any
indenture, mortgage, contract, instrument, or other document to which
GMACM is a party or by which it is bound, or result in the creation or
imposition of any lien, charge, or encumbrance upon any of its respective
properties pursuant to the terms of any indenture, mortgage, contract,
instrument, or other document. GMACM is not otherwise in violation of any
Law, which violation, in GMACM's good faith and reasonable judgment, is
likely to affect materially and adversely either its ability to perform
its obligations hereunder, or the financial condition of GMACM.
(iii) The execution and delivery by GMACM of this Agreement, the
consummation of the transactions contemplated hereby, and the performance
and compliance by GMACM with the terms hereof are within the powers of
GMACM, and have been duly authorized by all necessary action on the part
of GMACM. This Agreement has been duly executed and delivered by GMACM
and, upon the due execution, authorization and delivery by the other
parties hereto, constitutes the legal, valid and binding obligation of
GMACM, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium, and other
similar laws affecting creditors' rights generally, and to general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law. GMACM has obtained all consents,
approvals, authorizations, or orders, and made all registrations or
qualifications with, any court or regulatory authority or other
governmental body having jurisdiction over GMACM, which consent, approval,
authorization, order, registration, or qualification is required for, and
the absence of which would materially and adversely affect, the legal and
valid execution, delivery, and performance of this Agreement by GMACM.
(iv) GMACM possesses such certificates, authorizations, licenses,
and permits issued by the appropriate state, federal, and foreign
regulatory agencies or bodies necessary to conduct the business now
operated by it, except to the extent that the failure of GMACM to possess
any such certificate, authorization, license or permit would not have a
material adverse effect on the ability of GMACM to perform its obligations
hereunder.
(v) No litigation is pending or, to the best of GMACM's knowledge,
threatened against it, which, if determined adversely to GMACM would
prohibit GMACM from entering into this Agreement or, in the good faith and
reasonable judgment of GMACM, is likely to materially and adversely affect
either its ability to perform its obligations hereunder or the financial
condition of GMACM. GMACM has no knowledge of any recent adverse financial
condition or event
51
with respect to itself that, in its good faith and reasonable judgment, is
likely to materially and adversely affect its ability to perform its
obligations hereunder.
(vi) Each officer, director, employee, consultant and advisor of
GMACM with responsibilities concerning the servicing and administration of
the GMACM Mortgage Loans is covered by errors and omissions insurance and
fidelity bond insurance in the amounts and with coverage consistent with
Accepted Servicing Practices.
(vii) GMACM is an entity that engages in the business of
originating, acquiring or servicing mortgage loans, and is authorized to
transact business in the state or states where the related mortgaged
properties it is to service are situated and is a Xxxxxx Xxx-approved
mortgage seller-servicer and/or a Xxxxxxx Mac-approved mortgage servicer.
In addition, GMACM will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the GMACM Mortgage Loans or this Agreement, and to
perform its duties hereunder. GMACM meets the equity and other eligibility
requirements consistent with Accepted Servicing Practices.
It is understood and agreed that the representations and warranties
set forth in this Section 3.02 shall survive delivery of the Mortgage Loans to
the Trustee.
Upon discovery by any of GMACM, the Depositor, any Owner, or the
Trustee (each, for purposes of this paragraph, a party) of a breach of any of
the representations and warranties set forth in this Section 3.02 which
materially and adversely affects the interests of the Owners, the party
discovering such breach shall give prompt written notice to the other parties.
Within ninety (90) days of its discovery or its receipt of notice of breach,
which ever is earlier, GMACM shall cure such breach in all material respects
and, upon such Servicer's continued failure to cure such breach, may thereafter
be removed by the Trustee pursuant to Section 8.17.
3.03 REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES BY THE
DEPOSITOR, SELLER OR AN ORIGINAL SELLER.
(a) Breach by Depositor. Upon discovery by any of the Depositor, any
Servicer, any Owner or the Trustee (each, for purposes of this paragraph,
a "party") of a breach of any of the representations and warranties set
forth in Section 3.01 or any of the representations and warranties made by
the Depositor pursuant to Section 4 of the Sale and Warranties Agreement,
which materially and adversely affects the interests of the Owners, the
party discovering such breach shall give prompt written notice to the
other parties. Within ninety (90) days of its discovery or its respective
receipt of notice of breach the Trustee shall exercise all rights it has
under this Agreement, and, to the extent such breach also constitutes a
breach of any of the representations and warranties set forth in Section 4
of the Sale and Warranties Agreement or any covenant set forth therein,
the Trustee shall exercise all rights it would otherwise have available
against
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Xxxxxxx Xxxxx Mortgage Company under Section 5(b) and 5(c) of the Sale and
Warranties Agreement against the Depositor as if set forth under this
Section 3.03 with respect to the Depositor.
(b) Breach by the Seller or Original Seller. Upon discovery by any
of the Depositor, any Servicer, any Owner or the Trustee (each, for
purposes of this paragraph, a "party") of a breach by the Seller of any of
the representations, warranties or covenants set forth in the Sale and
Warranties Agreement or of a breach by an Original Seller of any of the
representations, warranties or covenants set forth in any Assignment
Agreement or any Sale Agreement, which materially and adversely affects
the interests of the Owners, the party discovering such breach shall give
prompt written notice to the other parties. The Trustee, as assignee of
all of the rights and interest of the Depositor in the Sale and Warranties
Agreement and each Sale Agreement, shall take such action as shall be
necessary to collect Indemnity Proceeds from the Seller or the applicable
Original Seller, and to enforce and prosecute any and all other rights of
the Depositor and its assignees under the Sale and Warranties Agreement or
the Sale Agreement, as applicable, which rights shall include causing the
Seller or applicable Original Seller, as applicable, to repurchase the
relevant Mortgage Loans in accordance with the terms of the Sale and
Warranties Agreement or applicable Sale Agreement, as applicable, and
remit the Loan Purchase Price to the relevant Servicer for deposit in the
related Collection Account, and (2) the Majority Class X
Certificateholder, at its sole discretion, may on the next succeeding
Remittance Date purchase such Mortgage Loan from the Trust at the Loan
Purchase Price, which purchase price shall be delivered to the relevant
Servicer for deposit in the applicable Collection Account. However, any
such purchase at the option of the Majority Class X Certificateholder must
occur within 90 days of the date of the Trustee's notice of the defect if
the defect would prevent the Mortgage Loan from being a Qualified
Mortgage, and no purchase of a Mortgage Loan that is not in default or for
which no default is imminent shall be made unless the Majority Class X
Certificateholder obtains for the Trustee a written opinion of independent
counsel to the effect that such contemplated action is in compliance with
the provisions of the Code relating to REMICs, is not a "prohibited
transaction" within the meaning of Code Section 860F(a)(2) and will not
prevent either Trust REMIC from qualifying as a REMIC addressed to and
acceptable to the Trustee. In the event the Class X Certificateholder
purchases a Mortgage Loan pursuant to the second preceding sentence, it
shall be subrogated to the rights of the Trust against the applicable
Seller in respect of the applicable breach of representation or warranty,
other than rights to receive Indemnity Proceeds in respect of damages
incurred by the Trust during the period when the Trust held the Mortgage
Loan, which rights shall specifically be retained by the Trust. The
Trustee shall execute and deliver to the Majority Class X
Certificateholder such instruments delivered to the Trustee for execution
as it may reasonably request in order to further the purposes of the
preceding sentence.
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(c) In the event that any action taken by the Depositor pursuant to
paragraph (a) or (b) above results in a Prohibited Transaction tax, the
Trustee shall immediately notify the Depositor in writing thereof and the
Depositor will, within 10 days of receiving notice thereof from the
Trustee, deposit the amount due from the Trust with respect to such tax
with the Trustee for the payment thereof, including any interest and
penalties, in immediately available funds.
(d) Without limiting its obligation to enforce each Sale Agreement
in accordance with their respective terms, the Trustee shall have no duty
to conduct any affirmative investigation other than as specifically set
forth in this Agreement as to the occurrence of any condition permitting
the repurchase of any Mortgage Loan by the Depositor pursuant to this
Article III or the eligibility of any Mortgage Loan for the purpose of
this Agreement.
3.04 CONVEYANCE OF THE MORTGAGE LOANS.
(a) (i) On the Closing Date, pursuant to the "CONVEYANCE" clause on
the first page hereof, the Depositor, concurrently with the execution and
delivery hereof, hereby sells, transfers, assigns, sets over and otherwise
conveys to the Trustee on behalf of the Trust, without recourse (except as
otherwise provided herein), all of its right, title and interest of every kind
and nature whatsoever, whether now owned and existing or hereafter acquired or
arising, in and to property constituting the Trust Estate. The transfer by the
Depositor of the Mortgage Loans set forth on the Schedule of Mortgage Loans and
the other assets in the Trust Estate to the Trustee is absolute and is intended
by the Owners and all parties hereto to be treated as a sale by the Depositor
for all purposes (including tax, reporting and accounting purposes).
(ii) It is the express intent of the parties that the transfer and
conveyance of the Trust Estate constitute a sale of the Mortgage Loans and
other assets in the Trust Estate conveying good title thereto free and
clear of any liens and encumbrances from the Depositor to the Trustee on
behalf of the Trust and that the Mortgage Loans and other assets in the
Trust Estate not be part of the Depositor's estate in the event of
bankruptcy or insolvency or otherwise. However, in the event and to the
extent that, notwithstanding the intent of the parties hereto, any or all
of the Mortgage Loans and other assets in the Trust Estate conveyed by the
Depositor to the Trustee on behalf of the Trust hereunder are held or
otherwise determined to have been property of the Depositor or not to have
been conveyed to the Trustee in an absolute sale, then (i) this Agreement
shall also be deemed to be, and hereby constitutes, a security agreement
within the meaning of Article 9 of the UCC; (ii) the conveyance hereunder
by the Depositor of the Mortgage Loans set forth on the Schedule of
Mortgage Loans and the other assets in the Trust Estate shall be deemed to
be, and hereby constitutes, a grant by the Depositor to the Trustee of a
first priority security interest in all of the Depositor's right, title
and interest in and to such Mortgage Loans and other assets; (iii) the
possession by the Trustee or any of its bailees or agents of items of
property that constitute goods, instruments, money, negotiable
54
documents or chattel paper shall be deemed to be "possession by the
secured party" for purposes of perfecting the security interest pursuant
to Section 9-305 of the UCC; (iv) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons
holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of
perfecting such security interest under applicable law; and (v) the
obligations secured by the first priority security interest described in
clause (ii) above shall be deemed to include any and all obligations of
the Depositor to the Trustee and any and all obligations of the Trustee to
the Owners and other Persons pursuant to this Agreement and the other
Operative Documents, including any obligation to remit the principal of
and interest on the Certificates to the Owners as and when due and any
obligation to distribute or remit any other fees, costs, expenses and
other amounts required to be distributed or paid under this Agreement or
any of the other Operative Documents. Any assignment or other transfer of
the rights of the Trustee under any provision hereof shall also be deemed
to be an assignment of any security interest created hereby. The Depositor
covenants that, to the extent consistent with this Agreement, it will take
such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first
priority under applicable law and would be maintained as such throughout
the terms of this Agreement and the other Operative Documents. The
Depositor also covenants not to pledge, assign or grant a security
interest in any of the Mortgage Loans to any third party.
(b) In connection with the transfer and assignment of the Mortgage
Loans, the Depositor agrees to deliver, or cause to be delivered, without
recourse to the Custodian on the Closing Date with respect to each such Mortgage
Loan:
(i) The original Mortgage Note endorsed, "Pay to the order of [ ]
without recourse" and signed in the name of the last endorsee by an
authorized officer; or in the case of a missing Mortgage Note, a Lost Note
Affidavit in blank together with a true and correct copy of the original
Mortgage Note. The Mortgage Note shall include all intervening original
endorsements showing a complete chain of title from the originator to the
last endorsee;
(ii) To the extent executed in connection with the related Mortgage
Loan, an original power of attorney, or photocopy thereof certified by a
Governmental Authority with evidence of recording noted thereon if
recordation is required to maintain the lien of the Mortgage or if the
document to which such power of attorney relates is required to be
recorded, or if recordation is not so required, the original, a certified
photocopy or a photocopy of such certified photocopy of any such power of
attorney;
(iii) To the extent executed in connection with the related Mortgage
Loan, the original or a photocopy of any personal endorsement or guaranty
agreement;
55
(iv) The original or a photocopy of the original recorded Mortgage
(together with a standard adjustable rate mortgage rider, if the Mortgage
Loan is an Adjustable Rate Mortgage Loan), with evidence of recording
thereon; provided, however, if the original recorded Mortgage is not
available because it has been delivered to the applicable recording
office, the Depositor shall deliver a legible photocopy of the Mortgage
pending recording, certified by the Seller, in lieu of the original
recorded Mortgage, and evidence of recording shall be provided in case of
any and all original Mortgages or photocopies thereof certified by the
Seller; provided, further, if the original Mortgage is available but has
not been recorded, the Seller shall deliver a legible photocopy of the
original Mortgage, certified by the Seller as a true and correct copy of
the original Mortgage (or a photocopy of such certified copy), and shall
promptly record such Mortgage in the applicable recording office at the
expense of the Depositor;
(v) Except with respect to each MERS Designated Mortgage Loan, the
original executed assignment of each Mortgage from the Seller, in blank,
which assignment shall be in form and substance acceptable for recording.
In the event that the Mortgage Loan was acquired by the Seller in a merger
or in the event that the Mortgage Loan was acquired or originated by the
Seller while doing business under another name, the assignment must be by
"[Seller Name], successor in interest to [name of originator or other
entity to which the Mortgage has been assigned]" or "[Seller Name],
successor in interest to [name of originator or other entity to which the
Mortgage Note was endorsed]", as the case may be;
(vi) The original policy of title insurance or a copy thereof, if
any (or a preliminary title report, binder or other material described on
Exhibit B or Exhibit B-1, as applicable, of the relevant Sale Agreement if
the original title insurance policy has not been received from the title
insurance company);
(vii) Originals of any intervening assignments of the Mortgage, with
evidence of recording thereon, necessary to show a complete chain of title
from the original mortgagee to the Seller (or MERS with respect to each
MERS Designated Mortgage Loan); provided, however, if the original
recorded assignments of the Mortgage are not available because they have
been delivered to the applicable recording office, the Depositor may
deliver a legible photocopy of the assignments of the Mortgage pending
recording, certified by the Seller (or a photocopy of such certified
copy), in lieu of the original recorded assignment of the Mortgage, and
evidence of recording shall be provided in case of any and all original
assignments of the Mortgage or photocopies thereof certified by the
Seller; provided, further, if the original assignments of the Mortgage are
available but have not been recorded, the Seller shall deliver a legible
photocopy thereof, certified by the Seller as a true and correct copy of
the original assignments of the Mortgage (or a photocopy of such certified
copy), and shall promptly record such assignments in the applicable
recording office at its expense; and
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(viii) Originals of all assumption, modification and substitution
agreements, if any, or certified copies thereof (or a photocopy containing
the same), in either case with evidence of recording noted thereon if
recordation is required to maintain the lien of the Mortgage or is
otherwise required by applicable Law.
(c) The parties acknowledge and agree that, after the
transfers described in subsections (a)(i) and (a)(ii) of this Section 3.04,
ownership of the entire Trust Estate (including all of the Mortgage Loans and
other assets included therein) shall be vested solely and exclusively in the
Trustee on behalf of the Trust. Accordingly, the Depositor hereby agrees that it
shall take no action inconsistent with the Trustee's ownership, on behalf of the
Trust, of the Trust Estate and shall indicate or shall cause to be indicated in
its books and records (including any books and records held on its behalf) that
ownership of the Trust Estate (including all of the Mortgage Loans and other
assets included therein) is held by the Trustee on behalf of the Trust. In
addition, the Depositor hereby agrees that it shall respond to any inquiries
from third parties with respect to ownership of such assets by stating that it
is not the owner of such assets and that ownership of such assets is held by the
Trustee on behalf of the Trust.
(d) If any Mortgage has been recorded in the name of MERS, no
assignment of Mortgage in favor of the Trustee will be required to be prepared
or delivered and instead, the applicable Servicer shall take all reasonable
actions as are necessary at the expense of the Depositor to cause the Trust to
be shown as the owner of the related Mortgage Loan on the records of MERS for
the purpose of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS.
3.05 ACCEPTANCE BY TRUSTEE; CERTIFICATION BY TRUSTEE.
By the Closing Date, the Custodian shall review all documents
delivered to it in accordance with the provisions hereof, and shall deliver to
the Depositor, the Trustee and the Servicers an initial custodial certification
(the "Initial Certification") in the form attached as Exhibit B hereto. The
Custodian shall have examined each of the documents or copies thereof presented
to the Custodian in each Custodial File pursuant to this Agreement. Based upon
such review, the Custodian shall determine with respect to each Custodial File
whether: (i) all documents purporting to be those instruments described in
Section 3.04(b)(i) though (viii) or Section 3.04(c) and the related reference to
the Mortgage Loan in the Schedule of Mortgage Loans (and which are determinable
from an examination of the documents or copies thereof in the Custodial File)
are in its possession; (ii) such instruments have been reviewed by the Custodian
and appear regular on their face and are related to the Mortgage Loan
referenced; and (iii) based on its examination of the Mortgage Note, the
Mortgage and the information set forth in the Schedule of Mortgage Loans
respecting such Mortgage Loan accurately reflects the information set forth in
the documents contained in the Custodial File declares that it will hold such
documents and any amendments, replacement or supplements thereto, as well as any
other assets included in the definitions of Trust Estate and delivered to the
Custodian on behalf of the Trustee, as Trustee in trust upon and subject to the
conditions
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set forth herein for the benefit of the Owners. The Trustee agrees, for the
benefit of the Owners, to review or cause the Custodian to review such items
within ninety (90) days after the Closing Date (or, with respect to any document
delivered after the Closing Date, within ninety (90) days of receipt and cause
the Custodian to deliver to the Depositor and the applicable Servicer a
certification (an "Interim Certification") to the effect that, as to each
Mortgage Loan listed in the Schedule of Mortgage Loans (other than any Mortgage
Loan paid in full or any Mortgage Loan specifically identified in such Interim
Certification as not covered by such Interim Certification), (i) all documents
or copies or images required to be delivered to it pursuant to Section
3.04(b)(i) and each original Contract are in its possession, (ii) such documents
have been reviewed by it and have not been mutilated, damaged or torn and relate
to such Mortgage Loan and (iii) based on its examination and only as to the
foregoing documents, the information set forth on the Schedule of Mortgage Loans
accurately reflects the information set forth in the Custodial File. Neither the
Trustee nor the Custodian shall have any responsibility for reviewing any
Custodial File except as expressly provided in this Section 3.05(a). Without
limiting the effect of the preceding sentence, in reviewing any Custodial File,
neither the Trustee nor the Custodian shall have any responsibility for
determining whether any document is valid and binding, whether the text of any
assignment is in proper form (except to determine if the Trustee is the
assignee), whether any document has been recorded in accordance with the
requirements of any applicable jurisdiction or whether a blanket assignment is
permitted in any applicable jurisdiction, but shall only be required to
determine whether a document has been executed, that it appears to be what it
purports to be, and, where applicable, that it purports to be recorded. Neither
the Trustee nor the Custodian shall be under any duty or obligation to inspect,
review or examine any such documents, instruments, certificates or other papers
to determine that they are genuine, enforceable, or appropriate for the
represented purpose or that they are other than what they purport to be on their
face, nor shall the Trustee be under any duty to determine independently whether
there are any intervening assignments or assumption or modification agreements
with respect to any Mortgage Loan.
If the Custodian during such ninety (90) day period finds any
document constituting a part of a Custodial File which is not executed, has not
been received, or is unrelated to the Mortgage Loans identified in the Schedule
of Mortgage Loans, or that any Mortgage Loan does not conform to the description
thereof as set forth in the Schedule of Mortgage Loans, the Custodian shall be
required to promptly so notify the Trustee, the Depositor, the applicable
Servicer and the related Seller. In performing any such review, the Custodian
may conclusively rely as to the purported genuineness of any such document and
any signature thereon. It is understood that the scope of the Custodian's review
of the items delivered, or caused to be delivered, by the Depositor pursuant to
Section 3.04(b) and (c) is limited solely to confirming that the documents
listed in Section 3.04(b) and (c) have been executed and received, relate to the
Custodial Files identified in the Schedule of Mortgage Loans and conform to the
description thereof in the Schedule of Mortgage Loans. The Trustee shall enforce
the relevant provisions of the Sale and Warranties and applicable Sale Agreement
against the Seller or the related Original Seller, as applicable, in order to
remedy a material defect in a document constituting part of a Custodial File
delivered, or caused to be delivered, by the Depositor
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of which it is so notified. If, however, within ninety (90) days after the
Trustee's notice to it respecting such defect the applicable Seller or the
Depositor (depending on the Mortgage Loan to which such defect relates) has not
remedied the defect and the defect materially and adversely affects the interest
of the Owners in the related Mortgage Loan either (i) the Trustee shall enforce
and prosecute all of the rights of the Depositor under the related Sale
Agreement against the Original Seller or of the Depositor under the Sale and
Warranties Agreement against the Seller, as the case may be, and (ii) the
Majority Class X Certificateholder may, at its sole discretion, on the next
succeeding Remittance Date purchase such Mortgage Loan as set forth in Section
3.03(b).
In addition to the foregoing, the Trustee also agrees to cause the
Custodian to make a review during the six-month period after the Closing Date
and deliver to the Depositor, the applicable Servicer and the Trustee indicating
the current status of the exceptions previously indicated on the Initial
Certification (the "Final Certification"). After delivery of the Final
Certification, the Trustee (and the applicable Servicer, to the extent required
by Section 8.03(c)) shall cause the Custodian to monitor and upon request from
the Depositor provide no less frequently than monthly, updated certifications
indicating the then current status of exceptions, until all such exceptions have
been eliminated.
3.06 NONQUALIFIED MORTGAGE LOAN In the event that the Trustee
discovers that a Mortgage Loan is not a qualified Mortgage within the meaning of
the REMIC Provisions on the Closing Date, and such defect is not cured prior to
the 75th day following the discovery or receipt of notice of such failure to
qualify, GMACM, on behalf of the Trustee shall use reasonable efforts to cause
such Mortgage Loan if it is a GMACM Mortgage Loan, to be sold or otherwise
removed from the Trust on or prior to the 90th day after its initial discovery
or receipt of notice of such situation.
ARTICLE IV
ISSUANCE AND SALE OF CERTIFICATES
4.01 ISSUANCE OF CERTIFICATES.
On the Closing Date, upon the Trustee's receipt from the Depositor
of an executed authentication and delivery order, the Trustee shall execute,
authenticate and deliver the Certificates on behalf of the Trust.
4.02 SALE OF CERTIFICATES.
At 11:00 a.m. New York City time on the Closing Date (the
"Closing"), at the offices of Xxxxxxx Xxxxxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (or at such other location acceptable to the Depositor),
the Depositor will sell and convey the Mortgage Loans and the money, instruments
and other property related thereto described in Section 3.04(a)(i) to the
Trustee, and the Trustee will deliver (i) to
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the Underwriter, the Class A-1 Certificates, the Class M Certificates and the
Class B Certificates with an aggregate Percentage Interest in each Class equal
to 100%, registered in the name of Cede & Co., or in such other names as the
Underwriter shall direct, against payment of the purchase price thereof by wire
transfer of immediately available funds to the Depositor, (ii) to the
Underwriter, the Class X Certificates with a Percentage Interest equal to 100%
and (iii) to the Underwriter, the Class R Certificates with a Percentage
Interest equal to 99.99%. The Trustee shall retain a Class R Certificate
evidencing a 0.01% Percentage Interest.
ARTICLE V
THE CERTIFICATES
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 Section 2.10 of this Agreement.
The Depositor hereby directs the Trustee to register the Class X
Certificates and the Class R Certificate evidencing a 100% Percentage Interest
in the name of the Underwriter.
Subject to Section 10.04 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 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 countersignature 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 countersigned by the Trustee by manual signature, and
such countersignature upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
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hereunder. All Certificates shall be dated the date of their countersignature.
On the Closing Date, the Trustee shall countersign 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.
5.02 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 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 the Registrar or the
Trustee 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. In the
event that a transfer of a Private Certificate which is a Private Certificate is
to be made in reliance upon an exemption from the
61
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 addressed to the Trustee 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 Private 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 Servicers
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 Servicers 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.
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 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 nor
a person acting on behalf of any such plan or arrangement nor using the assets
of any such plan or arrangement to effect such transfer, (ii) in the case of an
ERISA-Restricted Certificate other than a Residual Certificate or a Class X
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
conditions of Sections I and III of PTCE 95-60 have been satisfied or (iii) in
the case of any such ERISA-Restricted Certificate other than a
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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 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 Servicers or the Trust
Fund, addressed to the Trustee, to the effect that the purchase or holding of
such ERISA-Restricted Certificate are permissable under applicable law will not
result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the prohibited transaction provisions of ERISA and the Code or
similar violation of Similar Law and will not subject the Trustee or the
Servicers to any obligation in addition to those expressly undertaken in this
Agreement or to any liability. For purposes of the preceding sentence, with
respect to an ERISA-Restricted Certificate that is not a Private Certificate or
a Residual Certificate, in the event the representation letter referred to in
the preceding sentence is not furnished, such representation shall be deemed to
have been made to the Trustee by the transferee's (including an initial
acquirer's) acceptance of the ERISA-Restricted Certificates. In the event that
such representation is violated, or any attempt to transfer to a plan or
arrangement subject to Section 406 of ERISA, a plan subject to Section 4975 of
the Code or a plan subject to Similar Law, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement,
without such Opinion of Counsel, such attempted transfer or acquisition shall be
void and of no effect and the purported beneficial owner shall indemnify and
hold harmless the Depositor, the Trustee, the Servicers and the Trust from and
against any and all liabilities, claims, costs or expenses incurred by the
parties as a result of that acquisition or holding.
The Class R Certificates may not be sold to any employee benefit
plan subject to Title I of ERISA, any plan subject to Section 4975 of the Code,
or any plan subject to any Similar Law or any person investing on behalf of or
with plan assets of such plan.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Trustee shall be under no liability to any Person for
any registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
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(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.
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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 addressed to
the Trustee, 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 either REMIC I or REMIC II 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 addressed to the Trustee and 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 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 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 Owners.
All transfers by Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Owner. Each Depository Participant shall only
transfer Book-Entry Certificates of 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
65
as Depository, and (ii) the Depositor is unable to locate a qualified successor,
or (y) the Depositor at its option advises the Trustee in writing that it elects
to terminate the book-entry system through the Depository, the Trustee shall
notify all Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully-registered Certificates (the
"Definitive Certificates") to Owners requesting the same. Upon surrender to the
Trustee of the related Class of Certificates by the Depository, accompanied by
the instructions from the Depository for registration, the Trustee shall issue
the Definitive Certificates. Neither the Servicers, the Depositor nor the
Trustee shall be liable for any delay in delivery of such instruction and each
may conclusively rely on, and shall be protected in relying on, such
instructions. The Depositor shall provide the Trustee with an adequate inventory
of Certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Trustee shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
5.03 MUTILIATED, 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
Servicers 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.
5.04 PERSONS DEEMED OWNERS.
The Servicers, the Trustee, the Depositor and any agent of the
Servicers, the Depositor or the Trustee may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions as provided in this Agreement and for all other purposes
whatsoever, and neither the Servicers, the Trustee, the Depositor nor any agent
of the Servicers, the Depositor or the Trustee shall be affected by any notice
to the contrary.
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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 any 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.
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 Dallas, Texas where Certificates
may be surrendered for registration of transfer or exchange. The Trustee
initially designates its office located at 0000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx,
Xxxxx 00000 for such purposes. The Trustee will give prompt written notice to
the Certificateholders of any change in such location of any such office or
agency.
ARTICLE VI
COVENANTS
6.01 DISTRIBUTIONS.
On each Distribution Date, the Trustee shall withdraw amounts from
the Certificate Account and make the distributions with respect to the
Certificates in accordance with the terms of the Certificates and this
Agreement. Such distributions shall be made (i) by check or draft mailed or wire
transfer on each Distribution Date or (ii) if requested by any Owner of (A) a
Certificate having an initial Certificate Balance of not less than $1,000,000 or
(B) a Class X Certificate or Residual Certificate having a Percentage Interest
of Certificate of not less than 10% in writing not later than one Business Day
prior to the applicable Record Date (which request does not have to be repeated
unless it has been withdrawn), to such Owner by wire transfer to an account
within the United States designated no later than five Business Days prior to
the related Record Date, made on each Distribution Date, in each case to each
Owner of record on the immediately preceding Record Date.
6.02 MONEY FOR DISTRIBUTIONS TO BE HELD IN TRUST; WITHHOLDING.
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(a) All payments of amounts due and payable with respect to any
Certificate that are to be made from amounts withdrawn from the Certificate
Account shall be made by and on behalf of the Trustee, and no amounts shall be
withdrawn from the Certificate Account for payments of Certificates except as
provided in this Section 6.02.
(b) Whenever the Depositor has appointed one or more Paying Agents
pursuant to Section 12.15, the Trustee will, on the Business Day immediately
preceding each Distribution Date, deposit with such Paying Agents in immediately
available funds an aggregate sum sufficient to pay the amounts then becoming due
(to the extent funds are then available for such purpose in the Certificate
Account for the Class to which such amounts are due), such sum to be held in
trust for the benefit of the Owners entitled thereto.
(c) The Depositor may at any time direct any Paying Agent to pay to
the Trustee all sums held in trust by such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
(d) The Depositor shall require each Paying Agent, including the
Trustee on behalf of the Trust, to comply with all requirements of the Code and
applicable state and local law with respect to the withholding from any
distributions made by it to any Owner of any applicable withholding taxes
imposed thereon and with respect to any applicable reporting requirements in
connection therewith.
(e) Any money held by the Trustee or any Paying Agent in trust for
the payment of any amount due with respect to any Certificate and remaining
unclaimed by the Owner of such Certificate for the period then specified in the
escheat laws of the State of New York after such amount has become due and
payable shall be discharged from such trust and be paid to the Owners of the
Class R Certificates; and the Owner of such Certificate shall thereafter, as an
unsecured general creditor, look only to the Owners of the Class R Certificates
for payment thereof (but only to the extent of the amounts so paid to the Owners
of the Class R Certificates) and all liability of the Trustee or such Paying
Agent with respect to such trust money shall thereupon cease; provided, however,
that the Trustee or such Paying Agent before being required to make any such
payment, may, at the expense of the Trust, cause to be published once, in the
eastern edition of The Wall Street Journal, notice that such money remains
unclaimed and that, after a date specified therein, which shall be not fewer
than thirty (30) days from the date of such publication, any unclaimed balance
of such money then remaining will be paid to the Owners of the Class R
Certificates. The Trustee shall, at the direction of the Depositor, also adopt
and employ, at the expense of the Trust, any other reasonable means of
notification of such payment (including but not limited to mailing notice of
such payment to Owners whose right to or interest in moneys due and payable but
not claimed is determinable from the records of the Registrar, the Trustee or
any Paying Agent, at the last address of record for each such Owner).
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6.03 PROTECTION OF TRUST ESTATE.
(a) The Trustee will hold the Trust Estate in trust for the benefit
of the Owners and, at the request of the Depositor, will from time to time
execute and deliver all such supplements and amendments hereto pursuant to
Section 12.14 and all instruments of further assurance and other instruments,
and will take such other action upon such request from and at the expense of the
Depositor or GMACM, to:
(i) more effectively hold in trust all or any portion of the Trust
Estate;
(ii) perfect, publish notice of, or protect the validity of any
grant made or to be made by this Agreement;
(iii) enforce any of the Mortgage Loans, Sale and Warranties
Agreement or the Sale Agreements (other than expenses incurred in
connection with the custody and delivery of the Mortgage Loan Documents
which shall be borne by the Trustee); or
(iv) preserve and defend title to the Trust Estate and the rights of
the Trustee, and the ownership interests of the Owners represented
thereby, in such Trust Estate against the claims of all Persons and
parties.
The Trustee shall send copies of any request to take any action
pursuant to this Section 6.03 to the other parties hereto.
(b) The Trustee shall have the power to enforce, and shall enforce
the obligations and rights of the other parties to this Agreement, the
obligations of the Original Sellers under the Sale Agreements, the Depositor
under Section 3.03(a) of this Agreement and the Seller under the Sale and
Warranties Agreement; in addition, the Owners, by action, suit or proceeding at
law or equity, shall also have the power to enjoin, by action or suit in equity,
any acts or occurrences which may be unlawful or in violation of the rights of
the Owners as such rights are set forth in this Agreement; provided, however,
that nothing in this Section 6.03 shall require any action by the Trustee unless
the Trustee shall first (i) have been furnished indemnity satisfactory to it and
(ii) when required by this Agreement, have been requested by the Owners of a
majority of the Percentage Interests represented by the Certificates then
Outstanding or, if there are no longer any Offered Certificates then
outstanding, by such majority of the Percentage Interests represented by the
Class R Certificates.
