Exhibit 4
GS MORTGAGE SECURITIES CORP.,
Depositor,
COUNTRYWIDE HOME LOANS SERVICING LP,
Servicer,
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee
------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of May 1, 2005
------------------------------------
GSAMP TRUST 2005-AHL
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-AHL
Page
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.............
Section 2.03 Representations, Warranties and Covenants of the Servicer...
Section 2.04 [Reserved]..................................................
Section 2.05 Execution and Delivery of Certificates......................
Section 2.06 REMIC Matters...............................................
Section 2.07 Representations and Warranties of the Depositor.............
Section 2.08 Enforcement of Purchaser and Responsible Party
Obligations..............................................
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans..........................
Section 3.02 Subservicing Agreements between the Servicer and
Subservicer..............................................
Section 3.03 Successor Subservicers......................................
Section 3.04 Liability of the Servicer...................................
Section 3.05 No Contractual Relationship between Subservicers and the
Trustee..................................................
Section 3.06 Assumption or Termination of Subservicing Agreements by
Trustee..................................................
Section 3.07 Collection of Certain Mortgage Loan Payments................
Section 3.08 Subservicing Accounts.......................................
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts..........................................
Section 3.10 Collection Account..........................................
Section 3.11 Withdrawals from the Collection Account.....................
Section 3.12 Investment of Funds in the Collection Account and the
Distribution Account.....................................
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions
and Fidelity Coverage....................................
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption Agreements...
Section 3.15 Realization upon Defaulted Mortgage Loans...................
Section 3.16 Release of Mortgage Files...................................
Section 3.17 Title, Conservation and Disposition of REO Property.........
Section 3.18 Notification of Adjustments.................................
Section 3.19 Access to Certain Documentation and Information
Regarding the Mortgage Loans.............................
Section 3.20 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Trustee......................
Section 3.21 Servicing Compensation......................................
Section 3.22 Annual Statement as to Compliance...........................
Section 3.23 Annual Independent Public Accountants' Servicing
Statement; Financial Statements..........................
Section 3.24 Trustee to Act as Servicer..................................
Section 3.25 Compensating Interest.......................................
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act....................
Section 3.27 Excess Reserve Fund Account; Distribution Account...........
Section 3.28 Optional Purchase of Delinquent Mortgage Loans..............
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances....................................................
Section 4.02 Priorities of Distribution..................................
Section 4.03 Monthly Statements to Certificateholders....................
Section 4.04 Certain Matters Relating to the Determination of LIBOR......
Section 4.05 Allocation of Applied Realized Loss Amounts.................
Section 4.06 Supplemental Interest Trust.................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates............................................
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates.................................
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates...........
Section 5.04 Persons Deemed Owners.......................................
Section 5.05 Access to List of Certificateholders' Names and Addresses...
Section 5.06 Maintenance of Office or Agency.............................
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.01 Respective Liabilities of the Depositor and the Servicer....
Section 6.02 Merger or Consolidation of the Depositor or the Servicer....
Section 6.03 Limitation on Liability of the Depositor, the Servicer
and Others...............................................
Section 6.04 Limitation on Resignation of the Servicer...................
Section 6.05 Additional Indemnification by the Servicer; Third Party
Claims...................................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default...........................................
Section 7.02 Trustee to Act; Appointment of Successor....................
Section 7.03 Notification to Certificateholders..........................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee.......................................
Section 8.02 Certain Matters Affecting the Trustee.......................
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.......
Section 8.04 Trustee May Own Certificates................................
Section 8.05 Trustee's Fees and Expenses.................................
Section 8.06 Eligibility Requirements for the Trustee....................
Section 8.07 Resignation and Removal of the Trustee......................
Section 8.08 Successor Trustee...........................................
Section 8.09 Merger or Consolidation of the Trustee......................
Section 8.10 Appointment of Co-Trustee or Separate Trustee...............
Section 8.11 Tax Matters.................................................
Section 8.12 Periodic Filings............................................
Section 8.13 Tax Treatment of Upper-Tier Carry Forward Amounts and
Basis Risk Carry Forward Amounts.........................
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage
Loans....................................................
Section 9.02 Final Distribution on the Certificates......................
Section 9.03 Additional Termination Requirements.........................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment...................................................
Section 10.02 Recordation of Agreement; Counterparts......................
Section 10.03 Governing Law...............................................
Section 10.04 Intention of Parties........................................
Section 10.05 Notices.....................................................
Section 10.06 Severability of Provisions..................................
Section 10.07 Assignment; Sales; Advance Facilities.......................
Section 10.08 Limitation on Rights of Certificateholders..................
Section 10.09 Inspection and Audit Rights.................................
Section 10.10 Certificates Nonassessable and Fully Paid...................
Section 10.11 Waiver of Jury Trial........................................
Section 10.12 Limitation of Damages.......................................
Section 10.13 Rights of the Swap Provider.................................
SCHEDULES
Schedule I Mortgage Loan Schedule
Schedule II Representations and Warranties of Countrywide, as Servicer
EXHIBITS
Exhibit A-1 Form of Class A, Class M and Class B Certificates
Exhibit B Form of Class P Certificate
Exhibit C-1 Form of Class R-1 Certificate
Exhibit C-2 Form of Class R-2 Certificate
Exhibit D Form of Class X Certificate
Exhibit E Form of Initial Certification of Trustee
Exhibit F Form of Document Certification and Exception Report of Trustee
Exhibit G Form of Residual Transfer Affidavit
Exhibit H Form of Transferor Certificate
Exhibit I Form of Rule 144A Letter
Exhibit J Form of Investment Letter (Non-Rule 144A)
Exhibit K Form of Request for Release
Exhibit L Contents of Each Mortgage File
Exhibit M Servicer Reporting Requirements
Exhibit N Form of Certification to be provided with Form 10-K
Exhibit O Form of Trustee Certification to be provided to Depositor
Exhibit P Form of Servicer Certification to be provided to Depositor
Exhibit Q Responsible Party Agreements
THIS POOLING AND SERVICING AGREEMENT, dated as of May 1, 2005, is
among GS MORTGAGE SECURITIES CORP., a Delaware corporation (the "Depositor"),
COUNTRYWIDE HOME LOANS SERVICING LP, a Texas limited partnership (the
"Servicer"), and DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking
association, as trustee (the "Trustee").
W I T N E S S E T H:
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Trustee shall elect that four segregated asset pools within the
Trust Fund (exclusive of (i) the Prepayment Premiums, (ii) the Interest Rate
Swap Agreement, (iii) the Supplemental Interest Trust, (iv) the Excess Reserve
Fund Account, and (v) the right of the LIBOR Certificates to receive Upper-Tier
Carry Forward Amounts and, without duplication, Basis Risk Carry Forward Amounts
and the obligation to pay Class IO Shortfalls) be treated for federal income tax
purposes as comprising four REMICs (each, a "Trust REMIC" or, in the
alternative, Pooling-Tier REMIC-1, Pooling-Tier REMIC-2, the Lower-Tier REMIC
and the Upper-Tier REMIC, respectively). The Class X Interest and each Class of
LIBOR Certificates (other than the right of each Class of LIBOR Certificates to
receive Upper-Tier Carry Forward Amounts and, without duplication, Basis Risk
Carry Forward Amounts) and the obligation to pay Class IO Shortfalls represents
ownership of a regular interest in a REMIC for purposes of the REMIC Provisions.
The Class R-2 Certificates represent ownership of the sole class of residual
interest in Pooling-Tier REMIC-1 for purposes of the REMIC Provisions. The Class
R-1 Certificates represent ownership of the sole class of residual interest in
each of Pooling-Tier REMIC-2, the Lower-Tier REMIC and the Upper-Tier REMIC for
purposes of the REMIC Provisions. The Start-up Day for each REMIC described
herein is the Closing Date. The latest possible maturity date for each
Certificate is the latest date referenced in Section 2.06. The Upper-Tier REMIC
shall hold as assets the several classes of uncertificated Lower-Tier Regular
Interests, set out below. The Lower-Tier REMIC shall hold as assets the several
classes of uncertificated Pooling-Tier REMIC-2 Regular Interests. Pooling-Tier
REMIC-2 shall hold as assets the several classes of uncertificated Pooling-Tier
REMIC-1 Regular Interests. Pooling-Tier REMIC-1 shall hold as assets the assets
of the Trust Fund (exclusive of (i) the Prepayment Premiums, (ii) the Interest
Rate Swap Agreement, (iii) the Supplemental Interest Trust, (iv) the Excess
Reserve Fund Account, and (v) the right of the LIBOR Certificates to receive
Upper-Tier Carry Forward Amounts and, without duplication, Basis Risk Carry
Forward Amounts and the obligation to pay Class IO Shortfalls).
For federal income tax purposes, each Class of LIBOR Certificates
represents a beneficial ownership of a regular interest in the Upper-Tier REMIC,
the right to receive Upper-Tier Carry Forward Amounts (and, without duplication,
Basis Risk Carry Forward Amounts), and the obligation to pay Class IO
Shortfalls, the Class X Certificates represent beneficial ownership of the Class
X Regular Interest, the Interest Rate Swap Agreement, the Supplemental Interest
Trust, the Excess Reserve Fund Account and the right to receive Class IO
Shortfalls, and the Class P Certificates represent beneficial ownership of the
Prepayment Premiums, which portions of the Trust Fund shall be treated as a
grantor trust.
Pooling-Tier REMIC-1
Pooling-Tier REMIC-1 shall issue the following interests in
Pooling-Tier REMIC-1, and each such interest is hereby designated as a regular
interest in the Pooling-Tier REMIC-1. Pooling-Tier REMIC-1 shall also issue the
Class R-2 Certificates. The Class R-2 Certificates are hereby designated as the
sole class of residual interest in Pooling-Tier REMIC-1. The Class R-2
Certificates shall have a $100 Class Certificate Balance and shall have no
interest rate.
Initial
Pooling-Tier
Pooling-Tier REMIC-1 Pooling-Tier REMIC-1 REMIC-1 Principal
Interest Interest Rate Amount
-------------------- -------------------- -----------------
Class PT1-1 (1) $20,690,989
Class PT1-2A (2) $6,888,842
Class PT1-2B (3) $6,888,842
Class PT1-3A (2) $7,901,266
Class PT1-3B (3) $7,901,266
Class PT1-4A (2) $8,882,485
Class PT1-4B (2) $8,882,485
Class PT1-5A (2) $9,821,603
Class PT1-5B (3) $9,821,603
Class PT1-6A (2) $10,708,712
Class PT1-6B (3) $10,708,712
Class PT1-7A (2) $11,533,411
Class PT1-7B (3) $11,533,411
Class PT1-8A (2) $12,286,290
Class PT1-8B (3) $12,286,290
Class PT1-9A (2) $12,935,153
Class PT1-9B (3) $12,935,153
Class PT1-10A (2) $12,244,684
Class PT1-10B (3) $12,244,684
Class PT1-11A (2) $11,591,859
Class PT1-11B (3) $11,591,859
Class PT1-12A (2) $10,973,210
Class PT1-12B (3) $10,973,210
Class PT1-13A (2) $10,388,243
Class PT1-13B (3) $10,388,243
Class PT1-14A (2) $9,834,481
Class PT1-14B (3) $9,834,481
Class PT1-15A (2) $9,310,437
Class PT1-15B (3) $9,310,437
Class PT1-16A (2) $8,814,132
Class PT1-16B (3) $8,814,132
Class PT1-17A (2) $8,344,573
Class PT1-17B (3) $8,344,573
Class PT1-18A (2) $7,899,780
Class PT1-18B (3) $7,899,780
Class PT1-19A (2) $7,479,258
Class PT1-19B (3) $7,479,258
Class PT1-20A (2) $7,081,024
Class PT1-20B (3) $7,081,024
Class PT1-21A (2) $81,528,858
Class PT1-21B (3) $81,528,858
Class PT1-22A (2) $1,564,205
Class PT1-22B (3) $1,564,205
Class PT1-23A (2) $1,490,403
Class PT1-23B (3) $1,490,403
Class PT1-24A (2) $1,420,069
Class PT1-24B (3) $1,420,069
Class PT1-25A (2) $1,352,705
Class PT1-25B (3) $1,352,705
Class PT1-26A (2) $1,288,810
Class PT1-26B (3) $1,288,810
Class PT1-27A (2) $1,227,886
Class PT1-27B (3) $1,227,886
Class PT1-28A (2) $1,169,934
Class PT1-28B (3) $1,169,934
Class PT1-29A (2) $1,114,459
Class PT1-29B (3) $1,114,459
Class PT1-30A (2) $1,061,956
Class PT1-30B (3) $1,061,956
Class PT1-31A (2) $1,011,929
Class PT1-31B (3) $1,011,929
Class PT1-32A (2) $964,379
Class PT1-32B (3) $964,379
Class PT1-33A (2) $2,463,202
Class PT1-33B (3) $2,463,202
Class PT1-34A (2) $790,028
Class PT1-34B (3) $790,028
Class PT1-35A (2) $753,374
Class PT1-35B (3) $753,374
Class PT1-36A (2) $718,702
Class PT1-36B (3) $718,702
Class PT1-37A (2) $685,517
Class PT1-37B (3) $685,517
Class PT1-38A (2) $653,321
Class PT1-38B (3) $653,321
Class PT1-39A (2) $623,106
Class PT1-39B (3) $623,106
Class PT1-40A (2) $594,874
Class PT1-40B (3) $594,874
Class PT1-41A (2) $566,641
Class PT1-41B (3) $566,641
Class PT1-42A (2) $540,884
Class PT1-42B (3) $540,884
Class PT1-43A (2) $515,623
Class PT1-43B (3) $515,623
Class PT1-44A (2) $491,848
Class PT1-44B (3) $491,848
Class PT1-45A (2) $469,063
Class PT1-45B (3) $469,063
Class PT1-46A (2) $447,270
Class PT1-46B (3) $447,270
Class PT1-47A (2) $426,467
Class PT1-47B (3) $426,467
Class PT1-48A (2) $407,149
Class PT1-48B (3) $407,149
Class PT1-49A (2) $387,832
Class PT1-49B (3) $387,832
Class PT1-50A (2) $370,496
Class PT1-50B (3) $370,496
Class PT1-51A (2) $352,664
Class PT1-51B (3) $352,664
Class PT1-52A (2) $336,815
Class PT1-52B (3) $336,815
Class PT1-53A (2) $320,964
Class PT1-53B (3) $320,964
Class PT1-54A (2) $306,600
Class PT1-54B (3) $306,600
Class PT1-55A (2) $291,741
Class PT1-55B (3) $291,741
Class PT1-56A (2) $710,282
Class PT1-56B (3) $710,282
Class PT1-57A (2) $242,209
Class PT1-57B (3) $242,209
Class PT1-58A (2) $231,312
Class PT1-58B (3) $231,312
Class PT1-59A (2) $220,911
Class PT1-59B (3) $220,911
Class PT1-60A (2) $210,509
Class PT1-60B (3) $210,509
Class PT1-61A (2) $4,406,818
Class PT1-61B (3) $4,406,818
--------------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the Pooling-Tier
REMIC-1 WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the product of
(i) 2 and (ii) the Pooling-Tier REMIC-1 WAC Rate, subject to a maximum
rate of 7.958%.
(3) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling-Tier REMIC-1 WAC
Rate over (B) 7.958%.
On each Distribution Date, the Trustee shall first pay from the
Trust Fund and charge as an expense of Pooling-Tier REMIC-1 all expenses of the
Trust for such Distribution Date. Such expense, other than Servicing Fees and
Trustee Fees, shall be allocated in the same manner as Realized Losses.
On each Distribution Date, the interest distributable in respect of
the Mortgage Loans for such Distribution Date shall be deemed to be distributed
to the Pooling-Tier REMIC-1 Regular Interests at the rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Mortgage Loans shall be allocated to
the Class R-2 Certificates pursuant to Section 4.02(a)(iii) until its Class
Certificate Balance is reduced to zero, then to the outstanding Pooling-Tier
REMIC-1 Regular Interest with the lowest numerical denomination (other than the
Class PT1-1 Interest) until the Pooling-Tier REMIC-1 Principal Amount of such
interest is reduced to zero, provided that, with respect to Pooling-Tier REMIC-1
Regular Interests with the same numerical denomination, such Realized Losses and
payments of principal shall be allocated pro rata between such Pooling-Tier
REMIC-1 Regular Interests, and then to the Class PT1-1 Interest until the
Pooling-Tier REMIC-1 Principal Amount of such interest is reduced to zero.
Pooling-Tier REMIC-2
Pooling-Tier REMIC-2 shall issue the following interests in
Pooling-Tier REMIC-2, and each such interest, other than the Class PT2-R
Interest, is hereby designated as a regular interest in Pooling-Tier REMIC-2.
The Class PT2-R Interest is hereby designated as the sole class of residual
interest in Pooling-Tier REMIC-2 and shall be represented by the Class R-1
Certificates.
` Pooling-Tier REMIC-2 Corresponding
Pooling-Tier Initial Principal Corresponding Pooling-Tier Corresponding
Pooling-Tier REMIC-2 Amount or Class Pooling-Tier REMIC-1 Regular Crossover
REMIC-2 Interest Interest Rate Certificate Balance REMIC-2 IO Interest Distribution Date
---------------- ------------- -------------------- --------------- --------------- -----------------
Class PT2-1 (1) $20,690,889 N/A N/A N/A
Class PT2-2A (2) $6,888,842 Class PT2-IO-2 N/A N/A
Class PT2-2B (3) $6,888,842 N/A N/A N/A
Class PT2-3A (2) $7,901,266 Class PT2-IO-3 N/A N/A
Class PT2-3B (3) $7,901,266 N/A N/A N/A
Class PT2-4A (2) $8,882,485 Class PT2-IO-4 N/A N/A
Class PT2-4B (3) $8,882,485 N/A N/A N/A
Class PT2-5A (2) $9,821,603 Class PT2-IO-5 N/A N/A
Class PT2-5B (3) $9,821,603 N/A N/A N/A
Class PT2-6A (2) $10,708,712 Class PT2-IO-6 N/A N/A
Class PT2-6B (3) $10,708,712 N/A N/A N/A
Class PT2-7A (2) $11,533,411 Class PT2-IO-7 N/A N/A
Class PT2-7B (3) $11,533,411 N/A N/A N/A
Class PT2-8A (2) $12,286,290 Class PT2-IO-8 N/A N/A
Class PT2-8B (3) $12,286,290 N/A N/A N/A
Class PT2-9A (2) $12,935,153 Class PT2-IO-9 N/A N/A
Class PT2-9B (3) $12,935,153 N/A N/A N/A
Class PT2-10A (2) $12,244,684 Class PT2-IO-10 N/A N/A
Class PT2-10B (3) $12,244,684 N/A N/A N/A
Class PT2-11A (2) $11,591,859 Class PT2-IO-11 N/A N/A
Class PT2-11B (3) $11,591,859 N/A N/A N/A
Class PT2-12A (2) $10,973,210 Class PT2-IO-12 N/A N/A
Class PT2-12B (3) $10,973,210 N/A N/A N/A
Class PT2-13A (2) $10,388,243 Class PT2-IO-13 N/A N/A
Class PT2-13B (3) $10,388,243 N/A N/A N/A
Class PT2-14A (2) $9,834,481 Class PT2-IO-14 N/A N/A
Class PT2-14B (3) $9,834,481 N/A N/A N/A
Class PT2-15A (2) $9,310,437 Class PT2-IO-15 N/A N/A
Class PT2-15B (3) $9,310,437 N/A N/A N/A
Class PT2-16A (2) $8,814,132 Class PT2-IO-16 N/A N/A
Class PT2-16B (3) $8,814,132 N/A N/A N/A
Class PT2-17A (2) $8,344,573 Class PT2-IO-17 N/A N/A
Class PT2-17B (3) $8,344,573 N/A N/A N/A
Class PT2-18A (2) $7,899,780 Class PT2-IO-18 N/A N/A
Class PT2-18B (3) $7,899,780 N/A N/A N/A
Class PT2-19A (2) $7,479,258 Class PT2-IO-19 N/A N/A
Class PT2-19B (3) $7,479,258 N/A N/A N/A
Class PT2-20A (2) $7,081,024 Class PT2-IO-20 N/A N/A
Class PT2-20B (3) $7,081,024 N/A N/A N/A
Class PT2-21A (2) $81,528,858 Class PT2-IO-21 N/A N/A
Class PT2-21B (3) $81,528,858 N/A N/A N/A
Class PT2-22A (2) $1,564,205 Class PT2-IO-22 N/A N/A
Class PT2-22B (3) $1,564,205 N/A N/A N/A
Class PT2-23A (2) $1,490,403 Class PT2-IO-23 N/A N/A
Class PT2-23B (3) $1,490,403 N/A N/A N/A
Class PT2-24A (2) $1,420,069 Class PT2-IO-24 N/A N/A
Class PT2-24B (3) $1,420,069 N/A N/A N/A
Class PT2-25A (2) $1,352,705 Class PT2-IO-25 N/A N/A
Class PT2-25B (3) $1,352,705 N/A N/A N/A
Class PT2-26A (2) $1,288,810 Class PT2-IO-26 N/A N/A
Class PT2-26B (3) $1,288,810 N/A N/A N/A
Class PT2-27A (2) $1,227,886 Class PT2-IO-27 N/A N/A
Class PT2-27B (3) $1,227,886 N/A N/A N/A
Class PT2-28A (2) $1,169,934 Class PT2-IO-28 N/A N/A
Class PT2-28B (3) $1,169,934 N/A N/A N/A
Class PT2-29A (2) $1,114,459 Class PT2-IO-29 N/A N/A
Class PT2-29B (3) $1,114,459 N/A N/A N/A
Class PT2-30A (2) $1,061,956 Class PT2-IO-30 N/A N/A
Class PT2-30B (3) $1,061,956 N/A N/A N/A
Class PT2-31A (2) $1,011,929 Class PT2-IO-31 N/A N/A
Class PT2-31B (3) $1,011,929 N/A N/A N/A
Class PT2-32A (2) $964,379 Class PT2-IO-32 N/A N/A
Class PT2-32B (3) $964,379 N/A N/A N/A
Class PT2-33A (2) $2,463,202 Class PT2-IO-33 N/A N/A
Class PT2-33B (3) $2,463,202 N/A N/A N/A
Class PT2-34A (2) $790,028 Class PT2-IO-34 N/A N/A
Class PT2-34B (3) $790,028 N/A N/A N/A
Class PT2-35A (2) $753,374 Class PT2-IO-35 N/A N/A
Class PT2-35B (3) $753,374 N/A N/A N/A
Class PT2-36A (2) $718,702 Class PT2-IO-36 N/A N/A
Class PT2-36B (3) $718,702 N/A N/A N/A
Class PT2-37A (2) $685,517 Class PT2-IO-37 N/A N/A
Class PT2-37B (3) $685,517 N/A N/A N/A
Class PT2-38A (2) $653,321 Class PT2-IO-38 N/A N/A
Class PT2-38B (3) $653,321 N/A N/A N/A
Class PT2-39A (2) $623,106 Class PT2-IO-39 N/A N/A
Class PT2-39B (3) $623,106 N/A N/A N/A
Class PT2-40A (2) $594,874 Class PT2-IO-40 N/A N/A
Class PT2-40B (3) $594,874 N/A N/A N/A
Class PT2-41A (2) $566,641 Class PT2-IO-41 N/A N/A
Class PT2-41B (3) $566,641 N/A N/A N/A
Class PT2-42A (2) $540,884 Class PT2-IO-42 N/A N/A
Class PT2-42B (3) $540,884 N/A N/A N/A
Class PT2-43A (2) $515,623 Class PT2-IO-43 N/A N/A
Class PT2-43B (3) $515,623 N/A N/A N/A
Class PT2-44A (2) $491,848 Class PT2-IO-44 N/A N/A
Class PT2-44B (3) $491,848 N/A N/A N/A
Class PT2-45A (2) $469,063 Class PT2-IO-45 N/A N/A
Class PT2-45B (3) $469,063 N/A N/A N/A
Class PT2-46A (2) $447,270 Class PT2-IO-46 N/A N/A
Class PT2-46B (3) $447,270 N/A N/A N/A
Class PT2-47A (2) $426,467 Class PT2-IO-47 N/A N/A
Class PT2-47B (3) $426,467 N/A N/A N/A
Class PT2-48A (2) $407,149 Class PT2-IO-48 N/A N/A
Class PT2-48B (3) $407,149 N/A N/A N/A
Class PT2-49A (2) $387,832 Class PT2-IO-49 N/A N/A
Class PT2-49B (3) $387,832 N/A N/A N/A
Class PT2-50A (2) $370,496 Class PT2-IO-50 N/A N/A
Class PT2-50B (3) $370,496 N/A N/A N/A
Class PT2-51A (2) $352,664 Class PT2-IO-51 N/A N/A
Class PT2-51B (3) $352,664 N/A N/A N/A
Class PT2-52A (2) $336,815 Class PT2-IO-52 N/A N/A
Class PT2-52B (3) $336,815 N/A N/A N/A
Class PT2-53A (2) $320,964 Class PT2-IO-53 N/A N/A
Class PT2-53B (3) $320,964 N/A N/A N/A
Class PT2-54A (2) $306,600 Class PT2-IO-54 N/A N/A
Class PT2-54B (3) $306,600 N/A N/A N/A
Class PT2-55A (2) $291,741 Class PT2-IO-55 N/A N/A
Class PT2-55B (3) $291,741 N/A N/A N/A
Class PT2-56A (2) $710,282 Class PT2-IO-56 N/A N/A
Class PT2-56B (3) $710,282 N/A N/A N/A
Class PT2-57A (2) $242,209 Class PT2-IO-57 N/A N/A
Class PT2-57B (3) $242,209 N/A N/A N/A
Class PT2-58A (2) $231,312 Class PT2-IO-58 N/A N/A
Class PT2-58B (3) $231,312 N/A N/A N/A
Class PT2-59A (2) $220,911 Class PT2-IO-59 N/A N/A
Class PT2-59B (3) $220,911 N/A N/A N/A
Class PT2-60A (2) $210,509 Class PT2-IO-60 N/A N/A
Class PT2-60B (3) $210,509 N/A N/A N/A
Class PT2-61A (2) $4,406,818 Class PT2-IO-61 N/A N/A
Class PT2-61B (3) $4,406,818 N/A N/A N/A
Class PT2-IO-2 (4) (4) N/A Class PT1-2A June 2005
Class PT2-IO-3 (4) (4) N/A Class PT1-3A July 2005
Class PT2-IO-4 (4) (4) N/A Class PT1-4A August 2005
Class PT2-IO-5 (4) (4) N/A Class PT1-5A September 2005
Class PT2-IO-6 (4) (4) N/A Class PT1-6A October 2005
Class PT2-IO-7 (4) (4) N/A Class PT1-7A November 2005
Class PT2-IO-8 (4) (4) N/A Class PT1-8A December 2005
Class PT2-IO-9 (4) (4) N/A Class PT1-9A January 2006
Class PT2-IO-10 (4) (4) N/A Class PT1-10A February 2006
Class PT2-IO-11 (4) (4) N/A Class PT1-11A March 2006
Class PT2-IO-12 (4) (4) N/A Class PT1-12A April 2006
Class PT2-IO-13 (4) (4) N/A Class PT1-13A May 2006
Class PT2-IO-14 (4) (4) N/A Class PT1-14A June 2006
Class PT2-IO-15 (4) (4) N/A Class PT1-15A July 2006
Class PT2-IO-16 (4) (4) N/A Class PT1-16A August 2006
Class PT2-IO-17 (4) (4) N/A Class PT1-17A September 2006
Class PT2-IO-18 (4) (4) N/A Class PT1-18A October 2006
Class PT2-IO-19 (4) (4) N/A Class PT1-19A November 2006
Class PT2-IO-20 (4) (4) N/A Class PT1-20A December 2006
Class PT2-IO-21 (4) (4) N/A Class PT1-21A January 2007
Class PT2-IO-22 (4) (4) N/A Class PT1-22A February 2007
Class PT2-IO-23 (4) (4) N/A Class PT1-23A March 2007
Class PT2-IO-24 (4) (4) N/A Class PT1-24A April 2007
Class PT2-IO-25 (4) (4) N/A Class PT1-25A May 2007
Class PT2-IO-26 (4) (4) N/A Class PT1-26A June 2007
Class PT2-IO-27 (4) (4) N/A Class PT1-27A July 2007
Class PT2-IO-28 (4) (4) N/A Class PT1-28A August 2007
Class PT2-IO-29 (4) (4) N/A Class PT1-29A September 2007
Class PT2-IO-30 (4) (4) N/A Class PT1-30A October 2007
Class PT2-IO-31 (4) (4) N/A Class PT1-31A November 2007
Class PT2-IO-32 (4) (4) N/A Class PT1-32A December 2007
Class PT2-IO-33 (4) (4) N/A Class PT1-33A January 2008
Class PT2-IO-34 (4) (4) N/A Class PT1-34A February 2008
Class PT2-IO-35 (4) (4) N/A Class PT1-35A March 2008
Class PT2-IO-36 (4) (4) N/A Class PT1-36A April 2008
Class PT2-IO-37 (4) (4) N/A Class PT1-37A May 2008
Class PT2-IO-38 (4) (4) N/A Class PT1-38A June 2008
Class PT2-IO-39 (4) (4) N/A Class PT1-39A July 2008
Class PT2-IO-40 (4) (4) N/A Class PT1-40A August 2008
Class PT2-IO-41 (4) (4) N/A Class PT1-41A September 2008
Class PT2-IO-42 (4) (4) N/A Class PT1-42A October 2008
Class PT2-IO-43 (4) (4) N/A Class PT1-43A November 2008
Class PT2-IO-44 (4) (4) N/A Class PT1-44A December 2008
Class PT2-IO-45 (4) (4) N/A Class PT1-45A January 2009
Class PT2-IO-46 (4) (4) N/A Class PT1-46A February 2009
Class PT2-IO-47 (4) (4) N/A Class PT1-47A March 2009
Class PT2-IO-48 (4) (4) N/A Class PT1-48A April 2009
Class PT2-IO-49 (4) (4) N/A Class PT1-49A May 2009
Class PT2-IO-50 (4) (4) N/A Class PT1-50A June 2009
Class PT2-IO-51 (4) (4) N/A Class PT1-51A July 2009
Class PT2-IO-52 (4) (4) N/A Class PT1-52A August 2009
Class PT2-IO-53 (4) (4) N/A Class PT1-53A September 2009
Class PT2-IO-54 (4) (4) N/A Class PT1-54A October 2009
Class PT2-IO-55 (4) (4) N/A Class PT1-55A November 2009
Class PT2-IO-56 (4) (4) N/A Class PT1-56A December 2009
Class PT2-IO-57 (4) (4) N/A Class PT1-57A January 2010
Class PT2-IO-58 (4) (4) N/A Class PT1-58A February 2010
Class PT2-IO-59 (4) (4) N/A Class PT1-59A March 2010
Class PT2-IO-60 (4) (4) N/A Class PT1-60A April 2010
Class PT2-IO-61 (4) (4) N/A Class PT1-61A May 2010
Class PT2-R (5) $100.00 N/A N/A N/A
------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate equal to the Pooling-Tier REMIC-1 WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests having an "A" in their class designation,
provided that, on each Distribution Date on which interest is
distributable on the Corresponding Pooling-Tier REMIC-2 IO Interest, this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate equal to Swap LIBOR subject to a maximum rate equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests having an "A" in their class designation.