(c) The Trustee shall execute any instrument required pursuant to
this Section 6.03 so long as such instrument does not conflict with this
Agreement or with the Trustee's fiduciary duties, or adversely affect its rights
and immunities hereunder.
6.04 PERFORMANCE OF OBLIGATIONS.
The Trustee will not take any action that would release any Person
from any of such Person's covenants or obligations under any instrument or
document relating
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to the Certificates or which would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the validity or
effectiveness of, any such instrument or document, except as expressly provided
in this Agreement or such other instrument or document.
The Trustee may contract with other Persons to assist it in
performing its duties hereunder pursuant to Section 11.02(g).
6.05 NEGATIVE COVENANTS.
The Trustee, to the extent of its duties hereunder, will not consent
to the Trust or cause the Trust to:
(i) sell, transfer, exchange or otherwise dispose of any of the
Trust Estate except as expressly permitted by this Agreement;
(ii) claim any credit on or make any deduction from the
distributions payable in respect of, the Certificates (other than amounts
properly withheld from such payments under the Code) or assert any claim
against any present or former Owner by reason of the payment of any taxes
levied or assessed upon any of the Trust Estate;
(iii) incur, assume or guaranty any indebtedness of any Person;
(iv) dissolve or liquidate in whole or in part, except pursuant to
Article X hereof;
(v) (A) cause or consent to an action which causes the validity or
effectiveness of this Agreement to be impaired, or permit any Person to be
released from any covenants or obligations with respect to the Trust or to
the Certificates under this Agreement, except as may be expressly
permitted hereby or (B) permit any lien, charge, adverse claim, security
interest, mortgage or other encumbrance to be created on or extend to or
otherwise arise upon or burden the Trust Estate or any part thereof or any
interest therein or the proceeds thereof;
(vi) permit either Trust REMIC to accept a prohibited contribution
or engage in a prohibited transaction pursuant to the REMIC Provisions; or
(vii) take any action that could cause either Trust REMIC to fail to
qualify as such, or omit to take any action within the scope of its duties
necessary to preserve the status of either Trust REMIC.
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6.06 NO OTHER POWERS.
The Trustee will not permit the Trust to engage in any business
activity or transaction other than those activities permitted by Section 2.03.
6.07 LIMITATION OF SUITS. No Owner shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Agreement, the Sale
and Warranties Agreement or the Sale Agreements or for the appointment of a
receiver or trustee of the Trust, or for any other remedy with respect to an
Event of Default hereunder, unless:
(i) such Owner has previously given written notice to the Depositor,
and the Trustee of such Owner's intention to institute such proceeding;
(ii) the Owners of not less than 25% of the Percentage Interests
represented by the Class A-1, Class M, Class B or Class X Certificates
then Outstanding or, if there are no Class A-1, Class M, Class B or Class
X Certificates then Outstanding, by such percentage of the Percentage
Interests represented by the Class R Certificates, shall have made written
request to the Trustee to institute such proceeding in its own name as
Trustee establishing the Trust;
(iii) such Owner or Owners have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Trustee for sixty (60) days after its receipt of such
notice, request and offer of indemnity has failed to institute such
proceeding; and
(v) no direction inconsistent with such written request has been
given to the Trustee during such sixty (60) day period by the Owners of a
majority of the Percentage Interests represented by the Class A-1, Class
M, Class B or Class X Certificates or, if there are no Class A-1, Class M,
Class B or Class X Certificates then Outstanding, by such majority of the
Percentage Interests represented by the Class R Certificates;
it being understood and intended that no one or more Owners shall have any right
in any manner whatever by virtue of, or by availing themselves of, any provision
of this Agreement to affect, disturb or prejudice the rights of any other Owner
of the same Class or to obtain or to seek to obtain priority or preference over
any other Owner of the same Class or to enforce any right under this Agreement,
except in the manner herein provided and for the equal and ratable benefit of
all the Owners of the same Class.
In the event the Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Owners, each representing less
than a majority of the applicable Class of Certificates and each conforming to
paragraphs (i) through (v) of this Section 6.07, the Trustee will act at the
direction of Owners holding the greater amount of Certificates. If the Trustee
receives conflicting or inconsistent
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requests and indemnity from two or more groups of Owners representing an equal
amount of Outstanding Certificates, the Trustee in its sole discretion may
determine what action, if any, shall be taken, notwithstanding any other
provisions of this Agreement and the Trustee shall not be liable for any action
taken pursuant to this Section 6.07.
6.08 UNCONDITIONAL RIGHTS OF OWNERS TO RECEIVE DISTRIBUTIONS.
Notwithstanding any other provision in this Agreement, the Owner of
any Certificate shall have the right, which is absolute and unconditional, to
receive distributions to the extent provided herein and therein with respect to
such Certificate or to institute suit for the enforcement of any such
distribution, and such right shall not be impaired without the consent of such
Owner.
6.09 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided herein, no right or remedy herein
conferred upon or reserved to the Trustee or the Owners is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. Except as otherwise provided herein, the assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
6.10 DELAY OR OMISSION NOT WAIVER.
No delay of the Trustee or any Owner of any Certificate to exercise
any right or remedy under this Agreement with respect to any event described in
Section 8.17 shall impair any such right or remedy or constitute a waiver of any
such event or any acquiescence therein. Every right and remedy given by this
Article VI or by law to the Trustee or the Owners, may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or the Owners, as
the case may be.
6.11 CONTROL BY DEPOSITOR OR OWNERS.
The Owners of a majority of the Percentage Interests represented by
the Offered Certificates then Outstanding, or, if there are no longer any
Offered Certificates then Outstanding, by a majority of the Percentage Interests
represented by the Class R Certificates then Outstanding may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee with respect to the Certificates or exercising any trust or power
conferred on the Trustee with respect to the Certificates or the Trust Estate,
including, but not limited to, those powers set forth in Section 6.03 hereof,
provided that:
(i) such direction shall not be in conflict with any rule of law or
with this Agreement;
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(ii) the Trustee shall have been provided with indemnity
satisfactory to it; and
(iii) the Trustee may take any other action deemed proper by the
Trustee, as the case may be, which is not inconsistent with such
direction; provided, however, that neither the Trustee nor the Depositor,
as the case may be, need take any action which it determines might involve
it in liability or may be unjustly prejudicial to the Owners not so
directing.
6.12 INDEMNIFICATION.
The Depositor agrees to indemnify and hold the Servicers, the
Trustee and each Owner harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, fees and expenses that any Servicer, the Trustee and any Owner may
sustain in any way related to the failure of the Depositor to perform its duties
in compliance with the terms of this Agreement. The Depositor shall immediately
notify the Servicers, the Trustee and each Owner if such a claim is made by a
third party with respect to this Agreement, and the Depositor shall assume (with
the consent of the Trustee or the related Servicer, as applicable) 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 a Servicer, the Trustee and/or any Owner in
respect of such claim. The provisions of this Section 6.12 shall survive the
termination of this Agreement, the termination or resignation of a Servicer or
the Trustee and the payment of the outstanding Certificates.
ARTICLE VII
PAYMENTS TO THE CERTIFICATEHOLDERS
7.01 ESTABLISHMENT OF CERTIFICATE ACCOUNT; DEPOSITS IN CERTIFICATE
ACCOUNT; PERMITTED WITHDRAWALS FROM CERTIFICATE ACCOUNT.
(a) No later than the Closing Date, the Trustee will establish and
maintain a trust account, in its name and for the benefit of Certificateholders,
which shall not be interest bearing, titled "JPMorgan Chase Bank, as Trustee, in
trust for the holders of GSRPM Mortgage Loan Trust 2003-2 Certificate Account,"
(the "Certificate Account").
(b) The Trustee shall promptly upon receipt, deposit into the
Certificate Account and retain therein the Remittance Amount received from each
Servicer.
(c) Amounts on deposit in the Certificate Account shall be withdrawn
on each Distribution Date by the Trustee, or the Paying Agent on its behalf, to
effect the applicable distributions described in Section 7.06(b).
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7.02 RESERVED.
7.03 RESERVED.
7.04 INVESTMENT OF ACCOUNTS.
(a) Amounts on deposit in the Certificate Account shall be held
uninvested. Amounts on deposit in the Collection Account established by GMACM
may be invested by GMACM in Eligible Investments, and all such investments shall
mature on or before the next Remittance Date. All income or other gain from
investments in the Collection Account maintained by GMACM shall be for the
account of GMACM. Any loss resulting from any such investments shall be for the
account of GMACM and promptly upon the realization of such loss GMACM shall
contribute funds in an amount equal to such loss to the Collection Account.
7.05 ELIGIBLE INVESTMENT.
The following are "Eligible Investments":
(a) 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;
(b) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not more
than 90 days and, in the case of bankers' acceptances, shall in no event have an
original maturity of more than 365 days or a remaining maturity of more than 30
days) denominated in United States dollars and issued by any Depository
Institution and rated F1+ by Fitch, P-1 by Moody's and A-1+ by S&P;
(c) repurchase obligations with respect to any security described in
clause (a) above entered into with a Depository Institution (acting as
principal);
(d) 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;
(e) 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;
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(f) units of money market funds, including money market funds
advised by the Depositor or the Trustee or an Affiliate thereof, that have been
rated "Aaa" by Moody's, "AAAm" or "AAAm-G" by Standard & Poor's and, if rated by
Fitch, at least "AA" by Fitch; and
(g) 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 (without regard to the
Certificate Insurance Policy) 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.
7.06 PRIORITY AND SUBORDINATION OF DISTRIBUTIONS.
(a) (1)(A) On each Distribution Date, the following amounts, in the
following order of priority, shall be distributed by REMIC I to REMIC II on
account of the REMIC I Regular Interests or withdrawn from the Distribution
Account and distributed to the holders of the Class R Certificates (in respect
of the Class R-I Interest), as the case may be:
(i) first, to the Holders of REMIC I Regular Interest
LT-RI-Countrywide and REMIC I Regular Interest LT-RI-Xxxxx in an amount
equal to (A) the Uncertificated Accrued Interest for such Distribution
Date, plus (B) any amounts in respect thereof remaining unpaid from
previous Distribution Dates, and then to Holders of REMIC I Regular
Interest LT-AA, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Interest
LT-M1, REMIC I Regular Interest LT-M2, REMIC I Regular Interest LT-B1,
REMIC I Regular Interest LT-B2, REMIC I Regular Interest LT-B3 and REMIC I
Regular Interest LT-ZZ, pro rata, in an amount equal to (A) the
Uncertificated Accrued Interest for such Distribution Date, plus (B) any
amounts in respect thereof remaining unpaid from previous Distribution
Dates. Amounts payable as Uncertificated Accrued Interest in respect of
REMIC I Regular Interest LT-ZZ shall be reduced and deferred when the
REMIC I Overcollateralized Amount is less than the REMIC I
Overcollateralization Target Amount, by the lesser of (x) the amount of
such difference and (y) the REMIC I Regular Interest LT-ZZ Maximum
Interest Deferral Amount and such amount will be payable to the Holders of
REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Interest LT-M1, REMIC I
Regular Interest LT-M2, REMIC I Regular Interest LT-B1, REMIC I Regular
Interest LT-B2 and REMIC I Regular Interest LT-B3 in the same proportion
as the Excess Subordinated Amount is allocated to the Corresponding
Certificates;
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(ii) second, to the Holders of REMIC I Regular Interests, in an
amount equal to the remainder of the Available Funds for such Distribution
Date after the distributions made pursuant to clause (i) above, allocated
as follows:
(a) to the Holders of REMIC I Regular Interest LT-AA, 98.00%
of such remainder (other than amounts payable under clause (d)
below), until the Uncertificated Principal Balance of such REMIC I
Regular Interest is reduced to zero;
(b) to the Holders of REMIC I Regular Xxxxxxxx XX-X0, REMIC I
Regular Interest LT-M1, REMIC I Regular Interest LT-M2, REMIC I
Regular Interest LT-B1, REMIC I Regular Interest LT-B2, and REMIC I
Regular Interest LT-B3, 1.00% of such remainder (other than amounts
payable under clause (d) below), in the same proportion as principal
payments are allocated to the Corresponding Certificates, until the
Uncertificated Principal Balances of such REMIC I Regular Interests
are reduced to zero;
(c) to the Holders of REMIC I Regular Interest LT-ZZ, 1.00% of
such remainder (other than amounts payable under clause (d) below),
until the Uncertificated Principal Balance of such REMIC I Regular
Interest is reduced to zero; and
(d) any remaining amount to the Holders of the Class R
Certificates (in respect of the Class R-I Interest).
(b) On each Distribution Date, after payment of the Trustee Fee, any
Senior Trustee Expenses then due and the Retained Interest for such Distribution
Date, the Trustee shall withdraw from the Certificate Account the Available
Distribution Amount for REMIC II to make the distribution thereof in the
following order of priority:
(i) to make payments in respect of interest to the Certificates in
the following amounts and order of priority;
(A) to the Class A-1 Certificates, the Accrued Certificate
Interest and any unpaid Accrued Certificate Interest from the prior
Distribution Date allocable to the Class A-1 Certificates;
(B) to the Class M-1 Certificates, the Accrued Certificate
Interest allocable to the Class M-1 Certificates;
(C) to the Class M-2 Certificates, the Accrued Certificate
Interest allocable to the Class M-1 Certificates;
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(D) to the Class B-1 Certificates, the Accrued Certificate
Interest allocable to the Class B-1 Certificates;
(E) to the Class B-2 Certificates, the Accrued Certificate
Interest allocable to the Class B-2 Certificates; and
(F) to the Class B-3 Certificates, the Accrued Certificate
Interest allocable to the Class B-3 Certificates.
(ii) on each Distribution Date (x) prior to the Stepdown Date or (y)
on which a Trigger Event is in effect, to Holders of the related Class or
Classes of Certificates then entitled to distributions of principal after making
distributions pursuant to clauses (i) and (ii) above, to the extent of the
Principal Distribution Amount, in the following amounts and order of priority:
(A) to the Class A-1 Certificates until the Certificate
Balance thereof has been reduced to zero;
(B) to the Class M-1 Certificates, until the Certificate
Balance of thereof has been reduced to zero;
(C) to the Class M-2 Certificates, until the Certificate
Balance of thereof has been reduced to zero;
(D) to the Class B-1 Certificates, until the Certificate
Balance of thereof has been reduced to zero;
(E) to the Class B-2 Certificates, until the Certificate
Balance of thereof has been reduced to zero;
(F) to the Class B-3 Certificates, until the Certificate
Balance of thereof has been reduced to zero;
(iii) on each Distribution Date (x) on or after the Stepdown Date or
(y) on which a Trigger Event is not in effect, to Holders of the related Class
or Classes of Certificates then entitled to distributions of principal after
making distributions pursuant to clauses (i) and (ii) above, to the extent of
the Principal Distribution Amount, in the following amounts and order of
priority:
(A) to the Class A-1 Certificates the lesser of (x) Principal
Distribution Amount and (y) the Class A-1 Principal Distribution Amount,
until the Certificate Balance thereof has been reduced to zero;
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(B) to the Class M-1 Certificates, the lesser of (x) the
remaining Principal Distribution Amount and (y) the Class M-1 Principal
Distribution Amount, until the Certificate Balance thereof has been
reduced to zero;
(C) to the Class M-2 Certificates, the lesser of (x) the
remaining Principal Distribution Amount and (y) the Class M-2 Principal
Distribution Amount, until the Certificate Balance thereof has been
reduced to zero;
(D) to the Class B-1 Certificates, the lesser of (x) the
remaining Principal Distribution Amount and (y) the Class B-1 Principal
Distribution Amount, until the Certificate Balance of thereof has been
reduced to zero;
(E) to the Class B-2 Certificates, the lesser of (x) the
remaining Principal Distribution Amount and (y) the Class B-2 Principal
Distribution Amount, until the Certificate Balance of thereof has been
reduced to zero;
(F) to the Class B-3 Certificates, the lesser of (x) the
remaining Principal Distribution Amount and (y) the Class B-3 Principal
Distribution Amount, until the Certificate Balance of thereof has been
reduced to zero;
(iv) on each Distribution Date, the Net Monthly Excess Cash Flow
(or, in the case of clause (A) below, the Net Monthly Excess Cash Flow exclusive
of any Excess Subordinated Amount) shall be distributed as follows:
(A) to the Holders of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra
Principal Distribution Amount which shall be included in the Principal
Distribution Amount payable to such Holders;
(B) to the Class M-1 Certificates, the Unpaid Interest Amount
allocable to the Class M-1 Certificates;
(C) to the Class M-2 Certificates, the Unpaid Interest Amount
allocable to the Class M-2 Certificates;
(D) to the Class B-1 Certificates, the Unpaid Interest Amount
allocable to the Class B-1 Certificates;
(E) to the Class B-2 Certificates, the Unpaid Interest Amount
allocable to the Class B-2 Certificates;
(F) to the Class B-3 Certificates, the Unpaid Interest Amount
allocable to the Class B-3 Certificates;
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(G) to the Reserve Fund from amounts otherwise payable to the
Class X Certificates, and then from the Reserve Fund to pay the Basis Risk
Carry Forward Amounts allocable to the Class A-1 Certificates, the Class M
Certificates and the Class B Certificates in the same order of priority in
which Accrued Certificate Interest is allocated among such Certificates;
(v) to pay Trust Expenses to the applicable party;
(vi) to pay to the Class X Certificates, the Accrued Certificate
Interest and the Overcollateralization Reduction Amount for such Distribution
Date;
(vii) to pay to the Holder of the Class R Certificates, any amount
remaining in REMIC II.
(c) All distributions made to the Certificateholders on each
Distribution Date will be made on a pro rata basis among the Certificateholders
of the respective Class of record on the next preceding Record Date based on the
Percentage Interest represented by their respective Certificates, and shall,
except for the final payment on such Certificates, be made either (x) by wire
transfer of immediately available funds to the account of such Certificateholder
as shall appear on the Register without the presentation or surrender of the
Certificate or the making of any notation thereon, at a bank or other entity
having appropriate facilities therefor as directed by the Certificateholder in
writing 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 Register.
(d) On each Distribution Date, the Trustee shall also make the
following distributions: (i) to the Class X Certificateholders, all Prepayment
Penalties received by the Trustee on the related Remittance Date and identified
to it by the related Servicer as such and (ii) to the Depositor, the Retained
Interest for such Distribution Date. The Depositor hereby assigns all of its
right, title and interest in and to the Retained Interest to Xxxxxxx Sachs
Mortgage Company and hereby directs the Trustee to make all payments of the
Retained Interest at the direction of Xxxxxxx Xxxxx Mortgage Company.
7.07 Allocation of Realized Losses
(a) If on any Distribution Date, after giving effect to all
distributions of principal as described above, the aggregate Certificate
Balances of the Certificates, other than the Class X and Class R Certificates,
exceeds the sum of the aggregate Stated Principal Balance of the mortgage loans
for such Distribution Date (such excess the "Realized Loss Amount"), the
Realized Loss Amount for such Distribution Date shall be applied to reduce the
Certificate Balances of the Certificates as follows: first, to the Class B-3
Certificates, until the Certificate Balance thereof has been reduced to zero;
second, to the Class B-2 Certificates, until the Certificate Balance thereof has
been reduced to zero; third, to the Class B-1 Certificates, until the
Certificate Balance thereof has
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been reduced to zero; fourth, to the Class M-2 Certificates, until the
Certificate Balance thereof has been reduced to zero; and fifth, to the Class
M-1 Certificates, until the Certificate Balance thereof has been reduced to
zero. The Realized Loss Amount to be allocated to the Certificate Balances of
all Classes on any Distribution Date shall be so allocated after the actual
distributions to be made on such date as provided above. All references above to
the Certificate Balance of any Class of Certificates shall be to the Certificate
Balance of such Class immediately prior to the relevant Distribution Date,
before reduction thereof by any Realized Loss Amount, in each case to be
allocated to such Class of Certificates, on such Distribution Date.
All Realized Loss Amounts allocated to a Class of Certificates
hereunder will be allocated among the, Certificates of such Class in proportion
to the Percentage Interests evidenced thereby.
(b) All Realized Losses on the Mortgage Loans shall be allocated by
the Trustee on each Distribution Date to the following REMIC I Regular Interests
in the specified percentages, as follows: first, to Uncertificated Accrued
Interest payable to the REMIC I Regular Interest LT-AA and REMIC I Regular
Interest LT-ZZ up to an aggregate amount equal to the REMIC I Interest Loss
Allocation Amount, 98% and 2%, respectively; second, to the Uncertificated
Principal Balances of the REMIC I Regular Interest LT-AA and REMIC I Regular
Interest LT-ZZ up to an aggregate amount equal to the REMIC I Principal Loss
Allocation Amount, 98% and 2%, respectively; third, to the Uncertificated
Principal Balances of REMIC I Regular Interest LTAA, REMIC I Regular Interest
LT-B3 and REMIC I Regular Interest LT-ZZ, 98%, 1% and 1%, respectively, until
the Uncertificated Balance of REMIC I Regular Interest LT-B3 has been reduced to
zero; fourth to the Uncertificated Principal Balances of REMIC I Regular
Interest LTAA, REMIC I Regular Interest LT-B2 and REMIC I Regular Interest
LT-ZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance of REMIC I
Regular Interest LT-B2 has been reduced to zero; fifth to the Uncertificated
Principal Balances of REMIC I Regular Interest LT-AA, REMIC I Regular Interest
LT-B1 and REMIC I Regular Interest LT-ZZ, 98%, 1% and 1%, respectively, until
the Uncertificated Balance of REMIC I Regular Interest LT-B1 has been reduced to
zero; sixth to the Uncertificated Principal Balances of REMIC I Regular Interest
LT-AA, REMIC I Regular Interest LT-M2 and REMIC I Regular Interest LT-ZZ, 98%,
1% and 1%, respectively, until the Uncertificated Balance of REMIC I Regular
Interest LT-M1 has been reduced to zero; and seventh, to the Uncertificated
Principal Balances of REMIC I Regular Interest LT-AA, REMIC I Regular Interest
LT-M1 and REMIC I Regular Interest LT-ZZ, 98%, 1% and 1%, respectively, until
the Uncertificated Balance of REMIC I Regular Interest LT-M1 has been reduced to
zero.
7.08 STATEMENTS.
(a) Based solely upon the information provided to it by the
Servicers pursuant to Section 7.08(d) hereof, not later than each Distribution
Date, the Trustee shall make available on its website initially located at
xxx.xxxxxxxx.xxx/xxx to the Depositor,
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each Owner, the Servicers and the Rating Agencies a statement setting forth the
following information:
(i) the aggregate amount on deposit in the Certificate Account on
such Distribution Date;
(ii) the Accrued Certificate Interest, Unpaid Interest Amount, if
any, the Basis Risk Carry Forward Amount, if any, and the Principal
Distribution Amount, with respect to each Class individually, all Classes
of the Offered Certificates in the aggregate, all Classes of Class M
Certificates in the aggregate and all Classes of Class B Certificates in
the aggregate;
(iii) the Pass-Through Rate for each Class of Certificates
applicable to the related Accrual Period and LIBOR applicable to the
Certificates with respect to such Distribution Date;
(iv) reserved;
(v) the Certificate Balance of the Class A-1 Certificates and each
Class of Class M Certificates and Class B Certificates, the aggregate
amount of the interest and principal of each Class of Offered Certificates
to be paid on such Distribution Date and the remaining Certificate Balance
of each Class of Offered Certificates following any such payment;
(vi) the amount, if any, of any Realized Losses for the related Due
Period in the aggregate, the amount of Applied Realized Loss Amounts to
each Class of Offered Certificates on such Distribution Date and the
amount of Cumulative Realized Losses as of the last day of the related Due
Period;
(vii) reserved;
(viii) the amount of the distribution with respect to each Class of
Offered Certificates (based on a Certificate in the original principal
amount of $1,000);
(ix) the amount of such distribution allocable to principal of the
Mortgage Loans, separately identifying the aggregate amount of any
Principal Prepayments, Loan Purchase Price amounts or other recoveries of
principal included therein;
(x) the amount of such distribution allocable to interest on the
Mortgage Loans (based on a Certificate in the original principal amount of
$1,000);
(xi) the principal amount, if any, of each Class of the Offered
Certificates (based on a Certificate in the original principal amount of
$1,000) which will be outstanding after giving effect to any payment of
principal on such Distribution Date;
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(xii) the aggregate Pool Balance of all Mortgage Loans, as of the
last day of the related Due Period;
(xiii) based upon information furnished by the Depositor such
information as may be required by Section 6049(d)(7)(C) of the Code to
assist the Certificateholders in computing their market discount;
(xiv) the weighted average interest rate of the Mortgage Loans;
(xv) the weighted average remaining term of the Mortgage Loans;
(xvi) the number and principal amounts of the Mortgage Loans that
were 60 days or more Delinquent for each of the preceding three months as
of the close of business on the last Business Day of the calendar month
next preceding the Distribution Date;
(xvii) such other information as the Depositor may reasonably
request with respect to Mortgage Loans that are Delinquent;
(xviii) the Principal Balance of the largest Mortgage Loans
outstanding;
(xix) the number, aggregate Principal Balances and percentage of
Mortgage Loans that are: (A) 30-59 days Delinquent, (B) 60-89 days
Delinquent and (C) 90-119 days Delinquent, (D) 120-149 days Delinquent,
(E) 150-179 days Delinquent and (F) 180 or more days Delinquent, as of the
close of business on the last Business Day of the calendar month next
preceding the Distribution Date and the aggregate number and aggregate
Principal Balance of such Mortgage Loans;
(xx) (a) the status, the number, and the Principal Balances of all
Mortgage Loans that are in foreclosure proceedings as of the close of
business on the last Business Day of the calendar month preceding such
Distribution Date (b) the percentage of Mortgage Loans in foreclosure that
are Foreclosure Restricted Mortgage Loans, (c) the percentage of REO
Property acquired by the Trust in respect of Foreclosure Restricted
Mortgage Loans as of the close of business on the last Business Day of the
calendar month preceding such Distribution Date and (d) the number and the
Principal Balances of all Mortgage Loans that are Foreclosure Restricted
Mortgage Loans as of the close of business on the last Business Day of the
calendar month preceding such Distribution Date;
(xxi) the number of Mortgagors and the Principal Balances of the
related Mortgages for all Bankruptcy Loans and whether such Mortgage Loans
are (A) 30-59 days Delinquent, (B) 60-89 days Delinquent and (C) 90-119
days Delinquent, (D) 120-149 days Delinquent, (E) 150-179 days Delinquent
and (F) 180 or more days Delinquent, as of the close of business on the
last Business Day of the calendar month next preceding such Distribution
Date;
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(xxii) the number of Mortgagors and the Principal Balances of the
related Mortgages for all Mortgage Loans involved in foreclosure
proceedings and whether such Mortgage Loans are (A) 30-59 days Delinquent,
(B) 60-89 days Delinquent and (C) 90-119 days Delinquent, (D) 120-149 days
Delinquent, (E) 150-179 days Delinquent and (F) 180 or more days
Delinquent, as of the close of business on the last Business Day of the
calendar month next preceding such Distribution Date;
(xxiii) the existence and status of any Mortgaged Properties for all
Mortgage Loans as to which title has been taken in the name of, or on
behalf of the Trustee, as of the close of business of the last Business
Day of the month next preceding the Distribution Date;
(xxiv) the book value of any real estate acquired through
foreclosure or grant of a deed in lieu of foreclosure for all Mortgage
Loans as of the close of business on the last Business Day of the calendar
month next preceding the Distribution Date;
(xxv) the number of Mortgage Loans;
(xxvi) identifying the aggregate amount received from:
a. Curtailments;
b. voluntary payoffs;
c. Involuntary Payoffs (the amount of Net Liquidation
Proceeds applicable to the unpaid principal balance from
the loan); and
d. Mortgage Loans purchased from the Trust;
as of the close of business on the last Business Day of the
related Due Period;
(xxvii) the number and Principal Balance of all Mortgage Loans that
are subject to loss mitigation as of the close of business on the last
Business Day of the calendar month next preceding the Distribution Date;
(xxviii) the number and Principal Balance of Mortgage Loans that are
being contested because of Section 32 of the Truth in Lending Act;
(xxix) the amount of current and cumulative Realized Losses
(separately identifying principal and interest losses) from following
resolution types:
a. REO Property sold;
b. short sale;
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c. deed in lieu;
d. no equity second mortgages; and
e. other;
as of the close of business on the last Business Day of the
related Due Period;
(xxx) the number and Pool Balance with respect to each product type
of all Mortgage Loans that are Bankruptcy Loans, separately identifying:
a. those Bankruptcy Loans that are currently meeting their
payment plan;
b. those Bankruptcy Loans that are 1 to 2 payments behind
their payment plan;
c. those Bankruptcy Loans that are 2 to 3 payments behind
their payment plan;
d. those Bankruptcy Loans that are greater than 3 payments
behind their payment plan;
e. those Bankruptcy Loans that are greater than 4 payments
behind their payments; and
f. those Bankruptcy Loans that are greater than 5 payments
behind their payments;
(xxxi) the calculations and results of calculations of each Stepdown
Date test performed;
(xxxii) the number and Principal Balance of each Mortgage Loan
purchased pursuant to Section 8.21; and
(xxxiii) any other information that the Depositor, the Trustee or
the relevant Servicer deems necessary.
(b) The Trustee shall report to the Depositor and each
Certificateholder, with respect to the amount on deposit in the Certificate
Account and the identity of the investments included therein, as the Depositor
may from time to time reasonably request. Without limiting the generality of the
foregoing, the Trustee shall, at the request of the Depositor transmit promptly
to the Depositor copies of all accounting of receipts in respect of the Mortgage
Loans furnished to it by each Servicer and shall notify the Depositor if any
Remittance Amount has not been received by the Trustee when due.
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(c) The Trustee shall report to the Depositor and each
Certificateholder with respect to any written notices it may from time to time
receive which provide an Authorized Officer with actual knowledge that certain
of the statements set forth in this Agreement are inaccurate.
(d) The related Servicer shall furnish to the Trustee, and each
Owner of any Class X Certificate, in each case during the term of this
Agreement, (i) such information with respect to the Mortgage Loans serviced by
such Servicer as is necessary to prepare its report provided for in Section 7.08
and (ii) periodic, special or other reports or information not specifically
provided for herein, as may be necessary, reasonable, or appropriate with
respect to the Trustee or otherwise with respect to the purposes of this
Agreement, all such reports or information to be provided by and in accordance
with such applicable instructions and directions as the Trustee may reasonably
require; provided, that each such Servicer shall be entitled to be reimbursed by
the requesting party for the fees and actual expenses associated with providing
the reports described in clause (ii), if such reports are not generally produced
in the ordinary course of business, provided that any reports requested by the
Trustee (other than at the request of a third party who shall be responsible for
such fees and expenses) shall be reimbursed by the Trust as Trust Expenses. The
Trustee's responsibility for providing the report described in Section 7.08
shall be limited to the availability, timeliness and accuracy of the information
provided therefor by the relevant Servicer.
7.09 REPORTS OF FORECLOSURE AND ABANDONMENT OF MORTGAGED PROPERTY.
Each year the Trustee shall execute and return to GMACM for filing
the reports of foreclosures and abandonments of any Mortgaged Property prepared
by such Servicer required by Section 6050J of the Code. In order to facilitate
this reporting process, GMACM, on or before January 15th of each year, shall
provide to the Trustee reports as to (i) any Mortgaged Property in which GMACM
on behalf of the Trust Fund acquired an interest in a Mortgaged Property through
foreclosure or other comparable conversion in full or partial satisfaction of
the Mortgage Loan, or (ii) any Mortgaged Property with respect to which GMACM
knew or had reason to know that such Mortgaged Property had been abandoned. The
reports from GMACM shall be in form and substance sufficient to enable the
Trustee to meet the reporting requirements imposed by such Section 6050J.
7.10 RESERVE FUND.
(a) No later than the Closing Date, the Trustee shall establish and
maintain a separate, segregated trust account titled, "Reserve Fund, JPMorgan
Chase Bank, in trust for the registered holders of GSRPM Mortgage Loan Trust
2003-2, Mortgage Pass-Through Certificates, Series 2003-2." On the Closing Date,
the Depositor will deposit, or cause to be deposited, into the Reserve Fund
$1,000.
(b) On each Distribution Date as to which there is a Basis Risk
Carry Forward Amount payable to the Certificates, the Trustee has been directed
by the Class X
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Certificateholders, pursuant to Section 7.10(d) hereof, to, and therefore will,
deposit into the Reserve Fund the amounts described in Section 7.06(b)(iv)(G),
rather than distributing such amounts to the Class X Certificateholders. On each
such Distribution Date, the Trustee shall hold all such amounts for the benefit
of the Holders of the Class A-1 Certificates, Class M Certificates and Class B
Certificates, and will distribute such amounts to the Holders of the Class A-1
Certificates, Class M Certificates and the Class B Certificates in the amounts
and priorities set forth in Section 7.06(b)(iv)(G). If no Basis Risk Carry
Forward Amounts are payable on a Distribution Date, the Trustee shall deposit
into the Reserve Fund on behalf of the Class X Certificateholders, from amounts
otherwise distributable to the Class X Certificateholders, an amount such that
when added to other amounts already on deposit in the Reserve Fund, the
aggregate amount on deposit therein is equal to $1,000.
(c) For federal and state income tax purposes, the Class X
Certificateholders will be deemed to be the owners of the Reserve Fund and all
amounts deposited into the Reserve Fund shall be treated as amounts distributed
by REMIC II to the Holders of the Class X Certificates. Upon the termination of
the Trust Fund, or the payment in full of the Class A-1 Certificates, Class M
and Class B Certificates, all amounts remaining on deposit in the Reserve Fund
will be released by the Trust Fund and distributed to the Class X
Certificateholders or their designees. The Reserve Fund will be part of the
Trust Fund but not part of any REMIC and any payments to the Holders of the
Class A-1 Certificates, Class M Certificates or Class B Certificates of Basis
Risk Carry Forward Amounts will not be payments with respect to a "regular
interest" in a REMIC within the meaning of Code Section 860(G)(a)(1).
(d) By accepting a Class X Certificate, each Class X
Certificateholder hereby agrees to direct the Trustee, and the Trustee hereby is
directed, to deposit into the Reserve Fund the amounts described above on each
Distribution Date as to which there is any Basis Risk Carry Forward Amount
rather than distributing such amounts to the Class X Certificateholders. By
accepting a Class X Certificate, each Class X Certificateholder further agrees
that such direction is given for good and valuable consideration, the receipt
and sufficiency of which is acknowledged by such acceptance.
(e) At the direction of the Majority Class X Certificateholder, the
Trustee shall direct any depository institution maintaining the Reserve Fund to
invest the funds in such account in one or more Eligible Investments bearing
interest or sold at a discount, and maturing, unless payable on demand, (i) no
later than the Business Day immediately preceding the date on which such funds
are required to be withdrawn from such account pursuant to this Agreement, if a
Person other than the Trustee or an Affiliate manages or advises such
investment, and (ii) no later than the date on which such funds are required to
be withdrawn from such account pursuant to this Agreement, if the Trustee or an
Affiliate manages or advises such investment. If no investment direction of the
Majority Class X Certificateholder with respect to the Reserve Fund is received
by the Trustee, the Trustee shall invest the funds in such account in Eligible
Investments managed by the Trustee or an Affiliate of the kind described in
clause (f) of the definition of Eligible Investments. All income and gain earned
upon such investment shall be deposited into
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the Reserve Fund. The amount of any loss shall be paid by the Majority Class X
Certificateholder.
(f) For federal tax return and information reporting, the right of
the Class A-1 Certificateholders, the Class M Certificateholders and Class B
Certificateholders to receive payments from the Reserve Fund in respect of any
Basis Risk Carry Forward Amount shall be assigned a value of zero.
ARTICLE VIII
SERVICING AND ADMINISTRATION OF MORTGAGE LOANS BY GMACM
8.01 GMACM.
Acting directly, beginning on the Closing Date, GMACM shall service
and administer the GMACM Mortgage Loans in accordance with this Agreement and
Accepted Servicing Practices and shall have full power and authority, acting
alone, to do or cause to be done any and all things in connection with such
servicing and administration which GMACM may deem necessary or desirable subject
to the provisions of this Agreement and the REMIC Provisions.
GMACM will hold the Servicing Files, but not the Custodial Files for
each GMACM Mortgage Loan. To the extent that GMACM needs possession of any
document in the Custodial File for purposes of enforcing a Mortgage Loan, GMACM
agrees that it will act as the custodian and bailee and trustee of such
documents for the benefit of the Trustee and the Owners during the term of this
Agreement. Notwithstanding anything to the contrary set forth in this Agreement,
GMACM shall bear for its own account all costs and expenses related to its
storage and holding of any Custodial Files and Mortgage Loan Documents related
to any GMACM Mortgage Loan, without any right to reimbursement by the Trust or
otherwise from the GMACM Mortgage Loans, and no such amount shall constitute
Servicing Advances. GMACM shall not be obligated to pay any costs, expenses or
fees of or relating to the Custodian (including, but not limited to, its
storage, holding, re-filing, or auditing of Custodial Files or their contents).
Without limiting the generality of the foregoing, but subject to
Sections 8.09 and 8.10, GMACM in its own name may be authorized and empowered
pursuant to a power of attorney, substantially in the form of the power of
attorney attached hereto as Exhibit C hereto executed and delivered by the
Trustee to execute and deliver, and may be authorized and empowered by the
Trustee, to execute and deliver, on behalf of itself, the Owners and the Trustee
or any of them, (i) 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 with respect to the Mortgaged
Properties related to such Mortgage Loans, (ii) to institute foreclosure
proceedings or obtain a deed in lieu of foreclosure so as to effect ownership of
any Mortgaged Property related any GMAC Mortgage Loan on behalf of the Trustee,
and (iii) to hold title to or dispose any Mortgaged Property related to any
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GMACM Mortgage Loan upon such foreclosure or deed in lieu of foreclosure on
behalf of the Trustee; provided, however, that to the extent any instrument
described in clause (i) preceding would be delivered by GMACM outside of
Accepted Servicing Practices GMACM shall, prior to executing and delivering such
instrument, obtain the prior written consent of the Trustee (which consent shall
only be given by the Trustee upon receipt of a REMIC Opinion addressed to the
Trustee stating that the execution of such instrument shall not cause either
REMIC I or REMIC II to fail to qualify as a REMIC.). The Trustee shall execute
any documentation furnished to it by GMACM for recordation by GMACM in the
appropriate jurisdictions as shall be necessary to effectuate the foregoing.
Subject to Sections 8.09 and 8.10, the Trustee shall execute any authorizations
and other documents as GMACM shall reasonably request that are furnished to the
Trustee to enable GMACM to carry out its servicing and administrative duties
hereunder, or shall execute and deliver powers of attorney enabling GMACM to
execute such authorizations and other documents on behalf of the Trustee. The
Trustee shall be indemnified by the GMACM for all liabilities, costs and
expenses incurred by the Trustee in connection with the use or misuse in
accordance with this Agreement of any such power of attorney by such Servicer.
GMACM shall give prompt notice to the Trustee and the Depositor of
any action, of which GMACM has actual knowledge, to (i) assert a claim against
the Trust or (ii) assert jurisdiction over the Trust.
Servicing Advances incurred or made by GMACM in connection with the
servicing of the GMACM Mortgage Loans on any Mortgaged Property shall be
recoverable by GMACM to the extent described in Sections 8.04 and 8.05.
GMACM may in connection with its duties as a Servicer hereunder
enter into transactions with any of its Affiliates relating to the GMACM
Mortgage Loans serviced by it; provided, that (x) GMACM acts (i) in accordance
with Accepted Servicing Practices and the terms of this Agreement and (ii) in
the ordinary course of business of such Servicer; and (y) the terms of such
transaction are no less favorable to such Servicer that it would obtain in a
comparable arm's-length transaction with a Person that is not an Affiliate of
such Servicer.
8.02 COLLECTION OF CERTAIN MORTGAGE LOAN PAYMENTS.
(a) With respect to any GMACM Mortgage Loan which GMACM determines
may be subject to the Home Ownership Equity Protection Act of 1994 and any
regulations related thereto ("HOEPA"), which Mortgage Loan is in default, but
prior to the commencement of any loss mitigation procedures or foreclosure
proceedings, GMACM shall (A) review the related Custodial File to determine
whether or not the Custodial File contains the disclosure documents required by
HOEPA, whether or not such documents appear to have been executed by the related
Mortgagor(s), and whether or not such documents appear to have been executed
three or more days in advance of
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closing and (B) inform the Trustee and the Depositor if such timely and executed
disclosure documents are not in the Custodial File. Further, prior to the
commencement of any loss mitigation procedures with respect to such Mortgage
Loan, unless notified by the Trustee otherwise, GMACM shall notify those
servicing personnel involved in loss mitigation related to such GMACM Mortgage
Loan as to whether or not any such disclosure documentation is defective or
missing.
(b) GMACM will not waive any Prepayment Penalties related to a GMACM
Mortgage Loan or part of such Prepayment Penalty, unless, in GMACM's reasonable
judgment in accordance with Accepted Servicing Practices, (x) such waiver
relates to a default or a reasonably foreseeable default, (y) such waiver would
maximize recovery of total proceeds taking into account the value of such
Prepayment Penalty and the related Mortgage Loan and (z) doing so is standard
and customary in servicing similar Mortgage Loans (including any waiver of a
Prepayment Penalty in connection with a refinancing of a Mortgage Loan that is
related to a default or a reasonably foreseeable default) and in no event will
it waive a Prepayment Penalty in connection with a refinancing of a GMACM
Mortgage Loan that is not related to a default or a reasonably foreseeable
default.
(c) GMACM shall not consent to any waiver, modification, or
amendment of the term of any GMACM Mortgage Loan other than pursuant to Section
8.02(b) except as permitted under Section 8.09 or 8.10.
8.03 LIABILITY OF GMACM; INDEMNIFICATION.
(a) GMACM agrees to indemnify and hold the Trustee, the Depositor,
each Owner and their respective Affiliates, successors and assigns harmless
against any and all claims, losses, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments, and any other actual costs, fees and
expenses that the Trustee, the Depositor, each or any Affiliate, successor or
assign of any of them may sustain to the extent caused by the failure of the
GMACM to perform any of its material duties hereunder and to service the GMACM
Mortgage Loans in compliance with the terms of this Agreement or due to the
fraud, negligence or willful misfeasance of GMACM (a "Servicing Claim"). GMACM
shall assume (with the consent of the Trustee and the Depositor, such consent
not to be unreasonably withheld, delayed or conditioned) the defense of any
Servicing 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 GMACM, the Trustee, any Owner or any
Affiliate, successor or assign of any of them as a result of a claim related to
the failure of GMACM to perform its material duties.
(b) Notwithstanding anything contained herein to the contrary,
neither GMACM nor any of its directors, officers, employees or agents of GMACM
shall be under any liability to the Trustee, the Depositor, each Owner and their
respective Affiliates, successors and assigns for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement of for errors in judgment; provided,
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however, that this provision shall not protect GMACM or any such Person against
any breach of representations or warranties made by it herein, its own negligent
actions, or failure to perform its obligations in compliance with any standard
of care set forth in this Agreement, or any liability which would otherwise be
imposed by reason of any breach of the terms and conditions of this Agreement.
Except as otherwise expressly provided herein, GMACM shall not be under any
obligation to appear in, prosecute or defend any legal action that (i) is not
incidental to its duties to service the GMACM Mortgage Loans in accordance with
this Agreement, or (ii) may involve allegations against the Trustee, the
Depositor, any Owner or any Affiliate, successor or assign of any of them or any
prior owners or servicers of the related Mortgage Loans; provided, however, that
GMACM may institute foreclosure proceedings and, with the prior written consent
of the Trustee and the Depositor, undertake any legal action that it may deem
necessary or desirable in respect of this Agreement and the rights and duties of
the parties hereto (with the reasonable legal expenses and costs of such action
and any liability resulting therefrom treated as expenses, costs and liabilities
for which the Trust will be liable and for which GMACM will be entitled to
reimbursement upon request as Trust Expenses); and provided, further, that the
foregoing shall not protect GMACM against any breach of representation or
warranty or failure to perform its obligations in compliance with any standard
of care set forth in this Agreement. In the event that GMACM agrees, at the
request of the Trustee or the Depositor to act on behalf of such party in any
dispute or litigation that is not incidental to GMACM's duties hereunder and
that relates to the origination of a GMACM Mortgage Loan, such party shall pay
all expenses associated with the management and defense of such claim.
(c) Notwithstanding any provision herein to the contrary, GMACM
shall not have any liability for any obligations, duties, or liabilities of the
Trustee, the Depositor, any Owner or any Affiliate, successor or assignee
thereof or any prior owners or servicers of the related Mortgage Loans with
respect to the servicing of a GMACM Mortgage Loan that arose prior to the date
that GMACM began servicing the related Mortgage Loans; provided, however, that
to the extent necessary to comply with Accepted Servicing Practices, if the
Seller, the applicable Original Seller or a prior servicer shall have failed to
perform or cure such obligations, GMACM shall be required to perform its
obligations under this Agreement with respect to such Mortgage Loan to the
extent any acts or omissions relating to the prior servicing of such Mortgage
Loans would not prevent or delay GMACM from performing such obligations in
GMACM's discretion. Additionally, upon discovery by GMACM of any material
failure of a prior servicer to service in accordance with the terms of the
related Mortgage Loan Documents or applicable law not previously disclosed to
the Trustee or the Depositor, GMACM shall notify each such Person, and with the
written consent of the Depositor, or to the extent necessary to comply with
Accepted Servicing Practices if the Sellers shall have failed to cure such
defects, GMACM shall take reasonable measures consistent with Accepted Servicing
Practices to attempt to cure the defect or cause it to be cured; provided that,
subject to compliance with the foregoing and Section 8.05, all reasonable
expenses incurred by the GMACM to cure such defect shall be reimbursed as
Servicing Advances.
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GMACM acknowledges that there may exist documentary or collateral
defects relating to the GMACM Mortgage Loans. The Depositor or the Trustee may
provide GMACM with, or may cause GMACM to be provided with, a list of such
defects on or before the Closing Date and, whether or not such a list is
provided, GMACM shall notify the Trustee and the Depositor of any such defects
that are discovered by GMACM on or after the Closing Date to the extent notice
of such defects has not been previously provided to such Persons; provided, that
it is agreed and understood that GMACM shall have no obligation to review the
Mortgage Loans or Mortgage Loan Documents for purposes of detecting such
defects. GMACM shall take reasonable measures consistent with Accepted Servicing
Practices to attempt to cure such defects to the extent such defects are not
cured by the Sellers, or as otherwise reasonably requested by the Trustee or the
Depositor. Any reasonable costs incurred by GMACM pursuant to this Section
8.03(c) shall be treated as Servicing Advances and, to the extent not
recoverable by GMACM from a third party, as Trust Expenses reimbursable to GMACM
pursuant to Section 7.06(b)(v).
(d) The provisions of this Section 8.03 shall survive the
termination of this Agreement and the payment of the outstanding Certificates.
8.04 COLLECTION ACCOUNT.
(a) GMACM shall establish and maintain a Collection Account, which
shall be an Eligible Account in the name of GMACM for the benefit of the Trustee
for the benefit of the Owners. The Collection Account shall be identified on the
records of the depository institution as follows: "GMAC Mortgage Corporation in
trust for JPMorgan Chase Bank, as Trustee under the GSRPM Mortgage Loan Trust
2003-2 Trust and Servicing Agreement, Series 2003-2, dated as of August 1,
2003." If any such Collection Account ceases to be an Eligible Account
hereunder, then GMACM shall, within five (5) days, be required to name a
successor institution that will allow such Collection Account to meet the
requirements for an Eligible Account hereunder. GMACM shall notify the Trustee,
the Depositor and the Majority Class X Certificateholder if there is a change in
the name, account number or institution holding the Collection Account.
Subject to Section 8.04(d), GMACM shall deposit all receipts (other
than amounts permitted to be retained by GMACM as additional servicing
compensation pursuant to this Agreement or amounts in respect of Retained
Servicing Advances) related to the GMACM Mortgage Loans in the Collection
Account on a daily basis (but no later than the second Business Day after
receipt).
(b) All funds in the related Collection Account shall be held (i)
uninvested (up to the limits insured by the FDIC) or (ii) invested in Eligible
Investments and subject to a security account control agreement or other
provision having similar effect. Alternatively, the Collection Account may be
held as an Eligible Account that is a deposit account if the interest of the
Trustee in such account is perfected under sections 9-104, 9-304, and 9-314 of
the UCC. Any investments of funds in the Collection
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Account shall mature or be withdrawable at par on or prior to the immediately
succeeding Remittance Date when such funds would be due pursuant to Section
8.04(c) below. Any investment earnings on funds held in the Collection Account
shall be for the account of GMACM and may only be withdrawn from the Collection
Account by GMACM immediately following the remittance to the Certificate Account
of the Remittance Amount by GMACM. Any investment losses on funds held in any
Collection Account shall be for the account of GMACM and promptly upon the
realization of such losses shall be reimbursed by GMACM to the Collection
Account. Any references herein to amounts on deposit in the Collection Account
shall refer to amounts net of such investment earnings and after reimbursement
by GMACM for such investment losses.
(c) GMACM shall remit to the Trustee the Remittance Amount related
to the GMACM Mortgage Loans for deposit into the Certificate Account, not later
than 2:00 p.m. New York time on the Remittance Date.
(d) (i) GMACM may make withdrawals for its own account or for the
accounts of the other Persons specified below from the amounts on deposit in the
Collection Account, with respect to the Mortgage Loans serviced by GMACM, not in
any order of priority and for the following purposes:
(A) to reimburse GMACM for Servicing Advances to the extent of
late payments of such amounts by the Mortgagors and
Liquidation Proceeds from the GMACM Mortgage Loan to which
such Servicing Advance related;
(B) to reimburse, the Trustee and then itself in that order for
Monthly Advances from (i) late collections on the GMACM
Mortgage Loans attributable to prior Due Dates and (ii)
collections of more than 30 days' interest on the GMACM
Mortgage Loans during the most recent Due Period resulting
from the making of Monthly Payments by the Mortgagor after the
related Due Dates, and to pay the Trustee from such sources
interest on Monthly Advances made by it, at the Advance Rate;
(C) to pay to GMACM the Servicing Compensation associated with the
GMACM Mortgage Loans;
(D) to withdraw amounts that have been deposited to the related
Collection Account in error;
(E) to withdraw investment earnings on amounts on deposit in the
Collection Account;
(F) to reimburse to the Trustee or GMACM any other amount
reimbursable to the Trustee or GMACM from Liquidation Proceeds
in respect of Advances made by the Trustee or GMACM, as
applicable;
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(G) to pay to the Trust, monthly interest payments on a GMACM
Mortgage Loan that were already delinquent prior to the
Cut-off Date but received by GMACM thereafter;
(H) to reimburse GMACM for Nonrecoverable Advances with respect to
the GMACM Mortgage Loans;
(I) to deposit in the Simple Interest Excess Sub-Account any
amount required to be deposited therein pursuant to Section
8.07(d);
(J) to clear and terminate the Collection Account following the
termination of the Trust pursuant to Article X.
(ii) On each Determination Date, GMACM shall deliver to the Trustee
and the Depositor a monthly servicing report with respect to the GMACM
Mortgage Loans on a loan-by-loan basis in a format acceptable to the
Trustee, containing the following information: principal and interest
collected, scheduled interest, Liquidated Loans, summary and detailed
delinquency reports, Liquidation Proceeds and other similar information
concerning the servicing of the GMACM Mortgage Loans as may reasonably be
requested by the Trustee or the Depositor. In addition, GMACM shall inform
the Trustee and the Depositor on each Remittance Date with respect to the
GMACM Mortgage Loans of the amounts of any Loan Purchase Prices so
remitted during the related Due Period.
(iii) GMACM shall provide to the Trustee the information described
in Section 8.04(d)(ii) to enable the Trustee to perform its reporting
requirements under Section 7.08 and the Trustee shall forward such
information to the Underwriter within five Business Days of receipt
thereof.
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8.05 ADVANCES.
(a) GMACM will advance all reasonable and necessary "out-of-pocket"
costs and expenses incurred in the performance of its servicing obligations,
including, but not limited to, the cost of (i) Preservation Expenses, (ii) any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of REO Property, (iv) obtaining broker price
opinions, (v) locating missing Mortgage Loan Documents and (vi) maintaining,
transferring or establishing life of loan tax and flood service contracts;
provided, however, that GMACM is only required to pay such costs and expenses to
the extent GMACM reasonably believes such costs and expenses will be recoverable
from the related GMACM Mortgage Loan. Each such expenditure will constitute a
"Servicing Advance." GMACM may recover Servicing Advances and Retained Servicing
Advances from the relevant Mortgagors to the extent permitted by the GMACM
Mortgage Loans or, if not recovered from the relevant Mortgagor on whose behalf
such Servicing Advance or Retained Servicing Advance was made, from Liquidation
Proceeds realized upon the liquidation of the related GMACM Mortgage Loan. GMACM
shall be entitled to recover the Servicing Advances and Retained Servicing
Advances from the aforesaid Liquidation Proceeds prior to the payment of the
Liquidation Proceeds to the Collection Account. GMACM shall treat any Servicing
Advance and Retained Servicing Advance in excess of the Liquidation Proceeds as
a Nonrecoverable Advance and shall be reimbursed pursuant to Section 8.04(d)(i).
Notwithstanding anything herein to the contrary, no Servicing Advance shall be
required to be made if GMACM determines that such Servicing Advance would, if
made, constitute a Nonrecoverable Advance.
(b) The Trustee shall not be required to make Servicing Advances
from its own funds. Any required Servicing Advances not made by GMACM shall be
paid as necessary by the Trustee out of the Certificate Account.
(c) Not later than 2:00 p.m., New York time on each Remittance Date,
GMACM shall, but only with respect to the GMACM Mortgage Loans and, remit to the
Trustee for deposit in the Certificate Account an amount (as indicated in the
statement prepared pursuant to Section 7.08), to be distributed on the related
Distribution Date pursuant to Section 7.06, equal to (i) with respect to each
Simple Interest Mortgage Loan, an amount equal to the Simple Interest Shortfall
which shall be paid from the Simple Interest Excess Sub-Account maintained by
GMACM, or if such funds are insufficient, from the Servicer's own funds and (ii)
with respect to any other Mortgage Loan the amount of the interest portion of
Monthly Payments (net of the Servicing Fee) for all GMACM Mortgage Loans that
were due during the related Due Period and delinquent as of the related
Determination Date (each such advance pursuant to clause (i) or (ii), a "Monthly
Advance"); provided that neither GMACM nor the Trustee shall be required to
advance any shortfalls in the interest portion of Monthly Payments as a result
of the application of the Civil Relief Act or any Compensating Interest
Shortfalls.
(d) With respect to any of the Mortgage Loans, if a Monthly Advance
is required to be made hereunder, GMACM shall on the Remittance Date either (i)
deposit
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in the Collection Account from its own funds an amount equal to such Monthly
Advance, (ii) cause to be made an appropriate entry in the records of the
Collection Account that funds in such account are being held for future
distribution or withdrawal used by GMACM to make such Monthly Advance or (iii)
make such Monthly Advance in the form of any combination of clauses (i) and (ii)
aggregating the amount of such Monthly Advance. Any such funds being held in the
Collection Account for future distribution and so used shall be replaced by
GMACM from its own funds by deposit in the Collection Account before any future
Remittance Date in which such funds would be due.
(e) Notwithstanding anything herein to the contrary, Monthly
Advances by GMACM shall not include any amounts payable as Compensating Interest
or amounts which constitute Compensating Interest Shortfall or Relief Act
Shortfall, and no Monthly Advance by GMACM shall be required to be made if GMACM
determines that such Monthly Advance would, if made, constitute a Nonrecoverable
Advance, as evidenced by a Certificate of an Authorized Officer of GMACM
detailing the reasons for such determination and delivered to the Trustee and
the Depositor on or before the Remittance Date in which such Monthly Advance
would have been made.
(f) If GMACM fails to make a required Monthly Advance on any
Remittance Date in accordance with Section 8.05(c), the Trustee shall make such
Monthly Advance by depositing the amount thereof in the Certificate Account on
the related Distribution Date (and shall succeed to GMACM's rights with respect
to the reimbursement of such Monthly Advance); provided that the Trustee shall
be required to make a Monthly Advance only to the extent that the Trustee has
determined that such Monthly Advance, together with interest thereon at the
Advance Rate, would, if made, not constitute a Nonrecoverable Advance. The
Trustee may conclusively rely on a determination by GMACM pursuant to subsection
(d) above that a Monthly Advance by GMACM would, if made, constitute a
Nonrecoverable Advance.
(g) Monthly Advances by GMACM are reimbursable as provided in
Section 8.04(d) hereof. If the Trustee is required to make Monthly Advances
following the failure of GMACM to do so, it will be entitled to receive interest
on such Monthly Advance at the Advance Rate, payable as provided in Section
8.04(d) hereof.
8.06 COMPENSATING INTEREST.
Not later than 2:00 p.m., New York time on each Remittance Date,
with respect to each GMACM Mortgage for which a Principal Prepayment in full or
a Curtailment that is greater than or equal to two times the amount of the
Monthly Payment due for such Due Period was received during the related Due
Period, GMACM shall remit to the Trustee for deposit in the Certificate Account
from amounts otherwise payable to it as Servicing Compensation, an amount (such
amount required to be delivered to the Trustee is referred to herein as
"Compensating Interest") (as indicated in the statement prepared pursuant to
Section 7.08) equal to the difference between (a) 30 days' interest at the then
applicable Mortgage Rate on such Mortgage Loan and (b) the amount of interest
actually received on such Mortgage Loan for such Due Period, but in
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no event shall the aggregate amount of Compensating Interest paid on any
Remittance Date by GMACM exceed the Servicing Fee due to GMACM for such Due
Period; provided, however, that GMACM shall not be obligated to pay Compensating
Interest Shortfalls or Relief Act Shortfalls for the related Due Period.
GMACM shall not be entitled to reimbursement for amounts paid as
Compensating Interest with respect to the GMACM Mortgage Loans.
8.07 ESCROW ACCOUNT AND SIMPLE INTEREST EXCESS SUB-ACCOUNT.
(a) GMACM shall establish and maintain one or more escrow accounts
(the "Escrow Account") in accordance with applicable Law and Accepted Servicing
Practices. Subject to the foregoing:
(1) GMACM shall segregate and hold all funds collected and
received pursuant to each GMACM Mortgage Loan which constitute
Escrow Payments separate and apart from any of its own funds
and general assets and shall establish and maintain with a
depository the Escrow Account, in the form of time deposit or
demand accounts, with amounts on deposit in or credited to the
Escrow Account invested in Eligible Investments.
(2) GMACM shall deposit (but no later than the second Business Day
after receipt) into the related Escrow Account on a daily
basis, and retain therein, (i) all Escrow Payments collected
on account of the GMACM Mortgage Loans, for the purpose of
effecting timely payment of any such items as required under
the terms of this Agreement, and (ii) all Insurance Proceeds
to the extent such Insurance Proceeds are not to be applied to
the restoration or repair of any Mortgaged Property related to
a GMACM Mortgage Loan. or released to the related Mortgagor in
accordance with Accepted Servicing Practices. GMACM shall make
withdrawals therefrom only to effect such payments or to
reimburse Servicing Advances made by GMACM. GMACM shall be
entitled to retain any interest paid on funds deposited in the
related Escrow Account by the depository institution other
than interest on escrowed funds required by Law to be paid to
the Mortgagor. GMACM shall be responsible for paying such
interest on the funds deposited in the related Escrow Account
without reimbursement therefore, shall be responsible for
ensuring that the administrator of the related Escrow Account
complies with all applicable Law, and shall indemnify and hold
the Trustee, the Depositor, the Owners and their respective
Affiliates, successors and assigns harmless with respect to
any loss, liability or expense incurred in connection with the
administration of such Accounts. As required by applicable
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Law, GMACM shall report interest earned on escrows and
mortgage interest paid.
(b) Withdrawals from the related Escrow Account may be made by GMACM
in accordance with applicable Law and Accepted Servicing Practices. Subject to
the foregoing, withdrawals may be made only (i) to effect timely payments of
ground rents, taxes, assessments, water rates, hazard insurance premiums,
insurance premiums, if applicable, and comparable items constituting Escrow
Payments for the related GMACM Mortgage Loan, (ii) to reimburse GMACM for any
Servicing Advance made by GMACM with respect to a related GMACM Mortgage Loan
but only from amounts received on the related GMACM Mortgage Loan that represent
late payments or collections of Escrow Payments thereunder, (iii) to refund to
the Mortgagor of a GMACM Mortgage Loan any funds as may be determined to be
overages, (iv) for application to restoration or repair of the Mortgaged
Property related to a GMACM Mortgage Loan in accordance with the terms of such
GMACM Mortgage Loan, (v) to pay to GMACM, or to the related Mortgagor to the
extent required by Law, any interest paid on the funds deposited in the related
Escrow Account, (vi) to reimburse itself for any amounts deposited in the
related Escrow Account in error, or (vii) to clear and terminate the related
Escrow Account on the termination of this Agreement.
(c) With respect to each GMACM Mortgage Loan, GMACM shall maintain
accurate records in accordance with applicable Law, Accepted Servicing
Practices, the Xxxxxx Xxx Guide and the Xxxxxxx Mac Guide and, in any event,
reflecting the status of ground rents, taxes, assessments, water rates and other
charges which are or may become a lien upon the Mortgaged Property related to
any such GMACM Mortgage Loan and the status of the applicable fire and hazard
insurance coverage (including charges for the premiums thereon) and shall use
commercially reasonable efforts to obtain, from time to time, all bills for the
payment of such charges, including renewal premiums, and shall use commercially
reasonable efforts to effect payment thereof prior to the applicable penalty or
termination date and at a time appropriate for securing maximum discounts
allowable, employing for such purpose deposits of the related Mortgagor in the
related Escrow Account which shall have been estimated and accumulated by GMACM
in amounts sufficient for such purposes, as allowed under the terms of the
related Mortgage and applicable Law. To the extent that the Mortgage related to
a GMACM Mortgage Loan does not provide for Escrow Payments, GMACM shall require
that any such payments be made by the related Mortgagor at the time they first
become due. GMACM assumes full responsibility for the payment of all such bills
and shall effect payments of all such bills, premiums and penalties irrespective
of the relevant Mortgagor's faithful performance in the payment of same or the
making of the Escrow Payments and shall make Servicing Advances from its own
funds to effect such payments unless such Servicing Advance, if made, would
constitute a Nonrecoverable Advance.
(d) GMACM shall establish and maintain a sub-account of the
Collection Account (the "Simple Interest Excess Sub-Account"). GMACM shall, on
each Determination Date, transfer from the Collection Account to the Simple
Interest Excess
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Sub-Account all Net Simple Interest Excess, if any, pursuant to
Section 8.04(d)(i), and shall maintain a record of all such deposits.
(e) GMACM shall withdraw amounts on deposit in the Simple Interest
Excess Sub-Account on each Remittance Date for deposit to the Certificate
Account in an amount equal to the lesser of (i) the amount on deposit therein,
and (ii) the Net Simple Interest Shortfall for such Remittance Date.
(f) GMACM shall distribute to the Majority Class X Certificateholder
90% of the balance in the applicable Simple Interest Excess Sub-Account on the
Remittance Date each year occurring in December, commencing in December 2003.
Such distributions shall be deemed to be made on a first-in, first-out basis. In
addition, GMACM shall clear and terminate the Simple Interest Excess Sub-Account
upon the termination of this Agreement and retain any funds remaining therein.
(g) Amounts on deposit in the Simple Interest Excess Sub-Account may
be invested in Eligible Investments. All income and gain net of any losses
realized from any such balances or investment of funds on deposit in the Simple
Interest Excess Sub-Account shall be for the benefit of GMACM as servicing
compensation and shall be remitted to it monthly. The amount of any net
investment losses in the Simple Interest Excess Sub-Account shall promptly be
deposited by the related Servicer in the Simple Interest Excess Sub-Account.
8.08 MAINTENANCE OF INSURANCE.
(a) GMACM shall cause to be maintained with respect to each GMACM
Mortgage Loan that is or becomes a first lien on the related Mortgaged Property,
a hazard insurance policy with a generally acceptable carrier that provides for
fire and extended coverage, and which provides for a recovery by the Trust of
insurance proceeds relating to such GMACM Mortgage Loan in an amount not less
than the least of (i) the Actual Principal Balance of such GMACM Mortgage Loan,
(ii) the minimum amount required to compensate for damage or loss on a
replacement cost basis and (iii) the full insurable value of the premises. GMACM
shall maintain the insurance policies required hereunder in the name of the
mortgagee, its successors and assigns, as loss payee. The policies shall require
the insurer to provide the mortgagee with thirty (30) days' notice prior to any
cancellation or as otherwise required by Law. GMACM may also maintain a blanket
hazard insurance policy or policies if the insurer or insurers of such policies
are rated investment grade by each Rating Agency. Upon the request of the
Depositor or the Trustee, GMACM will cause to be delivered to such requesting
Person a certified true copy of such blanket policy.