(3) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests having a "B" in their class designation.
(4) Each Pooling-Tier REMIC-2 IO is an interest-only interest and does not
have a principal balance. From the Closing Date through and including the
Corresponding Crossover Distribution Date, each Pooling-Tier REMIC-2 IO
Interest shall be entitled to receive interest that accrues on the
Corresponding Pooling-Tier REMIC-1 Regular Interest at a rate equal to the
excess, if any, of (i) the Pooling-Tier REMIC-1 Interest Rate for the
Corresponding Pooling-Tier REMIC-1 Regular Interest over (ii) Swap LIBOR.
After the Corresponding Crossover Distribution Date, the Pooling-Tier
REMIC-2 IO Interest shall not accrue interest.
(5) The Class PT2-R Interest shall not bear interest.
On each Distribution Date, the interest distributable in respect of
the Mortgage Loans for such Distribution Date shall be distributed to the
Pooling-Tier REMIC-2 Regular Interests at the Pooling-Tier REMIC-1 Interest
Rates shown above.
On each Distribution Date, Realized Losses and payments of principal
in respect of the Mortgage Loans shall be allocated to the Class R-1
Certificates in respect of the Class PT2-R Interest pursuant to Section
4.02(a)(iii) until its Class Certificate Balance is reduced to zero, then to the
outstanding Pooling-Tier REMIC-2 Regular Interests (other than the Pooling-Tier
REMIC-2 IO Interests) with the lowest numerical denomination (other than the
Class PT2-1 Interest) until the Pooling-Tier REMIC-2 Principal Amount of such
interest is reduced to zero, provided that, for Pooling-Tier REMIC-2 Regular
Interests with the same numerical denomination, such Realized Losses and
payments of principal shall be allocated pro rata between such Pooling-Tier
REMIC-2 Regular Interests, and then Class PT2-1 Interest until the Pooling-Tier
REMIC-2 Principal Amount of such interest is reduced to zero.
Lower-Tier REMIC
The Lower-Tier REMIC shall issue the following interests, and each
such interest, other than the Class LT-R Interest, is hereby designated as a
regular interest in the Lower-Tier REMIC. The Class LT-R Interest is hereby
designated as the sole class of residual interest in the Lower-Tier REMIC and
shall be represented by the Class R-1 Certificates.
Corresponding
Initial Upper-Tier
Lower-Tier Regular Lower-Tier Lower-Tier REMIC Regular
Interest Interest Rate Principal Amount Interest
------------------ ------------- ----------------------------- -------------
Class LT-A-1 (1) 1/2 initial Class Certificate A-1
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-A-2 (1) 1/2 initial Class Certificate A-2
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-A-3 (1) 1/2 initial Class Certificate A-3
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-M-1 (1) 1/2 initial Class Certificate M-1
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-M-2 (1) 1/2 initial Class Certificate M-2
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-M-3 (1) 1/2 initial Class Certificate M-3
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-M-4 (1) 1/2 initial Class Certificate M-4
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-M-5 (1) 1/2 initial Class Certificate M-5
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-M-6 (1) 1/2 initial Class Certificate M-6
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-B-1 (1) 1/2 initial Class Certificate B-1
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-B-2 (1) 1/2 initial Class Certificate B-2
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-Accrual (1) 1/2 Pool Principal Balance
plus 1/2 Overcollateralized
Amount, less $100
Class LT-IO (2) (2) N/A
Class LT-R (3) (3) N/A
-----------------------------
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the weighted average of
the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling-Tier REMIC-2 IO Interests).
(2) This Lower-Tier Regular Interest is an interest-only interest and does not
have a Lower-Tier Principal Amount. On each Distribution Date, this
Lower-Tier Regular Interest shall be entitled to receive all interest
distributable on the Pooling-Tier REMIC-2 IO Interests.
(3) The Class LT-R Interest does not have a principal amount or an interest
rate.
Each Lower-Tier Regular Interest is hereby designated as a regular
interest in the Lower-Tier REMIC. The Class LT-A-1, Class LT-A-2, Class LT-A-3,
Class LT-M-1, Class LT-M-2, Class LT-M-3, Class LT-M-4, Class LT-M-5, Class
LT-M-6, Class LT-B-1 and Class LT-B-2 Interests are hereby designated the
LT-Accretion Directed Classes (the "LT-Accretion Directed Classes").
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount shall be payable as a reduction of the Lower-Tier
Principal Amount of the LT-Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralized
Amount that is attributable to a reduction in the Class Certificate Balance of
its Corresponding Class) and shall be accrued and added to the Lower-Tier
Principal Amount of the Class LT-Accrual Interest. On each Distribution Date,
the increase in the Lower-Tier Principal Amount of the Class LT-Accrual Interest
shall not exceed interest accruals for such Distribution Date for the Class
LT-Accrual Interest. In the event that: (i) 50% of the increase in the
Overcollateralized Amount exceeds (ii) interest accruals on the Class LT-Accrual
Interest for such Distribution Date, the excess for such Distribution Date
(accumulated with all such excesses for all prior Distribution Dates) will be
added to any increase in the Overcollateralized Amount for purposes of
determining the amount of interest accrual on the Class LT-Accrual Interest
payable as principal on the LT-Accretion Directed Classes on the next
Distribution Date pursuant to the first sentence of this paragraph. All payments
of scheduled principal and prepayments of principal generated by the Mortgage
Loans and all Subsequent Recoveries allocable to principal shall be allocated
(i) 50% to the Class LT-Accrual Interest and (ii) 50% to the LT-Accretion
Directed Classes (such principal payments and Subsequent Recoveries shall be
allocated among such LT-Accretion Directed Classes in an amount equal to 50% of
the principal amounts and Subsequent Recoveries allocated to their respective
Corresponding Classes), until paid in full. Notwithstanding the above, principal
payments allocated to the Class X Interest that result in the reduction in the
Overcollateralized Amount shall be allocated to the Class LT-Accrual Interest
(until paid in full). Realized Losses shall be applied so that after all
distributions have been made on each Distribution Date (i) the Lower-Tier
Principal Amount of each of the LT-Accretion Directed Classes is equal to 50% of
the Class Certificate Balance of their Corresponding Class, and (ii) the Class
LT-Accrual Interest is equal to 50% of the aggregate Stated Principal Balance of
the Mortgage Loans plus 50% of the Overcollateralized Amount. Any increase in
the Class Certificate Balance of a Class of LIBOR Certificates as a result of a
Subsequent Recovery shall increase the Lower-Tier Principal Amount of the
Corresponding Lower-Tier Regular Interest by 50% of such increase, and the
remaining 50% of such increase shall increase the Lower-Tier Principal Amount of
the Class LT-Accrual Interest.
Upper-Tier REMIC
The Upper-Tier REMIC shall issue the following interests, and each
such interest, other than the Class UT-R Interest, is hereby designated as a
regular interest in the Upper-Tier REMIC. The Class UT-R Interest is hereby
designated as the sole class of residual interests in the Upper-Tier REMIC and
shall be represented by the Class R-1 Certificates.
Corresponding
Upper-Tier Upper-Tier Initial Principal Class of
REMIC Interest Interest Rate Upper-Tier Amount Certificates
-------------- ------------- ----------------- -------------
Class A-1 (1)~ $269,282,000 Class A-1
Class A-2 (1)~ $145,242,000 Class A-2
Class A-3 (1)~ $77,440,000 Class A-3
Class M-1 (1)~ $46,190,000 Class M-1
Class M-2 (1)~ $31,620,000 Class M-2
Class M-3 (1)~ $9,300,000 Class M-3
Class M-4 (1)~ $7,749,000 Class M-4
Class M-5 (1)~ $5,580,000 Class M-5
Class M-6 (1)~ $5,270,000 Class M-6
Class B-1 (1)~ $4,340,000 Class B-1
Class B-2 (1)~ $6,200,000 Class B-2
Class IO (2)~ (2)~ N/A
Class X (3)~ (3)~ Class X
Class UT-R (4)~ (4)~ Class R
-----------------
(1) For any Distribution Date (and the related Interest Accrual Period) this
interest shall bear interest at the lesser of (i) the Pass-Through Rate
(determined without regard to the applicable WAC Cap) for the
Corresponding Class of Certificates and (ii) the Upper-Tier REMIC WAC
Rate.
(2) This interest is an interest-only interest and does not have a principal
balance. On each Distribution Date, the Class IO Interest shall be
entitled to receive all interest distributable on the Class LT-IO
Interest. This interest shall be beneficially owned by the holders of the
Class X Certificates and shall be held as an asset of the Supplemental
Interest Trust.
(3) The Class X Interest has an initial principal balance of $11,780,578.39
but will not accrue interest on such balance but will accrue interest on a
notional principal balance. As of any Distribution Date, the Class X
Interest shall have a notional principal balance equal to the aggregate of
the Lower-Tier Principal Amounts of the Lower-Tier Regular Interests
(other than the Class LT-IO Interest) as of the first day of the related
Interest Accrual Period. With respect to any Interest Accrual Period, the
Class X Interest shall bear interest at a rate equal to the excess, if
any, of the Upper-Tier REMIC WAC Rate over the product of (i) 2 and (ii)
the weighted average of the Lower-Tier Interest Rates of the Lower-Tier
REMIC Interests (other than the Class LT-IO Interest), where the
Lower-Tier Interest Rate on the Class LT Accrual Interest is subject to a
cap equal to zero and each LT Accretion Directed Class is subject to a cap
equal to the Upper-Tier Interest Rate on its Corresponding Class of
Upper-Tier Regular Interest. With respect to any Distribution Date,
interest that so accrues on the notional principal balance of the Class X
Interest shall be deferred in an amount equal to any increase in the
Overcollateralized Amount on such Distribution Date. Such deferred
interest shall not itself bear interest.
(4) The Class UT-R Interest does not have an interest rate or a principal
balance.
On each Distribution Date, interest distributable in respect of the
Lower-Tier Interests for such Distribution Date shall be deemed to be
distributed on the interests in the Upper-Tier REMIC at the rates shown above,
provided that the Class IO Interest shall be entitled to receive interest before
any other interest in the Upper-Tier REMIC.
On each Distribution Date, all Realized Losses and all payments of
principal shall be allocated to the Upper-Tier Interests until the outstanding
principal balance of each such interest equals the outstanding Class Certificate
Balance of the Corresponding Class of Certificates as of such Distribution Date.
Certificates
Class Class Certificate
Class Designation Pass-Through Rate Balance
----------------- ----------------- -----------------
Class A-1(15) (1)~ $269,282,000
Class A-2(15) (2)~ $145,242,000
Class A-3(15) (3)~ $77,440,000
Class M-1(15) (4)~ $46,190,000
Class M-2(15) (5)~ $31,620,000
Class M-3(15) (6)~ $9,300,000
Class M-4(15) (7)~ $7,749,000
Class M-5(15) (8)~ $5,580,000
Class M-6(15) (9)~ $5,270,000
Class B-1(15) (10)~ $4,340,000
Class B-2(15) (11)~ $6,200,000
Class X (12)~ 0 (12)
Class R-1 (13)~ $100
Class R-2 (14)~ $100
------------
(1) The Class A-1 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
0.090% (0.180% after the first possible Optional Termination Date) and (2)
the WAC Cap.
(2) The Class A-2 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
0.200% (0.400% after the first possible Optional Termination Date) and (2)
the WAC Cap.
(3) The Class A-3 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
0.340% (0.680% after the first possible Optional Termination Date) and (2)
the WAC Cap.
(4) The Class M-1 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
0.430% (0.645% after the first possible Optional Termination Date) and (2)
the WAC Cap.
(5) The Class M-2 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
0.650% (0.975% after the first possible Optional Termination Date) and (2)
the WAC Cap.
(6) The Class M-3 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
0.700% (1.050% after the first possible Optional Termination Date) and (2)
the WAC Cap.
(7) The Class M-4 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
1.200% (1.800% after the first possible Optional Termination Date) and (2)
the WAC Cap.
(8) The Class M-5 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
1.300% (1.950% after the first possible Optional Termination Date) and (2)
the WAC Cap.
(9) The Class M-6 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
1.850% (2.775% after the first possible Optional Termination Date) and (2)
the WAC Cap.
(10) The Class B-1 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
3.000% (4.500% after the first possible Optional Termination Date) and (2)
the WAC Cap.
(11) The Class B-2 Certificates will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (1) One-Month LIBOR plus
3.000% (4.500% after the first possible Optional Termination Date) and (2)
the WAC Cap.
(12) The Class X Certificates will represent beneficial ownership of (i) the
Class X Interest, (ii) the Class IO Interest, (iii) the right to receive
Class IO Shortfalls, (iv) amounts in the Supplemental Interest Trust,
including the Interest Rate Swap Agreement subject to the obligation to
pay Net Swap Payments and Upper-Tier Carry Forward Amounts and, without
duplication, Basis Risk Carry Forward Amounts and (v) amounts in the
Excess Reserve Fund Account, subject to the obligation to make payments
from the Excess Reserve Fund Account in respect of Upper-Tier Carry
Forward Amounts and, without duplication, Basis Risk Carry Forward
Amounts. For federal income tax purposes, the Trustee will treat a Class X
Certificateholder's obligation to make payments of Basis Risk Carry
Forward Amounts and, without duplication, Upper-Tier Carry Forward Amounts
to the LIBOR Certificates from the Excess Reserve Fund Account and the
Supplemental Interest Trust as payments made pursuant to an interest rate
cap contract written by the Class X Certificateholders in favor of each
Class of LIBOR Certificates. Such rights of the Class X Certificateholders
and LIBOR Certificateholders shall be treated as held in a portion of the
Trust Fund that is treated as a grantor trust under subpart E, Part I of
subchapter J of the Code.
(13) The Class R-1 Certificates do not have an interest rate. The Class R-1
Certificates represent ownership of the Class PT2-R Interest, the Class
LT-R Lower-Tier Interest and the Class UT-R Interest.
(14) The Class R-2 Certificates do not have an interest rate. The Class R-2
Certificates represent the residual interest in Pooling-Tier REMIC-1.
(15) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper-Tier Regular Interest but also the right to
receive payments from the Excess Reserve Fund Account and the Supplemental
Interest Trust. Each of these Certificates will also be subject to the
obligation to pay Class IO Shortfalls as described in Section 8.13. For
federal income tax purposes, any amount distributed on the LIBOR
Certificates on any such Distribution Date in excess of the amount
distributable on their Corresponding Class of Upper-Tier Regular Interest
on such Distribution Date shall be treated as having been paid from the
Excess Reserve Fund Account or the Supplemental Interest Trust, as
applicable, and any amount distributable on such Corresponding Class of
Upper-Tier Regular Interest on such Distribution Date in excess of the
amount distributable on LIBOR Certificates on such Distribution Date shall
be treated as having been paid to the Supplemental Interest Trust, all
pursuant to, and as further provided in, Section 8.13. The Trustee will
treat a LIBOR Certificateholder's right to receive payments from the
Excess Reserve Fund Account and the Supplemental Interest Trust as
payments made pursuant to an interest rate cap contract written by the
Class X Certificateholders.
The minimum denomination for the LIBOR Certificates will be $25,000,
with integral multiples of $1 in excess thereof except that one Certificate in
each Class may be issued in a different amount. The minimum denomination for (a)
each Class of Residual Certificates $100, representing a 100% Percentage
Interest in the related Class, (b) the Class P Certificates will be a 1%
Percentage Interest in such Class and (c) the Class X Certificates will be a 1%
Percentage Interest in such Class.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates...... All Classes of Certificates other than the
Physical Certificates.
Class A Certificates......... Class A-1, Class A-2 and Class A-3 Certificates.
Class R Certificates......... The Class R-1 and Class R-2 Certificates.
Class B Certificates......... Class B-1 and Class B-2 Certificates.
Class M Certificates......... Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5 and Class M-6 Certificates.
ERISA-Restricted
Certificates............... Class B-2 Certificates, Class R Certificates,
Class P Certificates and Class X Certificates; and
any Certificate with a rating below the lowest
applicable permitted rating under the
Underwriters' Exemption.
LIBOR Certificates........... The Class A-1, Class X-0, Xxxxx X-0, Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class
M-6, Class B-1 and Class B-2 Certificates,
collectively.
Offered Certificates......... All Classes of Certificates other than the Private
Certificates.
Physical Certificates........ Class P Certificates, Class X Certificates and
Class R Certificates.
Private Certificates......... Class M-6, Class B-1, Class B-2, Class P
Certificates and Class X Certificates.
Rating Agencies.............. Standard & Poor's and Moody's.
Regular Certificates......... All Classes of Certificates other than the Class P
Certificates and Class R Certificates.
Residual Certificates........ Class R-1 and Class R-2 Certificates.
Subordinated Certificates.... Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class B-1 and Class B-2
Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices set forth in Section 3.01 of this Agreement.
Account: Any of the Collection Account, the Distribution Account,
any Escrow Account or the Excess Reserve Fund Account. Each Account shall be an
Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of LIBOR Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior to
such Distribution Date, as reduced by such Class's share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for such Distribution
Date allocated to such Class pursuant to Section 4.02.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan
purchased pursuant to the Purchase Agreement.
Adjusted Net Mortgage Interest Rate: As to each Mortgage Loan and at
any time, the per annum rate equal to the Mortgage Interest Rate less the
Expense Fee Rate.
Adjustment Date: As to any Mortgage Loan, the first Due Date on
which the related Mortgage Interest Rate adjusts as set forth in the related
Mortgage Note and each Due Date thereafter on which the Mortgage Interest Rate
adjusts as set forth in the related Mortgage Note.
Advance: Any P&I Advance or Servicing Advance.
Advance Facility: A financing or other facility as described in
Section 10.07.
Advance Reimbursement Amounts: As defined in Section 10.07.
Advancing Person: The Person to whom the Servicer's rights under
this Agreement to be reimbursed for any P&I Advances or Servicing Advances have
been assigned pursuant to Section 10.07.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Applied Realized Loss Amount: With respect to any Distribution Date,
the amount, if any, by which the aggregate Class Certificate Balance of the
LIBOR Certificates after distributions of principal on such Distribution Date
exceeds the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
Appraised Value: (i) In the case of a purchase, the least of the
sale price of the related Mortgaged Property, its appraised value or its review
appraisal value (as determined pursuant to the Underwriting Guidelines) at the
time of sale, or (ii) in the case of a refinancing or modification of a Mortgage
Loan, the appraised value of the related Mortgaged Property at the time of the
refinancing or modification.
Assignment, Assumption and Recognition Agreement: The Assignment,
Assumption and Recognition Agreement, dated as of May 26, 2005, by and among the
Responsible Party, the Purchaser and the Depositor.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form (other than the assignee's
name and recording information not yet returned from the recording office),
reflecting the sale of the Mortgage to the Trust.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Trustee (x) the sum of (i) all
scheduled installments of interest (net of the related Expense Fees) and
principal due on the Due Date on such Mortgage Loans in the related Due Period
and received on or prior to the related Determination Date, together with any
P&I Advances in respect thereof; (ii) all Condemnation Proceeds, Insurance
Proceeds and Liquidation Proceeds received during the related Prepayment Period
(in each case, net of unreimbursed expenses incurred in connection with a
liquidation or foreclosure and unreimbursed Advances, if any); (iii) all partial
or full prepayments on the Mortgage Loans received during the related Prepayment
Period together with all Compensating Interest paid by the Servicer in
connection therewith (excluding Prepayment Premiums); (iv) all amounts received
with respect to such Distribution Date as the Substitution Adjustment Amount or
the Repurchase Price in respect of a Deleted Mortgage Loan substituted for or a
Mortgage Loan repurchased by the Purchaser, the Responsible Party or the
Depositor, as applicable, as of such Distribution Date; (v) any Net Swap
Receipts for such Distribution Date; and (vi) the proceeds received with respect
to the termination of the Trust Fund pursuant to clause (a) of Section 9.01,
reduced by (y) all amounts in reimbursement for P&I Advances and Servicing
Advances previously made with respect to the Mortgage Loans, and other amounts
as to which the Servicer, the Depositor or the Trustee (or co-trustee) are
entitled to be paid or reimbursed pursuant to this Agreement.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the Principal Remittance Amount for such
Distribution Date over (ii) the Excess Overcollateralized Amount, if any, for
such Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of LIBOR
Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of LIBOR Certificates is
based upon the WAC Cap, the excess, if any, of (i) the amount of interest such
Class of Certificates would otherwise be entitled to receive on such
Distribution Date had such Pass-Through Rate not been subject to the WAC Cap,
over (ii) the amount of interest payable on such Class of Certificates on such
Distribution Date taking into account with respect to each Class of LIBOR
Certificates, the WAC Cap, and (B) the Basis Risk Carry Forward Amount for such
Class of LIBOR Certificates for all previous Distribution Dates not previously
paid, together with interest thereon at a rate equal to the applicable
Pass-Through Rate for such Class of Certificates for such Distribution Date
without giving effect to the WAC Cap.
Basis Risk Payment: For any Distribution Date, an amount equal to
the lesser of (i) the aggregate of the Basis Risk Carry Forward Amounts for such
Distribution Date and (ii) the Class X Distributable Amount (prior to any
reduction for Basis Risk Payments from the Excess Reserve Fund Account or any
Defaulted Swap Termination Payment).
Best's: Best's Key Rating Guide, as the same shall be amended from
time to time.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions, in (a) the States of New
York, Texas and California, (b) the State in which the Servicer's servicing
operations are located, or (c) the State in which the Trustee's operations are
located, are authorized or obligated by law or executive order to be closed.
Certificate: Any one of the Certificates executed by the Trustee in
substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of LIBOR Certificates
or Residual Certificates, at any date, the maximum dollar amount of principal to
which the Holder thereof is then entitled hereunder, such amount being equal to
the Denomination thereof minus all distributions of principal previously made
with respect thereto and reduced by the portion allocable to such Denomination
of LIBOR Certificates or Residual Certificates of the amount of any Applied
Realized Loss Amounts previously allocated to such Class of Certificates
pursuant to Section 4.05; provided, however, that immediately following the
Distribution Date on which a Subsequent Recovery is distributed, the Class
Certificate Balances of any Class or Classes of Certificates that have been
previously reduced by Applied Realized Loss Amounts will be increased, in order
of seniority, by the amount of the Subsequent Recovery distributed on such
Distribution Date (up to the amount of Applied Realized Loss Amounts allocated
to such Class or Classes and the Certificate Balance of any such LIBOR
Certificates or Residual Certificates will be increased by the portion of the
increase to such Class allocable to the Denomination represented thereby). The
Class X and Class P Certificates have no Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The Person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided, however,
that if any such Person (including the Depositor) owns 100% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires the
consent of the Holders of Certificates of a particular Class as a condition to
the taking of any action hereunder. The Trustee is entitled to rely conclusively
on a certification of the Depositor or any affiliate of the Depositor in
determining which Certificates are registered in the name of an affiliate of the
Depositor.
Certification: As defined in Section 8.12(b).
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Certificates: As specified in the Preliminary Statement.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class Certificate Balances of
the Class A Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) 58.70% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class A-1 Certificates: All Certificates bearing the class
designation of "Class A-1."
Class A-2 Certificates: All Certificates bearing the class
designation of "Class A-2."
Class A-3 Certificates: All Certificates bearing the class
designation of "Class A-3."
Class B Certificates: As specified in the Preliminary Statement.
Class B-1 Certificates: All Certificates bearing the class
designation of "Class B-1."
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date) and (H) the Class Certificate Balance of the Class B-1 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 94.20% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class B-2 Certificates: All Certificates bearing the class
designation of "Class B-2."
Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (H) the Class Certificate Balance of the Class B-1 Certificates (after
taking into account the distribution of the Class B-1 Principal Distribution
Amount on such Distribution Date) and (I) the Class Certificate Balance of the
Class B-2 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 96.20% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class IO Interest: As specified in the Preliminary Statement.
Class IO Shortfalls: As defined in Section 8.13. For the avoidance
of doubt, the Class IO Shortfall for any Distribution Date shall equal the
amount payable to the Class X Certificates in respect of amounts due to the Swap
Provider on such Distribution Date (other than Defaulted Swap Termination
Payments) in excess of the amount payable on the Class X Interest on such
Distribution Date, all as further provided in Section 8.13.
Class LT-R Interest: The residual interest in the Lower-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class M Certificates: As specified in the Preliminary Statement.
Class M-1 Certificates: All Certificates bearing the class
designation of "Class M-1."
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), and (B) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 73.60% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
Stated Principal Balance of the Mortgage Loans for such Distribution Date over
the Overcollateralization Floor.
Class M-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date) and (C) the Class Certificate Balance of the
Class M-2 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 83.80% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the Stated Principal Balance of the Mortgage Loans for such
Distribution Date over the Overcollateralization Floor.
Class M-3 Certificates: All Certificates bearing the class
designation of "Class M-3."
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date) and (D) the Class
Certificate Balance of the Class M-3 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 86.80% and (y)
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class M-4 Certificates: All Certificates bearing the class
designation of "Class M-4."
Class M-4 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date) and (E) the Class Certificate Balance of the Class M-4 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 89.30% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-5 Certificates: All Certificates bearing the class
designation of "Class M-5."
Class M-5 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date) and (F) the Class Certificate Balance of the
Class M-5 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 91.10% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class M-6 Certificates: All Certificates bearing the class
designation of "Class M-6."
Class M-6 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date) and (G) the Class
Certificate Balance of the Class M-6 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 92.80% and (y)
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class P Certificates: All Certificates bearing the class designation
of "Class P."
Class PT2-R Interest: The residual interest in Pooling-Tier REMIC-2
as described in the Preliminary Statement and the related footnote thereto.
Class R Certificates: As defined in the Preliminary Statement.
Class R-1 Certificates: All Certificates bearing the class
designation of "Class R-1."
Class R-2 Certificates: All Certificates bearing the class
designation of "Class R-2."
Class UT-R Interest: The residual interest in the Upper-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class X Certificates: All Certificates bearing the class designation
of "Class X."
Class X Distributable Amount: On any Distribution Date, (i) as a
distribution in respect of interest, the amount of interest that has accrued on
the Class X Interest and not applied as an Extra Principal Distribution Amount
on such Distribution Date, plus any such accrued interest remaining
undistributed from prior Distribution Dates, plus, without duplication, (ii) as
a distribution in respect of principal, any portion of the principal balance of
the Class X Interest which is distributable as an Overcollateralization
Reduction Amount, minus (iii) any amounts paid as a Basis Risk Payment from the
Excess Reserve Fund Account or any Defaulted Swap Termination Payment.
Class X Interest: The Upper-Tier Regular Interest represented by the
Class X Certificates as specified and described in the Preliminary Statement and
the related footnote thereto.
Closing Date: May 26, 2005.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: As defined in Section 3.10(a).
Compensating Interest: For any Distribution Date, the lesser of (a)
the Prepayment Interest Shortfall, if any, for such Distribution Date, with
respect to Principal Prepayments during the related Prepayment Period, and (b)
the Servicing Fee payable to the Servicer for such Distribution Date.
Condemnation Proceeds: All awards, compensation and/or settlements
in respect of a Mortgaged Property, whether permanent or temporary, partial or
entire, by exercise of the power of eminent domain or condemnation, to the
extent not required to be released to a Mortgagor in accordance with the terms
of the related Mortgage Loan Documents.
Corporate Trust Office: The designated office of the Trustee in the
State of California at which at any particular time its corporate trust business
with respect to this Agreement is administered, which office at the date of the
execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000-0000, Attn: Trust Administration- GS05Y1, facsimile no. (714)
247-6478 and which is the address to which notices to and correspondence with
the Trustee should be directed.
Corresponding Class: The Class of interests in one Trust REMIC
created under this Agreement that corresponds to the Class of interests in the
other Trust REMIC or to a Class of Certificates in the manner set out below:
Lower-Tier Upper-Tier Corresponding
Class Designation Regular Interest Class of Certificates
Class LT-A-1 Class A-1 Class A-1
Class LT-A-2 Class A-2 Class A-2
Class LT-A-3 Class A-3 Class A-3
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-M-4 Class M-4 Class M-4
Class LT-M-5 Class M-5 Class M-5
Class LT-M-6 Class M-6 Class M-6
Class LT-B-1 Class B-1 Class B-1
Class LT-B-2 Class B-2 Class B-2
N/A Class X Class X
Corresponding Crossover Distribution Date: The Distribution Date in
the month and year specified in the Preliminary Statement corresponding to a
Pooling-Tier REMIC-2 IO Interest.
Corresponding Pooling-Tier REMIC-2 IO Interests: As described in the
Preliminary Statement.
Countrywide: Countrywide Home Loans Servicing LP, a Texas limited
partnership, and its successors in interest.
Custodial File: With respect to each Mortgage Loan, any Mortgage
Loan Document which is delivered to the Trustee or which at any time comes into
the possession of the Trustee.
Cut-off Date: May 1, 2005.
Cut-off Date Pool Principal Balance: The aggregate Stated Principal
Balances of all Mortgage Loans as of the Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date (after
giving effect to payments of principal due on that date, whether or not
received).
Data File: As defined in Section 4.03(e).
Data File Delivery Date: As defined in Section 4.03(e).
Data Tape Information: The information provided by the Responsible
Party or the Servicer as of the Cut-off Date to the Depositor setting forth the
following information with respect to each Mortgage Loan: (1) the Responsible
Party's Mortgage Loan identifying number; (2) the Mortgagor's name; (3) the
street address of the Mortgaged Property including the city, state and zip code;
(4) a code indicating whether the Mortgaged Property is owner-occupied, a second
home or investment property; (5) the number and type of residential units
constituting the Mortgaged Property (i.e., a single family residence, a 2-4
family residence, a unit in a condominium project or a unit in a planned unit
development or a manufactured housing unit); (6) the original months to maturity
or the remaining months to maturity from the Cut-off Date, in any case based on
the original amortization schedule and, if different, the maturity expressed in
the same manner but based on the actual amortization schedule; (7) the
Loan-to-Value Ratio at origination; (8) the Mortgage Interest Rate as of the
Cut-off Date; (9) the date on which the Scheduled Payment was due on the
Mortgage Loan and, if such date is not consistent with the Due Date currently in
effect, such Due Date; (10) the stated maturity date; (11) the amount of the
Scheduled Payment as of the Cut-off Date; (12) the last payment date on which a
Scheduled Payment was actually applied to pay interest and the outstanding
principal balance; (13) the original principal amount of the Mortgage Loan; (14)
the principal balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after deduction of payments of principal due and collected on or
before the Cut-off Date; (15) with respect to Adjustable Rate Mortgage Loans,
the Adjustment Date; (16) with respect to Adjustable Rate Mortgage Loans, the
Gross Margin; (17) with respect to Adjustable Rate Mortgage Loans, the Lifetime
Rate Cap under the terms of the Mortgage Note; (18) with respect to Adjustable
Rate Mortgage Loans, a code indicating the type of Index; (19) with respect to
Adjustable Rate Mortgage Loans, the Periodic Mortgage Interest Rate Cap under
the terms of the Mortgage Note; (20) with respect to Adjustable Rate Mortgage
Loans, the Periodic Mortgage Interest Rate Floor under the terms of the Mortgage
Note; (21) the type of Mortgage Loan (i.e., fixed rate and adjustable rate);
(22) a code indicating the purpose of the loan (i.e., purchase, rate and term
refinance, equity take-out refinance); (23) a code indicating the documentation
style (i.e., full documentation, limited documentation or stated income); (24)
the loan credit classification (as described in the Underwriting Guidelines);
(25) whether such Mortgage Loan provides for a Prepayment Premium; (26) the
Prepayment Premium period of such Mortgage Loan, if applicable; (27) a
description of the Prepayment Premium, if applicable; (28) the Mortgage Interest
Rate as of origination; (29) the credit risk score (FICO score) at origination;
(30) the date of origination; (31) the Mortgage Interest Rate adjustment period;
(32) the Mortgage Interest Rate floor; (33) a code indicating whether the
Mortgage Loan has been modified; (34) the payment history; (35) the Due Date for
the first Scheduled Payment; (36) the original Scheduled Payment due; (37) with
respect to the related Mortgagor, the debt-to-income ratio; (38) the Appraised
Value of the Mortgaged Property; (39) the sales price of the Mortgaged Property
if the Mortgage Loan was originated in connection with the purchase of the
Mortgaged Property; (40) the Mortgage Interest Rate calculation method (i.e.,
30/360, simple interest, other); (41) a code indicating whether the Mortgage
Loan is a Section 32 Mortgage Loan; (42) a code indicating whether the Mortgage
Loan is assumable; and (43) a code indicating if a Mortgage Loan is or has had a
30 Day Delinquency. With respect to the Mortgage Loans in the aggregate: (1) the
number of Mortgage Loans; (2) the current aggregate outstanding principal
balance of the Mortgage Loans; (3) the weighted average Mortgage Interest Rate
of the Mortgage Loans; and (4) the weighted average maturity of the Mortgage
Loans.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the United
States Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which
became final and non appealable, except for such a reduction resulting from a
Deficient Valuation or any reduction that results in a permanent forgiveness of
principal.
Defaulted Swap Termination Payment: Any Swap Termination Payment
required to be paid by the Trust to the Swap Provider pursuant to the Interest
Rate Swap Agreement as a result of an Event of Default (as defined in the
Interest Rate Swap Agreement) with respect to which the Swap Provider is the
defaulting party or a Termination Event (as defined in the Interest Rate Swap
Agreement) (other than Illegality or a Tax Event that is not a Tax Event Upon
Merger (each as defined in the Interest Rate Swap Agreement )) with respect to
which the Swap Provider is the sole Affected Party (as defined in the Interest
Rate Swap Agreement).
Deficient Valuation: With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the United States
Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted Mortgage Loan: Any Mortgage Loan permitted to be removed
from the Trust Fund under the circumstances set forth in the Assignment
Agreement.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: GS Mortgage Securities Corp., a Delaware corporation, and
its successors in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust company,
including the Trustee, that (a) is incorporated under the laws of the United
States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated P-1 by Moody's, F1+ by Fitch and A-1 by Standard & Poor's (in each
case, to the extent they are designated as Rating Agencies in the Preliminary
Statement).
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to each Distribution Date, the 18th
day of the calendar month in which such Distribution Date occurs or, if such day
is not a Business Day, the immediately preceding Business Day.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.27(b) in the name of the Trustee
for the benefit of the Certificateholders and designated "Deutsche Bank National
Trust Company in trust for registered holders of GSAMP Trust 2005-AHL Mortgage
Pass-Through Certificates, Series 2005-AHL." Funds in the Distribution Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in this Agreement and may be invested in Permitted Investments.
Distribution Date: The 25th day of each calendar month after the
initial issuance of the Certificates or, if such day is not a Business Day, the
next succeeding Business Day, commencing in June 2005.
Document Certification and Exception Report: The report attached to
Exhibit F hereto.
Due Date: The day of the month on which the Scheduled Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
the Distribution Date occurs and ending on the first day of the calendar month
in which the Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a federal or
state chartered depository institution or trust company the short-term unsecured
debt obligations of which (or, in the case of a depository institution or trust
company that is a subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated "A-1" by Standard & Poor's, "F-1"
by Fitch and "P-1" by Moody's (in each case, to the extent they are designated
as Rating Agencies in the Preliminary Statement) (and a comparable rating if
another Rating Agency is specified by the Depositor by written notice to the
Servicer) at the time any amounts are held on deposit therein, (ii) a trust
account or accounts maintained with a federal or state chartered depository
institution or trust company acting in its fiduciary capacity or (iii) any other
account acceptable to each Rating Agency. Eligible Accounts may bear interest,
and may include, if otherwise qualified under this definition, accounts
maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of Prohibited
Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.09(b).
Escrow Payments: As defined in Section 3.09(b) of this Agreement.
Event of Default: As defined in Section 7.01.
Excess Overcollateralized Amount: With respect to any Distribution
Date, the excess, if any, of (a) the Overcollateralized Amount on such
Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Sections 3.27(a) in the name of the
Trustee for the benefit of the Regular Certificateholders and designated
"Deutsche Bank National Trust Company in trust for registered holders of GSAMP
Trust 2005-AHL, Mortgage Pass-Through Certificates, Series 2005-AHL." Funds in
the Excess Reserve Fund Account shall be held in trust for the Regular
Certificateholders for the uses and purposes set forth in this Agreement.
Amounts on deposit in the Excess Reserve Fund Account shall not be invested.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal
to the sum of the Servicing Fee Rate and the Trustee Fee Rate.
Expense Fees: As to each Mortgage Loan, the sum of the Servicing Fee
and the Trustee Fee.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for such Distribution
Date and (y) the related Overcollateralization Deficiency for such Distribution
Date.
Xxxxxx Mae: The Federal National Mortgage Association and its
successors in interest.
Xxxxxx Xxx Guides: The Xxxxxx Mae Seller's Guide and the Xxxxxx Xxx
Servicer's Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, and its successors
in interest.
Final Recovery Determination: With respect to any defaulted Mortgage
Loan or any REO Property (other than a Mortgage Loan or REO Property purchased
by the Responsible Party, Depositor or Purchaser, as contemplated by this
Agreement), a determination made by the Servicer that all Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and other payments or recoveries
which the Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer shall
maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for each Class of Certificates is the Distribution Date occurring in April
2035.
Fixed Rate Mortgage Loan: A fixed rate Mortgage Loan.
Forbearance: As defined in Section 3.07(a).
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, and its successors in interest.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note to be added
to the applicable Index to determine the Mortgage Interest Rate.
Index: As to each Adjustable Rate Mortgage Loan, the index from time
to time in effect for the adjustment of the Mortgage Interest Rate set forth as
such on the related Mortgage Note.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements thereto
in effect, including any replacement policy or policies for any Insurance
Policies.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Accrual Period: With respect to each Class of LIBOR
Certificates and each Corresponding Class of Lower-Tier Regular Interests and
each Corresponding Class of Upper-Tier Regular Interests and any Distribution
Date, the period commencing on the immediately preceding Distribution Date (or,
for the initial Distribution Date, the Closing Date) and ending on the day
immediately preceding the current Distribution Date. For purposes of computing
interest accruals on each Class of LIBOR Certificates, each Corresponding Class
of Lower-Tier Regular Interest and each Corresponding Class of Upper-Tier
Regular Interest, each Interest Accrual Period has the actual number of days in
such period and each year is assumed to have 360 days.
Interest Only Mortgage Loan: A Mortgage Loan for which the related
Mortgage Note provides for Scheduled Payments of interest only for a period of
time as specified in the related Mortgage Note.
Interest Rate Swap Agreement: The interest rate swap agreement,
dated as of May 26, 2005, between Xxxxxxx Xxxxx Capital Markets, L.P. and
Xxxxxxx Sachs Mortgage Company or any other cap agreement or swap agreement
(including any related schedules) entered into by the Trustee on behalf of the
Trust pursuant to Section 2.01(d) hereof.
Interest Remittance Amount: With respect to any Distribution Date,
that portion of Available Funds allocated to interest relating to the Mortgage
Loans and any Net Swap Receipts for such Distribution Date, net of any Net Swap
Payments with respect to such Distribution Date.
Investment Account: As defined in Section 3.12(a).
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the investor pursuant to the MERS Procedures
Manual.
Investor Based Exemption: Any of Prohibited Transaction Class
Exemption ("PTCE") 84-14 (for transactions by independent "qualified
professional asset managers"), PTCE 91-38 (for transactions by bank collective
investment funds), XXXX 00-0 (for transactions by insurance company pooled
separate accounts), PTCE 95-60 (for transactions by insurance company general
accounts) or PTCE 96-23 (for transactions effected by "in-house asset
managers"), or any comparable exemption available under Similar Law.
Late Collections: With respect to any Mortgage Loan and any Due
Period, all amounts received after the Remittance Date immediately following
such Due Period, whether as late payments of Scheduled Payments or as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal and/or interest due (without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note) but delinquent for such Due Period and not previously recovered.
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Trustee on the related LIBOR
Determination Date on the basis of the offered rate for one-month U.S. dollar
deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on such date; provided, that if such rate does not appear on Telerate Page
3750, the rate for such date will be determined on the basis of the rates at
which one-month U.S. dollar deposits are offered by the Reference Banks at
approximately 11:00 a.m. (London time) on such date to prime banks in the London
interbank market. In such event, the Trustee shall request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16%). If fewer than two quotations are provided as
requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Trustee (after
consultation with the Depositor), at approximately 11:00 a.m. (New York City
time) on such date for one-month U.S. dollar deposits of leading European banks.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: With respect to any Interest Accrual
Period for the LIBOR Certificates, the second London Business Day preceding the
commencement of such Interest Accrual Period.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the amount per annum set forth on the Mortgage Loan Schedule.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated or
charged-off in the calendar month preceding the month of such Distribution Date
and as to which the Servicer has certified (in accordance with this Agreement)
that it has made a Final Recovery Determination.
Liquidation Event: With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made as to such Mortgage Loan; or (iii) such Mortgage Loan is
removed from coverage under this Agreement by reason of its being purchased,
sold or replaced pursuant to or as contemplated by this Agreement. With respect
to any REO Property, either of the following events: (i) a Final Recovery
Determination is made as to such REO Property; or (ii) such REO Property is
removed from coverage under this Agreement by reason of its being purchased
pursuant to this Agreement.
Liquidation Proceeds: The amounts, other than Insurance Proceeds,
Condemnation Proceeds or those received following the acquisition of REO
Property, received in connection with the liquidation of a defaulted Mortgage
Loan, whether through a trustee's sale, foreclosure sale or otherwise, including
any Subsequent Recoveries.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, at
any time, the ratio (expressed as a percentage) of the principal balance of the
Mortgage Loan as of the date of determination, to the Appraisal Value of the
related Mortgaged Property.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lower-Tier Interest Rate: As described in the Preliminary Statement.
Lower-Tier Principal Amount: As described in the Preliminary
Statement.
Lower-Tier Regular Interest: Each of the Class LT-A-1, Class LT-A-2,
Class LT-A-3, Class LT-M-1, Class LT-M-2, Class LT-M-3, Class LT-M-4, Class
LT-M-5, Class LT-M-6, Class LT-B-1, Class LT-B-2, Class LT-IO and Class
LT-Accrual Interests as described in the Preliminary Statement.
Lower-Tier REMIC: As described in the Preliminary Statement.
Majority Class X Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class X Certificates.
Market Value Change Report: A report setting forth changes in
property value of the Mortgaged Properties in a format agreed upon by the
Servicer and the Depositor.
MERS: As defined in Section 2.01(b).
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Responsible Party has designated or will designate MERS as, and has taken or
will take such action as is necessary to cause MERS to be, the mortgagee of
record, as nominee for the Responsible Party, in accordance with MERS Procedure
Manual and (b) the Responsible Party has designated or will designate the Trust
as the Investor on the MERS(R) System.
MERS Procedure Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS(R) System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.03.
Moody's: Xxxxx'x Investors Service, Inc., and its successors in
interest. If Xxxxx'x is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 10.05(b) the address for notices to Moody's
shall be Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Mortgage Pass-Through Group, or such other address
as Moody's may hereafter furnish to the Depositor, the Servicer and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument identified
on the Mortgage Loan Schedule as securing a Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the Mortgage Loan Schedule, which Mortgage Loan includes,
without limitation, the Mortgage File, the Custodial File, the Servicing File,
the Scheduled Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition proceeds, Prepayment
Premiums and all other rights, benefits, proceeds and obligations arising from
or in connection with such Mortgage Loan, excluding replaced or repurchased
Mortgage Loans.
Mortgage Loan Documents: The mortgage loan documents pertaining to
each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Schedule I, such schedule setting forth the following information with
respect to each Mortgage Loan as of the Cut-off Date: (1) the Responsible Party
Mortgage Loan identifying number; (2) the Mortgagor's name; (3) the street
address of the Mortgaged Property including the city, state and zip code; (4) a
code indicating whether the Mortgaged Property is owner-occupied, a second home
or investment property; (5) the number and type of residential units
constituting the Mortgaged Property (i.e., a single family residence, a 2-4
family residence, a unit in a condominium project or a unit in a planned unit
development or a manufactured housing unit); (6) the original months to maturity
or the remaining months to maturity from the Cut-off Date, in any case based on
the original amortization schedule and, if different, the maturity expressed in
the same manner but based on the actual amortization schedule; (7) the
Loan-to-Value Ratio at origination; (8) the Mortgage Interest Rate as of the
Cut-off Date; (9) the date on which the Scheduled Payment was due on the
Mortgage Loan and, if such date is not consistent with the Due Date currently in
effect, such Due Date; (10) the stated maturity date; (11) the amount of the
Scheduled Payment as of the Cut-off Date; (12) the last payment date on which a
Scheduled Payment was actually applied to pay interest and the outstanding
principal balance; (13) the original principal amount of the Mortgage Loan; (14)
the principal balance of the Mortgage Loan as of the close of business on the
Cut-off Date, after deduction of payments of principal due and collected on or
before the Cut-off Date; (15) with respect to Adjustable Rate Mortgage Loans,
the Adjustment Date; (16) with respect to Adjustable Rate Mortgage Loans, the
Gross Margin; (17) with respect to Adjustable Rate Mortgage Loans, the Lifetime
Rate Cap under the terms of the Mortgage Note; (18) with respect to Adjustable
Rate Mortgage Loans, a code indicating the type of Index; (19) with respect to
Adjustable Rate Mortgage Loans, the Periodic Mortgage Interest Rate Cap under
the terms of the Mortgage Note; (20) with respect to Adjustable Rate Mortgage
Loans, the Periodic Mortgage Interest Rate Floor under the terms of the Mortgage
Note; (21) the type of Mortgage Loan (i.e., fixed rate or adjustable rate); (22)
a code indicating the purpose of the loan (i.e., purchase, rate and term
refinance, equity take-out refinance); (23) a code indicating the documentation
style (i.e., full documentation, limited documentation or stated income); (24)
the loan credit classification (as described in the Underwriting Guidelines);
(25) whether such Mortgage Loan provides for a Prepayment Premium; (26) the
Prepayment Premium period of such Mortgage Loan, if applicable; (27) a
description of the Prepayment Premium, if applicable; (28) the Mortgage Interest
Rate as of origination; (29) the credit risk score (FICO score) at origination;
(30) the date of origination; (31) the Mortgage Interest Rate adjustment period;
(32) the Mortgage Interest Rate floor; (33) a code indicating whether the
Mortgage Loan has been modified; (34) the payment history; (35) the Due Date for
the first Scheduled Payment; (36) the original Scheduled Payment due; (37) with
respect to the related Mortgagor, the debt-to-income ratio; (38) the Appraised
Value of the Mortgaged Property; (39) the sales price of the Mortgaged Property
if the Mortgage Loan was originated in connection with the purchase of the
Mortgaged Property; (40) the Mortgage Interest Rate calculation method (i.e.,
30/360, simple interest, other); (41) a code indicating whether the Mortgage
Loan is a Section 32 Mortgage Loan; (42) a code indicating whether the Mortgage
Loan is assumable; (43) a code indicating if a Mortgage Loan is or has had a 30
Day Delinquency; (44) with respect to each MERS Designated Mortgage Loan, the
MERS identification number; (45) the Original Purchase Date; and (46) the
Transfer Date. With respect to the Mortgage Loans in the aggregate: (1) the
number of Mortgage Loans; (2) the current aggregate outstanding principal
balance of the Mortgage Loans; (3) the weighted average Mortgage Interest Rate
of the Mortgage Loans; and (4) the weighted average maturity of the Mortgage
Loans.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan, including all riders thereto.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the amount
remaining for distribution pursuant to subsection 4.02(a)(iv) (before giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date, the
amount by which the sum of the Prepayment Interest Shortfalls for such
Distribution Date exceeds the sum of the Compensating Interest payments made
with respect to such Distribution Date.
Net Swap Payment: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) made by the Trust to the Swap
Provider on the related Fixed Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement).
Net Swap Receipt: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) made by the Swap Provider to the
Trust on the related Floating Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement).
NIM Issuer: The entity established as the issuer of the NIM
Securities.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class X and Class P Certificates that are rated by one or
more rating agencies.
NIM Trustee: The trustee for the NIM Securities.
90+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which any portion of a Scheduled Payment is, as of the last day of the prior Due
Period, three months or more past due (without giving effect to any grace
period), including each Mortgage Loan in foreclosure, all REO Property and each
Mortgage Loan for which the Mortgagor has filed for bankruptcy.
Non-Permitted Transferee: As defined in Section 8.11(e).
Nonrecoverable P&I Advance: Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Property that, in the
good faith business judgment of the Servicer, will not or, in the case of a
proposed P&I Advance, would not be ultimately recoverable from related late
payments, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds on
such Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advances previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in the good faith business judgment of the Servicer, will not or, in the
case of a proposed Servicing Advance, would not, be ultimately recoverable from
related Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or
otherwise.
Non-Rule 144A Investment Letter: As defined in Section 5.02(b).
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by an officer of the
Servicer with responsibility for the servicing of the Mortgage Loans and listed
on a list delivered to the Trustee pursuant to this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for the Servicer or a Subservicer, reasonably acceptable to the
Trustee; provided, that any Opinion of Counsel relating to (a) qualification of
any Trust REMIC as a REMIC or (b) compliance with the REMIC Provisions, must
(unless otherwise stated in such Opinion of Counsel) be an opinion of counsel
who (i) is in fact independent of the Servicer of the Mortgage Loans, (ii) does
not have any material direct or indirect financial interest in the Servicer of
the Mortgage Loans or in an affiliate of the Servicer and (iii) is not connected
with the Servicer of the Mortgage Loans as an officer, employee, director or
person performing similar functions.
Optional Termination Date: The date determined as follows:
Countrywide (at the direction of the Majority Class X Certificateholder (as
evidenced on the Certificate Register)), pursuant to Section 9.01, shall cause
the Optional Termination Date to occur on any Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans, as of the last day of
the related Due Period, is equal to 10% or less of the Cut off Date Pool
Principal Balance (provided, that if the Depositor or an Affiliate of the
Depositor is one of the Holders constituting such majority, then there must be
at least one other unaffiliated Holder constituting such majority and the Class
X Certificates held by such Holder, or unaffiliated Holders in the aggregate,
must represent at least a 10% Percentage Interest in the Class X Certificates).
Original Purchase Date: For each Mortgage Loan, either of July 15,
2004 or August 18, 2004 as indicated as the Original Purchase Date for such
Mortgage Loan on the Mortgage Loan Schedule.
OTS: Office of Thrift Supervision, and any successor thereto.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Amount: As of any Distribution Date, the excess,
if any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over (b) the aggregate of the Class Certificate Balances
of the Certificates as of such Distribution Date (after giving effect to the
payment of the Principal Remittance Amount on such Certificates on such
Distribution Date).
Overcollateralization Deficiency: With respect to any Distribution
Date, the excess, if any, of (a) the Specified Overcollateralized Amount
applicable to such Distribution Date over (b) the Overcollateralized Amount
applicable to such Distribution Date.
Overcollateralization Floor: With respect to any Distribution Date,
0.50% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
Overcollateralization Reduction Amount: With respect to any
Distribution Date, an amount equal to the lesser of (a) the Excess
Overcollateralized Amount and (b) the Net Monthly Excess Cash Flow.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
P&I Advance: As to any Mortgage Loan or REO Property, any advance
made by the Servicer in respect of any Remittance Date representing the
aggregate of all payments of principal and interest, net of the Servicing Fee,
that were due during the related Due Period on the Mortgage Loans and that were
delinquent on the related Remittance Date, plus certain amounts representing
assumed payments not covered by any current net income on the Mortgaged
Properties acquired by foreclosure or deed in lieu of foreclosure as determined
pursuant to Section 4.01.
Pass-Through Margin: With respect to each Class of LIBOR
Certificates, the following percentages: Class A-1 Certificates, 0.090%; Class
A-2 Certificates, 0.200%; Class A-3 Certificates, 0.340%; Class M-1
Certificates, 0.430%; Class M-2 Certificates, 0.650%; Class M-3 Certificates,
0.700%; Class M-4 Certificates, 1.200%; Class M-5 Certificates, 1.300%; Class
M-6 Certificates, 1.850%; Class B-1 Certificates, 3.000%; and Class B-2
Certificates, 3.000%. On the first possible Optional Termination Date, the
Pass-Through Margins shall increase to: Class A-1 Certificates, 0.180%; Class
A-2 Certificates, 0.400%; Class A-3 Certificates, 0.680%; Class M-1
Certificates, 0.645%; Class M-2 Certificates, 0.975%; Class M-3 Certificates,
1.050%; Class M-4 Certificates, 1.800%; Class M-5 Certificates, 1.950%; Class
M-6 Certificates, 2.775%; Class B-1 Certificates, 4.500%; and Class B-2
Certificates, 4.500%.
Pass-Through Rate: For each Class of Regular Certificates, each
Pooling-Tier REMIC-1 Regular Interest, each Pooling-Tier REMIC-2 Regular
Interest, each Lower-Tier Regular Interest and each Upper-Tier Regular Interest,
the per annum rate set forth or calculated in the manner described in the
Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Periodic Mortgage Interest Rate Cap: With respect to each Adjustable
Rate Mortgage Loan, the provision of each Mortgage Note which provides for an
absolute maximum amount by which the Mortgage Interest Rate therein may increase
or decrease on an Adjustment Date above or below the Mortgage Interest Rate
previously in effect. The Periodic Mortgage Interest Rate Cap for each
Adjustable Rate Mortgage Loan is the rate set forth on the Mortgage Loan
Schedule.
Periodic Mortgage Interest Rate Floor: With respect to each
Adjustable Rate Mortgage Loan, the provision of each Mortgage Note which
provides for an absolute minimum amount by which the Mortgage Interest Rate
therein may increase or decrease on an Adjustment Date above or below the
Mortgage Interest Rate previously in effect. The Periodic Mortgage Interest Rate
Floor for each Adjustable Rate Mortgage Loan is the rate set forth on the
Mortgage Loan Schedule.
Permitted Investments: Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued by the Servicer, the Trustee or any of their respective
Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars and
issued by any Depository Institution and rated "P-1" by Moody's, "A-1+" by
S&P and "F1+" by Fitch (in each case, to the extent they are designated as
Rating Agencies in the Preliminary Statement);
(iii) repurchase obligations with respect to any security described
in clause (i) above entered into with a Depository Institution (acting as
principal);
(iv) securities bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the United States
of America or any state thereof and that are rated by each Rating Agency
that rates such securities in its highest long-term unsecured rating
categories at the time of such investment or contractual commitment
providing for such investment;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 30 days after the date of acquisition
thereof) that is rated by each Rating Agency that rates such securities in
its highest short-term unsecured debt rating available at the time of such
investment;
(vi) units of money market funds, including money market funds
advised by the Depositor or the Trustee or an Affiliate thereof, that have
been rated "Aaa" by Moody's, "AAAm" or "AAAm-G" by Standard & Poor's and
at least "AA" by Fitch (in each case, to the extent they are designated as
Rating Agencies in the Preliminary Statement); and
(vii) if previously confirmed in writing to the Trustee, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to the Rating Agencies as a permitted
investment of funds backing "Aaa" or "AAA" rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
For investments in the Distribution Account (except during the Trustee Float
Period), only the obligations or securities (or instruments which invest in the
obligations or securities) specified in clause (i) above shall constitute
Permitted Investments.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a U.S.
Person or a U.S. Person with respect to whom income from a Residual Certificate
is attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of such Person or any other U.S.
Person, (vi) an "electing large partnership" within the meaning of Section 775
of the Code and (vii) any other Person so designated by the Depositor based upon
an Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to such Person may cause any Trust REMIC to fail to qualify as a
REMIC at any time that the Certificates are outstanding. The terms "United
States," "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of Xxxxxxx Mac, a majority of its board
of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Plan: As defined in Section 5.02(b).
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans for such
Distribution Date that were Outstanding Mortgage Loans on the Due Date in the
related Due Period.
Pooling-Tier Interest Rate: As specified in the Preliminary
Statement.
Pooling-Tier REMIC-1: As described in the Preliminary Statement.
Pooling-Tier REMIC-1 Interest Rate: As described in the Preliminary
Statement.
Pooling-Tier REMIC-1 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-1 Regular Interest: As described in the
Preliminary Statement.
Pooling-Tier REMIC-1 WAC Rate: With respect to the Mortgage Loans as
of any Distribution Date, a per annum rate equal to (a) the weighted average of
the Mortgage Interest Rates for each Mortgage Loan (in each case, less than the
applicable Expense Fee Rate) then in effect on the beginning of the related Due
Period on the Mortgage Loans, multiplied by (b) 30 divided by the actual number
of days in the related Interest Accrual Period.