(b) If a First Mortgage Loan serviced by GMACM relates to a
Mortgaged Property for a Mortgage Loan in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards, GMACM will cause to be maintained with respect thereto a flood
insurance policy in a form meeting the requirements of the current guidelines of
the Federal Insurance Administration with a generally acceptable carrier in an
amount representing coverage, and which provides for
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a recovery by the Trust of insurance proceeds relating to such GMACM Mortgage
Loan of not less than the least of (i) the Actual Principal Balance of the GMACM
Mortgage Loan, (ii) the minimum amount required to compensate for damage or loss
on a replacement cost basis and (iii) the maximum amount of insurance that is
available under the Flood Disaster Protection Act of 1973. GMACM shall indemnify
the Trust and its Affiliates, successors and assigns out of its own funds for
any loss, liability or expenses resulting from GMACM's failure to maintain
premiums for such insurance required by this Section 8.08 when so permitted by
the terms of the Mortgage related to a GMACM Mortgage Loan as to which such loss
relates.
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8.09 DUE-ON-SALE CLAUSES; ASSUMPTION AND SUBSTITUTION AGREEMENTS.
When a Mortgaged Property related to a GMACM Mortgage Loan has been
or is about to be conveyed by the applicable Mortgagor, GMACM shall, to the
extent it has knowledge of such conveyance or prospective conveyance, exercise
its rights to accelerate the maturity of the related GMACM Mortgage Loan under
any "due-on-sale" clause contained in the related Mortgage or Mortgage Note;
provided, however, that GMACM shall not exercise any such right if the
"due-on-sale" clause, in the reasonable belief of GMACM, is not enforceable
under applicable Law. An Opinion of Counsel to the foregoing effect shall
conclusively establish the reasonableness of such belief. In such event, GMACM
shall, subject to customary credit approvals, enter into an assumption and
modification agreement with the Person to whom such Mortgaged Property related
to a GMACM Mortgage Loan has been or is about to be conveyed, pursuant to which
such Person becomes liable under the related Mortgage Note and, unless
prohibited by applicable Law or the relevant Mortgage Documents, the Mortgagor
of such GMACM Mortgage Loan remains liable thereon. If the foregoing is not
permitted under applicable Law, GMACM is authorized to enter into a substitution
of liability agreement with such Person upon undergoing the customary credit
approval of such Person, pursuant to which the original Mortgagor of such GMACM
Mortgage Loan is released from liability and such Person is substituted as
Mortgagor and becomes liable under the Mortgage Note for such GMACM Mortgage
Loan; provided, however, that to the extent any such substitution of liability
agreement would be delivered by GMACM outside of Accepted Servicing Practices
GMACM shall, prior to executing and delivering such agreement, obtain the prior
written consent of the Majority Class X Certificateholder. The GMACM Mortgage
Loan shall conform in all respects to the requirements, representations and
warranties of this Agreement, and no term thereof other than the identity of the
related Mortgagor shall be changed. GMACM shall notify the Trustee and the
Majority Class X Certificateholder that any such assumption or substitution
agreement has been completed by forwarding to the Trustee and the Majority Class
X Certificateholder the original copy of such assumption or substitution
agreement (indicating the Custodial File to which it relates) which copy shall
be added by the Trustee to the related Custodial File and which shall, for all
purposes, be considered a part of such Custodial File to the same extent as all
other documents and instruments constituting a part thereof. GMACM shall be
responsible for recording any such assumption or substitution agreements. Any
fee collected by GMACM for consenting to any such conveyance or entering into an
assumption or substitution agreement shall be retained by GMACM as additional
Servicing Compensation.
Notwithstanding the foregoing paragraph or any other provision of
this Agreement, GMACM shall not be deemed to be in default, breach or any other
violation of its obligations hereunder by reason of any assumption of a GMACM
Mortgage Loan by operation of law or any assumption which GMACM may be
restricted by Law from preventing, for any reason whatsoever.
8.10 DEFAULTED MORTGAGE LOANS; MODIFICATION.
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(a) GMACM may not sell or purchase, or permit the sale or purchase
of, a defaulted GMACM Mortgage Loan, except as expressly provided in or
contemplated by Section 8.10(d) or Section 8.21.
(b) If any GMACM Mortgage Loan becomes a Defaulted Mortgage Loan,
GMACM shall promptly so notify in writing the Trustee. GMACM may continue making
collection efforts on such GMACM Mortgage Loan, and shall be entitled to receive
Servicing Compensation and be reimbursed for Servicing Advances made by it for
the period while such GMACM Mortgage Loan was in default from Liquidation
Proceeds or from future collections thereof if such GMACM Mortgage Loan
subsequently becomes current;
(c) [Reserved]
(d) In the event that the Majority Class X Certificateholders
exercises its purchase option pursuant to Section 8.21 with respect to a
Defaulted Mortgage Loan, GMACM shall cause the Trustee to sell such Defaulted
Mortgage Loan to the Majority Class X Certificateholder at the Loan Purchase
Price. If the Majority Class X Certificateholder does not exercise its purchase
option, GMACM shall proceed to foreclose upon or work-out such Defaulted
Mortgage Loan, pursuant to Accepted Servicing Practices and in accordance with
this Section 8.10.
In the event GMACM forecloses and converts the Mortgaged Property
related to a GMACM Mortgage Loan, title shall be taken in the name of the
Trustee and GMACM shall sell any REO Property related to such Mortgage Loan on
behalf of the Trustee before the start of the twelfth month of the third taxable
year following the taxable year in which the Trust acquired such property, at
such price as GMACM deems necessary to comply with this covenant unless GMACM
obtains a REMIC Opinion addressed to the Trustee, GMACM and Depositor stating
that the holding of such REO Property will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by any 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 the REMIC
Provisions. Notwithstanding the generality of the foregoing provisions, GMACM
shall manage, conserve, protect and operate each REO Property related to a GMACM
Mortgage Loan on behalf of the Trustee for the benefit of Owners 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) of the Code or result in the receipt by any 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 the REMIC Provisions.
Pursuant to its efforts to sell REO Property related to a GMACM
Mortgage Loan, GMACM shall either itself or through an agent selected by GMACM
protect and conserve such REO Property in the same manner and to such extent as
is
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customary in the locality where such REO Property is located and may, incident
to its conservation and protection of the interests of the Trustee for the
benefit of the Owners, rent the same, or any part thereof, as GMACM deems to be
in the best interest of the Owners for the period prior to the sale of such REO
Property. In determining whether to foreclose upon or otherwise comparably
convert the ownership of such Mortgaged Property, GMACM shall review the
Custodial Files relating to such Mortgage Loans to determine the existence of
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. GMACM shall take into account the existence
of 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 in proceeding with any action. Furthermore,
GMACM shall not take any such action with respect to any Mortgaged Property
related to a GMACM Mortgage Loan known by GMACM to contain such wastes or
substances, without the prior written consent of the Majority Class X
Certificateholder and the Trustee .
(e) Notwithstanding anything to the contrary in this Section 8.10,
GMACM shall not foreclose on a Mortgage Loan that is a second lien on the
related Mortgaged Property and take title to the related Mortgaged Property of a
GMACM Mortgage Loan subject to the senior lien on such Mortgaged Property.
(f) GMACM shall not agree to any modification, waiver or amendment
of any provision of any GMACM Mortgage Loan, unless GMACM has (i) undergone an
evaluation of the relevant Mortgagor's creditworthiness at the time of the
modification and (ii) in GMACM's good faith judgment, such modification, waiver
or amendment would minimize the loss that might otherwise be experienced with
respect to such GMACM Mortgage Loan and only in the event a payment default with
respect to such GMACM Mortgage Loan has occurred or in the opinion of GMACM is
reasonably foreseeable; provided, however, that no such modification, waiver or
amendment shall extend the maturity date of such GMACM Mortgage Loan beyond the
Due Period related to the final scheduled Distribution Date of the latest Class
of Certificates remaining in the Trust. In the event that GMACM is required by
applicable law to modify, waive or amend any provision of a GMACM Mortgage Loan,
GMACM shall promptly notify the Trustee.
(g) GMACM shall deliver to the Trustee for deposit in the related
Custodial File, an original counterpart of any agreement relating to such
modification, waiver or amendment, promptly following the execution thereof.
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8.11 TRUSTEE TO COOPERATE; RELEASE OF FILES.
(a) Upon the payment in full of any GMACM Mortgage Loan (including
any liquidation of such Mortgage Loan through foreclosure or otherwise), or the
receipt by GMACM of a notification that payment in full will be escrowed in a
manner customary for such purposes, GMACM shall deliver to the Trustee the
Xxxxxx Xxx "Request for Release of Documents" attached hereto as Exhibit D. Upon
receipt of such Request for Release of Documents, the Trustee shall promptly
release or cause the release of the related Custodial File, in trust, to (i)
GMACM, (ii) an escrow agent or (iii) any employee, agent or attorney of the
Trustee. Upon any such payment in full, or the receipt of such notification that
such funds have been placed in escrow, GMACM is authorized to give, as
attorney-in-fact for the Trustee and the mortgagee under the Mortgage relating
to a GMACM Mortgage Loan which secured the relevant Mortgage Note, an instrument
of satisfaction (or assignment of such Mortgage without recourse, representation
or warranty) regarding the Mortgaged Property relating to such Mortgage, which
instrument of satisfaction or assignment, as the case may be, shall be delivered
to the Person or Persons entitled thereto against receipt therefor of payment in
full, it being understood and agreed that no expense incurred in connection with
such instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Collection Account. In lieu of executing any such satisfaction
or assignment, as the case may be, GMACM may prepare and submit to the Trustee a
satisfaction (or assignment without recourse, representation or warranty, if
requested by the Person or Persons entitled thereto) in form for execution by
the Trustee with all requisite information completed by GMACM; in such event,
the Trustee shall execute and deliver a power of attorney prepared by GMACM to
the Trustee and acceptable to the Trustee authorizing GMACM to prepare such
satisfaction and deliver the same with the related Custodial File, as aforesaid.
(b) From time to time and as appropriate in the servicing of any
GMACM Mortgage Loan, including, without limitation, foreclosure or other
comparable conversion of a GMACM Mortgage Loan or collection under any
applicable Insurance Policy, the Trustee shall (except in the case of the
payment or liquidation pursuant to which the related Custodial File is released
to an escrow agent or an employee, agent or attorney of the Trustee), upon
request of GMACM and delivery to the Trustee of a Request for Release signed by
an Authorized Officer of GMACM, release the related Custodial File to GMACM and
shall execute a power of attorney prepared by GMACM to the Trustee and
acceptable to the Trustee authorizing GMACM to execute such documents as shall
be necessary to the prosecution of any such proceedings, including, without
limitation, an assignment without recourse, representation or warranty of the
related Mortgage to GMACM; provided that there shall not be released and
unreturned at any one time more than 10% of the entire number of Custodial Files
to GMACM unless such Custodial Files in excess of 10% are required by the
Servicer in order to commence or continue foreclosure proceedings with respect
to such Mortgage Loans. Such receipt shall obligate GMACM to return the
Custodial File to the Trustee when the need therefor by GMACM no longer exists
unless the GMACM Mortgage Loan shall be liquidated, in which case, upon receipt
of the Xxxxxx Mae "Liquidation Schedule" relating to such liquidation, the
receipt shall be released by the Trustee to GMACM. The Trustee shall
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have no liability for GMACM's failure to return a Custodial File released to
GMACM pursuant to this Section 8.11, other than to determine that GMACM has not
returned the file and take appropriate action.
(c) GMACM shall have the right to accept applications of Mortgagors
for consent to (i) partial releases of Mortgaged Properties relating to GMACM
Mortgage Loans, (ii) alterations and (iii) removal, demolition or division of
Mortgaged Properties relating to such Mortgage Loans subject to Mortgages. No
application for approval shall be considered by GMACM unless: (w) the Trustee
has been provided with a REMIC Opinion addressed to the Trustee to the effect
that such action is in compliance with REMIC Provisions, is not a "prohibited
transaction" within the meaning of Code Section 860F(a)(2) and will not prevent
either Trust REMIC from qualifying as a REMIC; (x) the provisions of the related
Mortgage Note and Mortgage relating to the applicable Mortgage Loan have been
complied with; (y) the loan-to-value ratio after any such action does not exceed
the original Loan-to-Value Ratio of such Mortgage Loan and any increase in the
loan-to-value ratio of such Mortgage Loan shall not exceed 15% unless approved
in writing by the Majority Class X Certificateholder; and (z) the lien priority
of the related Mortgage is not affected. Upon receipt by the Trustee of an
Officer's Certificate executed on behalf of GMACM setting forth the action
proposed to be taken in respect of a particular Mortgage Loan and certifying
that the criteria set forth in the immediately preceding sentence have been
satisfied, the Trustee shall execute and deliver to GMACM the consent or partial
release so requested by such Servicer. A proposed form of consent or partial
release, as the case may be, shall accompany any Officer's Certificate delivered
by GMACM pursuant to this paragraph. GMACM shall notify the Depositor, the
Trustee and the Rating Agencies if an application is approved under clause (y)
above, without approval in writing by the Depositor and the Trustee.
8.12 SERVICING COMPENSATION.
(a) GMACM shall be entitled to receive the Servicing Fee during each
Due Period as compensation for the servicing of the GMACM Mortgage Loans.
Without limiting the generality of the foregoing, except as provided herein,
GMACM shall not be entitled to receive the Servicing Fee on any Mortgage Loan
for which a Monthly Payment has not been received during the respective Due
Period, provided, however, that Servicing Fees shall accrue on such Mortgage
Loans during this period. Such accrued and unpaid Servicing Fees shall be paid
to GMACM (i) if a Monthly Payment is made for such Delinquent Mortgage Loan, at
such time; (ii) from Liquidation Proceeds, if the Delinquent Mortgage Loan is
liquidated; or (iii) from the Collection Account if such Delinquent Mortgage
Loan is charged-off. Amounts paid to GMACM pursuant to the immediately preceding
sentence with respect to any GMACM Mortgage Loan shall be deemed to be from the
payment of the interest portion of Monthly Payments for such Mortgage Loan.
(b) GMACM will receive all other ancillary income including but not
limited to all fees received with respect to late fees, checks or bank drafts
returned by the related bank for non-sufficient funds, assumption fees, optional
insurance administration
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fees and all other incidental fees and charges with respect to each Mortgage
Loan for any period in which such Mortgage Loan was serviced by GMACM .
(c) GMACM shall pay itself the Servicing Compensation by withdrawing
such Servicing Compensation from the Collection Account in accordance with
Section 8.04(d).
8.13 ANNUAL STATEMENT AS TO COMPLIANCE.
GMACM, at its own expense, will deliver to the Trustee, the
Depositor and the Rating Agencies, on or before March 15 of each year,
commencing in 2004, an Officer's Certificate stating, as to each signer thereof,
that (i) a review of the activities of GMACM during such preceding calendar year
and of performance under this Agreement has been made under such officers'
supervision, and (ii) to the best of such officers' knowledge, based on such
review, GMACM has fulfilled all its obligations under this Agreement for such
year, or, if there has been a default in the fulfillment of all such
obligations, specifying each such default known to such officers and the nature
and status thereof including the steps being taken by GMACM to remedy such
default.
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8.14 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' REPORTS.
On or before March 15 of each year, commencing in 2004, GMACM, at
its own expense (or if the Trustee is then acting as servicer of the related
Mortgage Loans, at the expense of the Depositor, which in no event shall exceed
$1,000 per annum), shall cause a nationally recognized firm of independent
certified public accountants to furnish to GMACM a report stating that (i) it
has obtained a letter of representation regarding certain matters from the
management of GMACM which includes an assertion that GMACM 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 fiscal 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. Immediately upon receipt of
such report, GMACM shall furnish a copy of such report to the Trustee, the
Depositor and each Rating Agency. Copies of such statement shall be provided by
the Trustee to any Certificateholder upon request at the GMACM's expense,
provided that such statement is delivered by GMACM to the Trustee. In the event
such firm of independent certified public accountants requires the Trustee to
agree to the procedures performed by such firm, GMACM shall direct the Trustee
in writing to so agree; it being understood and agreed that the Trustee will
deliver such letter of agreement in conclusive reliance upon the direction of
GMACM, and the Trustee has not made any independent inquiry or investigation as
to, and shall have no obligation or liability in respect of, the sufficiency,
validity or correctness of such procedures.
8.15 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING THE
MORTGAGE LOANS; STAFFING.
GMACM shall provide to the Trustee, the Depositor, the Class X
Certificateholder, the FDIC and any supervisory agents and examiners of any of
the foregoing (which, in the case of supervisory agents and examiners, may be
required by applicable state and federal regulations) access to the
documentation regarding the GMACM Mortgage Loans, such access being afforded
without charge but only upon reasonable request and during normal business hours
at the offices of GMACM designated by it.
GMACM agrees to secure by the Closing Date adequate staffing to
manage and service the GMACM Mortgage Loans according to the standards set forth
in this Agreement, which staffing shall be in accordance with GMACM's current
human
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resources standards for servicing mortgage loans comparable to the GMACM
Mortgage Loans.
8.16 ASSIGNMENT OF AGREEMENT.
Except for any assignment to JPMorgan Chase Bank in connection with
the financing of any Advances by GMACM, GMACM may not assign its obligations
under this Agreement, in whole or in part, unless it shall have first obtained
the written consent of the Trustee and the Depositor, which consent shall not be
unreasonably withheld; provided, however, that any assignee other than JPMorgan
Chase Bank must meet the eligibility requirements set forth in Section 8.18(b)
and provided further, that, GMACM may be merged or consolidated with or into any
Person, or transfer all or substantially all of its assets to any Person, in
which case any Person resulting from any merger or consolidation to which GMACM
shall be a party, or any Person succeeding to the business of the GMACM, shall
be the successor of GMACM 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 GMACM must meet the eligibility requirements set forth in
Section 8.18(b); and provided further that the Rating Agencies' ratings of the
Offered Certificates in effect immediately prior to such merger or consolidation
will not be qualified, reduced or withdrawn as a result thereof (as evidenced by
a letter to such effect from the Rating Agencies to the Trustee).
8.17 REMOVAL OF SERVICER; RESIGNATION OF SERVICER.
(a) The Depositor (or the Trustee with consent of the Depositor),
may terminate GMACM as a Servicer hereunder with respect to the GMACM Mortgage
Loans without cause, effective upon the giving of written notice on the date set
forth in such notice (unless GMACM shall have received a notice of extension,
executed by a duly authorized Person on behalf of the Depositor or the Trustee,
as applicable, which notice the Depositor or Trustee may withhold in its sole
discretion), that this Agreement shall have been terminated in whole, or that
this Agreement shall have been terminated in part with respect to the servicing
of the GMACM Mortgage Loans specified in such notice, without any further notice
or demand, but, except as otherwise agreed by GMACM with the Depositor in the
case of a termination by GMACM, subject to the payment of the termination fee
set forth in Section 8.18(d) by the Depositor (such event, a "Servicer
Termination Event"). Any such notice of termination shall be in writing and
delivered to GMACM as provided in Section 12.19.
(b) Notwithstanding any other provision hereof to the contrary, (i)
the Depositor may, and (ii) the Trustee shall at the direction of the Majority
Owners, terminate any rights GMACM may have hereunder with respect to the GMACM
Mortgage Loans with cause, upon five (5) Business Days' prior written notice,
except with respect to clauses (1) and (2) hereunder, which shall occur
immediately upon the happening of such event. Notwithstanding the foregoing, if
an event described in paragraph (2)(b) below shall occur, the Trustee may
terminate GMACM without the
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consent of the Owners. For all purposes of determining "cause" with respect to
termination of this Agreement or the rights of GMACM hereunder, such term shall
mean termination upon the occurrence of any of the following events which is not
cured within any applicable cure period specified below:
(1) Any failure by GMACM to remit to the Trustee any payment other
than Servicing Advances or Monthly Advances required to be
made by GMACM under the terms of this Agreement which
continues unremedied for a period up to one Business Day;
(2) The failure by GMACM to make (a) any required Servicing
Advance which failure continues unremedied for a period of
thirty (30) days after the date on which written notice of
such failure, requiring the same to be remedied, shall have
been given to GMACM by the Trustee or (b) any required Monthly
Advance by the day that such Monthly Advance is required to be
paid as provided herein, provided, however, isolated and
infrequent failures by GMACM to pay any de minimis portion of
any Monthly Advance when required shall not be a termination
event for cause for GMACM;
(3) Any failure on the part of GMACM to duly observe or perform in
a material respect any other of the covenants or agreements on
the part of GMACM contained in this Agreement or the breach by
GMACM of any representation and warranty contained in this
Agreement, which continues unremedied for a period of thirty
(30) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been
given to GMACM by the Trustee or the Depositor; provided,
however, that if GMACM can demonstrate to the reasonable
satisfaction of the Depositor that it is diligently pursuing
remedial action, then the cure period may be extended with the
written approval of the Depositor (which approval shall not be
subject to unreasonable conditions or unreasonably withheld);
(4) A decree or order of a court or agency or supervisory
authority having jurisdiction in an involuntary case under any
present or future federal or state bankruptcy, insolvency or
similar Law or the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceeding, or for the
winding-up or liquidation of its affairs, shall have been
entered against GMACM and such decree or order shall have
remained in force undischarged or unstayed for a period of
sixty (60) days;
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(5) GMACM shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar
proceeding of or relating to it or of or relating to all or
substantially all of its property;
(6) GMACM shall admit in writing to 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;
(7) (a)For so long as GMACM shall remain a Servicer hereunder,
failure by GMACM to maintain at all times a minimum net worth
of at least $25,000,000, or (b) failure by GMACM to meet at
all times any equity, net worth, capitalization and other
eligibility or licensing requirements for servicers required
under applicable Law, or as otherwise required by Xxxxxx Xxx
or Xxxxxxx Mac, which failure in any case continues for a
period of one (1) Business Day;
(8) Entry of any cease and desist order or similar order or
directive issued against GMACM or any of its Affiliates by any
regulator of GMACM which order remains in effect longer than
180 days and which materially and adversely affects the
Mortgage loans or the interests of Certificateholders;
(9) GMACM attempts to assign its right to servicing compensation
hereunder or GMACM attempts, without the consent of the
Depositor and the Trustee, to assign this Agreement or the
servicing responsibilities hereunder or to delegate its duties
hereunder or any portion thereof in a manner not permitted
under this Agreement;
(10) Fitch reduces the servicing rating or special rating of GMACM,
as applicable, by two or more servicing rating levels at any
point in time during a consecutive twelve month period or the
servicing rating is "RSS4" or lower, Xxxxx'x reduces its
servicer rating or special servicing rating of GMACM, as
applicable, by two or more servicing rating levels at any
point in time during a consecutive twelve month period or the
servicing rating is "SQ4" or lower, Standard & Poor's reduces
its servicer rating or special servicing rating of GMACM, as
applicable, by two or more servicing rating levels at any
point in time during a consecutive twelve month period or to a
"below average" level or lower; or
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(11) GMACM fails to maintain its license to do business or service
residential mortgage loans in any jurisdiction where the
Mortgaged Property securing a GMACM Mortgage Loan is located.
GMACM shall provide prompt notice to the Trustee and the Depositor
upon learning of any of the foregoing events.
(c) Reserved.
(d) GMACM shall not resign from the obligations and duties hereby
imposed on it, except upon determination that its duties hereunder are no longer
permissible under applicable Law or are in material conflict by reason of
applicable Law with any other activities carried on by it, the other activities
of GMACM so causing such a conflict being of a type and nature carried on by
GMACM at the date of this Agreement. Any such determination permitting the
resignation of GMACM shall be evidenced by an opinion of counsel to such effect
which shall be delivered to the Depositor and the Trustee, which opinion shall
be at the expense of GMACM.
(e) No removal or resignation of GMACM shall become effective until
(1) the Trustee or other successor Servicer shall have assumed the
responsibilities and obligations of GMACM in accordance with this Section
8.17(e) and (2) upon the termination of GMACM pursuant to Section 8.17(a), GMACM
shall have been reimbursed by the Trust for all unreimbursed Advances and all
unpaid Servicing Compensation and shall have been paid the termination fee set
forth in Section 8.18(d).
(f) Reserved.
(g) In addition, the Depositor may terminate any rights GMACM may
have hereunder with respect to the GMACM Mortgage Loans as separately agreed in
writing by the Depositor and GMACM.
(h) Upon removal or resignation of GMACM, GMACM at its own expense
(except in the event of a removal other than for cause, in which case it shall
be an expense of the removing party) also shall promptly deliver or cause to be
delivered to the Trustee or other successor Servicer, as directed in writing by
the Trustee, all Records and Mortgage Loan Documents related to the GMACM
Mortgage Loans.
(i) Any Collections then being held by GMACM prior to its removal
and any Collections received by GMACM after removal or resignation shall be
endorsed by it to the Trustee and remitted directly and immediately to the
Trustee or the successor Servicer.
(j) If GMACM is being removed or is resigning pursuant to clause (d)
above, GMACM (or, in the absence of such notice, the Trustee) shall give notice
to the Mortgagors, the Depositor and the Rating Agencies of the transfer of the
servicing to the successor Servicer. In addition, the Trustee (or the Depositor,
in the case of a proposed removal pursuant to Section 8.17(c) or (f)), shall
give prompt notice to the Rating
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Agencies and the Depositor of any formal action taken in furtherance of the
removal of GMACM .
(k) If GMACM is removed by the Depositor or the Trustee or resigns
pursuant to clause (d) above, GMACM shall be entitled to reimbursement of all
unreimbursed Advances and unpaid Servicing Compensation in accordance with
Section 8.18(d).
(l) The Trustee shall give notice to the Owners, the Depositor and
the Rating Agencies of the occurrence of any event described in Section 8.17(a)
or (b) of which an Authorized Officer of the Trustee is aware.
8.18 SUCCESSOR SERVICERS.
(a) Appointment of Successor. On and after a termination of GMACM,
as a Servicer hereunder or a resignation of GMACM as evidenced by an opinion of
counsel as described in Section 8.17(d), then the Trustee, within sixty (60)
days of the occurrence of such event, shall have a successor Servicer in place
to be the successor in all respects to GMACM, as the case may be, in its
capacity as Servicer under this Agreement and the transactions set forth or
provided for herein and such successor Servicer shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on GMACM by the
terms and provisions hereof; provided, however, that the successor Servicer
shall not be liable for any actions of GMACM prior to its appointment as
successor Servicer. The Trustee (x) may solicit bids for a successor Servicer as
described in Section 8.18(b), and (y) pending the appointment of a successor
Servicer, shall serve as Servicer in the event of the removal or resignation of
any GMACM. Notwithstanding the foregoing, the parties hereto agree that the
Trustee, in its capacity as successor Servicer, immediately will assume all of
the obligations of GMACM to make Monthly Advances, Servicing Advances and to pay
Compensating Interest with respect to the relevant Mortgage Loans and the
Trustee will assume the other duties of GMACM as soon as practicable, but in no
event later than sixty (60) days after the Servicer Termination Date. If the
Trustee assumes the responsibilities of GMACM pursuant to this Section 8.18,
then the Trustee will make reasonable efforts consistent with applicable Law to
obtain qualification in order to perform its obligations as Servicer under this
Agreement or, alternatively, shall retain an agent that is so licensed,
qualified and in good standing in any such state. Notwithstanding the foregoing,
the Trustee, in its capacity as successor Servicer shall not be responsible for
the lack of information and/or documents that it cannot obtain through
reasonable efforts.
If the Trustee serves as successor Servicer, then the Trustee in
such capacity shall not be liable for any servicing of the Mortgage Loans prior
to its date of appointment as Servicer.
Any successor Servicer or the Trustee shall be reimbursed for all
reasonable costs and expenses incurred in connection with the appointment of the
successor Servicer and the replacement of GMACM which reimbursement shall be
paid (1) if the termination is for cause or pursuant to Section 8.17(b), first,
by the predecessor
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Servicer, but only the cost of deconversion and transfer of Servicing Files, and
second, to the extent that costs and expenses are not reimbursed within 30 days
of demand therefor or reimbursable by the predecessor Servicer, as a Trust
Expense, from amounts in the related Collection Account, and (2) if the
termination is without cause, pursuant to Section 8.17(a), by the Depositor.
(b) (i) If the Trustee is required to act as the successor Servicer
it shall, if it is unable to obtain a qualifying bid and is prevented by law
from acting as Servicer, appoint, or petition a court of competent jurisdiction
to appoint, any housing and home finance institution, bank or mortgage servicing
institution which has been designated as an approved seller-servicer by Xxxxxx
Mae or for first and second mortgage loans and having equity of not less than
$10,000,000 (or such lower level as may be acceptable to the Trustee), as
determined in accordance with generally accepted accounting principles and
acceptable to the Trustee and the Depositor, as the successor to GMACM hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of GMACM hereunder.
(ii) In the event the Trustee solicits bids as provided above, the
Trustee shall solicit, by public announcement at least once in The
American Banker and such other publications as reasonably selected by the
Trustee as directed by the Depositor, bids from housing and home finance
institutions, banks and mortgage servicing institutions meeting the
qualifications set forth above. Such public announcement shall specify
that the successor Servicer shall be entitled to the full amount of the
aggregate Servicing Compensation as servicing compensation but only with
respect to the GMACM Mortgage Loans as reduced by the obligation to pay
Compensating Interest. Within thirty days after any such public
announcement, the Trustee shall negotiate and effect the sale, transfer
and assignment of the servicing rights and responsibilities hereunder to
the qualified party approved by the Depositor submitting the highest
satisfactory bid as to the price they will pay to obtain servicing. The
Trustee shall deduct from any sum received by the Trustee from the
successor Servicer in respect of such sale, transfer and assignment all
costs and expenses of any public announcement and of any sale, transfer
and assignment of the servicing rights and responsibilities hereunder.
After such deductions, the remainder of such sum less any amounts due the
Trustee or the Trust from the relevant predecessor Servicer shall be paid
by the Trustee to the relevant predecessor Servicer at the time of such
sale, transfer and assignment to the successor Servicer.
(iii) The Trustee, upon assuming the duties of GMACM hereunder,
shall immediately make all Monthly Advances which GMACM was required to
make hereunder and has theretofore failed to remit with respect to the
GMACM Mortgage Loans and deposit them into the relevant Collection
Account; provided, however, that if the Trustee is acting as successor
Servicer, the Trustee shall only be required to make Monthly Advances
(including the Monthly Advances described in this clause (b)(iii)) if, in
the Trustee's reasonable good faith
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judgment, such Monthly Advances will ultimately be recoverable from the
applicable Mortgage Loans.
(c) Successor Servicer Compensation. The compensation of any
successor Servicer (including, without limitation, the Trustee) so appointed
shall be an amount up to the aggregate Servicing Fee with respect to the
Mortgage Loans serviced by the predecessor Servicer, together with the other
Servicing Compensation provided herein.
(d) Termination Fee to Prior Servicer. In the event GMACM is
terminated in whole or in part without cause pursuant to Section 8.17(a), such
prior Servicer shall be entitled to receive a termination fee equal to $20 per
each applicable Mortgage Loan. Upon termination or removal of GMACM, for any
reason such prior Servicer shall be entitled to payment, within thirty (30) days
of the delivery of notice of such termination, of any unpaid Servicing
Compensation with respect to the GMACM Mortgage Loans and reimbursement of all
expenses, including unreimbursed Advances relating to such GMACM Mortgage Loans
made under this Agreement, to the date of termination; provided, however, that
no termination fee or other liquidated or other damages shall be payable to the
prior Servicer if it is terminated for cause pursuant to Section 8.17(b). The
termination fee shall be an obligation of the Depositor and not of the Trust or
the Trustee.
(e) Effectiveness of Appointment. Neither the Trustee nor any other
successor Servicer, as applicable, shall be held liable by reason of any failure
to make, or any delay in making, any payment or distribution hereunder or any
portion thereof caused by (i) the failure of the prior Servicer to deliver, or
any delay in delivering, cash, documents or records to it or (ii) restrictions
imposed by any regulatory authority having jurisdiction over the prior Servicer
hereunder. No appointment of a successor to GMACM hereunder shall be effective
until the Depositor and the Trustee shall have consented thereto.