Pooling-Tier REMIC-2: As described in the Preliminary Statement.
Pooling-Tier REMIC-2 Interest Rate: As described in the Preliminary
Statement.
Pooling-Tier REMIC-2 IO Interest: Any of the Pooling-Tier REMIC-2
Regular Interests with the designation "IO" in its name.
Pooling-Tier REMIC-2 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2 Regular Interest: As described in the
Preliminary Statement.
Prepayment Interest Shortfall: With respect to any Remittance Date,
the sum of, for each Mortgage Loan that was, during the related Prepayment
Period, the subject of a Principal Prepayment that was applied by the Servicer
to reduce the outstanding principal balance of such Mortgage Loan on a date
preceding the Due Date in the succeeding Prepayment Period, an amount equal to
the product of (a) the Mortgage Interest Rate net of the Servicing Fee Rate for
such Mortgage Loan, (b) the amount of the Principal Prepayment for such Mortgage
Loan, (c) 1/360 and (d) the number of days commencing on the date on which such
Principal Prepayment was applied and ending on the last day of the related
Prepayment Period.
Prepayment Period: With respect to any Distribution Date, the
calendar month preceding the month in which such Distribution Date occurs.
Prepayment Premium: Any prepayment premium, penalty or charge
collected by the Servicer with respect to a Mortgage Loan from a Mortgagor in
connection with any voluntary Principal Prepayment pursuant to the terms of the
related Mortgage Note.
Principal Distribution Amount: For any Distribution Date, the sum of
(i) the Basic Principal Distribution Amount for such Distribution Date and (ii)
the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other recovery
of principal on a Mortgage Loan (including upon liquidation of a Mortgage Loan)
which is received in advance of its scheduled Due Date, excluding any Prepayment
Premium and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution Date,
the amount equal to the sum of the following amounts (without duplication) with
respect to the related Due Period: (i) each scheduled payment of principal on a
Mortgage Loan due during such Due Period and received by the Servicer on or
prior to the related Determination Date or advanced by the Servicer for the
related Remittance Date (ii) all Principal Prepayments received during the
related Prepayment Period, (iii) all Liquidation Proceeds, Condemnation Proceeds
and Insurance Proceeds on the Mortgage Loans allocable to principal actually
collected by the Servicer during the related Prepayment Period, (iv) the portion
of the Repurchase Price allocable to principal with respect to each Deleted
Mortgage Loan, the repurchase obligation for which arose during the related
Prepayment Period, that was repurchased during the period from the prior
Distribution Date through the Remittance Date for the current Distribution Date,
(v) the portion of all Substitution Adjustment Amounts allocable to principal
with respect to the substitutions of Mortgage Loans that occur during the
calendar month in which such Distribution Date occurs, and (vi) the allocable
portion of the proceeds received with respect to the termination of the Trust
Fund pursuant to clause (a) of Section 9.01 (to the extent such proceeds relate
to principal).
Privacy Laws: Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, as
amended, and all applicable regulations promulgated thereunder.
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated May 23,
2005, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchase Agreement: The Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of August 1, 2003, between the Purchaser and the Responsible
Party, as amended by Amendment No. 1 to Purchase Agreement, dated as of July 15,
2004, and as further amended by Amendment No. 2 to Purchase Agreement, dated as
of February 1, 2005.
Purchaser: Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors in interest, as purchaser of the Mortgage Loans
under the Purchase Agreement.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee. References
herein to a given rating or rating category of a Rating Agency shall mean such
rating category without giving effect to any modifiers. For purposes of Section
10.05(b), the addresses for notices to each Rating Agency shall be the address
specified therefor in the definition corresponding to the name of such Rating
Agency, or such other address as either such Rating Agency may hereafter furnish
to the Depositor and the Servicer.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid principal
balance of such Liquidated Mortgage Loan together with accrued and unpaid
interest thereon exceeds (b) the Liquidation Proceeds with respect thereto net
of the expenses incurred by the Servicer in connection with the liquidation of
such Liquidated Mortgage Loan and net of the amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the related Interest Accrual Period;
provided, however, that for any Certificate issued in definitive form, the
Record Date shall be the close of business on the last Business Day of the month
preceding the month in which such applicable Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers Civil Relief Act, or any similar state
statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, no later
than 12:00 PM, Central Time on the Business Day immediately preceding such
Distribution Date.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Imputed Interest: As to any REO Property, for any period, an
amount equivalent to interest (at the Mortgage Interest Rate net of the
Servicing Fee Rate that would have been applicable to the related Mortgage Loan
had it been outstanding) on the unpaid principal balance of the Mortgage Loan as
of the date of acquisition thereof (as such balance is reduced pursuant to
Section 3.15 by any income from the REO Property treated as a recovery of
principal).
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Reporting Date: The 18th day of each calendar month or the
immediately following Business Day if the 18th is not a Business Day.
Repurchase Price: With respect to any Mortgage Loan, (a) repurchased
by the Purchaser or the Depositor, an amount equal to the sum of (i) the unpaid
principal balance of such Mortgage Loan as of the date of repurchase, (ii)
interest on such unpaid principal balance of such Mortgage Loan at the Mortgage
Interest Rate from the last date through which interest has been paid and
distributed to the Trustee to the date of repurchase, (iii) all unreimbursed
Servicing Advances and (iv) all expenses incurred by the Servicer, the Trust or
the Trustee, as the case may be, in respect of a breach or defect, including,
without limitation, (A) expenses arising out of the Servicer's or Trustee's, as
the case may be, enforcement of the Purchaser's repurchase obligation, to the
extent not included in clause (iii), and (B) any costs and damages incurred by
the Trust in connection with any violation by such Mortgage Loan of any
predatory lending law or abusive lending law, and (b) in the case of any
Mortgage Loan repurchased by the Responsible Party, the "Repurchase Price" as
defined in the Assignment Agreement.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee substantially in the form of Exhibit K.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, any associate or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers who at such time shall be officers to whom, with respect to a
particular matter, such matter is referred because of such officer's knowledge
of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement.
Responsible Party: Accredited Home Lenders, Inc., a California
corporation, and its successors in interest.
Responsible Party Agreements: The Purchase Agreement and the
Assignment, Assumption and Recognition Agreement, as the case may be, copies of
which are attached hereto as Exhibit Q.
Rule 144A Letter: As defined in Section 5.02(b).
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date.
Senior Specified Enhancement Percentage: As of any date of
determination, 41.30%.
Servicer: Countrywide.
Servicer Remittance Report: As defined in Section 4.03(d).
Servicing Advances: The reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred prior to, on, or after the Cut-off Date
by the Servicer in the performance of its servicing obligations in connection
with a default, delinquency or other unanticipated event, including, but not
limited to, the cost of (i) the preservation, restoration, inspection and
protection of a Mortgaged Property, (ii) any enforcement or judicial
proceedings, including foreclosures and litigation, in respect of a particular
Mortgage Loan, (iii) the management (including reasonable fees in connection
therewith) and liquidation of any REO Property, (iv) the performance of its
obligations under Sections 3.01, 3.07, 3.09, 3.13 and 3.15. Servicing Advances
also include any reasonable "out-of-pocket" costs and expenses (including legal
fees) incurred by the Servicer in connection with executing and recording
instruments of satisfaction, deeds of reconveyance or Assignments of Mortgage in
connection with any satisfaction or foreclosures in respect of any Mortgage Loan
to the extent not recovered from the Mortgagor or otherwise payable under this
Agreement and (v) obtaining or correcting any legal documentation required to be
included in the Mortgage Files and necessary for the Servicer to perform its
obligations under this Agreement. The Servicer shall not be required to make any
Nonrecoverable Servicing Advances.
Servicing Fee: With respect to each Mortgage Loan and any
Distribution Date, an amount equal to the product of (i) one-twelfth of the
Servicing Fee Rate and (ii) the Stated Principal Balance of such Mortgage Loan
as of the first day of the calendar month preceding the month in which such
Distribution Date occurs. Such fee shall be payable monthly, and shall be pro
rated for any portion of a month during which the Mortgage Loan is serviced by
the Servicer under this Agreement. The Servicing Fee is payable solely from the
interest portion (including recoveries with respect to interest from Liquidation
Proceeds, Insurance Proceeds, Condemnation Proceeds and proceeds received with
respect to REO Properties, to the extent permitted by Section 3.11) of such
Scheduled Payment collected by the Servicer or as otherwise provided under
Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.50% per
annum.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer consisting of originals or copies of all documents in
the Mortgage File which are not delivered to the Trustee in the Custodial File
and copies of the Mortgage Loan Documents set forth in Exhibit L hereto.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee by the Servicer on the Closing Date pursuant to this Agreement, as
such list may from time to time be amended.
Servicing Transfer Costs: All reasonable out-of-pocket costs and
expenses incurred by the Trustee in connection with the transfer of servicing
from a terminated Servicer, including, without limitation, any such costs or
expenses associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the Trustee to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee (or any successor Servicer appointed pursuant to
Section 7.02) to service the Mortgage Loans properly and effectively.
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which any portion of a Scheduled Payment is, as of the last day of the prior Due
Period, two months or more past due (without giving effect to any grace period),
each Mortgage Loan in foreclosure, all REO Property and each Mortgage Loan for
which the Mortgagor has filed for bankruptcy.
Specified Overcollateralized Amount: Prior to the Stepdown Date, an
amount equal to 1.90% of the Cut-off Date Pool Principal Balance. On and after
the Stepdown Date, an amount equal to 3.80% of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date, subject, until the
Class Certificate Balance of each Class of LIBOR Certificates has been reduced
to zero, to a minimum amount equal to the Overcollateralization Floor; provided,
however, that if, on any Distribution Date, a Trigger Event has occurred, the
Specified Overcollateralized Amount shall not be reduced to the applicable
percentage of the then current aggregate Stated Principal Balance of the
Mortgage Loans until the Distribution Date on which a Trigger Event is no longer
occurring; provided, further, that when the Class Certificate Balance of each
Class of LIBOR Certificates has been reduced to zero, the Specified
Overcollateralized Amount will thereafter equal zero.
Standard & Poor's: Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., and its successors in interest. If Standard &
Poor's is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to Standard & Poor's shall
be Standard & Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Mortgage Surveillance Group - GSAMP Trust 2005-AHL, or such other
address as Standard & Poor's may hereafter furnish to the Depositor, the
Servicer and the Trustee.
Standard & Poor's Glossary: Version 5.6 of the Standard & Poor's
LEVELS(R) Glossary.
Start-up Day: As defined in Section 2.06.
Stated Principal Balance: As to each Mortgage Loan and as of any
date of determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date, minus (ii) all amounts previously remitted to the Trustee with respect to
the related Mortgage Loan representing payments or recoveries of principal
including advances in respect of scheduled payments of principal. For purposes
of any Distribution Date, the Stated Principal Balance of any Mortgage Loan will
give effect to any scheduled payments of principal received by the Servicer on
or prior to the related Determination Date or advanced by the Servicer for the
Remittance Date and any unscheduled principal payments and other unscheduled
principal collections received during or prior to the related Prepayment Period,
and the Stated Principal Balance of any Mortgage Loan that has prepaid in full
or has become a Liquidated Mortgage Loan during the related Prepayment Period
shall be zero.
Stepdown Date: The earlier to occur of (a) the date on which the
aggregate Class Certificate Balances of the Class A Certificates have been
reduced to zero, and (b) the later to occur of (i) the Distribution Date in June
2008, and (ii) the first Distribution Date on which the Senior Enhancement
Percentage is greater than or equal to the Senior Specified Enhancement
Percentage.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subsequent Recoveries: Amounts received with respect to any
Liquidated Mortgage Loan after it has become a Liquidated Mortgage Loan.
Subservicer: As defined in Section 3.02(a).
Subservicing Account: As defined in Section 3.08.
Subservicing Agreements: As defined in Section 3.02(a).
Substitute Mortgage Loan: As defined in the Assignment, Assumption
and Recognition Agreement.
Substitution Adjustment Amount: Any amount to be paid in connection
with a Substitute Mortgage Loan pursuant to the fourth full paragraph of Section
8 of the Assignment, Assumption and Recognition Agreement, and any additional
amounts required to be paid by the Purchaser in connection with such a
substitution.
Supplemental Interest Trust: The corpus of a trust created pursuant
to Section 4.06 of this Agreement, consisting of the Interest Rate Swap
Agreement, the Class IO Interest and the right to receive Class IO Shortfalls,
subject to the obligation to pay amounts specified in Section 4.06.
Swap LIBOR: With respect to any Distribution Date (and the related
Interest Accrual Period), the product of (i) USD-LIBOR-BBA (as used in the
Interest Swap Agreement), (ii) two, and (iii) the quotient of (a) the actual
number of days in the Interest Accrual Period for the LIBOR Certificates divided
by (b) 30.
Swap Provider: Xxxxxxx Sachs Mitsui Marine Derivative Products,
L.P., a Delaware limited partnership, and its successors in interest.
Swap Termination Payment: Any payment payable by the Trust or the
Swap Provider upon termination of the Interest Rate Swap Agreement as a result
of an Event of Default (as defined in the Interest Rate Swap Agreement) or a
Termination Event (as defined in the Interest Rate Swap Agreement).
Tax Matters Person: The Holder of the (i) Class R-2 and (ii) Class
R-1 Certificates designated as "tax matters person" of (i) Pooling-Tier REMIC-1,
and (ii) Pooling-Tier REMIC-2, the Lower-Tier REMIC and the Upper-Tier REMIC,
respectively, in the manner provided under Treasury Regulations Section
1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1.
Tax Service Contract: As defined in Section 3.09(a).
Telerate Page 3750: The display page currently so designated on the
Bridge Telerate Service (or such other page as may replace that page on that
service for displaying comparable rates or prices).
Termination Price: As defined in Section 9.01.
30 Day Delinquency: The failure of the Mortgagor to make any
Scheduled Payment due under the Mortgage Note on a Due Date, which failure
continues unremdied for a period of one month after the following Due Date.
Total Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess if any, of (i) the interest collected on the Mortgage Loans
received by the Servicer on or prior to the related Determination Date or
advanced by the Servicer for the related Remittance Date (net of Expense Fees)
and plus any Net Swap Receipts and less any Net Swap Payments for such
Distribution Date, over (ii) the sum of the interest payable to the LIBOR
Certificates on such Distribution Date pursuant to Section 4.02(a)(ii).
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transfer Date: For each Mortgage Loan, either of April 1, 2005 or
May 1, 2005 as indicated as the Transfer Date for such Mortgage Loan on the
Mortgage Loan Schedule.
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a Trigger
Event exists if (i) the quotient (expressed as a percentage) of (1) the rolling
three month average of the aggregate unpaid principal balance of 60+ Day
Delinquent Mortgage Loans, divided by (2) the aggregate unpaid principal balance
of the Mortgage Loans as of the last day of the related Due Period, equals or
exceeds 42.00% of the Senior Enhancement Percentage as of the last day of the
prior Due Period or (ii) the quotient (expressed as a percentage) of (x) the
aggregate amount of Realized Losses incurred since the Cut-off Date through the
last day of the related Prepayment Period divided by (y) the Cut-off Date Pool
Principal Balance, exceeds the applicable percentages set forth below with
respect to such Distribution Date:
Distribution Date Occurring In Loss Percentage
------------------------------ ---------------
June 2007 through May 2008 1.25% for the first month, plus an
additional 1/12th of 1.50% for each
month thereafter
June 2008 through May 2009 2.75% for the first month, plus an
additional 1/12th of 1.25% for each
month thereafter
June 2009 through May 2010 4.00% for the first month, plus an
additional 1/12th of 1.25% for each
month thereafter
June 2010 through May 2011 5.25% for the first month, plus an
additional 1/12th of 0.75% for each
month thereafter
June 2011 and thereafter 6.000%
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal received on or with
respect thereto after the related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or before the related Cut-off Date; (ii) the
Collection Account, the Excess Reserve Fund Account, the Distribution Account,
and all amounts deposited therein pursuant to the applicable provisions of this
Agreement; (iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure or otherwise; (iv) the Interest Rate
Swap Agreement; (v) the Trust's rights under the Responsible Party Agreements;
(vi) the Supplemental Interest Trust; and (vii) all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing.
Trust REMIC: Any of Pooling-Tier REMIC-1, Pooling-Tier REMIC-2, the
Lower-Tier REMIC or the Upper-Tier REMIC, as applicable.
Trustee: Deutsche Bank National Trust Company, and its successors in
interest and, if a successor trustee is appointed hereunder, such successor.
Trustee Fee: As to each Mortgage Loan and any Distribution Date, an
amount equal to one month's interest at the related Trustee Fee Rate on the
Stated Principal Balance of such Mortgage Loan as of the preceding Distribution
Date (or as of the Closing Date in the case of the first Distribution Date) or,
in the event of any payment of interest which accompanies a Principal Prepayment
in Full made by the Mortgagor, interest at the Trustee Fee Rate on the Stated
Principal Balance of such Mortgage Loan for the period covered by such payment
of interest.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.0042% per
annum.
Trustee Float Period: With respect to any Distribution Date and the
related amounts in the Distribution Account, the period commencing on the
Business Day immediately preceding such Distribution Date and ending on such
Distribution Date.
U.S. Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of any
State thereof, including, for this purpose, the District of Columbia; (iii) a
partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any state
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control all substantial decisions of the
trust. Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
Underwriters' Exemption: Any exemption listed in footnote 1 of, and
amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002),
or any successor exemption.
Underwriting Guidelines: The underwriting guidelines attached to the
Purchase Agreement.
Unpaid Interest Amounts: As of any Distribution Date and any Class
of Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from prior Distribution Dates remaining unpaid immediately
prior to the current Distribution Date and (b) interest on such unpaid amount in
clause (a) at the applicable Pass-Through Rate (to the extent permitted by
applicable law).
Upper-Tier Carry Forward Amount: With respect to each Class of LIBOR
Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Upper-Tier Interest Rate for the Class of Corresponding
Upper-Tier REMIC Regular Interest is based upon the Upper-Tier REMIC WAC Rate,
the excess, if any, of (i) the amount of interest such Class of Upper-Tier
Regular Interest would otherwise be entitled to receive on such Distribution
Date had such Upper-Tier REMIC Regular Interest not been subject to the
Upper-Tier REMIC WAC Rate, over (ii) the amount of interest payable on such
Class of Certificates on such Distribution Date taking into account the
Upper-Tier REMIC WAC Rate and (B) the Upper-Tier Carry Forward Amount for such
Class of Certificates for all previous Distribution Dates not previously paid,
together with interest thereon at a rate equal to the applicable Upper-Tier
Interest Rate for such Class of Certificates for such Distribution Date, without
giving effect to the Upper-Tier REMIC WAC Rate.
Upper-Tier Interest Rate: As described in the Preliminary Statement.
Upper-Tier Regular Interest: As described in the Preliminary
Statement.
Upper-Tier REMIC: As described in the Preliminary Statement.
Upper-Tier REMIC WAC Rate: For any Distribution Date, the weighted
average of the Lower-Tier Interest Rates on the Lower-Tier Regular Interests
(other than the Class LT-IO Interest) as of the first day of the related
Interest Accrual Period, weighted on the basis of the Lower-Tier Principal
Amounts of such Lower-Tier Regular Interests as of the first day of the related
Interest Accrual Period.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any, and (c) the remaining Voting Rights shall be allocated
among Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
WAC Cap: With respect to the Mortgage Loans as of any Distribution
Date, a per annum rate equal to the weighted average of the Adjusted Net
Mortgage Interest Rates then in effect on the beginning of the related Due
Period on the Mortgage Loans, plus any Net Swap Receipts and less any Net Swap
Payments for such Distribution Date, in each case converted to a per annum rate
on the Mortgage Loans calculated on the basis of the actual number of days in
the related Interest Accrual Period and a 360-day year.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust,
hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered or caused to be delivered to the Trustee for
the benefit of the Certificateholders the following documents or instruments
with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _____________, without recourse" and signed
in the name of the last endorsee. To the extent that there is no room on
the face of any Mortgage Note for endorsement, the endorsement may be
contained on an allonge unless the Trustee is advised by the Responsible
Party that state law does not so allow. If the Mortgage Loan was acquired
by the Responsible Party in a merger, the endorsement must be by "[last
endorsee], successor by merger to [name of predecessor]". If the Mortgage
Loan was acquired or originated by the last endorsee while doing business
under another name, the endorsement must be by "[last endorsee], formerly
known as [previous name]";
(ii) the original Mortgage with evidence of recording thereon or a
certified true copy of such Mortgage submitted for recording. If in
connection with any Mortgage Loan, the Responsible Party cannot deliver or
cause to be delivered the original Mortgage with evidence of recording
thereon on or prior to the Closing Date because of a delay caused by the
public recording office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost or because such public
recording office retains the original recorded Mortgage, the Responsible
Party shall deliver or cause to be delivered to the Trustee, a photocopy
of such Mortgage, together with (A) in the case of a delay caused by the
public recording office, an officer's certificate of the Responsible
Party, or evidence of certification on the face of such photocopy of such
Mortgage, (or certified by the title company, escrow agent, or closing
attorney) stating that such Mortgage has been dispatched to the
appropriate public recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified by such public
recording office to be a true and complete copy of the original recorded
Mortgage will be promptly delivered to the Trustee upon receipt thereof by
the Responsible Party; or (B) in the case of a Mortgage where a public
recording office retains the original recorded Mortgage or in the case
where a Mortgage is lost after recordation in a public recording office, a
copy of such Mortgage certified by such public recording office to be a
true and complete copy of the original recorded Mortgage;
(iii) the originals of all assumption, modification, consolidation
or extension agreements, if any, with evidence of recording thereon or a
certified true copy of such agreement submitted for recording;
(iv) except with respect to each MERS Designated Mortgage Loan, the
original Assignment of Mortgage for each Mortgage Loan endorsed in blank
and in recordable form. The Assignment of Mortgage must be duly recorded
only if recordation is either necessary under applicable law or commonly
required by private institutional mortgage investors in the area where the
Mortgaged Property is located as notified to the Trustee or on direction
of the Purchaser as provided in this Agreement. If the Assignment of
Mortgage is to be recorded, the Mortgage shall be assigned to the
Purchaser. If the Assignment of Mortgage is not to be recorded, the
Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan
was acquired by the Responsible Party in a merger, the Assignment of
Mortgage must be made by "[Accredited Home Lenders, Inc.], successor by
merger to [name of predecessor]". If the Mortgage Loan was acquired or
originated by the Responsible Party while doing business under another
name, the Assignment of Mortgage must be by "[Accredited Home Lenders,
Inc.], formerly known as [previous name]";
(v) the originals of all intervening assignments of Mortgage (if
any) evidencing a complete chain of assignment from the originator to the
last endorsee (or to MERS with respect to each MERS Designated Mortgage
Loan) with evidence of recording thereon or a certified true copy of such
intervening assignment of Mortgage submitted for recording, or if any such
intervening assignment has not been returned from the applicable recording
office or has been lost or if such public recording office retains the
original recorded assignments of Mortgage, the Responsible Party shall
deliver or cause to be delivered to the Trustee, a photocopy of such
intervening assignment, together with (A) in the case of a delay caused by
the public recording office, an officer's certificate of the Responsible
Party, or evidence of certification on the face of such photocopy of such
intervening assignment, (or certified by the title company, escrow agent,
or closing attorney) stating that such intervening assignment of Mortgage
has been dispatched to the appropriate public recording office for
recordation and that such original recorded intervening assignment of
Mortgage or a copy of such intervening assignment of Mortgage certified by
the appropriate public recording office to be a true and complete copy of
the original recorded intervening assignment of Mortgage will be promptly
delivered to the Trustee upon receipt thereof by the Responsible Party; or
(B) in the case of an intervening assignment where a public recording
office retains the original recorded intervening assignment or in the case
where an intervening assignment is lost after recordation in a public
recording office, a copy of such intervening assignment certified by such
public recording office to be a true and complete copy of the original
recorded intervening assignment;
(vi) the original mortgagee policy of title insurance or, in the
event such original title policy is unavailable, a copy of the related
policy binder, preliminary report or commitment for title; and
(vii) any security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage (if provided).
The Depositor shall use reasonable efforts to assist the Trustee and
the Servicer in enforcing the obligations of the Purchaser under the Responsible
Party Agreements.
Each Mortgage Loan for which a Mortgage Note is missing shall be
evidenced by a lost note affidavit as of the Closing Date. In the event one or
more lost note affidavits are provided to cover multiple missing Mortgage Notes
on the Closing Date, the Depositor shall use reasonable efforts to cause the
Responsible Party to deliver to the Trustee the applicable individual lost note
affidavits within ten (10) Business Days of the Closing Date. If the Responsible
Party fails to deliver the required individual lost note affidavits within the
specified period of time, the Trustee shall notify the Responsible Party to take
such remedial actions, including, without limitation, the repurchase by the
Responsible Party of such Mortgage Loan within 60 days of the Closing Date.
The Depositor shall use reasonable efforts to cause the Purchaser
and the Responsible Party to deliver to the Trustee the applicable recorded
document promptly upon receipt from the respective recording office but in no
event later than 120 days from the Closing Date.
If any Mortgage has been recorded in the name of Mortgage Electronic
Registration System, Inc. ("MERS") or its designee, no Assignment of Mortgage in
favor of the Trustee will be required to be prepared or delivered and instead,
the Servicer shall take all reasonable actions as are necessary at the expense
of the Depositor to cause the Trust to be shown as the owner of the related
Mortgage Loan on the records of MERS for the purpose of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
The Depositor shall use reasonable efforts to cause the Purchaser
and Responsible Party, as applicable, to forward to the Trustee additional
documents evidencing an assumption, modification, consolidation or extension of
a Mortgage Loan approved by the Responsible Party in accordance with the terms
of the Responsible Party Agreements. All such mortgage documents held by the
Trustee as to each Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall use reasonable
efforts to cause the Purchaser or Responsible Party to deliver to the Trustee
Assignments of Mortgages, in blank, for each applicable Mortgage Loan (except
with respect to each MERS Designated Mortgage Loan). The Depositor shall use
reasonable efforts to cause the Purchaser or Responsible Party to cause the
Assignments of Mortgage with completed recording information to be provided to
the Servicer in a reasonably acceptable manner. No later than thirty (30)
Business Days following the later of the Closing Date and the date of receipt by
the Servicer of the fully completed Assignments of Mortgages in recordable form,
the Servicer shall promptly submit or cause to be submitted for recording, at
the expense of the Responsible Party pursuant to the Purchase Agreement, at no
expense to the Trust Fund, the Trustee or the Depositor in the appropriate
public office for real property records, each Assignment of Mortgage referred to
in Section 2.01(b)(v). Notwithstanding the foregoing, however, for
administrative convenience and facilitation of servicing and to reduce closing
costs, the Assignments of Mortgage shall not be required to be completed and
submitted for recording with respect to any Mortgage Loan if the Trustee and
each Rating Agency has received an opinion of counsel, satisfactory in form and
substance to the Trustee and each Rating Agency, to the effect that the
recordation of such Assignments of Mortgage in any specific jurisdiction is not
necessary to protect the Trustee's interest in the related Mortgage Note or (ii)
if such Mortgage Loan is a MERS Designated Mortgage Loan. If the Assignment of
Mortgage is to be recorded, the Depositor shall use reasonable efforts to cause
the Purchaser to assign the Mortgage at the Purchaser's expense to "Deutsche
Bank National Trust Company, as trustee under the Pooling and Servicing
Agreement dated as of May 1, 2005, GSAMP Trust 2005-AHL." In the event that any
such assignment is lost or returned unrecorded because of a defect therein with
respect to any Mortgage Loan, and such defect is not cured, the Trustee shall
cause the Purchaser to repurchase such Mortgage Loan pursuant to the Responsible
Party Agreements.
On or prior to the Closing Date, the Depositor shall deliver to the
Trustee and the Servicer a copy of the Data Tape Information in electronic,
machine readable medium in a form mutually acceptable to the Depositor, the
Servicer and the Trustee. Within ten (10) Business Days of the Closing Date, the
Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the
Trustee and the Servicer.
In the event, with respect to any Mortgage Loan, that such original
or copy of any document submitted for recordation to the appropriate public
recording office is not so delivered to the Trustee within 180 days of the
applicable Original Purchase Date as specified in the Purchase Agreement, the
Trustee shall notify the Depositor and the Depositor shall take or cause to be
taken such remedial actions under the Purchase Agreement as may be permitted to
be taken thereunder, including without limitation, if applicable, the repurchase
by the Responsible Party of such Mortgage Loan. The foregoing repurchase remedy
shall not apply in the event that the Responsible Party cannot deliver such
original or copy of any document submitted for recordation to the appropriate
public recording office within the specified period due to a delay caused by the
recording office in the applicable jurisdiction; provided, that the Responsible
Party shall instead deliver a recording receipt of such recording office or, if
such recording receipt is not available, an officer's certificate of an officer
of the Responsible Party confirming that such document has been accepted for
recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses the
original Mortgage or assignment after it has been recorded, the obligations of
the Responsible Party shall be deemed to have been satisfied upon delivery by
the Responsible Party to the Trustee prior to the Closing Date of a copy of such
Mortgage or assignment, as the case may be, certified (such certification to be
an original thereof) by the public recording office to be a true and complete
copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "GSAMP Trust 2005-AHL" and
Deutsche Bank National Trust Company is hereby appointed as Trustee in
accordance with the provisions of this Agreement.