8.19 INSPECTIONS OF SERVICERS; ERRORS AND OMISSIONS INSURANCE.
The Trustee, the Depositor, any Class X Certificateholder or any
agents thereof shall have the right, at its own expense and during normal
business hours upon reasonable prior notice, to review any and all of the books,
records, or other information of GMACM which may be relevant to such Person's
ability to confirm that GMACM is complying with its obligations to service the
GMACM Mortgage Loans in accordance with the terms of this Agreement. In order to
discuss such books, records or other information, GMACM shall make personnel
available who are knowledgeable about such matters to such Persons or their
respective designees. GMACM shall provide the above parties or any agents of any
of them (1) during normal business hours with on-line, read-only access to such
Servicer's servicing system and loan records, and (2) hard or electronic copies
of books, records, and other information as reasonably requested by such
Persons. Each of the Trustee and the Depositor shall reimburse the reasonable
out-
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of-pocket expenses incurred by GMACM in connection with any request pursuant to
this Section 8.19 from amounts on deposit in the Certificate Account. Each of
the Trustee, the Depositor and the Class X Certificateholder shall maintain the
confidentiality of all such information, shall use all information only in
connection with this Agreement, and will comply with all applicable laws with
respect thereto, including without limitation, Subtitle A of Title V of the
Xxxxx-Xxxxx-Xxxxxx Act.
GMACM agrees to maintain errors and omissions coverage and a
fidelity bond, each at least to the extent required by the Xxxxxx Mae Guide or
any successor provision thereof; provided, however, that if the Trustee shall
become the Servicer, any customary insurance coverage that the Trustee maintains
shall be deemed sufficient hereunder; provided, further, that in the event that
the fidelity bond or the errors and omissions coverage is no longer in effect,
the Trustee shall promptly give such notice to the Depositor and the Owners.
Upon the request of the Trustee, the Depositor or the Majority Class X
Certificateholder or GMACM shall cause to be delivered to such requesting Person
a certified true copy of such fidelity bond or errors and omission policy.
8.20 NON-SOLICITATION.
GMACM agrees that, after the Closing Date, it will not take any
action to solicit the refinancing of any Mortgage Loan other than a Mortgage
Loan that is more than 60 days Delinquent. It is understood and agreed that
promotions undertaken by GMACM or any Affiliate of GMACM which are directed to
the general public at large, including, without limitation, mass mailings based
upon commercially acquired mailing lists, newspaper, radio, television
advertisements, messaging in GMACM's telephone voice response system, monthly
account statements, or web page, or from servicing the refinancing needs of a
Mortgagor related to a GMACM Mortgage Loan who, without solicitation, contacts
GMACM in connection with the refinance of such Mortgage or GMACM Mortgage Loan,
shall not constitute solicitation under this Section 8.20. Notwithstanding
anything to the contrary, this Section 8.20 shall not prohibit any of GMACM from
soliciting any Mortgagor related to a GMACM Mortgage Loan to provide other
services including but not limited to credit cards, insurance investments and
banking related services.
8.21 MAJORITY CLASS X CERTIFICATEHOLDER PURCHASE RIGHT.
The Majority Class X Certificateholder shall have the right and the
option, but not the obligation, for administrative convenience, to purchase for
its own account any Mortgage Loan (i) which becomes a Defaulted Mortgage Loan or
(ii) as to which there exists a defect in the documentation comprising the
Custodial File, which defect the applicable Seller fails to remedy in accordance
with the relevant Sale Agreement and such defect materially and adversely
affects the interest of the Owners in such Mortgage Loan. Any such Mortgage Loan
so purchased shall be purchased by the Majority Class X Certificateholder on a
Remittance Date at a purchase price equal to the Loan Purchase
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Price thereof, which purchase price shall be paid to the Trustee for deposit
into the Certificate Account as provided herein. Any such purchase pursuant to
clause (ii) of the preceding sentence shall occur within 90 days of the
Trustee's notice of such defect if the defect would prevent the Mortgage Loan
from being a Qualified Mortgage.
8.22 PERIODIC FILINGS.
(a) The Depositor shall prepare or cause to be prepared the initial
post closing filing of material agreements on Form 8-K. Thereafter, within 15
days after each Distribution Date, the Trustee shall, in accordance with
industry standards, file with the Commission via the Electronic Data Gathering
and Retrieval System ("XXXXX"), a Form 8-K with a copy of the statement to the
Securityholders for such Distribution Date as an exhibit thereto. Prior to
January 30, 2004, the Trustee shall, in accordance with industry standards, file
a Form 15 Suspension Notification with respect to the Trust, if applicable.
Prior to March 31, 2004, the Trustee shall file a Form 10-K, in substance
conforming to industry standards, with respect to the Trust. The Depositor
agrees to promptly furnish to the Trustee, from time to time upon request, such
further information, reports, and financial statements within its control
related to this Agreement and the Mortgage Loans as the Depositor reasonably
deems appropriate to prepare and file all necessary reports with the Commission.
(b) The Trustee and GMACM shall reasonably cooperate with the
Depositor in connection with the Trust's satisfying the reporting requirements
under the Exchange Act. The Trustee shall prepare on behalf of the Trust any
Forms 8-K and 10-K customary for similar securities as required by the Exchange
Act and the Rules and Regulations of the Securities and Exchange Commission
thereunder, and the Trustee shall sign and file (via the Securities and Exchange
Commission's Electronic Data Gathering and Retrieval System) such Forms on
behalf of the Depositor, if an officer of the Depositor signs the Certification
pursuant to paragraph (c) of this Section 8.22, or otherwise on behalf of the
Trust. In the event the Trustee is signing on behalf of the Depositor pursuant
to the preceding sentence, the Depositor hereby grants to the Trustee a limited
power of attorney to execute and file each such document on behalf of the
Depositor. Such power of attorney shall continue until the earlier of either (i)
receipt by the Trustee from the Depositor of written termination of such power
of attorney and (ii) the termination of the Trust. Notwithstanding the
foregoing, the Trustee shall prepare such Form 10-K to be signed by the
Depositor and the Depositor shall sign such form unless the Securities and
Exchange Commission has indicated that it will accept a Certification signed by
the Depositor where the related Form 10-K is signed by the Trustee on behalf of
the Depositor.
(c) Each Form 8-K shall be filed by the Trustee within 15 days after
each Distribution Date, including a copy of the statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior to
March 30th of each year (or such earlier date as may be required by the Exchange
Act and the Rules and Regulations of the Securities and Exchange Commission),
the Trustee shall file a Form 10-K, in substance as required by applicable law
or applicable Securities and Exchange Commission staff's
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interpretations. Such Form 10-K shall include as exhibits the Servicers' annual
statement of compliance described under Section 8.13 and the accountant's report
described under Section 8.14, 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 E (the "Certification"), which shall, except as
described below, be signed by the senior officer of the Depositor in charge of
securitization.
(d) The Trustee shall provide a certification (in the form attached
hereto as Exhibit E-1 and executed by a Responsible Officer of the Trustee) 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 each Servicer shall sign a certification (in
the form attached hereto as Exhibit E-2) 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 1st of each year (or if not a Business Day,
the immediately preceding Business Day). The Certifications attached hereto as
Exhibits E-1 and E-2 shall be delivered to the Depositor by March 25th 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 8.22(d) or the Trustee's
negligence, bad faith or willful misconduct in connection therewith, and (ii)
GMACM shall indemnify and hold harmless the Depositor, the Trustee and their
respective officers, directors and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of GMACM's obligations under this Section 8.22(d) or such
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 8.22(d) 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) GMACM 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 GMACM
on the other
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in connection with a breach of GMACM's obligations under this Section 8.22(d) or
GMACM's negligence, bad faith or willful misconduct in connection therewith.
(e) Upon any filing with the Commission, the Trustee shall promptly
deliver to the Depositor a copy of any such executed report, statement or
information.
8.23 CREDIT REPORTING; XXXXX-XXXXX-XXXXXX ACT.
(a) With respect to each GMACM Mortgage Loan, GMACM shall fully
furnish, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g., favorable and unfavorable)
on the related Mortgagor credit files to Equifax, Experian, and TransUnion
Credit Information Company (three of the credit repositories), on a monthly
basis.
(b) GMACM shall comply with Title V of the Xxxxx-Xxxxx-Xxxxxx Act of
1999 and all applicable regulations promulgated thereunder, relating to the
GMACM Mortgage Loans and the related borrowers and shall provide all disclosures
required of a servicer thereunder.
8.24 FORECLOSURE RESTRICTIONS.
GMACM shall not acquire any Mortgaged Property on behalf of any
REMIC created hereunder in connection with a default or imminent default on a
Foreclosure Restricted Mortgage Loan, if acquiring title to such Mortgaged
Property would cause the aggregate adjusted basis, for federal income tax
purposes, of such Mortgaged Properties owned by the related REMIC after
foreclosure, along with any other assets owned by the related REMIC and serviced
by GMACM, other than "qualified mortgages" and "permitted investments" within
the meaning of Section 860G of the Code, to exceed 0.75% of the aggregate
adjusted basis of the assets of the related REMIC serviced by GMACM. If the
aggregate adjusted basis of REO Properties acquired by the Trust in respect of
Foreclosure Restricted Mortgage Loans, along with any other assets owned by the
related REMIC and serviced by GMACM, other than "qualified mortgages" and
"permitted investments" with the meaning of Section 860G of the Code, exceed
1.0% of the aggregate adjusted basis of the assets of the related REMIC serviced
by GMACM immediately after the distribution of principal and interest on any
Distribution Date, GMACM will dispose of enough of such REO Properties acquired
by the Trust in respect of Foreclosure Restricted Mortgage Loans, for cash or
otherwise, so that the aggregate adjusted basis of such REO Properties, along
with any other assets owned by the related REMIC serviced by GMACM, other than
"qualified mortgages" and "permitted investments" within the meaning of Section
860G of the Code, will be less than 1.0% of the adjusted basis of the assets of
the related REMIC serviced by GMACM. In either event, GMACM is permitted to
acquire, for its own account and not on behalf of the Trust, a Mortgaged
Property relating to a Foreclosure Restricted Mortgage Loan at the related
foreclosure sale for an amount not less than the greater of:
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(i) the highest amount bid by any other person at the foreclosure sale, or (ii)
the estimated fair value of such Mortgaged Property, as determined by GMACM in
good faith.
ARTICLE IX
RESERVED
ARTICLE X
TERMINATION OF TRUST
10.01 TERMINATION OF TRUST.
The Trust created hereunder and all obligations created by this
Agreement will terminate upon the payment to the holders of all Certificates of
all amounts held by the Trustee and required to be paid to such Owners pursuant
to this Agreement upon the latest to occur of (a) the final payment or other
liquidation (or any advance made with respect thereto) of the last Mortgage Loan
in the Trust Estate, (b) the disposition of all property acquired in respect of
any Mortgage Loan remaining in the Trust Estate, and (c) at any time when a
Qualified Liquidation of the Mortgage Loans included within the Trust is
effected as described below. To effect a termination of this Agreement pursuant
to clause (c) above, the holders of all Certificates then Outstanding shall (i)
unanimously direct the Trustee on behalf of each REMIC to adopt a plan of
complete liquidation as contemplated by Section 860F(a)(4) of the Code and (ii)
provide to the Trustee an opinion of counsel experienced in federal income tax
matters acceptable to the Depositor and the Trustee to the effect that each such
liquidation constitutes a Qualified Liquidation, and the Trustee either shall
sell the Mortgage Loans and distribute the proceeds of the liquidation of the
Trust Estate, or shall distribute equitably in kind all of the assets of the
Trust Estate to the remaining holders of the Certificates each in accordance
with such plan, so that the liquidation or distribution of the Trust Estate, the
distribution of any proceeds of the liquidation and the termination of this
Agreement occur no later than the close of the 90th day after the date of
adoption of the plan of liquidation and such liquidation qualifies as a
Qualified Liquidation. In no event, however, will the Trust created by this
Agreement continue beyond the expiration of twenty-one (21) years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of Saint Xxxxx, living on the date
hereof. The Trustee shall give written notice of termination of the Agreement to
each Owner in the manner set forth in Section 12.05.
10.02 TERMINATION UPON OPTION OF CERTIFICATEHOLDERS.
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The Majority Class X Certificateholder may, but shall not be
obligated to, purchase from the Trust or cause the sale by the Trust of all but
not less than all of the remaining Mortgage Loans in the Trust, thereby retiring
the Offered Certificates, whenever the Pool Balance is equal to or less than 10%
of the Original Pool Balance by furnishing notice to the Trustee and GMACM at
least four Business Days preceding such Distribution Date. The purchase price
for the Mortgage Loans shall be a price equal to the greater of (i) the
aggregate fair market value of the Mortgage Loans and other assets of the Trust
and (ii) the Pool Balance plus all accrued unpaid interest thereon through the
Due Date in the Due Period in which such purchase occurs plus the fair market
value of all REO Properties in the Trust, plus, without duplication, the amount
of all outstanding Advances (and interest thereon, if required to be paid
pursuant to this Agreement) and all unpaid Servicing Compensation. If such
remaining Mortgage Loans are not purchased from the Trust on the Optional
Termination Date, then the Step-Up Rate applicable to (a) the Class A-1, Class
M-1, Class M-2, Class B-1, Class B-2 and Class B-3 Certificates shall equal the
lesser of (i) LIBOR plus 1.400%, 1.350%, 2.925%, 6.000%, 6.375% and 6.375%,
respectively, during each Accrual Period relating to all subsequent Distribution
Dates and (ii) the WAC Cap.
10.03 TERMINATION UPON LOSS OF REMIC STATUS.
At any time on or after the date which is thirty (30) calendar days
following a Final Determination the holders of a majority in Percentage
Interests represented by the Class A-1, Class M and Class B Certificates then
Outstanding may direct the Trustee on behalf of the Trust to adopt a plan of
complete liquidation, as contemplated by Section 860F(a)(4) of the Code.
Upon receipt of such direction from the Holders of the Class A-1,
Class M and Class B Certificates, the Trustee shall notify the Holders of the
Class R Certificates of such election to liquidate or such determination to
purchase, as the case may be (the "Termination Notice"). The Holders of a
majority of the Percentage Interests of the Class R Certificates then
Outstanding may, within sixty (60) days from the date of receipt of the
Termination Notice (the "Purchase Option Period"), at their option, purchase
from the Trust all (but not fewer than all) Mortgage Loans and all property
theretofore acquired by foreclosure, deed in lieu of foreclosure, or otherwise
then remaining in the Trust Estate at a purchase price equal to the Pool Balance
as of the date of such purchase, plus (a) one month's interest on such amount at
the Mortgage Rates, (b) the aggregate amount of any unreimbursed Advances (and
interest thereon if required to be paid pursuant to this Agreement) and Trust
Expenses, and (c) any Monthly Advances which GMACM has theretofore failed to
remit. If, during the Purchase Option Period, the holders of the Class R
Certificates have not exercised the option described in the immediately
preceding sentence, then upon the expiration of the Purchase Option Period in
the event that the holders of the Class A-1, Class M Certificates and Class B
Certificates have given the Trustee the direction described in clause (i) of the
immediately preceding paragraph, the Trustee shall sell the Mortgage Loans and
distribute the proceeds of the liquidation of the Trust Estate, each in
accordance with the plan of complete liquidation, such that, if so directed, the
liquidation of the Trust Estate,
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the distribution of the proceeds of the liquidation and the termination of this
Agreement occur no later than the close of the sixtieth (60th) day, or such
later day as the holders of the Class A-1, Class M, and Class B Certificates
shall permit or direct in writing, after the expiration of the Purchase Option
Period.
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10.04 DISPOSITION OF PROCEEDS.
The Trustee shall, upon receipt thereof, deposit into the
Collections Account the proceeds of any liquidation of the Trust Estate pursuant
to this Article X as if they were collections on the Mortgage Loans.
10.05 FINAL DISTRIBUTION ON THE CERTIFICATES. In connection with the
termination of the trust as described in Section 10.01 or 10.02 hereof, the
Trustee shall promptly send a Notice of Final Distribution to each Owner not
later than the 15th day of the month of such final distribution. Such Notice of
Final Distribution shall specify 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 Owners.
In the event such Notice of Final Distribution is given, each
Servicer shall cause all funds in the relevant Collection Account, net of any
amounts on deposit therein which shall be used to pay the Servicer any amounts
due it pursuant to the terms of this Agreement, to be remitted to the Trustee
for deposit in the Certificate 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 Owners of each Class of Certificates (after
reimbursement of all amounts due the Servicers, the Depositor and the Trustee
hereunder), in each case on the final Distribution Date and in the order set
forth in Section 7.06, in proportion to their respective Percentage Interests,
with respect to Certificateholders of the same Class, an amount up to an amount
equal to (i) as to each Class of Regular Certificates (except the Class X
Certificate), the Certificate Balance thereof plus for each such Class and the
Class X Certificate accrued interest thereon in the case of an interest-bearing
Certificate and all other amounts to which such Classes are entitled pursuant to
Section 7.06, (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 and (iii) to the
Class X Certificates, any Prepayment Penalities remitted by the Servicers with
respect to the Mortgage Loans.
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In the event that any affected Owner 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 Owners 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 Owners
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.
ARTICLE XI
THE TRUSTEE
11.01 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Trustee (i) undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Trustee and (B) the
banking institution that is the Trustee shall serve as the Trustee at all times
under this Agreement, and (ii) in the absence of bad faith on its part, may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished pursuant to
and conforming to the requirements of this Agreement; but in the case of any
such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, shall be under a duty to examine the
same to determine whether or not they conform on their face to the requirements
of this Agreement. The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform on their face to the requirements of this Agreement; provided, however,
that the Trustee shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by a Servicer or the Depositor hereunder. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Trustee shall notify the Owners of such instrument in the
event that the Trustee, after so requesting, does not receive a satisfactory
corrected instrument.
(b) 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 willful misconduct, except that:
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(i) this subsection shall not be construed to limit the effect of
Section 11.01(a);
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by an Authorized Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of a majority in Percentage Interest of the
Certificates of the affected Class or Classes 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 relating to such Certificates;
(iv) Prior to the occurrence of an Event of Default of which an
Authorized Officer of the Trustee shall have actual knowledge, and after
the curing of all such Events of Default which may have occurred, 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 such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Agreement;
(v) The Trustee shall not be required to take notice or be deemed to
have notice or knowledge or any default or Event of Default unless an
Authorized Officer of the Trustee shall have received written notice
thereof. In the absence of receipt of such notice, the Trustee may
conclusively assume that there is no default or Event of Default; and
(vi) The Trustee shall have no duty (A) to see to any recording,
filing, or depositing of this Agreement or any agreement referred to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or
filing or depositing or to any re-recording, refiling or redepositing of
any thereof, (B) to see to any insurance, (C) to see to the payment or
discharge of any tax, assessment, or other governmental charge or any lien
or encumbrance of any kind owing with respect to, assessed or levied
against, any part of the Trust other than from funds available in the
Certificate Account and (D) to confirm or verify the contents of any
reports or certificates of any Servicer or any other Person 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.
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(c) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 11.01(c).
(d) No provision of this Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it. None of the provisions contained in this Agreement
shall in any event require the Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of any Servicer or the
Depositor 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, any Servicer in accordance with the terms of this Agreement.
(e) The permissive right of the Trustee to take actions enumerated
in this Agreement shall not be construed as a duty and the Trustee shall not be
answerable for other than its own negligence or willful misconduct.
(f) The Trustee shall be under no obligation to institute any suit,
or to take any remedial proceeding under this Agreement, or to take any steps in
the execution of the trusts hereby created or in the enforcement of any rights
and powers hereunder until it shall be indemnified to its satisfaction against
any and all costs and expenses, outlays and counsel fees and other reasonable
disbursements and against all liability, except liability which is adjudicated
to have resulted from its negligence or willful misconduct, in connection with
any action so taken.
11.02 CERTAIN RIGHTS OF THE TRUSTEE.
Except as otherwise provided in Section 11.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, note or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Depositor, or the holders of any
Class of Certificates mentioned herein shall be sufficiently evidenced in
writing;
(c) whenever in the administration of this Agreement the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an 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;
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(d) the Trustee may consult with counsel, and any advice or opinion
of such counsel (selected in good faith by the Trustee) shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement at the request or direction of
any of the Owners pursuant to this Agreement, unless such Owners shall have
offered to the Trustee reasonable security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) 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, direction, consent, order, bond,
note or other paper or document, but the Trustee in its discretion may make such
further inquiry or investigation into such facts or matters as it may see fit;
provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not assured to the
Trustee by the security afforded to it by the terms of this Agreement, the
Trustee may require indemnity satisfactory to the Trustee against such cost,
expense or liability as a condition to taking any such action;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents, attorneys
or custodians, and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent, attorney or custodian appointed by the
Trustee with due care;
(h) the Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized by the
Authorized Officer of any Person or within its rights or powers under this
Agreement other than as to validity and sufficiency of its authentication of the
Certificates;
(i) 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 or willful misconduct in
the performance of such act;
(j) pursuant to the terms of this Agreement, the Servicers are
required to furnish to the Trustee from time to time certain information and to
make various calculations which are relevant to the performance of the Trustee's
duties under this Agreement. The Trustee shall be entitled to rely in good faith
on any such information and calculations in the performance of its duties
hereunder, unless and until an Authorized Officer of the Trustee has actual
knowledge, or is advised by any Owner (either in writing or orally with prompt
written or telecopier confirmation), that such information or calculations is or
are incorrect; and
(k) the Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Estate created hereby or the powers
granted hereunder.
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11.03 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF CERTIFICATES.
The recitals and representations contained herein and in the
Certificates, except any such recitals and representations made by the Trustee,
shall be taken as the statements of the Depositor and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representation as to
the validity or sufficiency of this Agreement, of the Certificates, or any
Mortgage Loan or document related thereto other than as to validity and
sufficiency of its authentication of the Certificates. The Trustee shall not be
accountable for the use or application by the Depositor of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor, either of the Sellers or any
Servicers in respect of the Mortgage Loans or deposited into or withdrawn from
the related Collection Account or the Certificate Account by the Depositor, any
Servicer or either of the Sellers, and shall have no responsibility for filing
any financing or continuation statement in any public office at any time or
otherwise to perfect or maintain the perfection of any security interest or lien
or to prepare or file any tax returns for the Trust or to record this Agreement.
The Trustee shall not be required to take notice or be deemed to have notice or
knowledge of any default unless an Authorized Officer of the Trustee shall have
received written notice thereof or an Authorized Officer has actual knowledge
thereof. In the absence of receipt of such notice, the Trustee may conclusively
assume that no default has occurred.
11.04 MAY HOLD CERTIFICATES.
The Trustee, any Paying Agent, Registrar or any other agent of the
Trust, in its individual or any other capacity, may become an Owner or pledgee
of Certificates and may otherwise deal with the Trust with the same rights it
would have if it were not Trustee, any Paying Agent, Registrar or such other
agent.
11.05 MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other trust funds except to the extent required herein or required by Law.
The Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Depositor and except to the extent
of income or other gain on investments which are deposits in or certificates of
deposit of the Trustee in its commercial capacity.
11.06 COMPENSATION AND REIMBURSEMENT; NO LIEN FOR FEES.
The Trustee shall receive compensation for fees and reimbursement
for expenses pursuant to Sections 2.05 and 7.06. The Trustee shall have no lien
on the Trust Estate for the payment of such fees and expenses.
11.07 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
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There shall at all times be a Trustee hereunder which shall be a
corporation or association organized and doing business under the laws of the
United States of America or of any State 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 the United States of
America, acceptable to the Depositor and having a deposit rating of at least
"A2" by Moody's (or such lower rating as may be acceptable to Moody's), and
deposit rating of "A" (and a short-term rating of "A-1" or better) by Standard &
Poor's (or such lower rating as may be acceptable to Standard & Poor's). If such
Trustee 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 11.07, the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 11.07, it shall, upon the request of the Depositor,
resign immediately in the manner and with the effect hereinafter specified in
this Article XI.
11.08 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor trustee pursuant to this Article XI shall become effective until the
acceptance of appointment by the successor trustee under Section 11.09.
(b) The Trustee, or any trustee or trustees hereafter appointed, may
resign from the duties and obligations hereby imposed on it by this Agreement at
any time by giving sixty (60) days' prior written notice of resignation to the
Depositor and by mailing notice of resignation by first-class mail, postage
prepaid, to the Depositor, the Servicers and the Owners at their addresses
appearing on the Register. Additionally, a copy of such notice shall be sent by
the resigning Trustee to the Rating Agencies. Upon receiving notice of
resignation, the Depositor shall promptly appoint a successor trustee or
trustees acceptable to the Owners of a majority in Percentage Interest of the
Offered Certificates then Outstanding) by written instrument, in duplicate,
executed on behalf of the Trust by an Authorized Officer of the Depositor, one
copy of which instrument shall be delivered to the Trustee so resigning and one
copy to the successor trustee or trustees. If no successor trustee shall have
been appointed and have accepted appointment within thirty (30) days after the
giving of such notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Owner may, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and appropriate,
appoint a successor trustee. No resignation of the Trustee under this Section
11.08(b) shall become effective until the appointment of a successor trustee.
(c) If at any time the Trustee shall cease to be eligible under
Section 11.07 and shall fail to resign after written request therefor by the
Depositor, the Depositor may
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remove the Trustee and appoint a successor by written instrument, in duplicate,
executed on behalf of the Trust by an Authorized Officer of the Depositor, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee.
(d) The Owners of a majority of the Percentage Interests represented
by the Class A-1 Certificates or, if the Class A-1 Certificates are not then
Outstanding, by a majority of the Percentage Interests represented by the Class
M Certificates, or if there are no Class A-1 Certificates or Class M
Certificates then Outstanding, by a majority of the Percentage Interests
represented by the Class B Certificates), may at any time remove the Trustee and
appoint a successor trustee acceptable to the Depositor by delivering to the
Trustee to be removed, to the successor trustee so appointed, to the Depositor
and to the Servicer copies of the record of the act taken by the Owners, as
provided for in Section 12.03. All expenses incurred by the Trustee in
connection with its removal pursuant to this clause (d) shall be reimbursed to
it from amounts on deposit in the Certificate Account within 30 days of request
therefor.
(e) If the Trustee fails to perform its duties in accordance with
the terms of this Agreement, becomes ineligible pursuant to Section 11.07 to
serve as Trustee, or becomes subject to any bankruptcy, insolvency,
reorganization or similar proceedings under any law, the Depositor, with the
consent of the Owners of a majority of the Percentage Interests represented by
the Class A-1 Certificates, or, if the Class A-1 Certificates are not then
Outstanding, by a majority of the Percentage Interests represented by the Class
M Certificates, or if there are no Class A-1 Certificates or Class M
Certificates then Outstanding, by a majority of the Percentage Interests
represented by the Class B Certificates), may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, signed by the Depositor
duly authorized, one complete set of which instruments shall be delivered to the
Trustee so removed and one complete set to the successor Trustee so appointed.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any cause,
the Depositor shall promptly appoint a successor trustee acceptable to the
Owners of a majority of the Percentage Interests represented by the Class A-1
Certificates or, if there are no Class A-1 Certificates then Outstanding, by a
majority of the Percentage Interests represented by the Class M Certificates (or
if there are no Class A-1 Certificates or Class M Certificates then Outstanding,
by a majority of the Percentage Interests represented by the Class B
Certificates). If within one year after such resignation, removal or
incapability or the occurrence of such vacancy, a successor trustee shall be
appointed by act of the holders of a majority of the Percentage Interests
represented by the Class A-1 Certificates then Outstanding, or, if there are no
Class A-1 Certificates then Outstanding, by such majority of the Percentage
Interests represented by the Class M Certificates, or if there are no Class M
Certificates then Outstanding, by such majority of the Percentage Interest
represented by the Class B Certificates, the successor trustee so appointed
shall forthwith upon its acceptance of such appointment become the successor
trustee and supersede the successor trustee appointed by the Depositor. If no
successor trustee shall have been so
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appointed by the Depositor or the Owners and shall have accepted appointment in
the manner hereinafter provided, any Owner may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.
(g) The Depositor shall give notice of any removal of the Trustee by
mailing notice of such event by first-class mail, postage prepaid, to the
Servicers, the Rating Agencies and to the Owners as their names and addresses
appear in the Register. Each notice shall include the name of the successor
Trustee and the address of its corporate trust office.
11.09 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE.
Every successor trustee appointed hereunder shall execute,
acknowledge and deliver to the Depositor on behalf of the Trust and to its
predecessor Trustee an instrument accepting such appointment hereunder and
stating its eligibility to serve as Trustee 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 vested with all the rights, powers, trusts, duties and obligations of its
predecessor hereunder; but, on request of the Depositor or the successor
Trustee, such predecessor Trustee shall, upon payment of its charges then
unpaid, execute and deliver an instrument transferring to such successor trustee
all of the rights, powers and trusts of the Trustee so ceasing to act, and shall
duly assign, transfer and deliver to such successor trustee all property and
money held by such Trustee so ceasing to act hereunder. Upon request of any such
successor trustee, the Depositor on behalf of the Trust shall execute any and
all instruments for more fully and certainly vesting in and confirming to such
successor trustee all such rights, powers and trusts.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 11.09, the Depositor shall mail notice thereof by first-class mail,
postage prepaid, to the Owners at their last addresses appearing upon the
Register. The Depositor shall send a copy of such notice to the Servicers and
the Rating Agencies. If the Depositor fails to mail such notice within ten days
after acceptance of appointment by the successor Trustee, the successor trustee
shall cause such notice to be mailed at the expense of the Trust.
No successor trustee shall accept its appointment unless at the time
of such acceptance such successor shall be qualified and eligible under this
Article XI.
11.10 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF
THE TRUSTEE.
Any corporation or association into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation or
association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or association succeeding to all or
substantially all of the
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corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto; provided, however, that such corporation
or association shall be otherwise qualified and eligible under this Article XI.
In case any Certificates have been executed, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
Trustee may adopt such execution and deliver the Certificates so executed with
the same effect as if such successor Trustee had itself executed such
Certificates.
11.11 REPORTING; WITHHOLDING.
(a) The Trustee shall timely provide to the Owners the Internal
Revenue Service's Form 1099 and any other statement required by applicable
Treasury regulations as determined by the Tax Matters Person, and shall
withhold, as required by applicable law, federal, state or local taxes, if any,
applicable to distributions to the Owners, including but not limited to backup
withholding under Section 3406 of the Code and the withholding tax on
distributions to foreign investors under Sections 1441 and 1442 of the Code.
(b) As required by law or upon request of the Tax Matters Person and
except as otherwise specifically set forth in subsection (a) above, the Trustee
shall timely file all reports prepared by the Depositor and required to be filed
by the Trust with any federal, state or local governmental authority having
jurisdiction over the Trust, including other reports that must be filed by the
Owners, such as the Internal Revenue Service's Form 1066 and Schedule Q and the
form required under Section 6050K of the Code, if applicable to REMICs.
Furthermore, the Trustee shall report to the Owners, if required, with respect
to the allocation of expenses pursuant to Section 212 of the Code in accordance
with the specific instructions to the Trustee by the Depositor with respect to
such allocation of expenses. The Trustee shall, upon request of the Depositor,
collect any forms or reports from the Owners determined by the Depositor to be
required under applicable federal, state and local tax laws.
(c) The Depositor covenants and agrees that it shall provide to the
Trustee any information necessary to enable the Trustee to meet its obligations
under Section 11.11(a) and (b).
(d) Except as otherwise provided, the Depositor shall have the
responsibility for preparation of all returns, forms, reports and other
documents referred to in this Section 11.11 and the Trustee's responsibility
shall be to execute such documents.
11.12 LIABILITY OF THE TRUSTEE.
The Trustee shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by the
Trustee herein. Neither the Trustee nor any of the directors, officers,
employees or agents of the Trustee shall be under any liability on any
Certificate or otherwise to the Depositor, either of the Sellers,
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any Servicer or any Owner 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 Trustee,
its directors, officers, employees or agents or any such Person against any
liability which would otherwise be imposed by reason of negligent action,
negligent failure to act or willful misconduct in the performance of duties or
by reason of reckless disregard of obligations and duties hereunder. Subject to
the foregoing sentence, the Trustee shall not be liable for losses on
investments of amounts in the Certificate Account (except for any losses on
obligations on which the bank serving as the Trustee is the obligor). In
addition, the Depositor and the Trust covenant and agree to indemnify the
Trustee, and when the Trustee is acting as Servicer, the Servicer, from, and
hold it harmless against, any and all losses, liabilities, damages, claims or
expenses (including reasonable legal fees and expenses) of whatsoever kind
arising out of or in connection with the performance by the Trustee of its
duties hereunder other than those resulting from the willful misconduct,
malfeasance, negligence or bad faith of the Trustee, and the Depositor shall pay
all amounts not otherwise paid from the Trust pursuant to Sections 6.12 and
7.06. The Trustee and any director, officer, employee or agent of the Trustee
may rely and shall be protected in acting or refraining from acting in good
faith on any certificate, notice or other document of any kind prima facie
properly executed and submitted by the Authorized Officer of any Person
respecting any matters arising hereunder. The provisions of this Section 11.12
shall survive the termination of this Agreement, the termination or resignation
of the Trustee and the payment of the outstanding Certificates.
11.13 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 Estate or Mortgaged Property may at the time be located,
the Depositor and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee and reasonably acceptable to the Depositor to act as co-Trustee or
co-Trustees, jointly with the Trustee, of all or any part of the Trust Estate or
separate Trustee or separate Trustees of any part of the Trust Estate, and to
vest in such Person or Persons, in such capacity and for the benefit of the
Owners, such title to the Trust Estate, or any part thereof, and, subject to the
other provisions of this Section 11.13, such powers, duties, obligations, rights
and trusts as the Depositor and the Trustee may consider necessary or desirable.
If the Depositor shall not have joined in such appointment within fifteen (15)
days after the receipt by it of a request so to do, or in the case any event
indicated in Section 8.17(b) shall have occurred and be continuing, the Trustee
subject to reasonable approval of the Depositor 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
11.08 and no notice to Owners of the appointment of any co-Trustee or separate
Trustee shall be required under Section 11.09.
Every separate Trustee and co-Trustee shall, to the extent
permitted, be appointed and act subject to the following provisions and
conditions:
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(i) All rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate Trustee or co-Trustee jointly
(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 Trust Estate 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;
(ii) No co-Trustee hereunder shall be held personally liable by
reason of any act or omission of any other co-Trustee hereunder; and
(iii) The Servicer, the Depositor and the Trustee acting jointly may
at any time accept the resignation of or remove any 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 then separate Trustees and co-Trustees,
as effectively as if given to each of them. Every instrument appointing any
separate Trustee or co-Trustee shall refer to this Agreement and the conditions
of this Section 11.13. 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.
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.
11.14 APPOINTMENT OF CUSTODIAN
The Trustee may, with the consent of the Depositor and the Rating
Agencies, appoint one or more custodians to hold all or a portion of the
Custodial File as agent for the Trustee by entering into a custodial agreement
substantially in the form attached hereto as Exhibit K. The Trustee agrees to
comply with the terms of each custodial agreement and to enforce the terms and
provisions thereof against the Custodian for the benefit of the
Certificateholders. Each custodian shall be a depository institutions subject
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to supervision by federal or state authority and shall be qualified to do
business in the jurisdiction in which it holds any Custodial File.
ARTICLE XII
MISCELLANEOUS
12.01 Compliance Certificates and Opinions.
Upon any application or request by the Depositor or the Owners to
the Trustee to take any action under any provision of this Agreement, the
Depositor or the Owners, as the case may be, shall furnish to the Trustee a
certificate stating that all conditions precedent, if any, provided for in this
Agreement relating to the proposed action have been complied with, except that
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Agreement
relating to such particular application or request, no additional certificate
need be furnished.
Except as otherwise specifically provided herein, each certificate
or opinion with respect to compliance with a condition or covenant provided for
in this Agreement (including one furnished pursuant to specific requirements of
this Agreement relating to a particular application or request) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based; and
(c) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
12.02 FORM OF DOCUMENTS DELIVERED TO THE TRUSTEE.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Trustee
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such Authorized Officer knows
that the certificate or opinion or representations with respect to the matters
upon which his certificate or
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opinion is based are erroneous. Any such certificate or opinion of an Authorized
Officer of the Trustee or any opinion of counsel may be based, insofar as it
relates to factual matters upon a certificate or opinion of, or representations
by, one or more Authorized Officers of the Depositor or GMACM, stating that the
information with respect to such factual matters is in the possession of the
Depositor or GMACM, unless such Authorized Officer or counsel knows that the
certificate or opinion or representations with respect to such matters are
erroneous. Any opinion of counsel may also be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
Authorized Officer of the Trustee, stating that the information with respect to
such matters is in the possession of the Trustee, unless such counsel knows that
the certificate or opinion or representations with respect to such matters are
erroneous. Any opinion of counsel may be based on the written opinion of other
counsel, in which event such opinion of counsel shall be accompanied by a copy
of such other counsel's opinion and shall include a statement to the effect that
such counsel believes that such counsel and the Trustee may reasonably rely upon
the opinion of such other counsel.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
12.03 ACTS OF OWNERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by the
Owners, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Owners in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee, and, where it is hereby expressly required, to the Depositor.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "act" of the Owners signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee and the Trust, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Whenever
such execution is by an officer of a corporation or a member of a partnership on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority.
(c) The ownership of Certificates shall be proved by the Register.
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(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the holder of any Certificate shall bind the holder of
every Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, omitted or
suffered to be done by the Trustee or the Trust in reliance thereon, whether or
not notation of such action is made upon such Certificates.
12.04 NOTICES, ETC. TO TRUSTEE.
Any request, demand, authorization, direction, notice, consent,
waiver or act of the Owners or other documents provided or permitted by this
Agreement to be made upon, given or furnished to, or filed with the Trustee by
any Owner or the Depositor shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with and received by the
Trustee at the Corporate Trust Office.
12.05 NOTICES AND REPORTS TO OWNERS; WAIVER OF NOTICES.
Where this Agreement provides for notice to Owners of any event or
the mailing of any report to Owners, such notice or report shall be sufficiently
given (unless otherwise herein expressly provided) if mailed, first-class
postage prepaid, to each Owner affected by such event or to whom such report is
required to be mailed, at the address of such Owner as it appears on the
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice or the mailing of such report. In
any case where a notice or report to Owners is mailed in the manner provided
above, neither the failure to mail such notice or report nor any defect in any
notice or report so mailed to any particular Owner shall affect the sufficiency
of such notice or report with respect to other Owners, and any notice or report
which is mailed in the manner herein provided shall be conclusively presumed to
have been duly given or provided. Notwithstanding the foregoing, if any Servicer
is removed or resigns or the Trust is terminated, notice of any such events
shall be made by overnight courier, registered mail or telecopy followed by a
telephone call.
Where this Agreement provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Owner shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Owners when such notice is required to be given
pursuant to any provision of this Agreement, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Agreement provides for notice to any Rating Agency that
rated any Certificates, failure to give such notice shall not affect any other
rights or obligations created hereunder.
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12.06 RULES BY TRUSTEE.
The Trustee may make reasonable rules for any meeting of Owners.
12.07 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Agreement by any party hereto
shall bind its successors and assigns, whether so expressed or not.
12.08 SEVERABILITY.
In case any provision in this Agreement or in the Certificates shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
12.09 BENEFITS OF AGREEMENT.
Nothing in this Agreement or in the Certificates, expressed or
implied, shall give to any Person, other than the Owners, the Depositor, the
Underwriter and the parties hereto and their successors hereunder, any benefit
or any legal or equitable right, remedy or claim under this Agreement.
12.10 LEGAL HOLIDAYS.
In any case where the date of any Remittance Date, any Distribution
Date, any other date on which any distribution to any Owner is proposed to be
paid, or any date on which a notice is required to be sent to any Person
pursuant to the terms of this Agreement shall not be a Business Day, then
(notwithstanding any other provision of the Certificates or this Agreement)
payment or mailing need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made or mailed on
the nominal date of any such Remittance Date, such Distribution Date, or such
other date for the payment of any distribution to any Owner or the mailing of
such notice, as the case may be, and no interest shall accrue for the period
from and after any such nominal date, provided such payment is made in full on
such next succeeding Business Day.
12.11 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) In view of the fact that Owners are expected to reside in many
states and outside the United States and the desire to establish with certainty
that this Agreement will be governed by and construed and interpreted in
accordance with the law of a state having a well-developed body of commercial
and financial law relevant to transactions of the type contemplated herein, this
Agreement and each Certificate shall be construed in accordance with and
governed by the law of the State of New York.
(b) The parties hereto hereby irrevocably submit to the jurisdiction
of the United States District Court for the Southern District of New York and
any court of the
000
Xxxxx xx Xxx Xxxx located in the City and County of New York, and any appellate
court from any thereof, in any action, suit or proceeding brought against it or
in connection with this Agreement or any of the related documents or the
transactions contemplated hereunder or for recognition or enforcement of any
judgment, and the parties hereto hereby irrevocably and unconditionally agree
that all claims in respect of any such action or proceeding may be heard or
determined in such New York State court or, to the extent permitted by law, in
such federal court. The parties hereto agree that a final judgment in any such
action, suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. To
the extent permitted by applicable law, the parties hereto hereby waive and
agree not to assert by way of motion, as a defense or otherwise in any such
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of such courts, that the suit, action or proceeding is brought in
an inconvenient forum, that the venue of the suit, action or proceeding is
improper or that the related documents or the subject matter thereof may not be
litigated in or by such courts.
(c) Nothing contained in this Agreement shall limit or affect the
right of the Depositor or any Servicer or any third-party beneficiary hereunder,
as the case may be, to serve process in any other manner permitted by law or to
start legal proceedings relating to any of the Mortgage Loans against any
Mortgagor in the courts of any jurisdiction.
12.12 COUNTERPARTS.
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
12.13 [RESERVED].
12.14 AMENDMENT.
(a) The Trustee, the Depositor and the affected Servicer may, at any
time and from time to time, and without notice to or the consent of the Owners,
amend this Agreement, subject to the provisions of Sections 12.16 and 12.17 for
the purpose of (i) curing any ambiguity, correcting or supplementing any
provision hereof which may be inconsistent with any other provision hereof, or
adding provisions hereto which are not inconsistent with the provisions hereof;
(ii) complying with the requirements of the Code and the regulations proposed or
promulgated thereunder including any amendments necessary to maintain REMIC
status (iii) to correct, modify or supplement any provision contained in this
Agreement which is inconsistent with any offering document used to sell the
Offered Certificates, provided that such correction, modification or supplement
made pursuant to this clause is consistent with such offering document; or (iv)
for any other purpose, provided that in the case of this clause (iv) such
amendment shall not adversely affect in any material respect any Owner. Any such
amendment shall be deemed not to adversely affect in any material respect any
Owner if there is delivered to the Trustee written notification from each Rating
Agency that such amendment will not
137
cause such Rating Agency to reduce, qualify or withdraw its then current rating
assigned to any of the Class A-1 Certificates, the Class M Certificates or the
Class B Certificates. Notwithstanding anything to the contrary herein, no such
amendment shall change in any manner the amount of, or change the timing of,
payments which are required to be distributed to any Holder of a Certificate
without the consent of the Holder of each such Certificate.
(b) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to the
Depositor and each Owner in the manner set forth in Section 12.05, and to the
Rating Agencies.
(c) The Rating Agencies shall be provided with copies of any
amendments to this Agreement, together with copies of any opinions or other
documents or instruments executed in connection therewith.
(d) Prior to consenting to any amendment pursuant to this Section
12.14 the Trustee shall be entitled to receive and rely upon an opinion of
counsel addressed to the Trustee from the party requesting such amendment
stating that such amendment is authorized and permitted pursuant to this
Agreement and a REMIC Opinion addressed to the Trustee and stating that such
amendment shall not cause either REMIC to fail to qualify as a REMIC.
12.15 PAYING AGENT; APPOINTMENT AND ACCEPTANCE OF DUTIES.
The Trustee is hereby appointed Paying Agent. The Depositor may,
subject to the eligibility requirements for the Trustee set forth in Section
11.08, appoint one or more other Paying Agents or successor Paying Agents.
Each Paying Agent, immediately upon such appointment, shall signify
its acceptance of the duties and obligations imposed upon it by this Agreement
by written instrument of acceptance deposited with the Trustee.
Each such Paying Agent other than the Trustee shall execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of Section 6.02, that such Paying Agent
will:
(a) allocate all sums received for distribution to the Owners of
Certificates of each Class for which it is acting as Paying Agent on each
Distribution Date among such Owners in the proportion specified by the Trustee;
and
(b) hold all sums held by it for the distribution of amounts due
with respect to the Certificates in trust for the benefit of the Owners entitled
thereto until such sums shall be paid to such Owners or otherwise disposed of as
herein provided and pay such sums to such Persons as herein provided.
138
Any Paying Agent other than the Trustee may at any time resign and
be discharged of the duties and obligations created by this Agreement by giving
at least sixty (60) days written notice to the Trustee. Any such Paying Agent
may be removed at any time by an instrument filed with such Paying Agent and
signed by the Trustee.
In the event of the resignation or removal of any Paying Agent other
than the Trustee, such Paying Agent shall pay over, assign and deliver any
moneys held by it as Paying Agent to its successor, or if there be no successor,
to the Trustee.
Upon the appointment, removal or notice of resignation of any Paying
Agent, the Trustee shall notify the Depositor and the Owners by mailing notice
thereof at their addresses appearing on the Register.
12.16 REMIC STATUS.
(a) The parties hereto intend that each REMIC shall constitute, and
that the affairs of each REMIC shall be conducted so as to qualify it as a REMIC
in accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee shall, to the extent permitted by applicable law, act as agent for each
Trust REMIC and in such capacity it shall: (i) prepare or cause to be prepared
and filed, in a timely manner, annual tax returns and any other tax return
required to be filed by each Trust REMIC established hereunder using a calendar
year as the taxable year for each Trust REMIC established hereunder; (ii) in the
related first such tax return, make (or cause to be made) an election satisfying
the requirements of the REMIC Provisions, on behalf of each Trust REMIC, for it
to be treated as a REMIC; (iii) prepare and forward, or cause to be prepared and
forwarded, to the Owners all information, reports or tax returns required with
respect to each Trust REMIC as, when and in the form required to be provided to
the Owners, and to the Internal Revenue Service and any other relevant
governmental taxing authority in accordance with the REMIC Provisions and any
other applicable federal, state or local laws, including without limitation
information as necessary in respect of the determination of the present value of
anticipated excess inclusions as required under Treasury Regulation Section
1.860E-2(a)(6) and reports relating to "original issue discount" as defined in
the Code based upon the prepayment assumption and calculated by using the "issue
price" (within the meaning of Section 1273 of the Code) of the Certificates of
the related Class; (iv) if the filing or distribution of any documents of an
administrative nature not addressed in clauses (i) through (iii) of this Section
12.16(a) is then required by the REMIC Provisions in order to maintain the
status of REMIC II and REMIC I as a REMIC or is otherwise required by the Code,
prepare, sign and file or distribute, or cause to be prepared and signed and
filed or distributed, such documents with or to such Persons when and as
required by the REMIC Provisions or the Code or comparable provisions of
applicable state or local tax law; (v) within thirty days of the Closing Date,
furnish or cause to be furnished to the Internal Revenue Service, on Form 8811
or as otherwise may be required by the Code, the name, title and address of the
Person that the Owners of the Certificates may contact for tax information
relating thereto (and the Trustee shall act as the representative of each of
REMIC II and REMIC I for this purpose), together with such additional
information as may be required by such
139
Form, and shall update such information at the time or times and in the manner
required by the Code (and the Depositor agrees within 10 Business Days of the
Closing Date to provide any information reasonably requested by the Servicer or
the Trustee and necessary to make such filing); (vi) maintain such records
relating to each of REMIC II and REMIC I as may be necessary to prepare the
foregoing returns, schedules, statements or information, such records, for
federal income tax purposes, to be maintained on a calendar year and on an
accrual basis; (vii) represent the Trust or a REMIC in any administrative or
judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to a taxable year of
the Trust or a Trust REMIC, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of the Trust or a Trust REMIC, and otherwise act on behalf of the Trust
or a Trust REMIC therein in relation to any tax matter involving the Trust or
the Trust REMIC therein; (viii) comply with all statutory or regulatory
requirements with regard to its conduct of activities pursuant to the foregoing
clauses of this Section 12.16, including, without limitation, providing all
notices and other information to the Internal Revenue Service and Owners of
Residual Certificates required of a "tax matters person" pursuant to subtitle F
of the Code and the Treasury Regulations thereunder; and (ix) make available
information necessary for the computation of any tax imposed (A) on transferors
of residual interests to certain Disqualified Organizations or (B) on
pass-through entities, any interest in which is held by or treated as held by a
Disqualified Organization. The obligations of the Trustee or such other agent
designated by the Tax Matters Person pursuant to this Section 12.16 shall
survive the termination or discharge of this Agreement.
The Depositor, the Trustee and GMACM each covenant and agree that
each shall not intentionally take any action or intentionally omit to take any
action if, in taking or omitting to take such action, such action or omission
(as the case may be) would cause the termination of the REMIC status of REMIC II
or REMIC I or the imposition of tax on REMIC II or REMIC I or any other portions
of the Trust (other than a tax on income expressly permitted or contemplated to
be received by the terms of this Agreement). The Depositor and Trustee further
each covenant and agree to cause GMACM not to take or engage in any such action
or omission described in the preceding sentence to the extent the Depositor
and/or the Trustee are aware of any such proposed action or omission by GMACM.
Notwithstanding any provision of this paragraph to the contrary, the Trustee
shall not be required to take any action that the Trustee in good faith believes
to be inconsistent with any other provision of this Agreement, nor shall the
Trustee be deemed in violation of this paragraph if it takes any action
expressly required or authorized by any other provision of this Agreement, and
the Trustee shall have no responsibility or liability with respect to any act or
omission of the Depositor or a Servicer which does not enable the Trustee to
comply with any of clauses (i) through (vi) of the second sentence of the first
paragraph of this Section 12.16(a) or which results in any action contemplated
by clauses (i) through (iii) of the next succeeding sentence. In this regard the
Depositor, the Trustee and GMACM each covenant and agree that each shall (i)
exercise reasonable care not to allow the occurrence of any "prohibited
transactions" within the meaning of Code Section 860F(a), unless the party
seeking such action shall have delivered to the Trustee an REMIC Opinion
addressed to the Trustee (at
140
such party's expense) that such occurrence would not (A) result in a taxable
gain, (B) otherwise subject REMIC II or REMIC I to tax (other than a tax at the
highest marginal corporate tax rate on net income from foreclosure property), or
(C) cause either REMIC II or REMIC I to fail to qualify as a REMIC; and (ii)
exercise reasonable care not to allow the Trust to receive income from the
performance of services or from assets not permitted under the REMIC Provisions
to be held by a REMIC (provided, however, that the receipt of any income
expressly permitted or contemplated by the terms of this Agreement shall not be
deemed to violate this clause) and (iii) not permit the creation of any
"interests," within the meaning of the REMIC Provisions, in REMIC II other than
the REMIC Regular Interests and the Class R-1 Interest or in REMIC I other than
the REMIC I Regular Interests or the Class R Certificate. Neither GMACM or the
Depositor shall be responsible or liable for any failure by the Trustee to
comply with the provisions of this Section 12.16. The Depositor and GMACM shall
cooperate in a timely manner with the Trustee in supplying any information
within the Depositor's or GMACM's control (other than any confidential
information) that is reasonably necessary to enable the Trustee to perform its
duties under this Section 12.16.
(b) Each Trust REMIC shall, for federal income tax purposes,
maintain books on a calendar year basis and report income on an accrual basis.
(c) Except as otherwise permitted by Section 7.04, no Eligible
Investment shall be sold prior to its stated maturity (unless sold pursuant to a
plan of liquidation in accordance with Article X).
(d) Neither the Depositor nor the Trustee shall enter into any
arrangement by which the Trustee will receive a fee or other compensation for
services rendered pursuant to this Agreement, other than as expressly
contemplated by this Agreement.
(e) Notwithstanding the foregoing Sections 12.16(c) and (d), the
Trustee shall not engage in any of the transactions prohibited by such clauses,
unless the Trustee shall have received a REMIC Opinion addressed to the Trustee
(and in no event at the Trustee's expense) to the effect that such transaction
does not result in a tax imposed on the Trust or cause a termination of REMIC
status for a Trust REMIC; provided, however, that such transaction is otherwise
permitted under this Agreement.
(f) Each of GMACM and the Tax Matters Person agree to indemnify the
Trust for any tax imposed on the Trust or a Trust REMIC as a result of their
negligence.
12.17 ADDITIONAL LIMITATION ON ACTION AND IMPOSITION OF TAX ON THE
TRUST REMICS.
Any provision of this Agreement to the contrary notwithstanding, the
Trustee shall not, without having obtained a REMIC Opinion to the effect that
such transaction does not result in a tax imposed on the Trust or a Trust REMIC
or cause a termination of REMIC status for a Trust REMIC, (i) sell any assets in
the Trust Estate, (ii) accept any contribution of assets after the Closing Date
or (iii) agree to any modification of this Agreement. Any taxes imposed on any
net income from foreclosure
141
property pursuant to Code Section 860G(d) or any similar tax imposed by a state
or local jurisdiction shall instead be treated as an expense of the related
Liquidated Loan in determining Net Liquidation Proceeds with respect to the
Liquidated Loan (and until such taxes are paid, GMACM from time to time shall
withdraw from the Collection Account and transfer to the Trustee amounts
reasonably determined by the Trustee to be necessary to pay such taxes, which
the Trustee shall maintain in a separate, non-interest-bearing account, and the
Trustee shall deposit in the related Collection Account the excess determined by
the Trustee from time to time of the amount in such account over the amount
necessary to pay such taxes) and shall be paid therefrom; provided that any such
tax imposed on net income from foreclosure property that exceeds the amount in
any such reserve shall be retained from available funds as provided in Section
8.04(c) and the next sentence. Except as provided in the preceding sentence, the
Trustee is hereby authorized to and shall retain or cause to be retained from
the related Collection Account in determining the amount of available funds
sufficient funds to pay or provide for the payment of, and to actually pay, such
tax as is legally owed by REMIC II or REMIC I (but such authorization shall not
prevent the Trustee from contesting, at the expense of the Trust, any such tax
in appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). To the extent that sufficient
amounts cannot be so retained to pay or provide for the payment of any tax,
including interest, penalties or assessments, additional amounts or additions to
tax, the Trustee is hereby authorized to and shall segregate, into a separate
non-interest bearing account, the net income from any such Prohibited
Transactions of a Trust REMIC and use such income, to the extent necessary, to
pay such tax (and return the balance thereof, if any, to the REMIC I
Distribution Account or the REMIC II Distribution Account, as the case may be);
provided that, to the extent that any such income is paid to the Internal
Revenue Service, the Trustee shall retain from future amounts otherwise
distributable to the Owners of the Class R Certificates and shall distribute
such retained amounts to the Owners of Offered Certificates to the extent they
are fully reimbursed and then to the Owners of the Class R Certificates. If any
tax, including interest penalties or assessments, additional amounts or
additions to tax, is imposed on the Trust, such tax shall be charged against
amounts otherwise distributable to the owners of the Class R Certificates.
Neither GMACM nor the Trustee shall be responsible for any taxes imposed on
REMIC II or REMIC I except to the extent in either case that such tax is
attributable to a breach of a representation or warranty of GMACM or the Trustee
or an act or omission of GMACM or the Trustee in contravention of this
Agreement. Notwithstanding anything in this Agreement to the contrary, in each
such case, GMACM shall not be responsible for the Trustee's breaches, acts or
omissions, and the Trustee shall not be responsible for the breaches, acts or
omissions of GMACM.
12.18 TAX MATTERS PERSON.
The Holders of the Class R Certificates shall be the Tax Matters
Person of REMIC II and REMIC I, respectively, pursuant to Treasury Regulations
Section 1.860F-4(d). The Trustee shall act as attorney-in-fact and agent for the
Tax Matters Person of each of REMIC II and REMIC I, and each Holder of the Class
R Certificate, by acceptance thereof, is deemed to have consented to the
Trustee's appointment in such
142
capacity and agrees to execute any documents required to give effect thereto,
and any fees and expenses incurred by the Trustee in connection with any audit
or administrative or judicial proceeding shall be paid by the Trust Estate.
12.19 NOTICES.
All notices hereunder shall be given as follows, until any
superseding instructions are given to all other Persons listed below:
Trustee: JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Institutional Trust Services/
Structured Finance Services,
GSRPM 2003-2
Fax: (000) 000-0000
Depositor: GS Mortgage Securities Corp.,
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Legal Department
Tel: (000) 000-0000
Fax: (000) 000-0000
GMACM: GMACM Capital Corp.
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx, 00000
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000)-000-0000
Standard & Poor's: Standard & Poor's Ratings Group
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgage Surveillance
Group
Tel: (000) 000-0000
Fax: (000) 000-0000
Moody's Xxxxx'x Investor Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: The Mortgage Monitoring Department
Tel: (000) 000-0000
Fax: (000) 000-0000
143
Underwriter: Xxxxxxx Sachs & Co.
Xxx Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Legal Department
Tel: (000) 000-0000
Fax: (000) 000-0000
144
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized, all as
of the day and year first above written.
GS MORTGAGE SECURITIES CORP.,
as Depositor
By:
----------------------------------
Name:
Title:
GMAC MORTGAGE CORPORATION,
as a Servicer
By:
----------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Trustee
By:
----------------------------------
Name:
Title:
145
SCHEDULE I
SCHEDULE OF MORTGAGE LOANS
[This Schedule is maintained by the Trustee at the Corporate Trust Office.]
SI-1
EXHIBIT A-1
[FORM OF OFFERED CERTIFICATE]
GSRPM MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2003-2, CLASS
[THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF DISTRIBUTION TO CERTAIN CLASSES OF
THE CERTIFICATES AS SET FORTH HEREIN AND IN THE TRUST AND SERVICING AGREEMENT
REFERRED TO HEREIN.] (1)
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS GLOBAL CERTIFICATE SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE TRUST AND SERVICING AGREEMENT REFERRED TO BELOW.] (2)
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THE CERTIFICATES NOR THE UNDERLYING MORTGAGE LOAN IS INSURED OR
GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE ARE DISTRIBUTABLE AS SET FORTH
IN THE TRUST AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
----------
(1) Include in Class M and Class B Certificates.
(2) Include in Global Certificates.
A1-1
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
BALANCE SET FORTH BELOW.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
[THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE
TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER
PLAN OR ENTITY THAT IS SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY PERSON ACTING ON BEHALF OF
ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE,
UNLESS THE PURCHASER IS AN INSURANCE COMPANY THAT IS PURCHASING THE 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 CONDITIONS OF SECTIONS I AND III OF PTCE 95-60 HAVE BEEN
SATISFIED OR THE OPINION OF COUNSEL IN SECTION 5.02 OF THE AGREEMENT HAS BEEN
GIVEN] (3)
----------
(3) Include in Class M and Class B Certificates.
A1-2
GSRPM MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2003-2, CLASS
Pass-Through Rate: Before Optional Termination Date: [LIBOR +]o %
After Optional Termination Date: [LIBOR +]o %
First Distribution Date: September 25, 2003 Cut-off Date: August 1, 2003
Aggregate Initial Certificate Balance of
the Class Certificates:$. (4) Rated Final Distribution Date:
June 2033
CUSIP:
Initial Certificate Balance of
this Certificate: $.
No.: .
This certifies that _________ is the registered owner of a
beneficial ownership interest in a Trust, including the distributions to be made
with respect to the Class o Certificates. The Trust consists primarily of
Mortgage Loans secured by certain residential first and second liens and certain
other property held in trust by the Trustee. The Trust was created, and the
Mortgage Loans are to be serviced or master serviced pursuant to the Trust and
Servicing Agreement, dated as of August 1, 2003 (the "Trust and Servicing
Agreement"), among GS Mortgage Securities Corp., as Depositor, GMACM Capital
Corp., as a Servicer and JPMorgan Chase Bank, as Trustee. The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Trust and Servicing Agreement and is bound
thereby. Also issued under the Trust and Servicing Agreement are the [Class A-1,
Class M-1, Class M-2, Class B-1, Class B-2, Class B-3, Class X and Class R](5)
Certificates (together with the Class o Certificates, the "Certificates"; the
Holders of Certificates issued under the Trust and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of the Trust and Servicing Agreement. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Trust and Servicing Agreement.
Pursuant to the terms of the Trust and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final
----------
(4) Insert appropriate amount, as set forth in Section 2.10(b).
(5) Omit Class of which Certificate is a part.
A1-3
distribution on any Certificate), on the 25th day of each calendar month, or if
such day is not a Business Day, the next succeeding Business Day, commencing
September 25, 2003 (each such date, a "Distribution Date"), to the Person in
whose name this Certificate is registered as of the related Record Date, which
will be the close of business on the Business Day immediately preceding such
Distribution Date, an amount equal to such Person's pro rata share (based on the
Percentage Interest represented by this Certificate) of that portion of the
aggregate amount of principal and interest then distributable, if any, allocable
to the Class o Certificates for such Distribution Date, all as more fully
described in the Trust and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made to the Persons entitled thereto by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity located in the United States and having appropriate facilities
therefor. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
Corporate Trust Office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Trust and Servicing Agreement.
[As provided in the Trust and Servicing Agreement and with certain
exceptions therein provided, certain losses on the Mortgage Loans resulting from
defaults by Mortgagors will be borne by the Holders of Class M-1, Class M-2,
Class B-1, Class B-2 and Class X Certificates before such losses will be borne
by the Holders of the others classes of Certificates.](6)
[This Certificate may not be purchased by or pledged, sold or
otherwise transferred to any person that is or becomes an employee benefit plan
or other plan or entity that is subject to Section 406 ERISA, or to Section 4975
of the Code, or any person acting on behalf of any such plan or using the assets
of such plan to acquire this Certificate, unless such purchaser is an insurance
company that is purchasing the Certificate with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of PTCE 95-60
and that the conditions of Sections I And III of PTCE 95-60 have been satisfied
or the Opinion of Counsel in Section 5.02 of the Agreement has been given.] (7)
This Certificate does not purport to summarize the Trust and
Servicing Agreement, and reference is made to the Trust and Servicing Agreement
for the interests,
----------
(6) Insert for Class M-1, Class M-2, Class B-1, Class B-2 and Class B-3
Certificates.
(7) Insert for Class M-1, Class M-2, Class B-1, Class B-2 and Class B-3
Certificates.
A1-4
rights, benefits, obligations and duties evidenced hereby, and the limitations
thereon, and the rights, duties and immunities of the Trustee.
As provided in the Trust and Servicing Agreement, subject to certain
restrictions on transfer set forth therein, upon surrender for registration of
transfer of any Certificate, the Certificate Registrar shall execute,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations, in like
aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of
transfer, the Trustee, the Servicers, the Certificate Registrar, and any agent
of the Trustee, the Servicers or the Certificate Registrar 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 the Trust and Servicing
Agreement and for all other purposes whatsoever, and neither the Trustee, the
Servicers, the Certificate Registrar, nor any agent of the Trustee, the
Servicers or the Certificate Registrar shall be affected by any notice to the
contrary.
The Trust and Servicing Agreement may be amended from time to time
by the Depositor, the affected Servicer and the Trustee, without the consent of
any of the Certificateholders, in certain circumstances specified in the Trust
and Servicing Agreement.
The Trust and Servicing Agreement provides that the respective
obligations and responsibilities of GMACM, the Depositor, the Paying Agent and
the Trustee created thereby with respect to the Certificates (other than the
obligation of the Paying Agent to make certain payments to Certificateholders
after the final Distribution Date and other than the indemnification obligations
of the parties hereto) shall terminate upon the last action required to be taken
by the Paying Agent on the final Distribution Date pursuant to Article X of the
Trust and Servicing Agreement upon the later of (a) the final payment or other
liquidation (or any advance made with respect thereto) of the last Mortgage Loan
in the Trust Estate, (b) the disposition of all property acquired in respect of
any Mortgage Loan remaining in the Trust Estate, and (c) at any time when a
Qualified Liquidation of the Mortgage Loans included within the Trust is
effected.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee, by manual or facsimile signature, this Certificate
shall not be entitled to any benefit under the Trust and Servicing Agreement or
be valid for any purpose.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Trust and Servicing Agreement.
A1-5
IN WITNESS WHEREOF, the Trustee has caused this instrument to be
duly executed.
Dated: ______________
JPMORGAN CHASE BANK,
not in its individual capacity but
solely as Trustee
By:
--------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class Certificates referred to in the Trust and
Servicing Agreement.
Dated: ______________
JPMORGAN CHASE BANK,
not in its individual capacity but
solely as Trustee
By:
--------------------------------
Authorized Officer
A1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto __________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Certificate and hereby authorize(s) the registration of transfer of
such interest to Assignee(s) on the Certificate Register of the Trust.
I (we) further direct the Certificate Registrar to issue a new
Certificate of the entire Percentage Interest represented by the within
Certificates to the above-named Assignee(s) and to deliver such Certificate to
the following address:
_________________________________
_________________________________
_________________________________
Date: __________________
Signature by or on behalf of
Assignor(s):
_________________________
Taxpayer Identification Number: _________
A1-7
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: _____________________________________________________________.