(d) The Trust shall have the capacity, power and authority, and the
Trustee on behalf of the Trust is hereby authorized, to accept the sale,
transfer, assignment, set over and conveyance by the Depositor to the Trust of
all the right, title and interest of the Depositor in and to the Trust Fund
(including, without limitation, the Mortgage Loans, the Interest Rate Swap
Agreement and the Responsible Party Agreements) pursuant to Section 2.01(a). The
parties hereby acknowledge and agree that the execution and delivery of the
Interest Rate Swap Agreement by the Trustee on behalf of the Trust were
authorized and are hereby ratified and confirmed.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans. The
Trustee acknowledges receipt of the documents identified in the Initial
Certification in the form annexed hereto as Exhibit E, and declares that it
holds and will hold such documents and the other documents delivered to it
pursuant to Section 2.01, and that it holds or will hold such other assets as
are included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders. The Trustee acknowledges that it will
maintain possession of the related Mortgage Notes in the State of California
unless otherwise permitted by the Rating Agencies.
Prior to and as a condition to the Closing, the Trustee shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor and the Servicer an Initial Certification prior to the Closing Date,
or as the Depositor agrees to, on the Closing Date, certifying receipt of a
Mortgage Note and Assignment of Mortgage for each Mortgage Loan with any
exceptions thereon. The Trustee shall not be responsible to verify the validity,
sufficiency or genuineness of any document in any Custodial File.
On the Closing Date, the Trustee shall ascertain that all documents
required to be reviewed by it are in its possession, and shall deliver to the
Depositor and the Servicer an Initial Certification, in the form annexed hereto
as Exhibit E, and shall deliver to the Depositor and the Servicer a Document
Certification and Exception Report, in the form annexed hereto as Exhibit F,
within 90 days (or with respect to any Substitute Mortgage Loan delivered to the
Trustee, within 30 days after the receipt of the mortgage file by the Trustee)
after the Closing Date to the effect that, as to each Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in such certification as an exception and
not covered by such certification): (i) all documents required to be reviewed by
it are in its possession; (ii) such documents have been reviewed by it and
appear regular on their face and relate to such Mortgage Loan; (iii) based on
its examination and only as to the foregoing documents, the information set
forth in items (1), (2) and (13) of the Mortgage Loan Schedule and items (1),
(2) and (13) of the Data Tape Information respecting such Mortgage Loan is
correct; and (iv) each Mortgage Note has been endorsed as provided in Section
2.01 of this Agreement. The Trustee shall not be responsible to verify the
validity, sufficiency or genuineness of any document in any Custodial File.
The Trustee shall retain possession and custody of each Custodial
File in accordance with and subject to the terms and conditions set forth
herein. The Servicer shall promptly deliver to the Trustee, upon the execution
or receipt thereof, the originals of such other documents or instruments
constituting the Custodial File as come into the possession of the Servicer from
time to time.
The Depositor shall use reasonable efforts to cause the Responsible
Party to deliver to the Servicer copies of all trailing documents required to be
included in the Custodial File at the same time the original or certified copies
thereof are delivered to the Trustee, including but not limited to such
documents as the title insurance policy and any other Mortgage Loan documents
upon return from the public recording office. The Depositor shall use reasonable
efforts to cause the Responsible Party to deliver such documents at the
Responsible Party's expense (pursuant to the Purchase Agreement) to the Servicer
and in no event shall the Servicer be responsible for any expenses relating to
such delivery obligation.
Section 2.03 Representations, Warranties and Covenants of the
Servicer. (a) The Servicer hereby makes the representations and warranties set
forth in Schedule II hereto to the Depositor and the Trustee as of the Closing
Date.
(b) It is understood and agreed by the Servicer that the
representations and warranties set forth in this Section 2.03 shall survive the
transfer of the Mortgage Loans by the Depositor to the Trustee, and shall inure
to the benefit of the Depositor and the Trustee notwithstanding any restrictive
or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the
examination or failure to examine any Mortgage File. Upon discovery by any of
the Depositor, the Trustee or the Servicer of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other.
(c) [Reserved].
(d) [Reserved].
(e) In connection with any repurchase or substitution of a Mortgage
Loan pursuant to Section 2.03 or the Responsible Party Agreements, the Servicer
shall, based on information provided by the Purchaser, amend the Mortgage Loan
Schedule for the benefit of the Certificateholders to reflect the removal of
such Deleted Mortgage Loan and the substitution of the Substitute Mortgage Loan
or Loans and the Servicer shall deliver the amended Mortgage Loan Schedule to
the Trustee. Upon any such repurchase or any substitution and the deposit to the
Collection Account of any Substitution Adjustment Amount, the Trustee shall
release the Mortgage File held for the benefit of the Certificateholders
relating to such Deleted Mortgage Loan to the Purchaser, the Depositor or the
Responsible Party, as applicable, and shall execute and deliver at the direction
of the Purchaser, the Depositor or the Responsible Party, as applicable, such
instruments of transfer or assignment prepared by the Purchaser, the Depositor
or the Responsible Party, as applicable, in each case without recourse, as shall
be necessary to vest title in the Purchaser, the Depositor or the Responsible
Party, as applicable, or their respective designees, the Trustee's interest in
any Deleted Mortgage Loan repurchased or substituted for pursuant to this
Section 2.03.
(f) [Reserved].
(g) For any month in which the Purchaser or the Depositor, as
applicable, substitutes one or more Substitute Mortgage Loans for one or more
Deleted Mortgage Loans, the Servicer will determine the amount (if any) by which
the aggregate unpaid principal balance of all such Substitute Mortgage Loans as
of the date of substitution is less than the aggregate Stated Principal Balance
of all such Deleted Mortgage Loans (after application of the scheduled principal
portion of the Scheduled Payments due in the Due Period of substitution). The
Depositor shall remit, with respect to any Mortgage Loans for which the
Depositor is making a substitution, or shall use reasonable efforts to cause the
Purchaser to remit to the Servicer for deposit into the Collection Account on or
before the next Remittance Date any Substitution Adjustment Amount.
(h) In the event that a Mortgage Loan shall have been repurchased
pursuant to Section 2.07 or the Responsible Party Agreements, the proceeds from
such repurchase shall be deposited in the Collection Account by the Servicer
pursuant to Section 3.10 on or before the next Remittance Date and upon such
deposit of the Repurchase Price, and receipt of a Request for Release in the
form of Exhibit K hereto, the Trustee shall release the related Custodial File
held for the benefit of the Certificateholders to such Person as directed by the
Servicer, and the Trustee shall execute and deliver at such Person's direction
such instruments of transfer or assignment prepared by such Person, in each case
without recourse, as shall be necessary to transfer title from the Trustee. It
is understood and agreed that the obligation under this Agreement of any Person
to cure, repurchase or replace any Mortgage Loan as to which a breach has
occurred and is continuing, together with any related indemnification
obligations, shall constitute the sole remedy against such Persons respecting
such breach available to Certificateholders, the Depositor, the Servicer or the
Trustee on their behalf.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Custodial Files to the Trustee for
the benefit of the Certificateholders.
Section 2.04 [Reserved]
Section 2.05 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, has executed and delivered to or
upon the order of the Depositor, the Certificates in authorized denominations
evidencing directly or indirectly the entire ownership of the Trust Fund. The
Trustee agrees to hold the Trust Fund and exercise the rights referred to above
for the benefit of all present and future Holders of the Certificates.
Section 2.06 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
The "Start-up Day" for purposes of the REMIC Provisions shall be the Closing
Date. The "latest possible maturity date" is the Distribution Date in April
2035, which is the Distribution Date in the month following the month in which
the latest maturity date of any Mortgage Loan occurs. Amounts distributable to
the Class X Certificates (prior to any reduction for any Basis Risk Payment),
exclusive of any amounts received from the Swap Provider, shall be deemed paid
from the Upper-Tier REMIC in respect of the Class X Interest to the Holders of
the Class X Certificates prior to distribution of any Basis Risk Payments to the
LIBOR Certificates.
For federal income tax purposes, any amount distributed on the LIBOR
Certificates on any Distribution Date in excess of the amount distributable on
their Corresponding Class of Upper-Tier Regular Interest on such Distribution
Date shall be treated as having been paid from the Excess Reserve Fund Account
or the Supplemental Interest Trust, as applicable, and any amount distributable
on such Corresponding Class of Upper-Tier Regular Interest on such Distribution
Date in excess of the amount distributable on the Corresponding Class of LIBOR
Certificates on such Distribution Date shall be treated as having been paid to
the Supplemental Interest Trust, all pursuant to and as further provided in
Section 8.13.
Section 2.07 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Trustee and the
Servicer that as of the date of this Agreement or as of such date specifically
provided herein:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to convey
the Mortgage Loans and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite corporate action having been
taken, and, assuming the due authorization, execution and delivery hereof by the
Servicer and the Trustee, constitutes or will constitute the legal, valid and
binding agreement of the Depositor, enforceable against the Depositor in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(d) No consent, approval, authorization or order of or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been made on or prior to the
Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of trust, contract
or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound; (ii)
results or will result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Depositor of any court or governmental
authority having jurisdiction over the Depositor or its subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or encumbrance which
would have a material adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of each Mortgage Note and each
Mortgage as and in the manner contemplated by this Agreement is sufficient
either (i) fully to transfer to the Trustee, for the benefit of the
Certificateholders, all right, title, and interest of the Depositor thereto as
note holder and mortgagee or (ii) to grant to the Trustee, for the benefit of
the Certificateholders, the security interest referred to in Section 10.04.
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.07 shall survive delivery of the
respective Custodial Files to the Trustee and shall inure to the benefit of the
Trustee.
Within 30 days of the earlier of either discovery by or notice to
the Depositor of a breach of the representations and warranties set forth in
clause (h) above that materially and adversely affects the value of any Mortgage
Loan or the interest of the Trustee or the Certificateholders therein, the
Depositor shall use its best efforts to promptly cure such breach in all
material respects and if such defect or breach cannot be remedied, the Depositor
shall repurchase such Mortgage Loan at the Repurchase Price or substitute a
Substitute Mortgage manner as set forth in Section 2.03. The obligations of the
Depositor to cure such breach or to repurchase or replace any Mortgage Loan
constitute the sole remedies respecting a material breach of any such
representation or warranty to the Holders of the Certificates and the Trustee.
Section 2.08 Enforcement of Purchaser and Responsible Party
Obligations. Upon discovery by any of the parties hereto of a breach of a
representation or warranty made by the Purchaser or Responsible Party pursuant
to the Responsible Party Agreements, the party discovering such breach shall
give prompt written notice thereof to the other parties to this Agreement and
the Responsible Party. The Trustee shall take such action, with the Depositor's
consent, with respect to such breach under the Responsible Party Agreements as
may be necessary or appropriate to enforce the rights of the Trust with respect
thereto.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans. (a) For and on
behalf of the Certificateholders, the Servicer shall service and administer the
Mortgage Loans in accordance with the terms of this Agreement and the respective
Mortgage Loans, to the extent consistent with such terms, in compliance with all
applicable federal, state and local laws, and in the same manner in which it
services and administers similar mortgage loans for its own portfolio, giving
due consideration to customary and usual standards of practice of mortgage
lenders and loan servicers administering similar mortgage loans but without
regard to:
(i) any relationship that the Servicer, any Subservicer or any
Affiliate of the Servicer or any Subservicer may have with the related
Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the
Servicer or any Affiliate of the Servicer;
(iii) the Servicer's obligation to make P&I Advances or Servicing
Advances; or
(iv) the Servicer's or any Subservicer's right to receive
compensation for its services hereunder or with respect to any particular
transaction.
To the extent consistent with the foregoing, the Servicer shall seek
to maximize the timely and complete recovery of principal and interest on the
Mortgage Notes. Subject only to the above-described servicing standards and the
terms of this Agreement and of the respective Mortgage Loans, the Servicer shall
have full power and authority, acting alone or through Subservicers as provided
in Section 3.02, to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, the Servicer in its own name
or in the name of a Subservicer is hereby authorized and empowered by the
Trustee when the Servicer believes it appropriate in its best judgment in
accordance with Accepted Servicing Practices, to execute and deliver any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Mortgage
Loans and the Mortgaged Properties and to institute foreclosure proceedings or
obtain a deed-in-lieu of foreclosure so as to convert the ownership of such
properties, and to hold or cause to be held title to such properties, on behalf
of the Trustee and in the name of the Trust. The Servicer shall service and
administer the Mortgage Loans in accordance with applicable state and federal
law and shall provide to the Mortgagors any reports required to be provided to
them thereby. The Servicer shall also comply in the performance of this
Agreement with all reasonable rules and requirements of each insurer under any
standard hazard insurance policy. Subject to Section 3.16, the Trustee shall
execute, at the written request of the Servicer, and furnish to the Servicer and
any Subservicer such documents as are necessary or appropriate to enable the
Servicer or any Subservicer to carry out their servicing and administrative
duties hereunder, and the Trustee hereby grants to the Servicer, and this
Agreement shall constitute, a power of attorney to carry out such duties
including a power of attorney to take title to Mortgaged Properties after
foreclosure on behalf of the Trustee and in the name of the Trust. The Trustee
shall execute any power of attorney furnished to it by the Servicer in favor of
the Servicer for the purposes described herein to the extent necessary or
desirable to enable the Servicer to perform its duties hereunder. The Trustee
shall not be liable for the actions of the Servicer or any Subservicers under
such powers of attorney.
(b) Subject to Section 3.09(b), in accordance with the standards of
the preceding paragraph, the Servicer shall advance or cause to be advanced
funds as necessary for the purpose of effecting the timely payment of taxes and
assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09(b), and further as provided in Section 3.11.
Any cost incurred by the Servicer or by Subservicers in effecting the timely
payment of taxes and assessments on a Mortgaged Property shall not be added to
the unpaid principal balance of the related Mortgage Loan, notwithstanding that
the terms of such Mortgage Loan so permit.
(c) Notwithstanding anything in this Agreement to the contrary, the
Servicer may not make any future advances with respect to a Mortgage Loan
(except as provided in Section 4.01) and the Servicer shall not (i) permit any
modification with respect to any Mortgage Loan that would change the Mortgage
Interest Rate, reduce or increase the principal balance (except for reductions
resulting from actual payments of principal) or change the final maturity date
on such Mortgage Loan (except for (A) a reduction of interest payments resulting
from the application of the Servicemembers Civil Relief Act or any similar state
statutes or (B) as provided in Section 3.07, if the Mortgagor is in default with
respect to the Mortgage Loan or such default is, in the judgment of the
Servicer, reasonably foreseeable) or (ii) permit any modification, waiver or
amendment of any term of any Mortgage Loan that would both (A) effect an
exchange or reissuance of such Mortgage Loan under Section 1001 of the Code (or
final, temporary or proposed Treasury regulations promulgated thereunder) and
(B) cause any Trust REMIC to fail to qualify as a REMIC under the Code or the
imposition of any tax on "prohibited transactions" or "contributions after the
start-up day" under the REMIC Provisions, or (iii) except as provided in Section
3.07(a), waive any Prepayment Premiums.
(d) The Servicer may delegate its responsibilities under this
Agreement; provided, however, that no such delegation shall release the Servicer
from the responsibilities or liabilities arising under this Agreement.
Section 3.02 Subservicing Agreements between the Servicer and
Subservicer. (a) The Servicer may enter into subservicing agreements with
subservicers (each, a "Subservicer"), for the servicing and administration of
the Mortgage Loans ("Subservicing Agreements").
(b) Each Subservicer shall be (i) authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to enable the
Subservicer to perform its obligations hereunder and under the Subservicing
Agreement, (ii) an institution approved as a mortgage loan originator by the
Federal Housing Administration or an institution that has deposit accounts
insured by the FDIC and (iii) a Xxxxxxx Mac or Xxxxxx Mae approved mortgage
servicer. Each Subservicing Agreement must impose on the Subservicer
requirements conforming to the provisions set forth in Section 3.08 and provide
for servicing of the Mortgage Loans consistent with the terms of this Agreement.
The Servicer will examine each Subservicing Agreement and will be familiar with
the terms thereof. The terms of any Subservicing Agreement will not be
inconsistent with any of the provisions of this Agreement. The Servicer and the
Subservicers may enter into and make amendments to the Subservicing Agreements
or enter into different forms of Subservicing Agreements; provided, however,
that any such amendments or different forms shall be consistent with and not
violate the provisions of this Agreement, and that no such amendment or
different form shall be made or entered into which could be reasonably expected
to be materially adverse to the interests of the Trustee, without the consent of
the Trustee. Any variation without the consent of the Trustee from the
provisions set forth in Section 3.08 relating to insurance or priority
requirements of Subservicing Accounts, or credits and charges to the
Subservicing Accounts or the timing and amount of remittances by the
Subservicers to the Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. The Servicer shall deliver to the
Trustee and the Depositor copies of all Subservicing Agreements, and any
amendments or modifications thereof, promptly upon the Servicer's execution and
delivery of such instruments.
(c) As part of its servicing activities hereunder, the Servicer
(except as otherwise provided in the last sentence of this paragraph), for the
benefit of the Trustee, shall enforce the obligations of each Subservicer under
the related Subservicing Agreement, including, without limitation, any
obligation to make advances in respect of delinquent payments as required by a
Subservicing Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Subservicing Agreements, and the
pursuit of other appropriate remedies, shall be in such form and carried out to
such an extent and at such time as the Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
Servicer shall pay the costs of such enforcement at its own expense, and shall
be reimbursed therefor only (i) from a general recovery resulting from such
enforcement, to the extent, if any, that such recovery exceeds all amounts due
in respect of the related Mortgage Loans or (ii) from a specific recovery of
costs, expenses or attorneys' fees against the party against whom such
enforcement is directed.
Section 3.03 Successor Subservicers. The Servicer shall be entitled
to terminate any Subservicing Agreement and the rights and obligations of any
Subservicer pursuant to any Subservicing Agreement in accordance with the terms
and conditions of such Subservicing Agreement. In the event of termination of
any Subservicer, all servicing obligations of such Subservicer shall be assumed
simultaneously by the Servicer without any act or deed on the part of such
Subservicer or the Servicer, and the Servicer either shall service directly the
related Mortgage Loans or shall enter into a Subservicing Agreement with a
successor Subservicer which qualifies under Section 3.02.
Any Subservicing Agreement shall include the provision that such
agreement may be immediately terminated by the Depositor or the Trustee without
fee, in accordance with the terms of this Agreement, in the event that the
Servicer shall, for any reason, no longer be the Servicer (including termination
due to an Event of Default).
Section 3.04 Liability of the Servicer. Notwithstanding any
Subservicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a Subservicer or reference
to actions taken through a Subservicer or otherwise, the Servicer shall remain
obligated and primarily liable to the Trustee for the servicing and
administering of the Mortgage Loans in accordance with the provisions of Section
3.01 without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering such Mortgage Loans. The
Servicer shall be entitled to enter into any agreement with a Subservicer for
indemnification of the Servicer by such Subservicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
Section 3.05 No Contractual Relationship between Subservicers and
the Trustee. Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to be between the Subservicer and the
Servicer alone, and the Trustee (or any successor Servicer) shall not be deemed
a party thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Subservicer except as set forth in Section 3.06.
The Servicer shall be solely liable for all fees owed by it to any Subservicer,
irrespective of whether the Servicer's compensation pursuant to this Agreement
is sufficient to pay such fees.
Section 3.06 Assumption or Termination of Subservicing Agreements by
Trustee. In the event the Servicer at any time shall for any reason no longer be
the Servicer (including by reason of the occurrence of an Event of Default), the
Trustee, or its designee, or the successor Servicer if the successor Servicer is
not the Trustee, shall thereupon assume all of the rights and obligations of the
Servicer under each Subservicing Agreement that the Servicer may have entered
into, with copies thereof provided to the Trustee prior to the Trustee assuming
such rights and obligations, unless the Trustee elects to terminate any
Subservicing Agreement in accordance with its terms as provided in Section 3.03.
Upon such assumption, the Trustee, its designee or the successor
servicer shall be deemed, subject to Section 3.03, to have assumed all of the
Servicer's interest therein and to have replaced the Servicer as a party to each
Subservicing Agreement to the same extent as if each Subservicing Agreement had
been assigned to the assuming party, except that (i) the Servicer shall not
thereby be relieved of any liability or obligations under any Subservicing
Agreement that arose before it ceased to be the Servicer and (ii) none of the
Depositor, the Trustee, their designees or any successor Servicer shall be
deemed to have assumed any liability or obligation of the Servicer that arose
before it ceased to be the Servicer.
The Servicer at its expense shall, upon request of the Trustee,
deliver to the assuming party all documents and records relating to each
Subservicing Agreement and the Mortgage Loans then being serviced and an
accounting of amounts collected and held by or on behalf of it, and otherwise
use its best efforts to effect the orderly and efficient transfer of the
Subservicing Agreements to the assuming party.
Section 3.07 Collection of Certain Mortgage Loan Payments. (a) The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable Insurance Policies, follow such collection procedures as it
would follow with respect to mortgage loans comparable to the Mortgage Loans and
held for its own account. Consistent with the foregoing and Accepted Servicing
Practices, the Servicer may (i) waive any late payment charge or, if applicable,
any penalty interest, or (ii) extend the due dates for the Scheduled Payments
due on a Mortgage Note for a period of not greater than 180 days; provided, that
any extension pursuant to clause (ii) above shall not affect the amortization
schedule of any Mortgage Loan for purposes of any computation hereunder, except
as provided below. In the event of any such arrangement pursuant to clause (ii)
above, the Servicer shall make timely advances on such Mortgage Loan during such
extension pursuant to Section 4.01 and in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangements, subject to Section 4.01(d) pursuant to which the Servicer shall
not be required to make any such advances that are Nonrecoverable P&I Advances.
Notwithstanding the foregoing, in the event that any Mortgage Loan is in default
or in the judgment of the Servicer, such default is reasonably foreseeable, the
Servicer, consistent with the standards set forth in Section 3.01, may also
waive, modify or vary any term of such Mortgage Loan (including modifications
that would change the Mortgage Interest Rate, forgive the payment of principal
or interest, extend the final maturity date of such Mortgage Loan or waive, in
whole or in part, a Prepayment Premium), accept payment from the related
Mortgagor of an amount less than the Stated Principal Balance in final
satisfaction of such Mortgage Loan, or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor
(any and all such waivers, modifications, variances, forgiveness of principal or
interest, postponements, or indulgences collectively referred to herein as
"Forbearance"); provided, however, that the Servicer's approval of a
modification of a Due Date shall not be considered a modification for purposes
of this sentence; provided, further, that the final maturity date of any
Mortgage Loan may not be extended beyond the Final Scheduled Distribution Date
for the Certificates. The Servicer's analysis supporting any Forbearance and the
conclusion that any Forbearance meets the standards of Section 3.01 shall be
reflected in writing in the Servicing File or on the Servicer's servicing
records. In addition, notwithstanding the foregoing, the Servicer may also waive
(or permit a Subservicer to waive), in whole or in part, a Prepayment Premium if
such waiver would, in the Servicer's judgment, maximize recoveries on the
related Mortgage Loan or the Prepayment Premium is (i) not permitted to be
collected by applicable law, or the collection of the Prepayment Premium would
be considered "predatory" pursuant to written guidance published by any
applicable federal, state or local regulatory authority having jurisdiction over
such matters, or (ii) the enforceability of such Prepayment Premium is limited
(x) by bankruptcy, insolvency, moratorium, receivership or other similar laws
relating to creditors' rights or (y) due to acceleration in connection with a
foreclosure or other involuntary payment. If a Prepayment Premium is waived
other than as permitted in this Section 3.07(a), then the Servicer is required
to pay the amount of such waived Prepayment Premium, for the benefit of the
Holders of the Class P Certificates, by depositing such amount into the
Collection Account together with and at the time that the amount prepaid on the
related Mortgage Loan is required to be deposited into the Collection Account;
provided, however, that the Servicer shall not have an obligation to pay the
amount of any uncollected Prepayment Premium if the failure to collect such
amount is the direct result of inaccurate or incomplete information on the
Mortgage Loan Schedule in effect at such time.
(b) The Servicer shall give notice to the Trustee, each Rating
Agency and the Depositor of any proposed change of the location of the
Collection Account within a reasonable period of time prior to any change
thereof.
Section 3.08 Subservicing Accounts. In those cases where a
Subservicer is servicing a Mortgage Loan pursuant to a Subservicing Agreement,
the Subservicer will be required to establish and maintain one or more accounts
(collectively, the "Subservicing Account"). The Subservicing Account shall be an
Eligible Account and shall otherwise be acceptable to the Servicer. The
Subservicer shall deposit in the clearing account (which account must be an
Eligible Account) in which it customarily deposits payments and collections on
mortgage loans in connection with its mortgage loan servicing activities on a
daily basis, and in no event more than one Business Day after the Subservicer's
receipt thereof, all proceeds of Mortgage Loans received by the Subservicer less
its servicing compensation to the extent permitted by the Subservicing
Agreement, and shall thereafter deposit such amounts in the Subservicing
Account, in no event more than two Business Days after the deposit of such funds
into the clearing account. The Subservicer shall thereafter deposit such
proceeds in the Collection Account or remit such proceeds to the Servicer for
deposit in the Collection Account not later than two Business Days after the
deposit of such amounts in the Subservicing Account. For purposes of this
Agreement, the Servicer shall be deemed to have received payments on the
Mortgage Loans when the Subservicer receives such payments.
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. (a) The Servicer shall ensure that each of the Mortgage Loans
shall be covered by a paid-in-full, life-of-the-loan tax service contract in
effect with respect to each Mortgage Loan (each, a "Tax Service Contract"). Each
Tax Service Contract shall be assigned to the Trustee, or its designee, at the
Servicer's expense in the event that the Servicer is terminated as Servicer of
the related Mortgage Loan.
(b) To the extent that the services described in this paragraph (b)
are not otherwise provided pursuant to the Tax Service Contracts described in
paragraph (a) hereof, the Servicer undertakes to perform such functions. To the
extent the related Mortgage Loan provides for Escrow Payments, the Servicer
shall establish and maintain, or cause to be established and maintained, one or
more accounts (the "Escrow Accounts"), which shall be Eligible Accounts. The
Servicer shall deposit in the clearing account (which account must be an
Eligible Account) in which it customarily deposits payments and collections on
mortgage loans in connection with its mortgage loan servicing activities on a
daily basis, and in no event more than one Business Day after the Servicer's
receipt thereof, all collections from the Mortgagors (or related advances from
Subservicers) for the payment of taxes, assessments, hazard insurance premiums
and comparable items for the account of the Mortgagors ("Escrow Payments")
collected on account of the Mortgage Loans and shall thereafter deposit such
Escrow Payments in the Escrow Accounts, in no event more than two Business Days
after the deposit of such funds in the clearing account, for the purpose of
effecting the payment of any such items as required under the terms of this
Agreement. Withdrawals of amounts from an Escrow Account may be made only to (i)
effect payment of taxes, assessments, fire and hazard insurance premiums,
condominium charges and comparable items; (ii) reimburse the Servicer (or a
Subservicer to the extent provided in the related Subservicing Agreement) out of
related collections for any advances made pursuant to Section 3.01(b) (with
respect to taxes and assessments) and Section 3.13(a) (with respect to hazard
insurance); (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) apply to the restoration or repair of the Mortgaged Property in
accordance with Section 3.13(a); (v) transfer to the Collection Account and
application to reduce the principal balance of the Mortgage Loan in accordance
with the terms of the related Mortgage and Mortgage Note; (vi) pay interest to
the Servicer and, if required and as described below, to Mortgagors on balances
in the Escrow Account; (vii) clear and terminate the Escrow Account at the
termination of the Servicer's obligations and responsibilities in respect of the
Mortgage Loans under this Agreement; or (viii) recover amounts deposited in
error or for which amounts previously deposited are returned due to a "not
sufficient funds" or other denial of payment by the related Mortgagor's banking
institution. As part of its servicing duties, the Servicer or Subservicers shall
pay to the Mortgagors interest on funds in Escrow Accounts, to the extent
required by law and, to the extent that interest earned on funds in the Escrow
Accounts is insufficient, to pay such interest from its or their own funds,
without any reimbursement therefor. To the extent that a Mortgage does not
provide for Escrow Payments, the Servicer shall use commercially reasonable
efforts consistent with Accepted Servicing Practices to determine whether any
such payments are made by the Mortgagor in a manner and at a time that avoids
the loss of the Mortgaged Property due to a tax sale or the foreclosure as a
result of a tax lien. The Servicer assumes full responsibility for the payment
of all such bills within such time and shall effect payments of all such bills
irrespective of the Mortgagor's faithful performance in the payment of same or
the making of the Escrow Payments and shall make advances from its own funds to
effect such payments; provided, however, that such advances are deemed to be
Servicing Advances.
Section 3.10 Collection Account. (a) On behalf of the Trustee, the
Servicer shall establish and maintain, or cause to be established and
maintained, one or more segregated Eligible Accounts (each such account or
accounts, a "Collection Account"), held in trust for the benefit of the Trustee.
Funds in the Collection Account shall not be commingled with any other funds of
the Servicer. On behalf of the Trustee, the Servicer shall deposit or cause to
be deposited in the clearing account (which account must be an Eligible Account)
in which it customarily deposits payments and collections on mortgage loans in
connection with its mortgage loan servicing activities on a daily basis, and in
no event more than one Business Day after the Servicer's receipt thereof, and
shall thereafter deposit in the Collection Account, in no event more than two
Business Days after the deposit of such funds into the clearing account, as and
when received or as otherwise required hereunder, the following payments and
collections received or made by it subsequent to the Cut-off Date (other than in
respect of principal or interest on the related Mortgage Loans due on or before
the Cut-off Date), or payments (other than Principal Prepayments) received by it
on or prior to the Cut-off Date but allocable to a Due Period subsequent
thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of the related
Servicing Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds and Condemnation Proceeds (to the
extent such Insurance Proceeds and Condemnation Proceeds are not to be
applied to the restoration of the related Mortgaged Property or released
to the related Mortgagor in accordance with the express requirements of
law or in accordance with prudent and customary servicing practices) and
all Liquidation Proceeds;
(iv) any amounts required to be deposited pursuant to Section
3.12(b) in connection with any losses realized on Permitted Investments
with respect to funds held in the Collection Account;
(v) any amounts required to be deposited by the Servicer pursuant to
the second paragraph of Section 3.13(a) in respect of any blanket policy
deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or purchased in
accordance with this Agreement and any Substitution Adjustment Amount; and
(vii) all Prepayment Premiums collected by the Servicer.
The foregoing requirements for deposit in the Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges, NSF
fees, reconveyance fees, assumption fees and other similar fees and charges need
not be deposited by the Servicer in the Collection Account and shall, upon
collection, belong to the Servicer as additional compensation for its servicing
activities. In the event the Servicer shall deposit in the Collection Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from the Collection Account, any provision herein to the contrary
notwithstanding.
(b) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12. The
Servicer shall give notice to the Trustee and the Depositor of the location of
the Collection Account maintained by it when established and prior to any change
thereof.
Section 3.11 Withdrawals from the Collection Account. (a) The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes or as described in Section 4.01:
(i) on or prior to the Remittance Date, to remit to the Trustee (A)
the Trustee Fee with respect to such Distribution Date and (B) all
Available Funds in respect of the related Distribution Date together with
all amounts representing Prepayment Premiums from the Mortgage Loans
received during the related Prepayment Period;
(ii) to reimburse the Servicer for P&I Advances, but only to the
extent of amounts received which represent Late Collections (net of the
related Servicing Fees) of Scheduled Payments on Mortgage Loans with
respect to which such P&I Advances were made in accordance with the
provisions of Section 4.01;
(iii) to pay the Servicer or any Subservicer (A) any unpaid
Servicing Fees or (B) any unreimbursed Servicing Advances with respect to
each Mortgage Loan, but only to the extent of any Late Collections,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or other
amounts as may be collected by the Servicer from a Mortgagor, or otherwise
received with respect to such Mortgage Loan (or the related REO Property);
(iv) to pay to the Servicer as servicing compensation (in addition
to the Servicing Fee) on the Remittance Date any interest or investment
income earned on funds deposited in the Collection Account;
(v) to pay the Purchaser, the Depositor or Responsible Party, as
applicable, with respect to each Mortgage Loan that has previously been
repurchased or replaced pursuant to this Agreement all amounts received
thereon subsequent to the date of purchase or substitution, as the case
may be;
(vi) to reimburse the Servicer for (A) any P&I Advance or Servicing
Advance previously made which the Servicer has determined to be a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance in
accordance with the provisions of Section 4.01 and (B) any unpaid
Servicing Fees to the extent not recoverable from Liquidation Proceeds,
Insurance Proceeds or other amounts received with respect to the related
Mortgage Loan under Section 3.11(a)(iii);
(vii) to pay, or to reimburse the Servicer for advances in respect
of, expenses incurred in connection with any Mortgage Loan pursuant to
Section 3.15;
(viii)to reimburse the Servicer, the Depositor or the Trustee for
expenses incurred by or reimbursable to the Servicer, the Depositor or the
Trustee, as the case may be, pursuant to Section 6.03, Section 7.02 or
Section 8.05;
(ix) to reimburse the Servicer or the Trustee, as the case may be,
for expenses reasonably incurred in respect of the breach or defect giving
rise to the repurchase obligation under Section 2.03 of this Agreement
that were included in the Repurchase Price of the Mortgage Loan, including
any expenses arising out of the enforcement of the repurchase obligation,
to the extent not otherwise paid pursuant to the terms hereof;
(x) to withdraw any amounts deposited in the Collection Account in
error or for which amounts previously deposited are returned due to a "not
sufficient funds" or other denial of payment by the related Mortgagor's
banking institution;
(xi) to withdraw any amounts held in the Collection Account and not
required to be remitted to the Trustee on the Remittance Date occurring in
the month in which such amounts are deposited into the Collection Account,
to reimburse the Servicer for xxxxxxxxxxxx X&X Advances;
(xii) to invest funds in Permitted Investments in accordance with
Section 3.12; and
(xiii)to clear and terminate the Collection Account upon termination
of this Agreement.
To the extent that the Servicer does not timely make the remittance
referred to in clause (i) above, the Servicer shall pay the Trustee for the
account of the Trustee interest on any amount not timely remitted at the prime
rate, from and including the applicable Remittance Date to but excluding the
date such remittance is actually made.
(b) The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account, to the extent held by or on behalf of
it, pursuant to subclauses (a)(ii), (iii), (iv), (v), (vi), (vii), (viii) and
(ix) above. The Servicer shall provide written notification to the Depositor, on
or prior to the next succeeding Remittance Date, upon making any withdrawals
from the Collection Account pursuant to subclause (a)(vi) above.
Section 3.12 Investment of Funds in the Collection Account and the
Distribution Account (a) The Servicer may invest the funds in the Collection
Account and the Trustee may invest funds in the Distribution Account during the
Trustee Float Period, and shall (except during the Trustee Float Period), invest
such funds in the Distribution Account at the direction of the Depositor (for
purposes of this Section 3.12, each of the Collection Account and the
Distribution Account are referred to as an "Investment Account"), in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, no later than the Business Day on which such funds are
required to be withdrawn from such account pursuant to this Agreement (except
for investments made at the Depositor's direction, which shall mature no later
than the Business Day immediately preceding the date of required withdrawal).
All such Permitted Investments shall be held to maturity, unless payable on
demand. Any investment of funds in an Investment Account shall be made in the
name of the Trustee. The Trustee shall be entitled to sole possession (except
with respect to investment direction of funds held in the related Account and
any income and gain realized thereon in any Account other than the Distribution
Account during the Trustee Float Period) over each such investment, and any
certificate or other instrument evidencing any such investment shall be
delivered directly to the Trustee or its agent, together with any document of
transfer necessary to transfer title to such investment to the Trustee. In the
event amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Trustee may:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Collection Account and Escrow Account held by or on behalf of
the Servicer, shall be for the benefit of the Servicer and shall be subject to
its withdrawal in the manner set forth in Section 3.11. Any other benefit
derived from the Collection Account and Escrow Account associated with the
receipt, disbursement and accumulation of principal, interest, taxes, hazard
insurance, mortgage blanket insurance, and like sources, shall accrue to the
benefit of the Servicer, except that the Servicer shall not realize any economic
benefit from any forced charging of services except as permitted by applicable
law. The Servicer shall deposit in the Collection Account and Escrow Account the
amount of any loss of principal incurred in respect of any such Permitted
Investment made with funds in such accounts immediately upon realization of such
loss.
(c) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Trustee, shall be for the
benefit of the Depositor (except for any income or gain realized from the
investment of funds on deposit in the Distribution Account during the Trustee
Float Period, which shall be for the benefit of the Trustee). The Depositor
shall deposit in the Distribution Account (except with respect to the Trustee
Float Period, in which case the Trustee shall so deposit) the amount of any loss
of principal incurred in respect of any such Permitted Investment made with
funds in such accounts immediately upon realization of such loss.
(d) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings.
(e) The Trustee or its Affiliates are permitted to receive
additional compensation that could be deemed to be in the Trustee's economic
self-interest for (i) serving as investment adviser, administrator, shareholder
or servicing agent with respect to certain of the Permitted Investments, (ii)
using Affiliates to effect transactions in certain Permitted Investments and
(iii) effecting transactions in certain Permitted Investments.
(f) The Trustee shall not be liable for the amount of any loss
incurred with respect of any investment (except that during the Trustee Float
Period, it will be responsible for reimbursing the Trust for such loss) or lack
of investment of funds held in any Investment Account or the Distribution
Account if made in accordance with this Section 3.12.
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions
and Fidelity Coverage (a) The Servicer shall cause to be maintained for each
Mortgage Loan fire insurance with extended coverage on the related Mortgaged
Property in an amount which is at least equal to the least of (i) the
outstanding principal balance of such Mortgage Loan, (ii) the amount necessary
to fully compensate for any damage or loss to the improvements that are a part
of such property on a replacement cost basis, (iii) the maximum insurable value
of the improvements which are a part of such Mortgaged Property, and (iv) the
amount determined by applicable federal or state law, in each case in an amount
not less than such amount as is necessary to avoid the application of any
coinsurance clause contained in the related hazard insurance policy. The
Servicer shall also cause to be maintained fire insurance with extended coverage
on each REO Property in an amount which is at least equal to the lesser of (i)
the maximum insurable value of the improvements which are a part of such
property and (ii) the outstanding principal balance of the related Mortgage Loan
at the time it became an REO Property, plus accrued interest at the Mortgage
Interest Rate and related Servicing Advances. The Servicer will comply in the
performance of this Agreement with all reasonable rules and requirements of each
insurer under any such hazard policies. Any amounts to be collected by the
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the property subject to the related Mortgage or amounts
to be released to the Mortgagor in accordance with the procedures that the
Servicer would follow in servicing loans held for its own account, subject to
the terms and conditions of the related Mortgage and Mortgage Note) shall be
deposited in the Collection Account, subject to withdrawal pursuant to Section
3.11. If the Mortgagor fails to provide Mortgage Loan hazard insurance coverage
after thirty (30) days of the Servicer's written notification, the Servicer
shall put in place such hazard insurance coverage on the Mortgagor's behalf. Any
out-of-pocket expense or advance made by the Servicer on such force placed
hazard insurance coverage shall be deemed a Servicing Advance. Any cost incurred
by the Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to the Trustee, be added to the unpaid principal
balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit. It is understood and agreed that no earthquake or other
additional insurance is to be required of any Mortgagor other than pursuant to
such applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance. If the Mortgaged Property or REO
Property is at any time in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards and flood
insurance has been made available, the Servicer will cause to be maintained a
flood insurance policy in respect thereof. Such flood insurance shall be in an
amount equal to the lesser of (i) the minimum amount required, under the terms
of coverage, to compensate for any damage or loss on a replacement cost basis
(or the unpaid principal balance of the related Mortgage Loan if replacement
cost coverage is not available for the type of building insured) and (ii) the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. If at any time during the term of the
Mortgage Loan, the Servicer determines in accordance with applicable law and
pursuant to the Federal Emergency Management Agency Guides that a Mortgaged
Property is located in a special flood hazard area and is not covered by flood
insurance or is covered in an amount less than the amount required by the Flood
Disaster Protection Act of 1973, as amended, the Servicer shall notify the
related Mortgagor to obtain such flood insurance coverage, and if said Mortgagor
fails to obtain the required flood insurance coverage within forty-five (45)
days after such notification, the Servicer shall immediately force place the
required flood insurance on the Mortgagor's behalf. Any out-of-pocket expense or
advance made by the Servicer on such force placed flood insurance coverage shall
be deemed a Servicing Advance.
In the event that the Servicer shall obtain and maintain a blanket
policy with an insurer either (i) acceptable to Xxxxxx Xxx or Xxxxxxx Mac, or
(ii) having a General Policy Rating of A:12 or better in Best's (or such other
rating that is comparable to such rating) insuring against hazard losses on all
of the Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first two sentences of this Section 3.13, it
being understood and agreed that such policy may contain a deductible clause, in
which case the Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property a policy complying
with the first two sentences of this Section 3.13, and there shall have been one
or more losses which would have been covered by such policy, deposit to the
Collection Account from its own funds the amount not otherwise payable under the
blanket policy because of such deductible clause. In connection with its
activities as administrator and servicer of the Mortgage Loans, the Servicer
agrees to prepare and present, on behalf of itself, the Trustee claims under any
such blanket policy in a timely fashion in accordance with the terms of such
policy.
(b) The Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of the Servicer's obligations under this Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of Xxxxxx Mae or Xxxxxxx Mac if it were the purchaser of the
Mortgage Loans, unless the Servicer has obtained a waiver of such requirements
from Xxxxxx Mae or Xxxxxxx Mac. The Servicer shall also maintain a fidelity bond
in the form and amount that would meet the requirements of Xxxxxx Mae or Xxxxxxx
Mac, unless the Servicer has obtained a waiver of such requirements from Xxxxxx
Mae or Xxxxxxx Mac. The Servicer shall provide the Trustee upon request with
copies of any such insurance policies and fidelity bond. The Servicer shall be
deemed to have complied with this provision if an Affiliate of the Servicer has
such errors and omissions and fidelity bond coverage and, by the terms of such
insurance policy or fidelity bond, the coverage afforded thereunder extends to
the Servicer. Any such errors and omissions policy and fidelity bond shall by
its terms not be cancelable without thirty days' prior written notice to the
Trustee. The Servicer shall also cause each Subservicer to maintain a policy of
insurance covering errors and omissions and a fidelity bond which would meet
such requirements.
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption
Agreements. The Servicer will, to the extent it has knowledge of any conveyance
or prospective conveyance of any Mortgaged Property by any Mortgagor (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause, if any, applicable thereto; provided, however, that the
Servicer shall not be required to take such action if, in its sole business
judgment, the Servicer believes it is not in the best interests of the Trust
Fund and shall not exercise any such rights if prohibited by law from doing so.
If the Servicer reasonably believes it is unable under applicable law to enforce
such "due-on-sale" clause or if any of the other conditions set forth in the
proviso to the preceding sentence apply, the Servicer will enter into an
assumption and modification agreement from or with the person to whom such
property has been conveyed or is proposed to be conveyed, pursuant to which such
person becomes liable under the Mortgage Note, and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. The Servicer is also
authorized to enter into a substitution of liability agreement with such person,
pursuant to which the original Mortgagor is released from liability and such
person is substituted as the Mortgagor and becomes liable under the Mortgage
Note; provided, that no such substitution shall be effective unless such person
satisfies the underwriting criteria of the Servicer and such substitution is in
the best interest of the Certificateholders as determined by the Servicer. In
connection with any assumption, modification or substitution, the Servicer shall
apply such underwriting standards and follow such practices and procedures as
shall be normal and usual in its general mortgage servicing activities and as it
applies to other mortgage loans owned solely by it. The Servicer shall not take
or enter into any assumption and modification agreement, however, unless (to the
extent practicable in the circumstances) it shall have received confirmation, in
writing, of the continued effectiveness of any applicable hazard insurance
policy, or a new policy meeting the requirements of this Section is obtained.
Any fee collected by the Servicer in respect of an assumption or substitution of
liability agreement will be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, no material term of the
Mortgage Note (including but not limited to the related Mortgage Interest Rate
and the amount of the Scheduled Payment) may be amended or modified, except as
otherwise required pursuant to the terms thereof. The Servicer shall notify the
Trustee that any such substitution, modification or assumption agreement has
been completed by forwarding to the Trustee the executed original of such
substitution or assumption agreement, which document shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of
this Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Mortgage Loan by operation of law or by the terms of the Mortgage Note or any
assumption which the Servicer may be restricted by law from preventing, for any
reason whatsoever. For purposes of this Section 3.14, the term "assumption" is
deemed to also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
Section 3.15 Realization upon Defaulted Mortgage Loans. The Servicer
shall use its best efforts, consistent with Accepted Servicing Practices, to
foreclose upon or otherwise comparably convert (which may include an acquisition
of REO Property) the ownership of properties securing such of the Mortgage Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.07, and which are not released from this Agreement pursuant to any
other provision hereof. The Servicer shall use reasonable efforts to realize
upon such defaulted Mortgage Loans in such manner as will maximize the receipt
of principal and interest by the Trustee, taking into account, among other
things, the timing of foreclosure proceedings. The foregoing is subject to the
provisions that, in any case in which a Mortgaged Property shall have suffered
damage from an uninsured cause, the Servicer shall not be required to expend its
own funds toward the restoration of such property unless it shall determine in
its sole discretion (i) that such restoration will increase the net proceeds of
liquidation of the related Mortgage Loan to the Trustee, after reimbursement to
itself for such expenses, and (ii) that such expenses will be recoverable by the
Servicer through Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds from the related Mortgaged Property, as contemplated in Section 3.11.
The Servicer shall be responsible for all other costs and expenses incurred by
it in any such proceedings; provided, however, that it shall be entitled to
reimbursement thereof from the related property, as contemplated in Section
3.11.
The proceeds of any Liquidation Event or REO Disposition, as well as
any recovery resulting from a partial collection of Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds or any income from an REO
Property, will be applied in the following order of priority: first, to
reimburse the Servicer or any Subservicer for any related unreimbursed Servicing
Advances, pursuant to Section 3.11 or 3.17; second, to reimburse the Servicer
for any xxxxxxxxxxxx X&X Advances, pursuant to Section 3.11; third, to accrued
and unpaid interest on the Mortgage Loan or REO Imputed Interest, at the
Mortgage Interest Rate, to the date of the liquidation or REO Disposition, or to
the Due Date prior to the Remittance Date on which such amounts are to be
distributed if not in connection with a Liquidation Event or REO Disposition;
and fourth, as a recovery of principal of the Mortgage Loan. If the amount of
the recovery so allocated to interest is less than a full recovery thereof, that
amount will be allocated as follows: first, to unpaid Servicing Fees; and
second, as interest at the Mortgage Interest Rate (net of the Servicing Fee
Rate). The portion of the recovery so allocated to unpaid Servicing Fees shall
be reimbursed to the Servicer or any Subservicer pursuant to Section 3.11 or
3.17. The portions of the recovery so allocated to interest at the Mortgage
Interest Rate (net of the Servicing Fee Rate) and to principal of the Mortgage
Loan shall be applied as follows: first, to reimburse the Servicer or any
Subservicer for any related unreimbursed Servicing Advances in accordance with
Section 3.11 or 3.17, and second, to the Trustee in accordance with the
provisions of Section 4.02, subject to the last paragraph of Section 3.17 with
respect to certain excess recoveries from an REO Disposition.
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure, in
the event the Servicer has received actual notice of, or has actual knowledge of
the presence of, hazardous or toxic substances or wastes on the related
Mortgaged Property, or if the Trustee otherwise requests, the Servicer shall
cause an environmental inspection or review of such Mortgaged Property to be
conducted by a qualified inspector. Upon completion of the inspection, the
Servicer shall promptly provide the Trustee and the Depositor, with a written
report of the environmental inspection.
After reviewing the environmental inspection report, the Servicer
shall determine consistent with Accepted Servicing Practices how to proceed with
respect to the Mortgaged Property. In the event (a) the environmental inspection
report indicates that the Mortgaged Property is contaminated by hazardous or
toxic substances or wastes and (b) the Servicer determines, consistent with
Accepted Servicing Practices, to proceed with foreclosure or acceptance of a
deed in lieu of foreclosure, the Servicer shall be reimbursed for all reasonable
costs associated with such foreclosure or acceptance of a deed in lieu of
foreclosure and any related environmental clean-up costs, as applicable, from
the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse the Servicer, the Servicer shall be entitled to
be reimbursed from amounts in the Collection Account pursuant to Section 3.11.
In the event the Servicer determines not to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, the Servicer shall be reimbursed
from general collections for all Servicing Advances made with respect to the
related Mortgaged Property from the Collection Account pursuant to Section 3.11.
The Trustee shall not be responsible for any determination made by the Servicer
pursuant to this paragraph or otherwise.
Section 3.16 Release of Mortgage Files. (a) Upon the payment in full
of any Mortgage Loan, or the receipt by the Servicer of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Servicer will, within five (5) Business Days of the payment in full, notify the
Trustee by a certification (which certification shall include a statement to the
effect that all amounts received or to be received in connection with such
payment which are required to be deposited in the Collection Account pursuant to
Section 3.10 have been or will be so deposited) of a Servicing Officer and shall
request delivery to it of the Custodial File by completing a Request for Release
to the Trustee. Upon receipt of such certification and Request for Release, the
Trustee shall promptly release the related Custodial File to the Servicer within
three (3) Business Days. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Collection
Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any insurance policy relating to the Mortgage Loans, the Trustee shall, upon
request of the Servicer and delivery to the Trustee of a Request for Release,
release the related Custodial File to the Servicer, and the Trustee shall, at
the direction of the Servicer, execute such documents provided to it as shall be
necessary to the prosecution of any such proceedings and the Servicer shall
retain the Mortgage File in trust for the benefit of the Trustee. Such Request
for Release shall obligate the Servicer to return each and every document
previously requested from the Custodial File to the Trustee when the need
therefor by the Servicer no longer exists, unless the Mortgage Loan has been
liquidated and the Liquidation Proceeds relating to the Mortgage Loan have been
deposited in the Collection Account or the Mortgage File or such document has
been delivered to an attorney, or to a public trustee or other public official
as required by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially or
non-judicially, and the Servicer has delivered to the Trustee a certificate of a
Servicing Officer certifying as to the name and address of the Person to which
such Mortgage File or such document was delivered and the purpose or purposes of
such delivery. Upon receipt of a certificate of a Servicing Officer stating that
such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the Collection Account have been so deposited, or that such Mortgage Loan
has become an REO Property, a copy of the Request for Release shall be released
by the Trustee to the Servicer or its designee. Upon receipt of a Request for
Release under this Section 3.16, the Trustee shall deliver the related Custodial
File to the Servicer by regular mail, unless the Servicer requests that the
Trustee deliver such Custodial File to the Servicer by overnight courier (in
which case such delivery shall be at the Servicer's expense); provided, however,
that in the event the Servicer has not previously received copies of the
relevant Mortgage Loan Documents necessary to service the related Mortgage Loan
in accordance with Accepted Servicing Practices, the Depositor shall use
reasonable efforts to cause the Responsible Party to reimburse the Servicer for
any overnight courier charges incurred for the requested Custodial Files.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Servicer copies of any court pleadings, requests for
trustee's sale or other documents reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Mortgagor on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity, or shall exercise and deliver to the Servicer a power of attorney
sufficient to authorize the Servicer to execute such documents on its behalf.
Each such certification shall include a request that such pleadings or documents
be executed by the Trustee and a statement as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
Section 3.17 Title, Conservation and Disposition of REO Property.
(a) This Section shall apply only to REO Properties acquired for the account of
the Trustee and shall not apply to any REO Property relating to a Mortgage Loan
which was purchased or repurchased from the Trustee pursuant to any provision
hereof. In the event that title to any such REO Property is acquired, the
Servicer shall cause the deed or certificate of sale to be issued in the name of
the Trustee, on behalf of the Certificateholders, or the Trustee's nominee.
(b) The Servicer shall manage, conserve, protect and operate each
REO Property for the Trustee solely for the purpose of its prompt disposition
and sale. The Servicer, either itself or through an agent selected by the
Servicer, shall manage, conserve, protect and operate the REO Property in the
same manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property in
the same locality as the REO Property is managed. The Servicer shall attempt to
sell the same (and may temporarily rent the same for a period not greater than
one year, except as otherwise provided below) on such terms and conditions as
the Servicer deems to be in the best interest of the Trustee.
(c) The Servicer shall use Accepted Servicing Practices, to dispose
of the REO Property as soon as possible and shall sell such REO Property in any
event within three years after title has been taken to such REO Property, unless
the Servicer determines, and gives an appropriate notice to the Trustee to such
effect, that a longer period is necessary for the orderly liquidation of such
REO Property, so long as such extended period is within the time period
specified in Section 3.17(h). Subject to Section 3.17(h), if a period longer
than three years is permitted under the foregoing sentence and is necessary to
sell any REO Property, the Servicer shall report monthly to the Trustee as to
the progress being made in selling such REO Property. The Trustee has no
obligation with respect to REO Dispositions.
(d) The Servicer shall segregate and hold all funds collected and
received in connection with the operation of any REO Property separate and apart
from its own funds and general assets and shall deposit such funds in the
Collection Account.
(e) The Servicer shall deposit net of reimbursement to the Servicer
for any related outstanding Servicing Advances and unpaid Servicing Fees
provided in Section 3.11, or cause to be deposited, on a daily basis in the
Collection Account all revenues received with respect to the related REO
Property and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of the REO Property.
(f) The Servicer, upon an REO Disposition, shall be entitled to
reimbursement for any related unreimbursed Servicing Advances as well as any
unpaid Servicing Fees from proceeds received in connection with the REO
Disposition, as further provided in Section 3.11. (g) Any net proceeds from an
REO Disposition which are in excess of the unpaid principal balance of the
related Mortgage Loan plus all unpaid REO Imputed Interest thereon through the
date of the REO Disposition shall be retained by the Servicer as additional
servicing compensation.
(h) The Servicer shall use Accepted Servicing Practices, to sell, or
cause the Subservicer to sell, in accordance with Accepted Servicing Practices,
any REO Property as soon as possible, but in no event later than the conclusion
of the third calendar year beginning after the year of its acquisition by the
REMIC unless (i) the Servicer applies for an extension of such period from the
Internal Revenue Service pursuant to the REMIC Provisions and Code Section
856(e)(3), in which event such REO Property shall be sold within the applicable
extension period pursuant to the requirements of Section 3.17(c), or (ii) the
Servicer obtains for the Trustee an Opinion of Counsel, addressed to the
Depositor, the Trustee and the Servicer, to the effect that the holding by the
Pooling-Tier REMIC-1 of such REO Property subsequent to such period will not
result in the imposition of taxes on "prohibited transactions" as defined in
Section 860F of the Code or cause any Trust REMIC to fail to qualify as a REMIC
under the REMIC Provisions or comparable provisions of relevant state laws at
any time. The Servicer shall manage, conserve, protect and operate each REO
Property for the Trustee solely for the purpose of its prompt disposition and
sale in a manner which does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) or result in the
receipt by the Pooling-Tier REMIC-1 of any "income from non-permitted assets"
within the meaning of Section 860F(a)(2)(B) of the Code or any "net income from
foreclosure property" which is subject to taxation under Section 860G(a)(1) of
the Code. Pursuant to its efforts to sell such REO Property, the Servicer shall
either itself or through an agent selected by the Servicer protect and conserve
such REO Property in the same manner and to such extent as is customary in the
locality where such REO Property is located and may, incident to its
conservation and protection of the interests of the Trustee on behalf of the
Certificateholders, rent the same, or any part thereof, as the Servicer deems to
be in the best interest of the Trustee on behalf of the Certificateholders for
the period prior to the sale of such REO Property; provided, however, that any
rent received or accrued with respect to such REO Property qualifies as "rents
from real property" as defined in Section 856(d) of the Code.
Section 3.18 Notification of Adjustments. With respect to each
Adjustable Rate Mortgage Loan, the Servicer shall adjust the Mortgage Interest
Rate on the related Adjustment Date and shall adjust the Scheduled Payment on
the related mortgage payment adjustment date, if applicable, in compliance with
the requirements of applicable law and the related Mortgage and Mortgage Note.
In the event that an Index becomes unavailable or otherwise unpublished, the
Servicer shall select a comparable alternative index over which it has no direct
control and which is readily verifiable. The Servicer shall execute and deliver
any and all necessary notices required under applicable law and the terms of the
related Mortgage Note and Mortgage regarding the Mortgage Interest Rate and
Scheduled Payment adjustments. The Servicer shall promptly, upon written request
therefor, deliver to the Trustee such notifications and any additional
applicable data regarding such adjustments and the methods used to calculate and
implement such adjustments. Upon the discovery by the Servicer or the receipt of
notice from the Trustee that the Servicer has failed to adjust a Mortgage
Interest Rate or Scheduled Payment in accordance with the terms of the related
Mortgage Note, the Servicer shall deposit in the Collection Account from its own
funds the amount of any interest loss caused as such interest loss occurs.
Section 3.19 Access to Certain Documentation and Information
Regarding the Mortgage Loans. The Servicer shall provide, or cause the
Subservicer to provide, to the Depositor, the Trustee, the OTS or the FDIC and
the examiners and supervisory agents thereof, access to the documentation
regarding the Mortgage Loans in its possession required by applicable
regulations of the OTS. Such access shall be afforded without charge, but only
upon 15 days' (or, if an Event of Default has occurred and is continuing, 3
Business Days') prior written request and during normal business hours at the
offices of the Servicer. Nothing in this Section shall derogate from the
obligation of such party to observe any applicable law prohibiting disclosure of
information regarding the Mortgagors and the failure of such party to provide
access as provided in this Section as a result of such obligation shall not
constitute a breach of this Section.
Nothing in this Section 3.19 shall require the Servicer to collect,
create, collate or otherwise generate any information that it does not generate
in its usual course of business. The Servicer shall not be required to make
copies of or to ship documents to any Person who is not a party to this
Agreement, and then only if provisions have been made for the reimbursement of
the costs thereof.