Distributions, if being made by wire transfer in immediately
available funds, to ____________________ for the account of ___________________
account number ____________________.
This information is provided by _________________________ the
Assignee(s) named above, or ______________________________ as its (their) agent.
By: ____________________________________
[Please print or type name(s)]
Title:__________________________________
Taxpayer Identification Number:_________
X0-0
XXXXXXX X-0
[FORM OF CLASS X CERTIFICATE]
GSRPM MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2003-2, CLASS X CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THE CERTIFICATES NOR ANY UNDERLYING MORTGAGE LOAN IS INSURED OR
GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF DISTRIBUTION TO CERTAIN CLASSES OF
THE CERTIFICATES AS SET FORTH HEREIN AND IN THE TRUST AND SERVICING AGREEMENT
REFERRED TO HEREIN.
PRINCIPAL PAYMENTS IN RESPECT OF THIS CERTIFICATE DISTRIBUTABLE AS SET FORTH IN
THE TRUST AND SERVICING AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE
BALANCE SET FORTH BELOW. ACCORDINGLY, THE PRINCIPAL BALANCE OF THIS CERTIFICATE
AT ANY TIME MAY BE LESS THAN THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE
AS SET FORTH HEREON.
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.
[THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE
TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER
PLAN THAT IS SUBJECT SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), OR TO SECTION 4975 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "Code"), OR ANY PERSON ACTING ON BEHALF OF ANY SUCH
PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE, UNLESS THE
PURCHASER HAS PROVIDED THE OPINION LETTER SPECIFIED IN SECTION 5.02(B) OF THE
TRUST AND SERVICING AGREEMENT.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
A2-1
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(1) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
A2-2
GSRPM MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2003-2, CLASS X
Pass-Through Rate: As determined in accordance
with the Trust and Servicing Agreement
First Distribution Date: September 25, 2003 Cut-off Date: August 1, 2003
Aggregate Initial Certificate Balance of Rated Final Distribution Date:
the Class X Certificate: As determined June 2033
in accordance with the Trust and Servicing
Agreement.
Initial Certificate Balance of
this Certificate: As determined in
accordance with the Trust and
No.: X-. Servicing Agreement
This certifies that ___________________. is the registered owner of
a beneficial ownership interest in a Trust, including the distributions to be
made with respect to the Class X Certificates. The Trust consists primarily of
Mortgage Loans secured by residential second liens and certain other property
held in trust by the Trustee. The Trust was created, and the Mortgage Loans are
to be serviced or master serviced pursuant to the Trust and Servicing Agreement,
dated as of August 1, 2003 (the "Trust and Servicing Agreement"), among GS
Mortgage Securities Corp., as Depositor, GMACM Capital Corp., as a Service and
JPMorgan Chase Bank, as Trustee. The Holder of this Certificate, by virtue of
the acceptance hereof, assents to the terms, provisions and conditions of the
Trust and Servicing Agreement and is bound thereby. Also issued under the Trust
and Servicing Agreement are the Class A-1, Class M-1, Class M-2, Class B-1,
Class B-2, Class B-3 and Class R Certificates (together with the Class X
Certificate, the "Certificates"; the Holders of Certificates issued under the
Trust and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of the Trust and Servicing Agreement. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Trust and Servicing Agreement.
Pursuant to the terms of the Trust and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the 25th day of each
calendar month, or if such day is not a Business Day, the next succeeding
Business Day, commencing September 25, 2003 (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, which will be the close of business on the Business Day
immediately preceding the related Distribution Date, an amount equal to such
Person's pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then
A2-3
distributable, if any, allocable to the Class X Certificates for such
Distribution Date, all as more fully described in the Trust and Servicing
Agreement.
All distributions (other than the final distribution on any
Certificate) will be made to the Persons entitled thereto by wire transfer of
immediately available funds to the account of such Certificateholder at a bank
or other entity located in the United States and having appropriate facilities
therefor. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
Corporate Trust Office of the Trustee or its agent (which may be the Paying
Agent or the Certificate Registrar acting as such agent) that is specified in
the notice to Certificateholders of such final distribution.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Trust and Servicing Agreement.
As provided in the Trust and Servicing Agreement and with certain
exceptions therein provided, certain losses on the Mortgage Loans resulting from
defaults by Mortgagors will be borne by the Holders of Class M-1, Class M-2,
Class B-1, Class B-2, Class B-3 and Class X Certificates before such losses will
be borne by the Holders of the others classes of Certificates.
This Certificate does not purport to summarize the Trust and
Servicing Agreement, and reference is made to the Trust and Servicing Agreement
for the interests, rights, benefits, obligations and duties evidenced hereby,
and the limitations thereon, and the rights, duties and immunities of the
Trustee.
As provided in the Trust and Servicing Agreement, subject to certain
restrictions on transfer set forth therein, upon surrender for registration of
transfer of any Certificate, the Certificate Registrar shall execute,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations, in like
aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of
transfer, the Trustee, the Servicers, the Certificate Registrar, and any agent
of the Trustee, the Servicers or the Certificate Registrar 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 the Trust and Servicing
Agreement and for all other purposes whatsoever, and neither the Trustee, the
Servicers, the Certificate Registrar, nor any agent of the Trustee, the
Servicers or the Certificate Registrar shall be affected by any notice to the
contrary.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a transferor
certificate (in substantially the
A2-4
form attached to the Trust and Servicing Agreement) and deliver either (i) a
Rule 144A Letter, in either case substantially in the form attached to the
Agreement, or (ii) a written Opinion of Counsel addressed to the Trustee that
such transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act or is being made pursuant to
the 1933 Act, which Opinion of Counsel shall be an expense of the transferor.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code or a person acting
on behalf of or investing plan assets of any such plan, which representation
letter shall not be an expense of the Trustee or has provided the opinion letter
required by Section 5.02(b) of the Trust and Servicing Agreement.
The Trust and Servicing Agreement may be amended from time to time
by the Depositor, the affected Servicer and the Trustee, without the consent of
any of the Certificateholders, in certain circumstances specified in the Trust
and Servicing Agreement.
The Trust and Servicing Agreement provides that the respective
obligations and responsibilities of GMACM, the Depositor, the Paying Agent and
the Trustee created thereby with respect to the Certificates (other than the
obligation of the Paying Agent to make certain payments to Certificateholders
after the final Distribution Date and other than the indemnification obligations
of the parties hereto) shall terminate upon the last action required to be taken
by the Paying Agent on the final Distribution Date pursuant to Article X of the
Trust and Servicing Agreement upon the later of (a) the final payment or other
liquidation (or any advance made with respect thereto) of the last Mortgage Loan
in the Trust Estate, (b) the disposition of all property acquired in respect of
any Mortgage Loan remaining in the Trust Estate, and (c) at any time when a
Qualified Liquidation of the Mortgage Loans included within the Trust is
effected.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee, by manual or facsimile signature, this Certificate
shall not be entitled to any benefit under the Trust and Servicing Agreement or
be valid for any purpose.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Trust and Servicing Agreement.
A2-5
IN WITNESS WHEREOF, the Trustee has caused this instrument to be
duly executed.
Dated: _______________
JPMORGAN CHASE BANK,
not in its individual capacity but
solely as Trustee
By:
--------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class X Certificates referred to in the Trust and
Servicing Agreement.
Dated: _______________
JPMORGAN CHASE BANK,
not in its individual capacity but
solely as Trustee
By:
--------------------------------
Authorized Officer
A2-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto __________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Certificate and hereby authorize(s) the registration of transfer of
such interest to Assignee(s) on the Certificate Register of the Trust.
I (we) further direct the Certificate Registrar to issue a new
Certificate of the entire Percentage Interest represented by the within
Certificates to the above-named Assignee(s) and to deliver such Certificate to
the following address:
_________________________________
_________________________________
_________________________________
Date: __________________
Signature by or on behalf of
Assignor(s):
-------------------------------
Taxpayer Identification Number: _________
A2-7
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: ________________________________________________________.
Distributions, if being made by wire transfer in immediately
available funds, to ______________________ for the account of
________________________ account number ____________________.
This information is provided by ________________________ the
Assignee(s) named above, or ________________________________ as its (their)
agent.
By: ____________________________________
[Please print or type name(s)]
Title:__________________________________
Taxpayer Identification Number:_________
X0-0
XXXXXXX X-0
[FORM OF RESIDUAL CERTIFICATE]
GSRPM MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2003-2, CLASS Ro CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE
DEPOSITOR, THE SERVICERS, THE TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOAN IS INSURED OR
GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
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.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR PLEDGED, SOLD OR OTHERWISE
TRANSFERRED TO ANY PERSON THAT IS OR BECOMES AN EMPLOYEE BENEFIT PLAN OR OTHER
PLAN THAT IS SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), OR TO SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "Code"), OR ANY PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE THIS CERTIFICATE.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE CODE. A TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.04
OF THE TRUST AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE (AS DEFINED IN THE TRUST
A4-1
AND SERVICING AGREEMENT REFERRED TO HEREIN), (B) IT HAS HISTORICALLY PAID ITS
DEBTS AS THEY HAVE COME DUE AND INTENDS TO CONTINUE TO PAY ITS DEBTS AS THEY
COME DUE IN THE FUTURE, AND (C) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH
HOLDING THIS CERTIFICATE AS THEY BECOME DUE. ANY PURPORTED TRANSFER TO A
DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED TRANSFEREE OR
OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID
AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. IF THIS CERTIFICATE
REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST", AS DEFINED IN TREASURY
REGULATIONS SECTION 1.860E-l(c), TRANSFERS OF THIS CERTIFICATE MAY BE
DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A REGULATORY
SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR
MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE. THE HOLDER OF THIS CERTIFICATE, BY
ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED TO CONSENT TO ACT AS "TAX MATTERS
PERSON" OF THE REMIC IN WHICH THIS CERTIFICATE CONSTITUTES THE RESIDUAL INTEREST
AND TO THE APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX
MATTERS PERSON OR AS OTHERWISE PROVIDED IN THE TRUST AND SERVICING AGREEMENT TO
PERFORM THE FUNCTIONS OF A "TAX MATTERS PERSON" FOR PURPOSES OF SUBCHAPTER C OF
CHAPTER 63 OF SUBTITLE F OF THE CODE.
A4-2
GSRPM MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2003-2, CLASS Ro CERTIFICATE
Percentage Interest: 100%
CUSIP:
No.: .-1
This certifies that ________________. is the registered owner of the
"residual interest" (as defined in Section 860G(a)(1) of the Code) in REMIC [II]
[I] designated pursuant to the Trust and Servicing Agreement (as defined below),
including the distributions to be made with respect to the Class R Certificates.
The Trust was created, and the Mortgage Loan is to be serviced, pursuant to the
Trust and Servicing Agreement. The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the Trust
and Servicing Agreement and is bound thereby. Also issued under the Trust and
Servicing Agreement are the Class A-1, Class M-1, Class M-2, Class B-1, Class
B-2, Class B-3 and Class X Certificates (the "Certificates"; the Holders of
Certificates issued under the Trust and Servicing Agreement are collectively
referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Trust and Servicing Agreement dated as of August 1, 2003 (the "Trust
and Servicing Agreement"), among GS Mortgage Securities Corp., as Depositor,
GMACM Capital Corp., as a Servicer and JPMorgan Chase Bank, as Trustee. To the
extent not defined herein, capitalized terms used herein shall have the meanings
assigned thereto in the Trust and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Trust and Servicing Agreement.
Pursuant to the terms of the Trust and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the 25th day of each
calendar month or, if such day is not a Business Day, the next succeeding
Business Day, commencing on September 25, 2003 (each such date, a "Distribution
Date"), to the Person in whose name this Certificate is registered as of the
related Record Date, an amount equal to the amount then distributable, if any,
allocable to the Class o Certificate for such Distribution Date, all as more
fully described in the Trust and Servicing Agreement.
A4-3
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Trust and Servicing Agreement.
This Certificate does not purport to summarize the Trust and
Servicing Agreement, and reference is made to the Trust and Servicing Agreement
for the interests, rights, benefits, obligations and duties evidenced hereby,
and the limitations thereon, and the rights, duties and immunities of the
Trustee.
As provided in the Trust and Servicing Agreement, subject to certain
restrictions on transfer set forth therein, upon surrender for registration of
transfer of any Certificate, the Certificate Registrar shall execute,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations, in like
aggregate interest and of the same Class.
Prior to due presentation of this Certificate for registration of
transfer, the Trustee, the Servicers, the Certificate Registrar, and any agent
of the Trustee, the Servicers or the Certificate Registrar 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 the Trust and Servicing
Agreement and for all other purposes whatsoever, and neither the Trustee, the
Servicers, the Certificate Registrar, nor any agent of the Trustee, the
Servicers or the Certificate Registrar shall be affected by any notice to the
contrary.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Trust and Servicing
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel addressed to the Trustee that such transfer may be made pursuant to
an exemption, describing the applicable exemption and the basis therefor, from
the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel
shall be an expense of the transferor.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA or Section 4975 of the Code 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 Trust and Servicing Agreement may be amended from time to time
by the Depositor, the affected Servicer and the Trustee, without the consent of
any of the
A4-4
Certificateholders, in certain circumstances specified in the Trust and
Servicing Agreement.
The Trust and Servicing Agreement provides that the respective
obligations and responsibilities of GMACM, the Depositor, the Paying Agent and
the Trustee created thereby with respect to the Certificates (other than the
obligation of the Paying Agent to make certain payments to Certificateholders
after the final Distribution Date and other than the indemnification obligations
of the parties hereto) shall terminate upon the last action required to be taken
by the Paying Agent on the final Distribution Date pursuant to Article X of the
Trust and Servicing Agreement upon the later of (a) the final payment or other
liquidation (or any advance made with respect thereto) of the last Mortgage Loan
in the Trust Estate, (b) the disposition of all property acquired in respect of
any Mortgage Loan remaining in the Trust Estate, and (c) at any time when a
Qualified Liquidation of the Mortgage Loans included within the Trust is
effected.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee, by manual or facsimile signature, this Certificate
shall not be entitled to any benefit under the Trust and Servicing Agreement or
be valid for any purpose.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Trust and Servicing Agreement.
A4-5
IN WITNESS WHEREOF, the Trustee has caused this instrument to be
duly executed.
Dated: ______________
JPMORGAN CHASE BANK,
not in its individual capacity but
solely as Trustee
By:
-------------------------------
Authorized Officer
Certificate of Authentication
This is one of the Class o Certificates referred to in the Trust and
Servicing Agreement.
Dated: _______________
JPMORGAN CHASE BANK,
not in its individual capacity but
solely as Trustee
By:
-------------------------------
Authorized Officer
A4-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto __________________________________________
(please print or typewrite name(s) and address(es), including postal zip code(s)
of assignee(s)) ("Assignee(s)") the entire Percentage Interest represented by
the within Certificate and hereby authorize(s) the registration of transfer of
such interest to Assignee(s) on the Certificate Register of the Trust.
I (we) further direct the Certificate Registrar to issue a new
Certificate of the entire Percentage Interest represented by the within
Certificates to the above-named Assignee(s) and to deliver such Certificate to
the following address:
________________________________
________________________________
________________________________
Date: __________________
Signature by or on behalf of
Assignor(s):
----------------------------
Taxpayer Identification Number: _________
A4-7
DISTRIBUTION INSTRUCTIONS
The Assignee(s) should include the following for purposes of
distribution:
Address of the Assignee(s) for the purpose of receiving notices and
distributions: ________________________________________________________.
Distributions, if being made by wire transfer in immediately
available funds, to __________________ for the account of _____________________
account number _____________________.
This information is provided by _____________________________ the
Assignee(s) named above, or _______________________________ as its (their)
agent.
By: _____________________________________
[Please print or type name(s)]
Title: __________________________________
Taxpayer Identification Number: _________
A4-8
EXHIBIT B
FORM OF INITIAL CERTIFICATION
[This Certification is maintained by the Trustee at the Corporate Trust Office.]
B-1
EXHIBIT C
Form of Power of Attorney
Form of Limited Power of Attorney
Pursuant to the Trust and Servicing Agreement (as amended, restated,
supplemented or otherwise modified from time to time, the "TSA"; capitalized
terms not defined herein have the definitions assigned to such terms in the
TSA), dated as of August 1, 2003, among GS Mortgage Securities Corp., as
depositor, GMAC Mortgage Corporation, as a servicer (the "Servicer"), and
JPMorgan Chase Bank, a New York banking corporation, ("JPMorgan"), as Trustee,
JPMorgan hereby appoints the Servicer as its true and lawful attorney-in-fact
and in its name, place and stead to take the following designated actions with
respect to any mortgage loan or real estate owned property (collectively, the
"Mortgage Loans") relating to the GSRPM Mortgage Pass-Through Certificates,
Series 2003-2 and subject to the TSA:
1. To ask, demand, xxx for, collect and receive all sums of money, debts
or other obligations of any kind with respect to a Mortgage Loan which are now
or shall after this date become due, owing or payable, or otherwise belong to
the Trustee; to settle and compromise any of such debts or obligations that may
be or become due to the Trustee; to endorse in the name of the Trustee for
deposit in the appropriate account any instrument payable to or to the order of
the Trustee; in each case with respect to a Mortgage Loan.
2. To make demand(s) on behalf of the Trustee upon any or all parties
liable on a Mortgage Loan; to declare defaults with respect to a Mortgage Loan;
to give notices of intention to accelerate to give notices of acceleration and
any other notices as Servicer deems reasonably necessary or appropriate; to post
all notices as required by law and the documents securing a Mortgage Loan in
order to foreclose such Mortgage Loan; to handle all aspects of foreclosure on
behalf of the Trustee, including, but not limited to, conducting the foreclosure
sale, bidding for the Trustee and executing all documents, including all deeds
and conveyances, needed to effect such foreclosure sale and/or liquidation; to
execute any documents or instruments necessary for the offer, listing, closing
of sale, and conveyance of REO Property, including, but not limited to, grant,
warranty, quit claim and statutory deeds or similar instruments of conveyance;
to execute any documents or instruments in connection with any bankruptcy or
receivorship of a mortgagor on a Mortgage Loan; to file suit and prosecute legal
actions against all parties liable for amounts due under a Mortgage Loan,
including but not limited to any deficiency amounts due following foreclosure;
to take such other actions and exercise such rights which may be taken by
Trustee under the terms of any Mortgage Loan, including, but not limited to,
satisfaction, release, cancellation or discharge of mortgage, eviction, unlawful
detainer, or similar dispossessory proceeding, sale, taking possession of,
release of security instruments, realization upon all or any part of a Mortgage
Loan or
E-1
any collateral therefor or guaranty thereof; and to assign, convey, accept, or
otherwise transfer Trustee's interest in any Mortgage Loan.
3. To perform all other acts and do all other things as may be necessary
or convenient to manage and service the Mortgage Loans under the terms of the
TSA.
This instrument is to be construed and interpreted as a Limited Power of
Attorney regarding a Mortgage Loan. The enumeration of specific items, acts,
rights and powers is not intended to, nor does it give rise to and it is not to
be construed as a general power of attorney.
The rights, powers and authority of the Servicer as attorney-in-fact of
the Trustee under this Limited Power of Attorney shall commence on the date of
execution hereof and shall remain in full force and effect as a limited and
revocable power of attorney which may be revoked at any time in writing by the
Trustee.
This Limited Power of Attorney shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF the Trustee has hereunto caused this Limited Power of
Attorney to be executed by its duly authorized representatives on this _____ day
of January, 2003.
JPMorgan Chase Bank
By:
-------------------------
Name:
Title:
WITNESS: WITNESS:
By: By:
------------------------- -------------------------
Name: Name:
Title: Title:
X-0
XXXXX XX XXX XXXX )
) xx
XXXXXX XX XXX XXXX )
On January ____, 2003, before me personally appeared
_____________________, known to me to be a ________________________ of JPMorgan
Chase Bank, the New York banking association that executed the preceding Limited
Power of Attorney and also known to me to be the person who executed it on
behalf of said New York banking association, and acknowledged to me that such
New York banking association executed the preceding Limited Power of Attorney.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the year and day in this certificate first written.
-----------------------------------
Notary Public
[NOTARIAL SEAL]
E-3
EXHIBIT D
[Form of Request for Release]
Loan Information
Name of Mortgagor: _______________________________________________________
Servicer
Loan No.: ________________________________________________________________
Trustee
Name: JPMorgan Chase Bank
Address: ________________________________________, New York, New York
Custodian/Trustee
Mortgage File No.: _____________________________________________________________
Certificates: GSRPM Mortgage Pass-Through Certificates, Series 2003-2
We the undersigned, as a Servicer, hereby acknowledges that it has
received from JPMorgan Chase Bank, as trustee (the "Trustee") for the Holders of
GSRPM Mortgage Pass-Through Certificates, Series 2003-2, the documents referred
to below (the "Documents"). All capitalized terms not otherwise defined in this
Request for Release shall have the meanings given them in the Trust and
Servicing Agreement dated as of August 1, 2003, among GS Mortgage Securities
Corp., as depositor, GMACM Mortgage Corporation, as a Servicer and JPMorgan
Chase Bank, as Trustee (the "Trust and Servicing Agreement").
Documents
[Servicer to identify documents with particularity below]
GMACM hereby acknowledges and agrees as follows:
(1) GMACM shall hold and retain possession of the Documents in trust
for the benefit of the Trustee, solely for the purposes provided in the Trust
and Servicing Agreement.
(2) GMACM shall not cause or permit the Documents to become subject
to, or encumbered by, any claim, liens, security interest, charges, writs of
J-1
attachment or other impositions nor shall GMACM assert or seek to assert any
claims or rights of set-off to or against the Documents or any proceeds thereof.
(3) GMACM shall return the Documents to the Trustee when the need
therefor no longer exists, unless the Mortgage Loan relating to the Documents
has been liquidated and the proceeds thereof have been remitted to the related
Collection Account and except as expressly provided in the Trust and Servicing
Agreement.
(4) The Documents and any proceeds thereof, including any proceeds
of proceeds, coming into the possession or control of GMACM shall at all times
be earmarked for the account of the Trustee, and GMACM shall keep the Documents
and any proceeds separate and distinct from all other property in the
possession, custody or control of GMACM.
GMAC MORTGAGE CORPORATION
By: ____________________________
Name:____________________________
Title:___________________________
Date: _______________
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EXHIBIT E
FORM OF CERTIFICATION OF DEPOSITOR
GSRPM Mortgage Loan Trust 2003-2 (the "Trust")
Mortgage Pass-Through Certificates
Series 2003-2
I, [identify the certifying individual], certify that:
1. I have reviewed the annual report on Form 10-K for the fiscal
year [___], and all reports on Form 8-K containing
distribution or servicing reports filed in respect of periods
included in the year covered by that annual report, of [the
Trust;]
2. Based on my knowledge, the information in these 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 that annual report;
3. Based on my knowledge, the distribution or servicing
information required to be provided to the trustee by the
servicers under the trust and servicing agreement is included
in these reports;
4. Based on my knowledge and upon the annual compliance statement
included in the report and required to be delivered to the
trustee in accordance with the terms of the trus and servicing
agreement, and except as disclosed in the reports, the
servicer has fulfilled its obligations under the trust 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 trust and servicing
agreement, that is included in these reports.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties:
_____
Date: _________________________
-------------------------------
[Signature]
[Title]
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EXHIBIT E-1
FORM OF CERTIFICATION TO BE
PROVIDED BY TRUSTEE
Re: GSRPM Mortgage Loan Trust 2003-2 (the "Trust) and GSRPM Mortgage
Pass-Through Certificates, Series 2003-2, issued pursuant to the Trust and
Servicing Agreement, dated as of August 1, 2003 among GS Mortgage
Securities Corp., as Depositor, GMAC Mortgage Corporation, as Servicer and
JPMorgan Chase Bank, as 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 for
the fiscal year [___], and all reports on Form 8-K containing
distribution reports filed in respect of periods included in
the year covered by that annual report (collectively, the
"Reports"), of the Trust;
2. To the best of our knowledge, and to the extent information
was provided to the Trustee by the Servicer, based solely on
the information provided to us by the Servicer, the
information in these 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 that annual report;
3. To the best of our knowledge, the distribution or servicing
information required to be provided to the Trustee by the
Servicer under the Trust and Servicing Agreement for inclusion
in these reports is included in these Reports;
Date: _________________________
JPMorgan Chase Bank, not in its individual capacity, but solely as Trustee
E-2
-------------------------------
[Signature]
[Title]
E-3
EXHIBIT E-2
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR AND TRUSTEE
GSRPM Mortgage Loan Trust 2003-2 (the "Trust")
Mortgage Pass-Through Certificates
Series 2003-2
I, [identify the certifying individual], certify that:
1. I am responsible for reviewing the activities performed by the
servicer under the trust and servicing agreement and based
upon my knowledge and the annual review required under that
agreement, and except as disclosed in the reports, the
servicer has fulfilled its obligations under that agreement;
and
2. 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 trust and servicing
agreement, that is included in these reports.
Date: _________________________
-------------------------------
[Signature]
[Title]
E-4
Exhibit G
RESIDUAL TRANSFER AFFIDAVIT
GSRPM Mortgage Loan Trust 2003-2,
Mortgage Pass-Through Certificates, Series 2003-2
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 Trust and Servicing Agreement (the
"Agreement"), dated as of August 1, 2003, by and among GS Mortgage Securities
Corp., as depositor (the "Depositor"), GMAC Mortgage Corporation, as a servicer
(a "Servicer") and JPMorgan Chase Bank, as 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.)
G-1
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;
G-2
(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.
G-3
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__
G-4
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
Attention: Institutional Trust Services/Structured Finance Services; GSRPM
Mortgage Pass-Through Certificates, Series 2003-2
GSRPM Mortgage Loan Trust 2003-2, Mortgage Pass-Through Certificates,
Series 2003-2 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 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
H-1
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
Attention: Institutional Trust Services/Structured Finance Services; GSRPM
Mortgage Pass-Through Certificates, Series 2003-2
GSRPM Mortgage Loan Trust 2003-2, Mortgage Pass-Through Certificates,
Series 2003-2 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) we are not an employee benefit plan that is
subject to Section 406 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"), nor are we acting
on behalf of any such plan or arrangement nor using the assets of any such plan
or arrangement to effect such acquisition or, with respect to a Class M or Class
B 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 the conditions of Sections I and III of PTCE 95-60 are
satisfied or with respect to a Class M, Class B or Class X Certificate, the
Opinion of Counsel in Section 5.02 (b) of the Agreement has been given, (e) we
have not, nor has anyone acting on our behalf offered, transferred, pledged,
sold or otherwise
I-1
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.
I-2
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 $__________(8) 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
----------
(8) 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.
I-3
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
____ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information
I-4
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 Transferor
By:
--------------------------------
Name:
Title:
Date:
------------------------------
I-5
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).
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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.
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Print Name of Transferor
By:
-------------------------------
Name:
Title:
IF AN ADVISER:
----------------------------------
Print Name of Buyer
Date:
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EXHIBIT J
SALE AGREEMENTS
1) Loan Sale Agreement, dated as of September 6, 2002, by and between, Household
Financial Services, Inc. (an "Original Seller") and Xxxxxxx Xxxxx Mortgage
Company.
2) Mortgage Loan Purchase Agreement, dated as of August 28, 2001 by and between
Nationscredit Financial Services Corporation, doing business as Equicredit, on
behalf of itself and its subsidiaries, (an "Original Seller") and Xxxxxxx Sachs
Mortgage Company.
3) Mortgage Loan Purchase and Warranties Agreement, dated as of March 1, 2003,
Xxxxxxx Xxxxx Mortgage Company and NC Capital Corporation (an "Original
Seller").
4) Mortgage Loan Purchase and Warranties Agreement, dated as of March 1, 2003,
Xxxxxxx Sachs Mortgage Company and NC Capital Corporation (an "Original
Seller").
5) Mortgage Loan Purchase and Warranties Agreement, dated as of September 16,
2003, Xxxxxxx Xxxxx Mortgage Company and NC Capital Corporation (an "Original
Seller").
6) Mortgage Loan Purchase and Warranties Agreement, dated as of March 1, 2003,
Xxxxxxx Sachs Mortgage Company and NC Capital Corporation (an "Original
Seller").
7) Mortgage Loan Purchase and Warranties Agreement, dated as of May 12, 2003,
Xxxxxxx Xxxxx Mortgage Company and Finance America, LLC (an "Original Seller").
8) Mortgage Loan Purchase and Warranties Agreement, dated as of March 1, 2003,
Xxxxxxx Sachs Mortgage Company and First Franklin Financial Corporation, (an
"Original Seller").
9) Mortgage Loan Purchase and Warranties Agreement, dated as of July 1, 2003,
Xxxxxxx Xxxxx Mortgage Company and Bank of America, N.A. (an "Original Seller").
10) Seller's Warranties and Servicing Agreement, dated as of August 1, 2002
between Xxxxxxx Sachs Mortgage Company, as purchaser and Xxxxx Fargo Home
Mortgage, Inc., as seller and servicer (an "Original Seller").
11) Seller's Warranties and Servicing Agreement, dated as of November 1, 2002
between Xxxxxxx Sachs Mortgage Company, as purchaser and Xxxxx Fargo Home
Mortgage, Inc., as seller and servicer (an "Original Seller").
12) Seller's Warranties and Servicing Agreement, dated as of February 1, 2003
between Xxxxxxx Sachs Mortgage Company, as purchaser and Xxxxx Fargo Home
Mortgage, Inc., as seller and servicer (an "Original Seller"").
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13) Purchase Agreement, dated as of March 29, 2001 between GRMT III and US Bank
National Association (an "Original Seller").
14) Purchase Agreement, dated as of March 29, 2001 between GRMT III and US Bank
National Association (an "Original Seller").
15) Seller's Warranty Agreement for various residential first mortgage loans,
dated and effective as of September 25, 2001, between Bavaria TRR Corporation,
as purchaser and KeyBank National Association, as seller (an "Original Seller").
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EXHIBIT J (continued)
ASSIGNMENT AGREEMENTS
1) Assignment, Assumption and Recognition Agreement among Xxxxxxx Sachs Mortgage
Company, as assignor, the Depositor, the Trustee, as assignee and Xxxxx Fargo,
as servicer and seller.
2) Assignment, Assumption and Recognition Agreement among Xxxxxxx Sachs Mortgage
Company, as assignor, the Depositor, as assignee and Finance America, LLC as
company.
3) Assignment, Assumption and Recognition Agreement among Xxxxxxx Xxxxx Mortgage
Company, as assignor, the Depositor, as assignee and NC Capital Corporation as
company.
4) Assignment, Assumption and Recognition Agreement among Xxxxxxx Sachs Mortgage
Company, as assignor, the Depositor, as assignee and Household Financial
Services, Inc. as company.
5) Assignment, Assumption and Recognition Agreement among Xxxxxxx Xxxxx Mortgage
Company, as assignor, the Depositor, as assignee and Bank of America, N.A as
company.
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EXHIBIT K
CUSTODIAL AGREEMENT
CUSTODIAL AGREEMENT, dated as of _____________ (the "Agreement"), among GS
Mortgage Securities Corp. (the "Depositor"), having an address at 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, ______________- (the "Servicer"),
______________- (the "Custodian") and JPMorgan Chase Bank, as trustee of GSRPM
Mortgage Loan Trust 2003-2, Mortgage Pass-Through Certificates, Series 2003-2
(the "Trustee"), having an address at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
WITNESSETH:
WHEREAS, the Depositor, the Servicer, the Trustee and ___ have entered
into a Trust and Servicing Agreement (the "Trust and Servicing Agreement"),
dated as of ___________, pursuant to which the Servicer has agreed to service
certain fixed and adjustable rate residential mortgage loans identified on the
mortgage loan schedule attached hereto as Exhibit 1 (the "Mortgage Loans"); and
WHEREAS, the parties hereto desire to have the Custodian take possession
of the mortgage notes for the Mortgage Loans, along with certain other documents
specified herein, as the Custodian of the Trustee, in accordance with the terms
and conditions hereof.
NOW THEREFORE, in consideration of the mutual undertaking herein
expressed, the parties hereto hereby agree as follows:
1. The Trustee shall deliver and release or cause to be delivered and
released to the Custodian each of the documents held by it in trust for the
benefit of the Certificateholders and described in Section 3.04(b) of the Trust
and Servicing Agreement, pertaining to each of the Mortgage Loans identified in
the Mortgage Loan Schedule (the "Mortgage Loan Schedule") a copy of which
Mortgage Loan Schedule is annexed as Exhibit 1 hereto.
2. From time to time, the Servicer shall forward to the Custodian
additional documents evidencing an assumption or modification of a Mortgage Loan
in accordance with the Trust and Servicing Agreement. All Mortgage Loan
documents held by the Custodian as to each Mortgage Loan are referred herein as
the "Custodian's Mortgage File." The Custodian, in its independent capacity,
agrees to act as custodian for the Trustee and any successor to the Trustee in
accordance with the terms and conditions of this Agreement.
3. With respect to each Custodian's Mortgage File delivered to the
Custodian, the Custodian is exclusively the Custodian for the Trustee, and the
Trustee's successor or assigns. The Custodian shall hold all Custodian's
Mortgage Files for the exclusive use and benefit of the Trustee and, except as
otherwise provided herein, shall make disposition thereof only in accordance
with the terms of this Agreement and the written instructions of the Trustee.
The Custodian shall segregate by group (as directed by the Trustee) and maintain
continuous custody of all Custodian's Mortgage Files received by it in secure
and fire resistant facilities in accordance with customary standards for such
custody.
4. The Custodian shall deliver to the Depositor, the Seller, the Servicer
and the Trustee a Custody Receipt in the form annexed hereto as Exhibit 3 (the
"Custody Receipt") which includes verification that, except as shown on an
exceptions list attached thereto:
(a) all documents required to be delivered to it pursuant to
Sections 1(a) through (e) of this Agreement are in the Custodian's
possession; provided, that, the Custodian shall separately note on the
Data Collection Schedule (as defined below) any Mortgage Loans with
respect to which the original note is missing and a lost note affidavit
and a copy of such note is delivered;
(b) all documents required to be delivered to it pursuant to Section
1(f) and 1(g) of this Agreement are in the Custodian's possession;
provided, that:
(i) the Custodian shall have no obligation to verify the
receipt of any such documents the existence of which was not made
known to the Custodian by the Custodian's Mortgage File, and
(ii) the Custodian shall have no obligation to determine
whether recordation of any such document is necessary;
(c) all documents required to be delivered to it pursuant to Section
1(i) of this Agreement are in the Custodian's possession; provided, that,
the Custodian shall have no obligation to verify the receipt of any such
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documents the existence of which was not made known to the Custodian by
the Custodian's Mortgage File;
(d) all powers of attorney and other documents required to be
delivered to it pursuant to Section 1(h) of this Agreement are in the
Custodian's possession; provided, that:
(i) the Custodian shall have no obligation to verify the
receipt of any such documents the existence of which was not made
known to the Custodian by the Custodian's Mortgage File, and
(ii) the Custodian shall have no obligation to determine
whether recordation of any such power of attorney is necessary
(except that the Custodian shall conclude that if the document to
which such power of attorney relates is a mortgage, interim
assignment, assignment or a document that was recorded, then the
Custodian shall conclude that such power of attorney should have
been recorded);
(e) all documents have been examined by the Custodian and appear
regular on their face and relate to the Mortgage Loans;
(f) based only on the Custodian's examination of the foregoing
documents, the information set forth on the Mortgage Loan Schedule
representing each Mortgage Loan accurately reflects the following:
(i) Mortgage Loan number,
(ii) the first payment date (acceptable of accurate within 30
days),
(iii) the maturity date (acceptable of accurate within 30
days),
(iv) the original loan amount,
(v) the original interest rate,
(vi) with respect to each adjustable rate mortgage loan,
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(A) the index,
(B) the number of days prior to the adjustment as of
which the index is determined (look back),
(C) the date of the first interest rate change,
(D) the margin (spread over the index),
(E) the interest rate rounding percentage,
(F) the rate reset frequency,
(G) the periodic rate cap,
(H) the maximum mortgage interest rate (only if stated
on the note),
(I) the maximum negative amortization percentage,
(J) the minimum mortgage interest rate (only if stated
on the note),
(K) the payment cap (only if stated on the note),
(L) negative amortization (yes or no), and
(M) interest rate rounding method (up, down, nearest,
none),
(ix) the full name of the borrower(s) (acceptable if first
and/or middle names are missing or initialized (e.g., X.X. Xxxxx
would match Xxxxxxx Xxxxx Xxxxx), acceptable if first names are
shortened or lengthened or nicknames substituted therefor (e.g., Xxx
for Xxxxxx or Dick for Xxxxxxx), acceptable if middle or maiden
names are omitted, acceptable if "Jr.", "Sr.", "II" and similar
designations are omitted, acceptable if discrepancy is a
typographical error),
(xvi) the property address, including zip code (acceptable if
the first three digits of the zip code match),
(xvii) the original principal and interest payment,
(xviii) the identity of each Mortgage Loan which is
convertible and the date of such conversion,
(xix) the identity of each Mortgage Loan which has been
modified and a description of each modification (collectively, the
"Verified Information"); and
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(g) each mortgage note has been endorsed and each assignment of
mortgage has been assigned as described in Section 1 hereof; provided,
that, the Custodian shall have no obligation to confirm that the
assignments are in recordable form.
In making the verification required by this Section 4, the Custodian may
rely conclusively on the Mortgage Loan Schedule attached hereto, and the
Custodian shall have no obligation to independently verify the correctness of
such Mortgage Loan Schedule. If any discrepancy exists between the Verified
Information and the Mortgage Loan Schedule, the Custodian shall notify the
Depositor, the Trustee and the Servicer by attaching a list of such
discrepancies to the Final Certification.
It is understood that before delivering the Custody Receipt, the Custodian
shall examine the Mortgage Loan Documents to confirm the following (and shall
report any exceptions to these confirmations in the exceptions report attached
to the Custody Receipt):
(1) each mortgage note, mortgage, assumption, modification,
guaranty, power of attorney and deed of sale bears a signature or
signatures that appear to be original and that purport to be that of the
Person or Persons named as the maker and mortgagor/trustor or, if
photocopies are permitted by this Agreement, that such copies bear a
reproduction of such signature or signatures;
(2) the principal amount of the indebtedness secured by the mortgage
is identical to the original principal amount of the note;
(3) the interest rate shown on the note is identical to the interest
rate shown on the Mortgage Loan Schedule;
(4) the assignment of the mortgage from the last assignee is in the
form required pursuant to Section l(c) hereof, and bears the signature of
the last assignee, that appears to be an original and any other necessary
party or, if photocopies are permitted by this Agreement, such copies bear
a reproduction of such signature or signatures;
(5) if intervening assignments are included in the Custodian's
Mortgage File, each such intervening assignment bears the signature of the
mortgagee and/or the assignor (and any other necessary party) that appears
to
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be an original or, if photocopies are permitted by this Agreement, that
such copies bear a reproduction of such signature or signatures; and
(6) the title insurance policy or certificate of title is for an
amount not less than the original principal amount of the related note.
5. If this Agreement is entered into prior to February 28, 2004, the
Custodian shall deliver to the Depositor, the Servicer and the Trustee a Final
Certification in the form of Exhibit 4 evidencing the completeness of the
Custodian's Mortgage File for each Mortgage Loan, with any applicable exceptions
noted on such Certification. If this Agreement is entered into after February
28, 2004, the Trustee shall deliver to the Custodian the Final Certification
issued by it or a previous custodian with respect to the Custodian's Mortgage
File with any exceptions list thereto.
6. Upon request, no later than the fifth Business Day of each month,
commencing in March, 2004, the Custodian shall deliver to the Servicer, the
Depositor and the Trustee in electronic or hard copy format, as requested by the
Depositor, the Servicer or the Trustee, the exceptions list referred to in
Section 4 hereof, updated to remove exceptions cured since the date on which the
Custody Receipt was issued pursuant to Section 4 hereof. In addition, such
monthly reports shall list any document with respect to which the Seller or its
designee delivered a copy certifying that the original had been sent for
recording, until such time as the Seller or its designee delivers to the
Custodian the original of such document or a copy thereof certified by the
appropriate public recording office. The Data Collection Schedule shall not be
included unless specifically requested in advance. Except as specifically
provided above, the Custodian shall be under no duty to review, inspect or
examine such documents to determine that any of them are enforceable or
appropriate for their prescribed purpose. During the life of the Mortgage Loans,
in the event the Custodian discovers any defect with respect to the Custodian's
Mortgage Files, the Custodian shall give written notice of such defect to the
Seller, the Depositor and the Trustee.
7. The Custodian shall hold in its possession and custody at ____________,
for the Trustee or any assignee of the Trustee, all of the Custodian's Mortgage
Files delivered from time to time by the Seller or the Servicer to the
Custodian.
8. From time to time and as appropriate for the foreclosure or servicing
of the Mortgage Loans, the Trustee hereby authorizes the Custodian to release
and
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the Custodian shall release to the Servicer (or, after securitization of the
Mortgage Loans, if so designated by the Servicer, to the Trustee), within three
(3) business days of receipt of either (i) a written request and receipt of the
Servicer in the form attached hereto as Exhibit 5(a) executed by one of the
authorized signatories set forth on Exhibit 6, as such exhibit may be updated
from time to time by the Servicer or (ii) an electronic request through the use
of an electronic file request system mutually acceptable to the Custodian and
the Servicer, a Custodian's Mortgage File to the place indicated in any such
written request from the Servicer. A list of authorized signatures for such
written requests has been furnished to the Custodian by the Servicer. All
Custodian's Mortgage Files so released to the Servicer shall be held by it in
trust for the benefit of the Trustee. The Servicer shall return to the Custodian
the Custodian's Mortgage File when the Servicer's need therefor in connection
with such foreclosure or servicing no longer exist, unless the Mortgage Loan
shall be liquidated or paid in full. Notwithstanding the foregoing, the
Custodian shall not release Custodial Files to the Servicer pursuant to this
Section 8 if such release would cause the Servicer to be in possession of
Custodial Files that would be in excess of 10% of the files relating to all of
the mortgage loans subject to the Trust and Servicing Agreement..
9. Upon the repurchase of any Mortgage Loan or the payment or liquidation
in full of the Mortgage Loan, and within three Business Days of receipt by the
Custodian of the Servicer's request for release, receipt and certification
either (i) in the form attached hereto as Exhibit 5(b), executed by one of the
authorized signatories set forth on Exhibit 6 as such exhibit may be updated
from time to time by the Servicer or (ii) through the use of an electronic
request system mutually acceptable to the Custodian and the Servicer (which
certification shall include a statement to the effect that all amounts received
in connection with such repurchase or payment in full or liquidation have been
credited to the Collection Account as provided in the Trust and Servicing
Agreement), the Custodian shall release the related Custodian's Mortgage File to
or at the direction of the Servicer.
10. Upon reasonable prior written notice, the Custodian shall permit the
Seller, the Depositor and the Trustee and their respective agents, and servicing
officers of the Servicer reasonable access to its premises during the
Custodian's normal business hours to inspect the Custodian's Mortgage Files and
all other documents, records and other papers in possession or under the control
of the Custodian relating to the Mortgage Loans serviced by the Servicer. Each
such person shall comply with the Custodian's reasonable standards and
procedures for physical security and personal conduct while on the Custodian's
premises. Any person failing, in the Custodian's sole but reasonable business
judgment, to meet
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such standards may be removed or denied access to the premises. The Trustee
shall be responsible for any reasonable expense in connection with such
examination.
11. (a) The Depositor, with or without cause, may remove and discharge the
Custodian or any successor Custodian thereafter appointed from the performance
of its duties under this Agreement upon written notice from the Depositor to the
Custodian or the successor Custodian; provided that at least sixty (60) days
prior written notice shall be given to the Custodian and the Servicer with
respect to a removal or discharge without cause. Having given notice of such
removal, the Depositor shall promptly appoint a successor Custodian to act on
its behalf by written instrument, an original counterpart of which instrument
shall be delivered to the Servicer and one copy to the successor Custodian. In
the event of any such removal, the Custodian shall promptly transfer, to the
successor Custodian as directed, all Custodian's Mortgage Files being
administered under this Agreement. Such transfer shall be at the Custodian's
expense if the Custodian is discharged for cause; otherwise such transfer shall
occur at the expense of the Depositor. In any event, the Custodian shall be
entitled to the payment of all outstanding fees and expenses of the Custodian
due the Custodian at the time of such removal by the Depositor. In the event
that the Depositor removes the Custodian without cause, any transfer or set-up
fees payable to the successor Custodian will be payable by the Depositor. In any
event, the reasonable ongoing fees of any successor Custodian shall be paid by
the Depositor.
(b) The Trustee, with or without cause, may remove and discharge the
Custodian or any successor Custodian thereafter appointed from the performance
of its duties under this Agreement upon written notice from the Trustee to the
Custodian or the successor Custodian; provided that at least sixty (60) days
prior written notice shall be given to the Custodian and the Servicer with
respect to a removal or discharge without cause. Having given notice of such
removal, the Trustee shall promptly appoint a successor Custodian to act on its
behalf by written instrument, an original counterpart of which instrument shall
be delivered to the Servicer and one copy to the successor Custodian. In the
event of any such removal, the Custodian shall promptly transfer, to the
successor Custodian as directed, all Custodian's Mortgage Files being
administered under this Agreement. Such transfer shall be at the Custodian's
expense if the Custodian is discharged and removed for cause; otherwise such
transfer shall occur at the expense of the Trustee. In any event, the Custodian
shall be entitled to the payment of all outstanding fees and expenses of the
Custodian due the Custodian at the time of such removal by the Trustee. In the
event that the Trustee removes the Custodian without cause, any transfer or
set-up fees payable to the successor Custodian will be payable by the
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Trustee. In any event, the reasonable ongoing fees of any successor Custodian
shall be paid by the Trustee.
12. It is understood that the Custodian will charge for its services under
this agreement as set forth in a separate agreement between the Custodian and
the Trustee, the payment of which shall be the sole obligation of the Trustee.
13. The Custodian shall, at its own expense, maintain at all times during
the existence of this Agreement and keep in full force and effect, (a) fidelity
insurance, (b) errors and omissions insurance, and (c) all risk property
insurance. All such insurance shall be in amounts, with standard coverage and
subject to deductibles, all as is customary for insurance typically maintained
by banks which act as custodian and in an amount and with coverages not less
than that required by the Xxxxxx Xxx. Upon request, the Depositor will be
provided with certificates of insurance, as specified in this paragraph 13.
14. The Custodian may resign as the Custodian hereunder upon at least
sixty (60) days prior written notice to the Depositor, the Servicer and the
Trustee whereupon the Custodian shall deliver the Custodian's Mortgage Files to
Trustee, or a designee of the Trustee, in accordance with directions from the
Trustee. In the event of such resignation, or termination, the Trustee shall pay
all outstanding fees and expenses of the Custodian and shall appoint a successor
Custodian.
15. For the purpose of facilitating the execution of this Custodial
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 and be one and the same instrument.
16. Upon the request of the Trustee or the Depositor, at any time, the
Custodian shall provide to the Trustee and the Depositor a list of all of the
Mortgage Loans owned by the Trustee for which the Custodian holds a Custodian's
Mortgage File pursuant to this Agreement. Such list may be in the form of a copy
of the Mortgage Loan Schedule with manual deletions to specifically denote any
Mortgage Loans paid off, repurchased or liquidated since the date of this
Agreement.
17. The duties and obligations of the Custodian shall only be such as are
expressly set forth in this Agreement or as set forth in a written amendment to
this Agreement executed by the parties hereto or their successors and assigns.
In no
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event shall the Custodian be liable for special, indirect or consequential
damages, even if advised of this possibility of the same.
18. All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered, delivered
by facsimile or mailed by first class mail or overnight express mail, postage
prepaid, to the parties to this agreement at the address listed on Exhibit 2 or
such other address as may hereafter be furnished in writing to each of the
parties to this Agreement. Any such demand, notice or communication hereunder
shall be deemed to have been received on the date received, if received prior to
4 p.m. eastern time, delivered to or received at the premises of the addressee
or received at the facsimile number of the address, or, if received after 4 p.m.
eastern time, then on the next business day.
19. This Agreement shall be construed in accordance with the laws of the
State of New York, without regard to its conflict of law principles (other than
Sections 5-1401 and 5-1402 of the New York General Obligations Law), and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
20. The Custodian shall have no duties or obligation except those
expressly stated in this Agreement, and such duties or obligations shall be
determined solely by the express provisions of the Agreement. The Custodian, its
officers, directors, employees, agents or other representatives shall not be
personally liable for any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion or rights or powers
conferred upon the Custodian by this Agreement or in reliance upon any written
notice, request, consent, certificate, order, affidavit, letter, telegram or
other document reasonably believed by it to be genuine and to have been signed
or sent by the proper party or parties; provided, however, that the provisions
of this paragraph shall not be construed to relieve the Custodian from liability
from its own negligent action, its own negligent failure to act, or its own bad
faith or willful misconduct or any breach by the Custodian of any of its
obligations hereunder, which breach was due to negligence on the part of the
Custodian. The Custodian will be regarded as making no representations and
having no responsibilities (except as expressly set forth herein) as to the
validity, sufficiency, value, genuineness, ownership or transferability of any
Mortgage Loan, and will not be required to and will not make any representations
as to the validity, value or genuineness of any Mortgage Loan. The Custodian
shall not be obligated to take any legal action hereunder that might in its
judgment involve any expense or liability unless it has been furnished with
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reasonable indemnity. The Custodian may rely on and shall be protected in acting
in good faith upon the written instructions of the Depositor, the Servicer and
the Trustee (if any) and such employees and representatives of the Depositor,
the Servicer and the Trustee (if any) as each such party may hereinafter
designate in writing. The Custodian may execute any of the powers hereunder or
perform any duties hereunder either directly or through agents or attorneys;
provided, however, that the execution of such powers by any such agents or
attorneys shall not diminish or relieve the Custodian for responsibility
therefor to the same degree as if the Custodian itself had executed such powers.
21. The Custodian shall be entitled to obtain the advice or opinion of
counsel (which shall be either in house counsel or a nationally recognized
outside counsel) with respect to a matter of law for which the Custodian has a
reasonable question as to the rights and duties relating to the Custodian
hereunder and the Custodian shall have no liability for any action taken or
omitted in conformity with its good faith reliance on such advice or opinion;
provided, however, that the provisions of this paragraph shall not relieve the
Custodian from liability from its own negligent selection of counsel.
22. This Agreement (together with the separate fee agreement between the
Trustee and the Custodian) contains the entire agreement between the parties
relating to the subject matter hereof and may be amended only by written
agreement signed by the Depositor, the Servicer, the Trustee and the Custodian.
23. The Trustee shall have the right, without consent of the Custodian, to
assign its interest under this Agreement with respect to some or all of the
Mortgage Loans, and designate any person to exercise any rights of the Trustee
hereunder, and the assignee or designee shall accede to the rights and
obligations hereunder of the Trustee with respect to such Mortgage Loans;
provided, however, that the Trustee may not assign its interest to more than
five (5) persons without the consent of the Custodian, such consent not to be
unreasonably withheld. All references to the Trustee in this Agreement shall be
deemed to include its assignee or designee. Upon the Custodian's receipt of the
written notification, which shall state the name and address of the transferee
and the date of sale and shall be accompanied by the original Custody Receipt
presently outstanding delivered to the Trustee, the Custodian shall change its
records to reflect that such transferee is the owner of such Mortgage Loan and
shall immediately issue (i) a new Custody Receipt with respect to a portion of
or all of the Mortgage Loans, as the case may be, in the name of such transferee
and (ii) a new Custody Receipt with respect to any Mortgage Loans retained by
the Trustee; provided, that, any Custody Receipt issued after the date of
14
the initial sale of the Mortgage Loans shall not (1) confirm the accuracy of the
Mortgage Loan Schedule with respect to Verified Information nor (2) include the
Data Collection Schedule. The Trustee and the Custodian agree herein that any
and all such transferees of a Mortgage Loan shall succeed to all the rights and
obligations of the Trustee and shall be considered the Trustee under this
Agreement.
24. The Trustee agrees to indemnify and hold the Custodian, its directors,
officers, agents, employees, and other representatives harmless against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by or asserted against it or them in any way arising
out of this Agreement as a result of any action or failure to act, so long as
such action or failure to act by it or them hereunder does not constitute bad
faith, negligence or willful misconduct of the Custodian or any of its agents,
officers, directors or employees or breach by the Custodian of its obligations
hereunder. The foregoing indemnity shall survive the termination of this
Agreement.
25. This Agreement shall inure to the benefit of the successors and
assigns of the parties hereto.
26. Each party agrees to keep confidential the existence of this
Agreement, the identity of the parties hereto, and any other term or condition
of this Agreement and the transactions contemplated hereby, and to use such
information solely in order to effectuate the purpose of the Agreement;
provided, that, each party may provide confidential information to its
employees, agents and affiliates who have a need to know such information in
order to effectuate the transaction, and provided, further that such information
is identified as confidential non-public information. In the event that either
party or any of its employees, agents or affiliates are requested pursuant to,
or required by, applicable law, regulation or legal process to disclose any
non-public information, such party will notify the other promptly prior to any
such disclosure so that such party may seek a protective order or other
appropriate remedy or, in such party's sole discretion, waive compliance with
the terms of this Section 26. In the event that no such protective order or
other remedy is timely obtained, or that such party waives compliance with the
terms of this Section 26, the party required to disclose such non-public
information or its employees, agents or affiliates will furnish only that
portion of the non-public information that it is advised by counsel is legally
required and will exercise all reasonable efforts to obtain reliable assurance
that confidential treatment will be accorded the non-public information.
15
27. The Custodian (or any successor thereto) shall at all times (a) be a
depository institution or trust company subject to supervision by federal or
state authority, (b) have a combined capital and surplus of at least
$10,000,000, (c) be qualified to do business in any jurisdiction in which it
holds a Custodian's Mortgage File, (d) be qualified to act as a custodian for
Xxxxxx Xxx, the Federal Home Loan Mortgage Corporation and the Government
National Mortgage Association, and (e) not be an affiliate of the Depositor or
the Servicer, except insofar as the Depositor or its assignee gives its prior
written consent.
28. Upon the execution of this Agreement, the Custodian shall deliver to
the Depositor and the Trustee (a) an opinion of counsel and (b) an officer's
certificate, each in form and substance reasonably satisfactory to the Depositor
and the Trustee.
29. The Custodian represents, warrants and covenants that:
(a) The Custodian is (i) a banking corporation duly organized,
validly existing and in good standing under the laws of the State of New
York and (ii) duly qualified and in good standing and in possession of all
requisite authority, power, licenses, permits and franchises in order to
execute, deliver and comply with its obligations under the terms of this
Agreement;
(b) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary corporate action and the execution
and delivery of this Agreement by the Custodian in the manner contemplated
herein and the performance of and compliance with the terms hereof by it
will not (i) violate, contravene, or create a default under any applicable
laws, licenses, or permits to the best of its knowledge, or (ii) violate,
contravene or create a default under any charter document or bylaw of the
Custodian or to the best of the Custodian's knowledge any contract,
agreement or instrument to which the Custodian or by which any of its
property may be bound and will not result in the creation of any lien,
security interest or other charge or encumbrance upon or with respect to
any of its property;
(c) The execution and delivery of this Agreement by the Custodian
and the performance of and compliance with its obligations and covenants
hereunder do not require the consent or approval of any
16
governmental authority or, if such consent or approval is required, it has
been obtained;
(d) The Custodian has duly executed and delivered this Agreement,
and this Agreement, assuming due authorization, execution and delivery by
the Depositor, the Seller, the Trustee and Servicer, constitutes a legal,
valid and binding obligation of the Custodian, enforceable against it in
accordance with its terms, except as the enforcement thereof may be
limited by applicable debtor relief laws and that certain equitable
remedies may not be available regardless of whether enforcement is sought
in equity or law; and
(e) There is no action, suit, proceeding or investigation pending
or, to the Custodian's knowledge, threatened, against the Custodian, which
seeks to prevent the consummation of the transaction contemplated hereby
or which, either in any one instance or in the aggregate, if determined
adversely to the Custodian would adversely affect the execution, delivery
or enforceability of this Agreement, the ability of the Custodian to
perform its obligations hereunder, or have a material adverse effect on
the financial condition of the Custodian.
30. The Custodian is not responsible for preparing or filing any reports
or returns relating to federal, state or local income taxes with respect to this
Agreement, other than for the Custodian's compensation or for reimbursement of
expenses. The Custodian will be responsible for the transmission of mortgage
files and loan documents, with insurance thereon as provided in the normal
course by the nationally recognized overnight courier service utilized by the
Custodian for such transmission. At the request of the Trustee, the Custodian
will obtain and maintain additional insurance with an insurance provider
specified by the Trustee against loss or damage to such Mortgage Files and loan
documents in connection with such transmission in an amount specified by the
Trustee. The costs and expenses incurred in connection with obtaining and
maintaining such insurance shall be the sole responsibility of the Trustee. It
is expressly agreed that in no event shall the Custodian have any liability for
any losses or damages to any person, including, without limitation, the
Depositor or Servicer, arising out of actions of the Custodian consistent with
this Agreement. In the absence of any written instructions from the Trustee with
respect to the transmission of the Custodian's Mortgage Files, the parties
hereby agree that the Custodian may utilize any nationally recognized overnight
courier service and shall be entitled to reimbursement from the Trustee.
17
[Signature page follows]
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the date first above written.
[DEPOSITOR]
By: _______________________________
Name: ______________________________
Title: _____________________________
[CUSTODIAN]
By: _______________________________
Name: ______________________________
Title: _____________________________
[SERVICER]
By: _______________________________
Name: ______________________________
Title: _____________________________
[TRUSTEE]
By: _______________________________
Name: ______________________________
Title: _____________________________
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
EXHIBIT 2
(1) If to the Custodian:
________________________
________________________
(2) If to the Depositor:
GS Mortgage Securities Corp.
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Legal Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(3) If to the Servicer:
(4) If to the Trustee:
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Institutional Trust Services/Structured Finance Services,
GSRPM 2003-2
EXHIBIT 3
FORM OF CUSTODY RECEIPT
_____, 2003
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Institutional Trust Services/Structured Finance Services, GSRPM
2003-2
GS Mortgage Securities Corp.
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Servicer]
RE: The Custodial Agreement, dated ___, among GS Mortgage Securities Corp., as
Depositor, ________., as Servicer_____________-, as Custodian and JPMorgan
Chase Bank, as Trustee
Ladies and Gentlemen:
In accordance with the provision of Section 4 of the above-referenced
Custodial Agreement, the undersigned, as the Custodian, hereby certifies that as
to each Mortgage Loan listed on the attached Mortgage Loan Schedule, it has
reviewed the Custodian's Mortgage File and has determined that (a) (i) all
documents required to be delivered to it pursuant to Section 1(a) through (e) of
the Custodial Agreement are in its possession; (ii) all documents required to be
delivered to it pursuant to Section 1(f) and (g) of the Custodial Agreement are
in its possession, provided that the Custodian has no obligation to verify the
receipt of any such documents if the existence of which was not made known to
the Custodian by the Custodian's Mortgage File, and provided, further, that the
Custodian has no obligation to determine whether recordation of any such
modification is necessary; (iii) all documents required to be delivered to it
pursuant to Section 1(i) of the Custodial Agreement are in its possession;
provided, that, the Custodian shall have no obligation to verify the receipt of
any such documents the existence of which was not made known to the Custodian by
the Custodian's Mortgage File; (iv) all powers of attorney and other documents
required to be delivered to it pursuant to Section l(h) of the Custodial
Agreement are in its possession, provided that the Custodian has no obligation
to verify the receipt of any such documents the existence of which was not made
known to the Custodian by the Custodian's Mortgage File, and provided, further,
that the Custodian has no obligation to determine whether recordation of any
such power of attorney is necessary (except as set forth in Section 4 of the
Custodial Agreement); (b) such documents have been reviewed by it and appear
regular on their face and to relate to such Mortgage Loans, except as set forth
in the attached exception report; provided, however, that the Custodian makes no
representation and has no responsibilities as to the authenticity of such
documents, their compliance with applicable law, or the collectibility of any of
the Mortgage Loans relating thereto; (c) based upon its examination, and only as
to the foregoing documents, the information set forth on the Mortgage Loan
Schedule accurately reflects, within permitted tolerances, the Verified
Information with respect to each Mortgage Loan; and (d) each Mortgage Note has
been endorsed and each assignment has been assigned as required under Section 1
of the Custodial Agreement. Moreover, the attached Data Collection Schedule
accurately and completely sets forth the information required to be set forth
therein pursuant to Section 4 of the Custodial Agreement.
___________________,
as Custodian
By: _____________________________
Name: _____________________________
Title: _____________________________
EXHIBIT 4
FORM OF FINAL CERTIFICATION
[ ], 2003
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Institutional Trust Services/Structured Finance Services, GSRPM
2003-2
GS Mortgage Securities Corp.
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Servicer]
RE: The Custodial Agreement, dated _____among GS Mortgage Securities Corp., as
Depositor, _________, as Servicer, ____________, as Custodian and JPMorgan
Chase Bank, as Trustee
Ladies and Gentlemen:
In accordance with the provision of Section 5 of the above-referenced
Custodial Agreement, the undersigned, as the Custodian, hereby certifies that as
to each Mortgage Loan listed on the attached Mortgage Loan Schedule, it has
reviewed the Custodian's Mortgage File and has determined that (a) (i) all
documents required to be delivered to it pursuant to Section 1(a) through (e) of
the Custodial Agreement are in its possession; (ii) all documents required to be
delivered to it pursuant to Section 1(f) and (g) of the Custodial Agreement are
in its possession, provided that the Custodian has no obligation to verify the
receipt of any such documents if the existence of which was not made known to
the Custodian by the Custodian's Mortgage File, and provided, further, that the
Custodian has no obligation to determine whether recordation of any such
modification is necessary; (iii) all documents required to be delivered to it
pursuant to Section 1(i) of the Custodial Agreement are in its possession;
provided, that the Custodian shall have no obligation to verify the receipt of
any such documents the existence of which was not made known to the Custodian
by the Custodian's Mortgage File; (iv) all powers of attorney and other
documents required to be delivered to it pursuant to Section 1(h) of the
Custodial Agreement are in its possession, provided that the Custodian has no
obligation to verify the receipt of any such documents the existence of which
was not made known to the Custodian by the Custodian's Mortgage File, and
provided, further, that the Custodian has no obligation to determine whether
recordation of any such power of attorney is necessary (except as noted in
Section 4 of the Custodial Agreement); (b) such documents have been reviewed by
it and appear regular on their face and to relate to such Mortgage Loans, except
as set forth in the attached exception report; provided, however, that the
Custodian makes no representation and has no responsibilities as to the
authenticity of such documents, their compliance with applicable law, or the
collectibility of any of the Mortgage Loans relating thereto; and (c) each
Mortgage Note has been endorsed and each assignment has been assigned as
required under Section 1 of the Custodial Agreement.
_________________,
as Custodian
By: _____________________________
Name: _____________________________
Title: _____________________________
EXHIBIT 5(a)
Attn: Inventory Control
RE: Mortgagor: __________________________
Pool No.: ___________________________
Alternative Loan No.: _______________
Inv. Loan No.: ______________________
Inv. Code No.: ______________________
Property: ___________________________
Dear __________________;
Please be advised that the subject loan is presently delinquent and [Name
of individual Servicer] is attempting to collect the arrearage or alternately
will commence foreclosure proceedings. Therefore, would you please release to us
the Custodian's Mortgage File (as such term is defined in the Custodial
Agreement, dated as of January 29, 2003 among Xxxxxxx Xxxxx Mortgage Company, GS
Mortgage Securities Corp., Fairbanks Capital Corp. and JPMorgan Chase Bank).
Should this loan re-instate, all documents will be returned to you as custodian.
Please forward all of the documents to my attention.
Very truly yours,
Document Control
Authorized Signature
EXHIBIT 5(b)
Attn: Inventory Control
RE: [Servicer] Loan Number: _________
ALT Loan Number: ________________
Pool: ___________________________
Series: _________________________
Customer Name: __________________
Please return to the Servicer the Custodian's Mortgage File (as such term
is defined in the Custodial Agreement, dated as of ____________ among GS
Mortgage Securities Corp., ___________________. and JPMorgan Chase Bank) on the
above referenced loan, as the loan has been [paid in full] [repurchased]
[liquidated].
These documents should be returned to:
[Name and Address of individual Servicer]
If you have any questions concerning this matter, please feel free to
contact me directly at ____________________.
Sincerely,
Reconveyance Department
Name: ___________________
I hereby certify that all amounts received in connection with the
repurchase, liquidation, or payment in full of this loan, as applicable, have
been credited to the Collection Account as provided in the relevant Agreement
for the above-referenced issue.
Settlement Date: _________________
Name: ____________________________
Title: ___________________________
EXHIBIT 6
List of Authorized Signatories for the Servicer