Section 3.20 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Trustee. The Servicer shall account fully to the
Trustee for any funds received by the Servicer or which otherwise are collected
by the Servicer as Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds in respect of any Mortgage Loan. All Mortgage Files and funds collected
or held by, or under the control of, the Servicer in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or from
Liquidation Proceeds, including, but not limited to, any funds on deposit in the
Collection Account, shall be held by the Servicer for and on behalf of the
Trustee and shall be and remain the sole and exclusive property of the Trustee,
subject to the applicable provisions of this Agreement. The Servicer also agrees
that it shall not create, incur or subject any Mortgage File or any funds that
are deposited in the Collection Account, the Distribution Account or any Escrow
Account, or any funds that otherwise are or may become due or payable to the
Trustee for the benefit of the Certificateholders, to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance, or assert by
legal action or otherwise any claim or right of setoff against any Mortgage File
or any funds collected on, or in connection with, a Mortgage Loan, except,
however, that the Servicer shall be entitled to set off against and deduct from
any such funds any amounts that are properly due and payable to the Servicer
under this Agreement.
Section 3.21 Servicing Compensation. (a) As compensation for its
activities hereunder, the Servicer shall, with respect to each Mortgage Loan, be
entitled to retain from deposits to the Collection Account and from Liquidation
Proceeds, Insurance Proceeds, and Condemnation Proceeds related to such Mortgage
Loan, the Servicing Fee with respect to each Mortgage Loan (less any portion of
such amounts retained by any Subservicer). In addition, the Servicer shall be
entitled to recover unpaid Servicing Fees out of related Late Collections and as
otherwise permitted in Section 3.11. The right to receive the Servicing Fee may
not be transferred in whole or in part except as provided in Section 10.07 or in
connection with the transfer of all of the Servicer's responsibilities and
obligations under this Agreement; provided, however, that the Servicer may pay
from the Servicing Fee any amounts due to a Subservicer pursuant to a
Subservicing Agreement entered into under Section 3.02.
(b) Additional servicing compensation in the form of assumption or
modification fees, late payment charges, NSF fees, reconveyance fees and other
similar fees and charges (other than Prepayment Premiums) shall be retained by
the Servicer only to the extent such fees or charges are received by the
Servicer. The Servicer shall also be entitled pursuant to Section 3.09(b)(vi)
and Section 3.11(a)(iv) to withdraw from the Collection Account, as additional
servicing compensation, interest or other income earned on deposits therein.
(c) The Servicer shall be required to pay all expenses incurred by
it in connection with its servicing activities hereunder (including payment of
premiums for any blanket policy insuring against hazard losses pursuant to
Section 3.13, servicing compensation of the Subservicer to the extent not
retained by it and the fees and expenses of independent accountants and any
agents appointed by the Servicer), and shall not be entitled to reimbursement
therefor except as specifically provided in Section 3.11.
Section 3.22 Annual Statement as to Compliance. The Servicer will
deliver or cause to be delivered to the Depositor, the Rating Agencies, and the
Trustee on or before March 15th of each calendar year, commencing in 2006, an
Officer's Certificate stating, as to each signatory thereof, that (i) a review
of the activities of the Servicer during the preceding calendar year and of
performance under this Agreement or a similar agreement has been made under such
officers' supervision, and (ii) to the best of such officers' knowledge, based
on such review, the Servicer has fulfilled all of its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officers and the nature and status thereof. Promptly after receipt of such
Officer's Certificate, the Depositor shall review such Officer's Certificate
and, if applicable, consult with the Servicer as to the nature of any defaults
by the Servicer in the fulfillment of any of the Servicer's obligations. The
obligations of the Servicer under this Section apply to the Servicer that
serviced during the applicable period, whether or not such Servicer is acting as
a Servicer at the time such Officer's Certificate is required to be delivered.
Section 3.23 Annual Independent Public Accountants' Servicing
Statement; Financial Statements. Not later than March 15th of each calendar year
commencing in 2006, the Servicer, at its expense, shall cause a nationally
recognized firm of independent certified public accountants to furnish to the
Depositor, the Rating Agencies, and the Trustee a report stating that (i) it has
obtained a letter of representation regarding certain matters from the
management of the Servicer which includes an assertion that the Servicer has
complied with certain minimum residential mortgage loan servicing standards,
identified in the Uniform Single Attestation Program for Mortgage Bankers
established by the Mortgage Bankers Association of America, with respect to the
servicing of residential mortgage loans during the most recently completed
calendar year and (ii) on the basis of an examination conducted by such firm in
accordance with standards established by the American Institute of Certified
Public Accountants, such representation is fairly stated in all material
respects, subject to such exceptions and other qualifications that may be
appropriate. In rendering its report such firm may rely, as to matters relating
to the direct servicing of residential mortgage loans by Subservicers, upon
comparable reports of firms of independent certified public accountants rendered
on the basis of examinations conducted in accordance with the same standards
(rendered within one year of such report) with respect to those Subservicers.
Promptly after receipt of such report, the Depositor shall review such report
and, if applicable, consult with the Servicer as to the nature of any defaults
by the Servicer in the fulfillment of any of the Servicer's obligations. The
obligations of the Servicer under this Section apply to the Servicer that
serviced during the applicable period, whether or not such Servicer is acting as
a Servicer at the time such report is required to be delivered.
Section 3.24 Trustee to Act as Servicer. (a) In the event that the
Servicer shall for any reason no longer be Servicer hereunder (including by
reason of an Event of Default), the Trustee or its successor shall, thereupon
assume all of the rights and obligations of the Servicer hereunder arising
thereafter (except that the Trustee shall not be (i) liable for losses of the
predecessor Servicer pursuant to Section 3.10 or any acts or omissions of the
predecessor Servicer hereunder, (ii) obligated to make Advances if it is
prohibited from doing so by applicable law, (iii) obligated to effectuate
repurchases or substitutions of Mortgage Loans hereunder, including but not
limited to repurchases or substitutions pursuant to Section 2.03, (iv)
responsible for expenses of the Servicer pursuant to Section 2.03 or (v) deemed
to have made any representations and warranties of the Servicer hereunder). Any
such assumption shall be subject to Section 7.02.
(b) Every Subservicing Agreement entered into by the Servicer shall
contain a provision giving the successor Servicer the option to terminate such
agreement in the event a successor Servicer is appointed.
(c) If the Servicer shall for any reason no longer be the Servicer
(including by reason of any Event of Default), the Trustee (or any other
successor Servicer) may, at its option, succeed to any rights and obligations of
the Servicer under any Subservicing Agreement in accordance with the terms
thereof; provided, that the Trustee (or any other successor Servicer) shall not
incur any liability or have any obligations in its capacity as successor
Servicer under a Subservicing Agreement arising prior to the date of such
succession unless it expressly elects to succeed to the rights and obligations
of the Servicer thereunder; and the Servicer shall not thereby be relieved of
any liability or obligations under the Subservicing Agreement arising prior to
the date of such succession.
(d) The Servicer shall, upon request of the Trustee, but at the
expense of the Servicer, deliver to the assuming party all documents and records
relating to each Subservicing Agreement (if any) and the Mortgage Loans then
being serviced thereunder and an accounting of amounts collected and held by it
and otherwise use its best efforts to effect the orderly and efficient transfer
of such Subservicing Agreement to the assuming party.
Section 3.25 Compensating Interest. The Servicer shall remit to the
Trustee on each Remittance Date an amount from its own funds equal to
Compensating Interest payable by the Servicer for such Remittance Date.
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act. (a) With
respect to each Mortgage Loan, the Servicer shall fully furnish, in accordance
with the Fair Credit Reporting Act and its implementing regulations, accurate
and complete information (e.g., favorable and unfavorable) on the related
Mortgagor credit files to Equifax, Experian and TransUnion Credit Information
Company (three of the national credit repositories), on a monthly basis.
(b) The Servicer shall comply with all provisions of the Privacy
Laws relating to the Mortgage Loans, the related borrowers and any "nonpublic
personal information" (as defined in the Privacy Laws) received by the Servicer
incidental to the performance of its obligations under this Agreement,
including, maintaining adequate information security procedures to protect such
nonpublic personal information and providing all privacy notices required by the
Privacy Laws.
Section 3.27 Excess Reserve Fund Account; Distribution Account. (a)
The Trustee shall establish and maintain the Excess Reserve Fund Account, on
behalf of the Class X Certificateholders, to receive that portion of the
distributions on the Class X Interest up to an amount equal to any Basis Risk
Payments and to pay to the LIBOR Certificateholders any Basis Risk Carry Forward
Amounts (prior to using any Net Swap Receipts). For the avoidance of doubt, any
Basis Risk Carry Forward Amounts shall be paid to the LIBOR Certificates first
from the Excess Reserve Fund Account and then from the Supplemental Interest
Trust.
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class of LIBOR Certificates, the Trustee shall (1)
withdraw from the Distribution Account and deposit in the Excess Reserve Fund
Account, as set forth in Section 4.02(a)(iv)(I), the lesser of the Class X
Distributable Amount (to the extent remaining after the distributions specified
in Sections 4.02(a)(iv)(A)-(H) and without regard to the reduction in clause
(iii) of the definition thereof) and the aggregate Basis Risk Carry Forward
Amount and (2) withdraw from the Excess Reserve Fund Account amounts necessary
to pay to such Class or Classes of LIBOR Certificates the applicable Basis Risk
Carry Forward Amounts. Such payments, along with payments from the Supplemental
Interest Trust, shall be allocated to those Classes based upon the amount of
Basis Risk Carry Forward Amount owed to each such Class and shall be paid in the
priority set forth in Section 4.02(a)(iv)(J). In the event that the Class
Certificate Balance of any Class of Certificates is reduced because of Applied
Realized Loss Amounts, the applicable Certificateholders will not be entitled to
receive Basis Risk Carry Forward Amounts on the written down amounts on such
Distribution Date or any future Distribution Dates (except to the extent such
Class Certificate Balance is increased as a result of any Subsequent
Recoveries), even if funds are otherwise available for distribution.
The Trustee shall account for the Excess Reserve Fund Account as an
asset of a grantor trust under subpart E, Part I of subchapter J of the Code and
not as an asset of any Trust REMIC created pursuant to this Agreement. The
beneficial owners of the Excess Reserve Fund Account are the Class X
Certificateholders.
Any Basis Risk Carry Forward Amounts distributed by the Trustee to
the LIBOR Certificateholders from the Excess Reserve Fund Account shall be
accounted for by the Trustee, for federal income tax purposes, as amounts paid
first to the Holders of the Class X Certificates (in respect of the Class X
Interest) and then to the respective Class or Classes of LIBOR Certificates. In
addition, the Trustee shall account for the rights of Holders of each Class of
LIBOR Certificates to receive payments of Basis Risk Carry Forward Amounts from
the Excess Reserve Fund Account (along with payments of Basis Risk Carry Forward
Amounts and Upper-Tier Carry Forward Amounts from the Supplemental Interest
Trust) as rights in a separate limited recourse interest rate cap contract
written by the Class X Certificateholders in favor of Holders of each such
Class.
Notwithstanding any provision contained in this Agreement, the
Trustee shall not be required to make any payments from the Excess Reserve Fund
Account except as expressly set forth in this Section 3.27(a).
(b) The Trustee shall establish and maintain the Distribution
Account on behalf of the Certificateholders. The Trustee shall, promptly upon
receipt on the Business Day received, deposit in the Distribution Account and
retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Trustee
pursuant to Section 3.11;
(ii) any amount deposited by the Servicer pursuant to Section
3.12(b) in connection with any losses on Permitted Investments;
(iii) any amounts remitted by the Servicer to the Trustee in respect
of Compensating Interest pursuant to Section 3.25; and
(iv) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the Servicer shall remit any amount not required
to be remitted, the Servicer may at any time direct the Trustee in writing to
withdraw such amount from the Distribution Account, any provision herein to the
contrary notwithstanding. Such direction may be accomplished by delivering
notice to the Trustee, which describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 4.02.
(c) In order to comply with its duties under the USA Patriot Act of
2001, the Trustee shall obtain and verify certain information and documentation
from the other parties to this Agreement including, but not limited to, each
such party's name, address, and other identifying information.
Section 3.28 Optional Purchase of Delinquent Mortgage Loans. The
Depositor, in its sole discretion, shall have the option, but shall not be
obligated, to purchase any 90+ Delinquent Mortgage Loans from the Trust Fund.
The purchase price for any such Mortgage Loan shall be 100% of the unpaid
principal balance of such Mortgage Loan plus accrued and unpaid interest on the
related Mortgage Loan at the applicable Mortgage Interest Rate, plus the amount
of any unreimbursed Servicing Advances made by the Servicer. Upon receipt of
such purchase price, the Servicer shall provide to the Trustee a Request for
Release and the Trustee shall promptly release to the Depositor, the Mortgage
File relating to the Mortgage Loan being repurchased.
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances. (a) The amount of P&I Advances to be made by
the Servicer for any Remittance Date shall equal, subject to Section 4.01(c),
the sum of (i) the aggregate amount of Scheduled Payments (with each interest
portion thereof net of the related Servicing Fee), due during the Due Period
immediately preceding such Remittance Date in respect of the Mortgage Loans,
which Scheduled Payments were not received as of the close of business on the
related Determination Date, plus (ii) with respect to each REO Property, which
REO Property was acquired during or prior to the related Prepayment Period and
as to which such REO Property an REO Disposition did not occur during the
related Prepayment Period, an amount equal to the excess, if any, of the
Scheduled Payments (with REO Imputed Interest) that would have been due on the
related Due Date in respect of the related Mortgage Loan, over the net income
from such REO Property transferred to the Collection Account for distribution on
such Remittance Date.
(b) On each Remittance Date, the Servicer shall remit in immediately
available funds to the Trustee an amount equal to the aggregate amount of P&I
Advances, if any, to be made in respect of the Mortgage Loans and REO Properties
for the related Remittance Date either (i) from its own funds or (ii) from the
Collection Account, to the extent of funds held therein for future distribution
(in which case, it will cause to be made an appropriate entry in the records of
the Collection Account that Amounts Held for Future Distribution have been, as
permitted by this Section 4.01, used by the Servicer in discharge of any such
P&I Advance) or (iii) in the form of any combination of (i) and (ii) aggregating
the total amount of P&I Advances to be made by the Servicer with respect to the
Mortgage Loans and REO Properties. Any Amounts Held for Future Distribution and
so used shall be appropriately reflected in the Servicer's records and replaced
by the Servicer by deposit in the Collection Account on or before any future
Remittance Date to the extent required.
(c) The obligation of the Servicer to make such P&I Advances is
mandatory, notwithstanding any other provision of this Agreement but subject to
(d) below, and, with respect to any Mortgage Loan or REO Property, shall
continue until a Final Recovery Determination in connection therewith or the
removal thereof from coverage under this Agreement, except as otherwise provided
in this Section 4.01.
(d) Notwithstanding anything herein to the contrary, no P&I Advance
or Servicing Advance shall be required to be made hereunder by the Servicer if
such P&I Advance or Servicing Advance would, if made, constitute a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. The
determination by the Servicer that it has made a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance or that any proposed P&I Advance or Servicing
Advance, if made, would constitute a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance, respectively, shall be evidenced by an
Officer's Certificate of the Servicer delivered to the Trustee. In addition the
Servicer shall not be required to advance any Relief Act Interest Shortfalls.
(e) Except as otherwise provided herein, the Servicer shall be
entitled to reimbursement pursuant to Section 3.11 for Advances from recoveries
from the related Mortgagor or from all Liquidation Proceeds and other payments
or recoveries (including Insurance Proceeds and Condemnation Proceeds) with
respect to the related Mortgage Loan.
Section 4.02 Priorities of Distribution. (a) On each Distribution
Date, the Trustee shall make the disbursements and transfers from amounts then
on deposit in the Distribution Account in the following order of priority and to
the extent of the Available Funds remaining:
(i) to the Supplemental Interest Trust, the sum of (x) all Net Swap
Payments and (y) any Swap Termination Payment owed to the Swap Provider
other than a Defaulted Swap Termination Payment;
(ii) to the holders of each Class of LIBOR Certificates in the
following order of priority:
(A) concurrently, from the Interest Remittance Amount, pro
rata (based on the Accrued Certificate Interest Distribution Amounts
and Unpaid Interest Amounts distributable to the Class A-1, Class
A-2 and Class A-3 Certificates) to the Class A-1, Class A-2 and
Class A-3 Certificates, the related Accrued Certificate Interest
Distribution Amounts and Unpaid Interest Amounts for the Class A-1,
Class A-2 and Class A-3 Certificates;
(B) from any remaining Interest Remittance Amount, to the
Class M-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(C) from any remaining Interest Remittance Amount, to the
Class M-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(D) from any remaining Interest Remittance Amount, to the
Class M-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(E) from any remaining Interest Remittance Amount, to the
Class M-4 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(F) from any remaining Interest Remittance Amount, to the
Class M-5 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(G) from any remaining Interest Remittance Amount, to the
Class M-6 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(H) from any remaining Interest Remittance Amount, to the
Class B-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class; and
(I) from any remaining Interest Remittance Amount, to the
Class B-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(iii) (A) on each Distribution Date (a) prior to the Stepdown Date
or (b) with respect to which a Trigger Event is in effect, to the holders
of the Class or Classes of LIBOR Certificates then entitled to
distributions of principal as set forth below, an amount equal to the
Principal Distribution Amount in the following order of priority:
(a) sequentially:
(x) concurrently to the Class R-1 and Class R-2
Certificates, allocated pro rata, until their respective Class
Certificate Balances have been reduced to zero; and
(y) to the Class A Certificates, allocated as described
in Section 4.02(c), until their respective Class Certificate
Balances are reduced to zero;
(b) sequentially, to the Class X-0, Xxxxx X-0, Class M-3,
Class M-4, Class M-5, Class M-6, Class B-1 and Class B-2
Certificates, in that order, until their respective Class
Certificate Balances are reduced to zero;
(B) on each Distribution Date (a) on and after the Stepdown Date and
(b) so long as a Trigger Event is not in effect, to the holders of the
Class or Classes of LIBOR Certificates then entitled to distributions of
principal as set forth below, an amount equal to the Principal
Distribution Amount in the following order of priority:
(a) the lesser of (x) the Principal Distribution Amount and
(y) the Class A Principal Distribution Amount to the Class A
Certificates, allocated as described in Section 4.02(c), until their
respective Class Certificate Balances are reduced to zero;
(b) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (iii)(B)(a) above and (y) the Class M-1
Principal Distribution Amount, to the Class M-1 Certificates until
their Class Certificate Balance has been reduced to zero;
(c) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (iii)(B)(a) above and to the Class M-1
Certificates in clause (iii)(B)(b) above, and (y) the Class M-2
Principal Distribution Amount, to the Class M-2 Certificates until
their Class Certificate Balance has been reduced to zero;
(d) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (iii)(B)(a) above, to the Class M-1
Certificates in clause (iii)(B)(b) above and to the Class M-2
Certificates in clause (iii)(B)(c) above, and (y) the Class M-3
Principal Distribution Amount, to the Class M-3 Certificates until
their Class Certificate Balance has been reduced to zero;
(e) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (iii)(B)(a) above, to the Class M-1
Certificates in clause (iii)(B)(b) above, to the Class M-2
Certificates in clause (iii)(B)(c) above and to the Class M-3
Certificates in clause (iii)(B)(d) above, and (y) the Class M-4
Principal Distribution Amount, to the Class M-4 Certificates until
their Class Certificate Balance has been reduced to zero;
(f) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (iii)(B)(a) above, to the Class M-1
Certificates in clause (iii)(B)(b) above, to the Class M-2
Certificates in clause (iii)(B)(c) above, to the Class M-3
Certificates in clause (iii)(B)(d) above and to the Class M-4
Certificates in clause (iii)(B)(e) above, and (y) the Class M-5
Principal Distribution Amount, to the Class M-5 Certificates until
their Class Certificate Balance has been reduced to zero;
(g) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (iii)(B)(a) above, to the Class M-1
Certificates in clause (iii)(B)(b) above, to the Class M-2
Certificates in clause (iii)(B)(c) above, to the Class M-3
Certificates in clause (iii)(B)(d) above, to the Class M-4
Certificates in clause (iii)(B)(e) above and to the Class M-5
Certificates in clause (iii)(B)(f) above, and (y) the Class M-6
Principal Distribution Amount, to the Class M-6 Certificates until
their Class Certificate Balance has been reduced to zero;
(h) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (iii)(B)(a) above, to the Class M-1
Certificates in clause (iii)(B)(b) above, to the Class M-2
Certificates in clause (iii)(B)(c) above, to the Class M-3
Certificates in clause (iii)(B)(d) above, to the Class M-4
Certificates in clause (iii)(B)(e) above, to the Class M-5
Certificates in clause (iii)(B)(f) above and to the Class M-6
Certificates in clause (iii)(B)(g) above, and (y) the Class B-1
Principal Distribution Amount, to the Class B-1 Certificates until
their Class Certificate Balance has been reduced to zero;
(i) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class A
Certificates in clause (iii)(B)(a) above, to the Class M-1
Certificates in clause (iii)(B)(b) above, to the Class M-2
Certificates in clause (iii)(B)(c) above, to the Class M-3
Certificates in clause (iii)(B)(d) above, to the Class M-4
Certificates in clause (iii)(B)(e) above, to the Class M-5
Certificates in clause (iii)(B)(f) above, to the Class M-6
Certificates in clause (iii)(B)(g) above and to the Class B-1
Certificates in clause (iii)(B)(h) above, and (y) the Class B-2
Principal Distribution Amount, to the Class B-2 Certificates until
their Class Certificate Balance has been reduced to zero;
(iv) any amount remaining after the distributions in clauses
4.02(a)(i), (ii) and (iii) above shall be distributed in the following
order of priority:
(A) to the Class M-1 Certificates, any Unpaid Interest Amount for
such Class;
(B) to the Class M-2 Certificates, any Unpaid Interest Amount for
such Class;
(C) to the Class M-3 Certificates, any Unpaid Interest Amount for
such Class;
(D) to the Class M-4 Certificates, any Unpaid Interest Amount for
such Class;
(E) to the Class M-5 Certificates, any Unpaid Interest Amount for
such Class;
(F) to the Class M-6 Certificates, any Unpaid Interest Amount for
such Class;
(G) to the Class B-1 Certificates, any Unpaid Interest Amount for
such Class;
(H) to the Class B-2 Certificates, any Unpaid Interest Amount for
such Class;
(I) to the Excess Reserve Fund Account, the amount of any Basis Risk
Payment (without regard to Net Swap Receipts) for such Distribution Date;
(J) from funds on deposit in the Excess Reserve Fund Account with
respect to such Distribution Date, an amount equal to any Basis Risk Carry
Forward Amount with respect to the LIBOR Certificates for such
Distribution Date to such Classes in the same order and priority as set
forth in Section 4.02(a)(i), with the allocation to the Class A
Certificates being pro rata based on their respective Basis Risk Carry
Forward Amounts;
(K) to the Supplemental Interest Trust, the amount of any Defaulted
Swap Termination Payment;
(L) to the Holders of the Class X Certificates, the remainder of the
Class X Distributable Amount not distributed pursuant to Sections
4.02(a)(iv)(A)-(K);
(M) to the holders of the Class R-2 Certificates, any remaining
amount, in respect of Pooling-Tier REMIC-1; and
(N) to the Holders of the Class R-1 Certificates, any remaining
amount, in respect of Pooling-Tier REMIC-2, the Lower-Tier REMIC and the
Upper-Tier REMIC.
Notwithstanding the foregoing, if the Stepdown Date is the date on
which the Class Certificate Balance of the Class A Certificates is reduced to
zero, any Principal Distribution Amount remaining after distribution thereof to
the Class A Certificates will be included as part of the distributions pursuant
to clause (iii)(B) above.
(b) On each Distribution Date, all amounts representing Prepayment
Premiums from the Mortgage Loans received during the related Prepayment Period
shall be distributed by the Trustee to the holders of the Class P Certificates.
(c) All Principal distributions allocated to the Class A
Certificates on any Distribution Date shall be distributed sequentially to the
Class A-1 Certificates, until their Class Certificate Balance has been reduced
to zero, then to the Class A-2 Certificates, until their Class Certificate
Balance has been reduced to zero and then to the Class A-3 Certificates, until
their Class Certificate Balance has been reduced to zero; provided, however,
that on and after the Distribution Date on which the aggregate Class Certificate
Balances of the Subordinated Certificates and the principal balance of the Class
X Certificates have been reduced to zero, any principal distributions allocated
to the Class A Certificates are required to be allocated pro rata to the Class A
Certificates based on their respective Certificate Principal Balances.
(d) On any Distribution Date, any Relief Act Interest Shortfalls and
Net Prepayment Interest Shortfalls for such Distribution Date shall be allocated
by the Trustee, pro rata, as a reduction of the Accrued Certificate Interest
Distribution Amount for the Class A, Class M and Class B Certificates, based on
the amount of interest to which such Classes would otherwise be entitled on such
Distribution Date.
Section 4.03 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Trustee shall make available to each
Certificateholder, the Servicer, the Depositor and each Rating Agency a
statement setting forth with respect to the related distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any Unpaid Interest
Amounts included in such distribution and any remaining Unpaid Interest
Amounts after giving effect to such distribution, any Basis Risk Carry
Forward Amount for such Distribution Date and the amount of all Basis Risk
Carry Forward Amounts covered by withdrawals from the Excess Reserve Fund
Account on such Distribution Date;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest, including any Basis Risk Carry Forward Amount not covered by
amounts in the Excess Reserve Fund Account;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) the Pool Stated Principal Balance for the following Distribution
Date;
(vi) the amount of the Servicing Fees paid to or retained by the
Servicer or Subservicer (with respect to the Subservicers, in the
aggregate) with respect to such Distribution Date;
(vii) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(viii)the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances reported by the
Servicer as outstanding as of the close of business on the Determination
Date immediately preceding such Distribution Date;
(ix) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the Scheduled Payment is delinquent 31 to
60 days, 61 to 90 days and 91 or more days, (2) that have become REO
Property, (3) that are in foreclosure and (4) that are in bankruptcy, in
each case as of the close of business on the last Business Day of the
immediately preceding month;
(x) for each of the preceding 12 calendar months, or all calendar
months since the related Cut-off Date, whichever is less, the aggregate
dollar amount of the Scheduled Payments (A) due on all Outstanding
Mortgage Loans on each of the Due Dates in each such month and (B)
delinquent 60 days or more on each of the Due Dates in each such month;
(xi) with respect to all Mortgage Loans that became REO Properties
during the preceding calendar month, the aggregate number of such Mortgage
Loans and the aggregate Stated Principal Balance of such Mortgage Loans as
of the close of business on the Determination Date preceding such
Distribution Date and the date of acquisition thereof;
(xii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the
Determination Date preceding such Distribution Date;
(xiii)whether a Trigger Event has occurred and is continuing
(including the calculation of thereof and the aggregate outstanding
balance of all 60+ Day Delinquent Mortgage Loans);
(xiv) the amount of any Basis Risk Carry Forward Amounts paid from
the Excess Reserve Fund Account or the Supplemental Interest Trust and the
amount of any Upper-Tier Carry Forward Amounts paid from the Supplemental
Interest Trust;
(xv) in the aggregate and for each Class of Certificates, the
aggregate amount of Applied Realized Loss Amounts incurred during the
preceding calendar month and aggregate Applied Realized Loss Amounts
through such Distribution Date;
(xvi) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the Certificateholders
with respect to Applied Realized Loss Amounts and Unpaid Interest Amounts;
(xvii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xviii) the amount distributed on the Class P Certificates;
(xix) the Cumulative Loss Percentage;
(xx) the amount distributed on the Class X Certificates;
(xxi) the amount of any Subsequent Recoveries for such Distribution
Date;
(xxii)the amount of any Net Swap Payments, Net Swap Receipts, Swap
Termination Payments or Defaulted Swap Termination Payments; and
(xxiii) the calculations of LIBOR and Swap LIBOR.
(b) The Trustee's responsibility for providing the above statement
to the Certificateholders, each Rating Agency, the Servicer and the Depositor is
limited to the availability, timeliness and accuracy of the information derived
from the Servicer. The Trustee will provide the above statement via the
Trustee's internet website. The Trustee's website will initially be located at
xxxxx://xxx.xxx.xx.xxx/xxxx and assistance in using the website can be obtained
by calling the Trustee's investor relations desk at 0-000-000-0000. A paper copy
of the above statement will also be made available upon request.
(c) Upon request, within a reasonable period of time after the end
of each calendar year, the Trustee shall cause to be furnished to each Person
who at any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i) and (a)(ii) of this
Section 4.03 aggregated for such calendar year or applicable portion thereof
during which such Person was a Certificateholder. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
(d) Not later than the Reporting Date, the Servicer shall furnish to
the Trustee and a monthly remittance advice statement (in a format mutually
agreed upon by the Servicer and the Trustee) containing such information as
shall be reasonably requested by the Trustee to provide the reports required by
Section 4.03(a) as to the accompanying remittance and the period ending on the
close of business on the last Business Day of the immediately preceding month
(the "Servicer Remittance Report").
The Servicer shall furnish to the Trustee an individual loan
accounting report, as of the last Business Day of each month, to document
Mortgage Loan payment activity on an individual Mortgage Loan basis. With
respect to each month, the corresponding individual loan accounting report (in
electronic format) shall be received by the Trustee no later than the Reporting
Date, which report shall contain the following:
(i) with respect to each Scheduled Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any
Prepayment Premiums, along with a detailed report of interest on principal
prepayment amounts remitted in accordance with Section 3.25);
(ii) with respect to each Scheduled Payment, the amount of such
remittance allocable to interest;
(iii) the amount of servicing compensation received by the Servicer
during the prior distribution period;
(iv) the individual and aggregate Stated Principal Balance of the
Mortgage Loans;
(v) the aggregate of any expenses reimbursed to the Servicer during
the prior distribution period pursuant to Section 3.11;
(vi) the number and aggregate outstanding principal balances of
Mortgage Loans (a) delinquent (1) 31 to 60 days, (2) 61 to 90 days, or (3)
91 days or more; (b) as to which foreclosure has commenced; and (c) as to
which REO Property has been acquired;
(vii) each Mortgage Loan which has been altered, modified or varied
during such month, and the reason for such modification (i.e., extension
of maturity date, Mortgage Interest Rate);
(viii)with respect to each Liquidated Mortgage Loan, the amount of
any Realized Losses for such Mortgage Loan; and
(ix) any other information reasonably required by the Trustee to
enable it to prepare the monthly statement referred to in Section 4.03(a).
(e) On the 5th Business Day of each month (the "Data File Delivery
Date"), the Servicer shall deliver to the Trustee and (subject to the terms of
that certain confidentiality agreement, dated as of the Closing Date, among the
Depositor, the Purchaser and the Servicer) to the Depositor a Market Value
Change Report and a data file incorporating the fields set forth in the data
file layout set forth in Exhibit M hereto (the "Data File").
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Trustee in accordance with the definition of
"LIBOR." Until all of the LIBOR Certificates are paid in full, the Trustee will
at all times retain at least four Reference Banks for the purpose of determining
LIBOR with respect to each LIBOR Determination Date. The Trustee initially shall
designate the Reference Banks (after consultation with the Depositor). Each
"Reference Bank" shall be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, shall not control, be
controlled by, or be under common control with, the Trustee and shall have an
established place of business in London. If any such Reference Bank should be
unwilling or unable to act as such or if the Trustee should terminate its
appointment as Reference Bank, the Trustee shall promptly appoint or cause to be
appointed another Reference Bank (after consultation with the Depositor). The
Trustee shall have no liability or responsibility to any Person for (i) the
selection of any Reference Bank for purposes of determining LIBOR or (ii) any
inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Trustee on each LIBOR
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the LIBOR Certificates in the table relating to the Certificates in the
Preliminary Statement. The Trustee shall not have any liability or
responsibility to any Person for its inability, following a good-faith
reasonable effort, to obtain quotations from the Reference Banks or to determine
the arithmetic mean referred to in the definition of LIBOR, all as provided for
in this Section 4.04 and the definition of LIBOR. The establishment of LIBOR and
each Pass-Through Rate for the LIBOR Certificates by the Trustee shall (in the
absence of manifest error) be final, conclusive and binding upon each Holder of
a Certificate and the Trustee.
Section 4.05 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts shall be allocated by the Trustee to the most
junior Class of Subordinated Certificates then outstanding in reduction of the
Class Certificate Balance thereof. In the event Applied Realized Loss Amounts
are allocated to any Class of LIBOR Certificates, their Class Principal Balances
shall be reduced by the amount so allocated, and no funds will be distributable
with respect to the written down amounts (including without limitation Basis
Risk Carry Forward Amounts) or with respect to interest on the written down
amounts on that Distribution Date or any future Distribution Dates, even if
funds are otherwise available for distribution. Notwithstanding the foregoing,
the Class Certificate Balance of each Class of Subordinated Certificates that
has been previously reduced by Applied Realized Loss Amounts will be increased,
in order of seniority, by the amount of the Subsequent Recoveries (but not in
excess of the Applied Realized Loss Amount allocated to the applicable Class of
Subordinated Certificates).
Section 4.06 Supplemental Interest Trust. On the Closing Date, the
Trustee shall establish and maintain in its name, a separate non-interest
bearing trust account for the benefit of the holders of the LIBOR Certificates
(the "Supplemental Interest Trust") as a part of the Trust Fund. The
Supplemental Interest Trust shall be an Eligible Account, and funds on deposit
therein shall be held separate and apart from, and shall not be commingled with,
any other moneys, including, without limitation, other moneys of the Trustee
held pursuant to this Agreement.
On any Distribution Date, Swap Termination Payments, Net Swap
Payments owed to the Swap Provider and Net Swap Receipts for that Distribution
Date will be deposited into the Supplemental Interest Trust. Funds in the
Supplemental Interest Trust will be distributed in the following order of
priority:
(i) to the Swap Provider, the sum of (x) all Net Swap Payments and
(y) any Swap Termination Payment, other than a Defaulted Swap Termination
Payment, to the Swap Provider, if any, owed for that Distribution Date;
(ii) to the LIBOR Certificateholders, to pay Accrued Certificate
Interest Distribution Amounts and, if applicable, any Unpaid Interest
Amounts as described in Section 4.02(a)(i) and Section 4.02(a)(iii), to
the extent unpaid from other Available Funds;
(iii) to the LIBOR Certificateholders, to pay principal as described
in Section 4.02(a)(ii), but only to the extent necessary to maintain the
Overcollateralized Amount at the Specified Overcollateralized Amount,
after giving effect to payments and distributions from other Available
Funds;
(iv) to the LIBOR Certificateholders, to pay Unpaid Interest Amounts
and Basis Risk Carry Forward Amounts as described in Section 4.02(a)(iii),
to the extent unpaid from other Available Funds (including funds on
deposit in the Excess Reserve Fund Account);
(v) to the Swap Provider, any Defaulted Swap Termination Payment
owed to the Swap Provider for that Distribution Date; and
(vi) to the holders of the Class X Certificates, any remaining
amounts.
Upon termination of the Trust, any amounts remaining in the
Supplemental Interest Trust shall be distributed pursuant to the priorities set
forth in this Section 4.06.
The Trustee shall account for the Supplemental Interest Trust as an
asset of a grantor trust under subpart E, Part I of subchapter J of the Code and
not as an asset of any Trust REMIC created pursuant to this Agreement. The
beneficial owners of the Supplemental Interest Trust are the Class X
Certificateholders. For federal income tax purposes, Net Swap Payments and Swap
Termination Payments payable to the Swap Provider shall be deemed to be paid to
the Supplemental Interest Trust from the Upper-Tier REMIC, first, by the Holder
of the Class X Certificates (in respect of the Class IO Interest and, if
applicable, Class X Interest) and second, other than any Defaulted Swap
Termination Payment, by the Holders of the applicable Class or Classes of LIBOR
Certificates (in respect of Class IO Shortfalls) as and to the extent provided
in Section 8.13.
Any Basis Risk Carry Forward Amounts distributed by the Trustee to
the LIBOR Certificateholders shall be accounted for by the Trustee, for federal
income tax purposes, as amounts paid first to the Holders of the Class X
Certificates in respect of the Class X Interest and then to the respective Class
or Classes of LIBOR Certificates. In addition, the Trustee shall account for the
rights of Holders of each Class of LIBOR Certificates to receive payments of
Basis Risk Carry Forward Amounts and Upper-Tier Carry Forward Amounts from the
Supplemental Interest Trust (along with Basis Risk Carry Forward Amounts payable
from the Excess Reserve Fund Account) as rights in a separate limited recourse
interest rate cap contract written by the Class X Certificateholders in favor of
Holders of each such Class.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral multiples
in excess thereof (except that one Certificate in each Class may be issued in a
different amount which must be in excess of the applicable minimum denomination)
and aggregate denominations per Class set forth in the Preliminary Statement.
The Depositor hereby directs the Trustee to register the Class X and
Class P Certificates in the name of the Depositor or its designee. On a date as
to which the Depositor notifies the Trustee, the Depositor hereby directs the
Trustee to transfer the Class X and Class P Certificates in the name of the NIM
Trustee, or such other name or names as the Depositor shall request, and to
deliver the Class X and Class P Certificates to Deutsche Bank National Trust
Company, as NIM Trustee, or to such other Person or Persons as the Depositor
shall request.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such holder at a bank
or other entity having appropriate facilities therefor as directed by that
Certificateholder by written wire instructions provided to the Trustee or (y),
in the event that no wire instructions are provided to the Trustee, by check
mailed by first class mail to such Certificateholder at the address of such
holder appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time such
signatures were affixed, authorized to sign on behalf of the Trustee shall bind
the Trustee, notwithstanding that such individuals or any of them have ceased to
be so authorized prior to the authentication and delivery of any such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless authenticated by the Trustee by manual signature, and
such authentication upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their authentication. On
the Closing Date, the Trustee shall authenticate the Certificates to be issued
at the direction of the Depositor, or any affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Trustee shall maintain, or cause to be
maintained in accordance with the provisions of Section 5.06, a Certificate
Register for the Trust Fund in which, subject to the provisions of subsections
(b) and (c) below and to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the name
of the designated transferee or transferees, one or more new Certificates of the
same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the 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 of the Depositor transfers the Class X Certificates,
or a portion thereof, to another Affiliate, it shall notify the Trustee in
writing of the affiliated status of the transferee. The Trustee shall have no
liability regarding the lack of notice with respect thereto.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. Except
with respect to (i) the transfer of the Class X, Class P or Class R
Certificates, to the Depositor or an Affiliate of the Depositor, (ii) the
transfer of the Class X or Class P Certificates to the NIM Issuer or the NIM
Trustee, or (iii) a transfer of the Class X or Class P Certificates from the NIM
Issuer or the NIM Trustee to the Depositor or an Affiliate of the Depositor, in
the event that a transfer of a Private Certificate which is a Physical
Certificate is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer shall certify to
the 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 Exhibit J (the "Non-Rule 144A Investment Letter")
or (ii) in the case of the Class X Certificates, there shall be delivered to the
Trustee at the expense of the transferor an Opinion of Counsel that such
transfer may be made without registration under the Securities Act. In the event
that a transfer of a Private Certificate which is a Book-Entry Certificate is to
be made in reliance upon an exemption from the Securities Act and such laws, in
order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer will be deemed to have made
as of the transfer date each of the certifications set forth in the Transferor
Certificate in respect of such Certificate and the transferee will be deemed to
have made as of the transfer date each of the certifications set forth in the
Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate. The Depositor shall
provide to any Holder of a Private Certificate and any prospective transferee
designated by any such Holder, information regarding the related Certificates
and the Mortgage Loans and such other information as shall be necessary to
satisfy the condition to eligibility set forth in Rule 144A(d)(4) for transfer
of any such Certificate without registration thereof under the Securities Act
pursuant to the registration exemption provided by Rule 144A. The Trustee and
the Servicer shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to the
Depositor such information regarding the Certificates, the Mortgage Loans and
other matters regarding the Trust Fund as the Depositor shall reasonably request
to meet its obligation under the preceding sentence. Each Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor and the Servicer against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
Except with respect to (i) the transfer of the Class R, Class X or
Class P Certificates to the Depositor or an affiliate of the Depositor, (ii) the
transfer of the Class X or Class P Certificates to the NIM Issuer or the NIM
Trustee, or (iii) a transfer of the Class X or Class P Certificates from the NIM
Issuer or the NIM Trustee to the Depositor or an Affiliate of the Depositor, no
transfer of an ERISA-Restricted Certificate shall be made unless the Trustee
shall have received either (i) a representation from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the Trustee
(in the event such Certificate is a Private Certificate or a Residual
Certificate, such requirement is satisfied only by the Trustee's receipt of a
representation letter from the transferee substantially in the form of Exhibit
I), to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, a plan subject to Section 4975 of
the Code or a plan subject to any Federal, state or local law ("Similar Law")
materially similar to the foregoing provisions of ERISA or the Code, nor a
person acting on behalf of any such plan or arrangement nor using the assets of
any such plan or arrangement (collectively, a "Plan") to effect such transfer,
(ii) in the case of an ERISA-Restricted Certificate other than a Residual
Certificate or a Class P Certificate that has been the subject of an
ERISA-Qualifying Underwriting and the purchaser is an insurance company, a
representation that the purchaser is an insurance company that is purchasing
such Certificates with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in the
case of any such ERISA-Restricted Certificate other than a Residual Certificate
or a Class P Certificate presented for registration in the name of a Plan, an
Opinion of Counsel satisfactory to the Trustee, which Opinion of Counsel shall
not be an expense of the Trustee, the Depositor, the Servicer or the Trust Fund,
addressed to the Trustee, to the effect that the purchase or holding of such
ERISA-Restricted Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the Code or
any Similar Law and will not subject the Trustee, the Depositor or the Servicer
to any obligation in addition to those expressly undertaken in this Agreement or
to any liability. For purposes of the preceding sentence, with respect to an
ERISA-Restricted Certificate that is not a Private Certificate or a Residual
Certificate, in the event the representation letter referred to in the preceding
sentence is not furnished, such representation shall be deemed to have been made
to the Trustee by the transferee's (including an initial acquirer's) acceptance
of the ERISA-Restricted Certificates. Notwithstanding anything else to the
contrary herein, (a) any purported transfer of an ERISA Restricted Certificate,
other than a Class P Certificate or a Residual Certificate, to or on behalf of
an employee benefit plan subject to ERISA, the Code or Similar Law without the
delivery to the Trustee of an Opinion of Counsel satisfactory to the Trustee as
described above shall be void and of no effect and (b) any purported transfer of
a Class P Certificate or Residual Certificate to a transferee that does not make
the representation in clause (i) above shall be void and of no effect.
The Class R and Class P Certificates may not be sold to any employee
benefit plan subject to Title I of ERISA, any plan subject to Section 4975 of
the Code, or any plan subject to any Similar Law or any person investing on
behalf of or with plan assets of such Plan.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Trustee shall be under no liability to any Person for
any registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
As long as the Interest Rate Swap Agreement is in effect, each
beneficial owner of a Certificate, or any interest therein, shall be deemed to
have represented that either (i) it is not a Plan or (ii) the acquisition and
holding of the Certificate are eligible for the exemptive relief available under
at least one of the Investor Based Exemptions.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee in the form attached hereto as Exhibit G;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and the Rule 144A Letter. The Trustee shall be entitled but
not obligated to recover from any Holder of a Residual Certificate that
was in fact not a Permitted Transferee at the time it became a Holder or,
at such subsequent time as it became other than a Permitted Transferee,
all payments made on such Residual Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of
such Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Depositor, the
Trustee, or the Servicer, to the effect that the elimination of such
restrictions will not cause any Trust REMIC to fail to qualify as a REMIC at any
time that the Certificates are outstanding or result in the imposition of any
tax on the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any Ownership Interest in a Residual Certificate hereby
consents to any amendment of this Agreement which, based on an Opinion of
Counsel furnished to the Trustee, is reasonably necessary (a) to ensure that the
record ownership of, or any beneficial interest in, a Residual Certificate is
not transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor, or (y) the Depositor notifies the
Depository of its intent to terminate the book-entry system through the
Depository and, upon receipt of notice of such intent from the Depository, the
Depository Participants holding beneficial interests in the Book-Entry
Certificates agree to initiate such termination, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully-registered Certificates (the
"Definitive Certificates") to Certificate Owners requesting the same. Upon
surrender to the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. None of the Servicer, the
Depositor or the Trustee shall be liable for any delay in delivery of such
instruction and each may conclusively rely on, and shall be protected in relying
on, such instructions. The Depositor shall provide the Trustee with an adequate
inventory of Certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Trustee shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Trustee and the
Certificate Registrar, duly executed by the Certificateholder or his attorney
duly authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Certificate Registrar in accordance with its customary
practice. No service charge shall be made for any registration of transfer or
exchange of Private Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Private
Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Trustee, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Depositor, the Servicer, and the
Trustee such security or indemnity as may be required by them to hold each of
them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 5.03, the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 5.03 shall constitute complete and indefeasible evidence of
ownership, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners. The Servicer, the Trustee, the
Depositor, and any agent of the Servicer, the Depositor or the Trustee may treat
the Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and none of the Servicer, the
Trustee, the Depositor or any agent of the Servicer, the Depositor or the
Trustee shall be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or the Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, the Servicer or such Certificateholders at
such recipients' expense the most recent list of the Certificateholders of such
Trust Fund held by the Trustee, if any. The Depositor and every
Certificateholder, by receiving and holding a Certificate, agree that the
Trustee shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. The Trustee will
maintain or cause to be maintained at its expense an office or offices or agency
or agencies in New York City where Certificates may be surrendered for
registration of transfer or exchange. The Trustee initially designates the
offices of its agent for such purposes, located at DTC Transfer Agent Services,
00 Xxxxx Xxxxxx, Xxxxxxxx Xxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Trustee
will give prompt written notice to the Certificateholders of any change in such
location of any such office or agency.
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.01 Respective Liabilities of the Depositor and the
Servicer. The Depositor and the Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them herein.
Section 6.02 Merger or Consolidation of the Depositor or the
Servicer. The Depositor and the Servicer will each keep in full effect its
existence, rights and franchises as a Delaware corporation or a limited
partnership as the case may be, under the laws of the United States or under the
laws of one of the states thereof and will each obtain and preserve its
qualification to do business as a foreign corporation or limited partnership, as
applicable, in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, or any
of the Mortgage Loans and to perform its respective duties under this Agreement.
Any Person into which the Depositor or the Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Depositor or the Servicer shall be a party, or any person succeeding to the
business of the Depositor or the Servicer, shall be the successor of the
Depositor or the Servicer, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however, that
the successor or surviving Person to the Servicer shall be qualified to sell
mortgage loans to, and to service mortgage loans on behalf of, Xxxxxx Mae or
Xxxxxxx Mac, and meets the requirements of Section 7.02, and provided, further,
that such merger, consolidation or succession does not adversely affect the then
current rating or ratings on the LIBOR Certificates.
Section 6.03 Limitation on Liability of the Depositor, the Servicer
and Others. Neither the Depositor, the Servicer nor any of their respective
directors, officers, employees or agents shall be under any liability to the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, the
Servicer or any such Person against any breach of representations or warranties
made by it herein or protect the Depositor, the Servicer or any such Person from
any liability which would otherwise be imposed by reasons of willful
misfeasance, bad faith or negligence (or gross negligence in the case of the
Depositor) in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Depositor, the Servicer and any director,
officer, employee or agent of the Depositor and the Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising hereunder. The Depositor, the Servicer
and any director, officer, employee, Affiliate or agent of the Depositor and the
Servicer shall be indemnified by the Trust Fund and held harmless against any
loss, liability or expense incurred in connection with any audit, controversy or
judicial proceeding relating to a governmental taxing authority or any legal
action relating to this Agreement or the Certificates or any other unanticipated
or extraordinary expense, other than any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence (or gross negligence in
the case of the Depositor) in the performance of duties hereunder or by reason
of reckless disregard of obligations and duties hereunder. Neither the Depositor
nor the Servicer shall be under any obligation to appear in, prosecute or defend
any legal action that is not incidental to its respective duties hereunder and
which in its opinion may involve it in any expense or liability; provided,
however, that each of the Depositor and the Servicer may in its discretion
undertake any such action (or direct the Trustee to undertake such actions
pursuant to Section 2.08 for the benefit of the Certificateholders) that it may
deem necessary or desirable in respect of this Agreement and the rights and
duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, and the Servicer shall be
entitled to be reimbursed therefor out of the Collection Account.
Section 6.04 Limitation on Resignation of the Servicer. (a) The
Servicer shall not assign this Agreement or resign from the obligations and
duties hereby imposed on it except (i) by mutual consent of the Servicer, the
Depositor and the Trustee or (ii) upon the determination that its duties
hereunder are no longer permissible under applicable law and such incapacity
cannot be cured by the Servicer. Any such determination permitting the
resignation of the Servicer under clause (ii) above shall be evidenced by an
Opinion of Counsel to such effect delivered to the Depositor and the Trustee
which Opinion of Counsel shall be in form and substance acceptable to the
Depositor and the Trustee. No such resignation shall become effective until a
successor shall have assumed the Servicer's responsibilities and obligations
hereunder.
Section 6.05 Additional Indemnification by the Servicer; Third Party
Claims. The Servicer shall indemnify the Depositor and any Affiliate, director,
officer, employee or agent of the Depositor and the Trustee and hold each of
them harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that any of them may sustain in any way
related to any breach by the Servicer of (i) any of its representations and
warranties referred to in Section 2.03(a), (ii) any error in any tax or
information return prepared by the Servicer, or (iii) the failure of the
Servicer to perform its duties and service the Mortgage Loans in compliance with
the terms of this Agreement. The Servicer immediately shall notify the Depositor
and the Trustee if such claim is made by a third party with respect to this
Agreement or the Mortgage Loans, assume (with the prior written consent of the
Depositor and the Trustee) the defense of any such claim and pay all expenses in
connection therewith, including reasonable counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
the Depositor, or the Trustee in respect of such claim. This indemnity shall
survive the termination of this Agreement or the earlier resignation or removal
of the Servicer.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. "Event of Default," wherever used
herein, means any one of the following events:
(a) any failure by the Servicer to remit to the Trustee any payment
required to be made under the terms of this Agreement which continues unremedied
for a period of one Business Day after the date upon which written notice of
such failure, requiring the same to be remedied, shall have been given to the
Servicer by the Depositor, or by the Trustee, or to the Servicer, the Depositor
and the Trustee by Certificateholders entitled to at least 25% of the Voting
Rights; or
(b) the failure on the part of the Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of the Servicer set forth in this Agreement, which continues unremedied for
a period of thirty days (except that such number of days shall be ten days in
the case of a failure to observe or perform any of the obligations set forth in
Sections 3.22, 3.23 or 8.12) after the earlier of (i) the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Depositor or by the Trustee, or to the Servicer, the
Depositor and the Trustee by Certificateholders of Certificates entitled to at
least 25% of the Voting Rights and (ii) actual knowledge of such failure by a
Servicing Officer of the Servicer; provided, however, that in the case of a
failure that cannot be cured within 30 days after notice or actual knowledge by
the Servicer, the cure period may be extended for an additional 30 days upon
delivery by the Servicer to the Trustee of a certificate to the effect that the
Servicer believes in good faith that the failure can be cured within such
additional time period and the Servicer is diligently pursuing remedial action;
or
(c) (1) the failure by the Servicer in any month, to deliver to the
Trustee and the Depositor the Data File and the Market Value Change Report on
the Data File Delivery Date or (ii) to deliver the Servicer Remittance Report to
the Trustee, and in each case such failure continues uncured for more than 30
days after written notice of such failure; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(e) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all of its property; or
(f) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(g) any failure of the Servicer to make any P&I Advance on any
Remittance Date required to be made from its own funds pursuant to Section 4.01
which continues unremedied for one Business Day immediately following the
Remittance Date; or
(h) a breach of any representation and warranty of the Servicer
referred to in Section 2.03(a), which materially and adversely affects the
interests of the Certificateholders and which continues unremedied for a period
of thirty days after the date upon which written notice of such breach is given
to the Servicer by the Trustee or by the Depositor, or to the Servicer, the
Trustee and the Depositor by Certificateholders entitled to at least 25% of the
Voting Rights in the Certificates; or
(i) any reduction, withdrawal or qualification of the servicer
rating of the Servicer by any rating agency which results in the inability of
the Servicer to act as a primary or special servicer for any mortgage-backed or
asset-backed transaction rated or to be rated by any rating agency.
If an Event of Default described in clauses (a) through (i) of this
Section 7.01 shall occur, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Trustee may, or at the
direction of Certificateholders entitled to a majority of the Voting Rights the
Trustee shall, by notice in writing to the Servicer (with a copy to each Rating
Agency), terminate all of the rights and obligations of the Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof, other than
its rights as a Certificateholder hereunder; provided, however, that the Trustee
shall not be required to give written notice to the Servicer of the occurrence
of an Event of Default described in clauses (b) through (g), (h) and (i) of this
Section 7.01 unless and until a Responsible Officer of the Trustee has actual
knowledge of the occurrence of such an Event of Default. In the event that a
Responsible Officer of the Trustee has actual knowledge of the occurrence of an
Event of Default described in clause (a) of this Section 7.01, the Trustee shall
give written notice to the Servicer of the occurrence of such an event within
one Business Day of the first day on which such Responsible Officer obtains
actual knowledge of such occurrence; provided that failure to give such notice
shall not constitute a waiver of such Event of Default. The Trustee, upon a
Responsible Officer having actual knowledge of such default, shall deliver a
written notice to the Servicer of the default on any Remittance Date on which
the Servicer fails to make any deposit or payment required pursuant to this
Agreement (including, but not limited to Advances, to the extent required by
this Agreement); provided, however, that if an Event of Default occurs due to
the failure of the Servicer to make an Advance to the extent required, the
Trustee, as successor Servicer, or another successor Servicer shall, prior to
the next Distribution Date, immediately make such Advance. Any such notice to
the Servicer shall also be given to each Rating Agency and the Depositor.
Notwithstanding any other provision of this Agreement, any remedy with respect
to clauses (a) or (g) of this Section 7.01 shall be effective only if taken no
later than 8:00 AM Eastern time on the Business Day immediately following (i)
with respect to clause (a) of this Section 7.01, the date of written notice to
the Servicer, or (ii) with respect to clause (g) of this Section 7.01, the
related Remittance Date. On and after the receipt by the Servicer of such
written notice, all authority and power of the Servicer hereunder, whether with
respect to the Mortgage Loans or otherwise, shall pass to and be vested in the
Trustee. The Trustee is hereby authorized and empowered to execute and deliver,
on behalf of the Servicer, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. Unless expressly
provided in such written notice, no such termination shall affect any obligation
of the Servicer to pay amounts owed pursuant to Article VIII. The Servicer
agrees to cooperate with the Trustee in effecting the termination of the
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to the Trustee of all cash amounts which shall at the time be
credited to the Collection Account of such predecessor Servicer, or thereafter
be received with respect to the Mortgage Loans.
Notwithstanding any termination of the activities of the Servicer
hereunder, the Servicer shall be entitled to receive from the Trust Fund, prior
to transfer of its servicing obligations hereunder, payment of all accrued and
unpaid portion of the Servicing Fees to which the Servicer would have been
entitled and to continue to receive reimbursement for all outstanding P&I
Advances and Servicing Advances, including Servicing Advances incurred prior to
but not invoiced until after the date of termination, in accordance with the
terms of this Agreement. In addition, the Servicer shall continue to be entitled
to the benefits of Section 6.03, notwithstanding any termination hereunder, with
respect to events occurring prior to such termination.
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time the Trustee gives, and the Servicer receives a notice of termination
pursuant to Section 7.01, the Trustee shall, subject to and to the extent
provided in Sections 3.06 and 7.03, and subject to the rights of the Trustee to
appoint a successor Servicer, be the successor to the Servicer in its capacity
as servicer under this Agreement and the transactions set forth or provided for
herein and shall immediately assume all of the obligations of the Servicer to
make P&I Advances and Servicing Advances as successor Servicer and shall assume
and be subject to all the other responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms and provisions hereof and
applicable law as soon as practicable but in no event later than 90 days after
the receipt by the Servicer of the notice of termination pursuant to Section
7.01. As compensation therefor, the Trustee shall be entitled to all funds
relating to the Mortgage Loans that the Servicer would have been entitled to
charge to the Collection Account if the Servicer had continued to act hereunder
including, if the Servicer was receiving the Servicing Fee, the Servicing Fee
and the income on investments or gain related to the Collection Account (in
addition to income on investments or gain related to the Distribution Account
for the benefit of the Trustee as provided herein). Notwithstanding the
foregoing, if the Trustee has become the successor to the Servicer in accordance
with this Section 7.02, the Trustee may, if it shall be unwilling to so act, or
shall, if it is prohibited by applicable law from making P&I Advances and
Servicing Advances pursuant to Section 4.01 or if it is otherwise unable to so
act, or, at the written request of Certificateholders entitled to a majority of
the Voting Rights, appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution the appointment of
which does not adversely affect the then current rating of the Certificates by
each Rating Agency, as the successor to the Servicer hereunder in the assumption
of all or any part of the responsibilities, duties or liabilities of the
Servicer hereunder. No such appointment of a successor to the Servicer hereunder
shall be effective until the Depositor shall have consented thereto. Any
successor to the Servicer shall be an institution which is a Xxxxxx Xxx- and
Xxxxxxx Mac-approved seller/servicer in good standing, which has a net worth of
at least $30,000,000, which is willing to service the Mortgage Loans and which
executes and delivers to the Depositor and the Trustee an agreement accepting
such delegation and assignment, containing an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of the
terminated Servicer (other than liabilities of the terminated Servicer under
Section 6.03 incurred prior to termination of the Servicer under Section 7.01),
with like effect as if originally named as a party to this Agreement; provided,
that each Rating Agency acknowledges that its rating of the Certificates in
effect immediately prior to such assignment and delegation will not be qualified
or reduced, as a result of such assignment and delegation. Pending appointment
of a successor to the Servicer hereunder, the Trustee, unless the Trustee is
prohibited by law from so acting, shall, subject to Section 3.05, act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it, the Depositor and such
successor shall agree; provided, however, that no such compensation shall be in
excess of the Servicing Fee and amounts paid to the predecessor Servicer from
investments. The Trustee and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
Neither the Trustee nor any other successor Servicer shall be deemed to be in
default hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof or any failure to perform, or any
delay in performing, any duties or responsibilities hereunder, in either case
caused by the failure of the predecessor Servicer to deliver or provide, or any
delay in delivering or providing, any cash, information, documents or records to
it.
In the event that the Servicer is terminated pursuant to Section
7.01, the terminated Servicer shall provide notices to the Mortgagors, transfer
the Servicing Files to a successor Servicer and pay all of its own out-of-pocket
costs and expenses related to such obligations. In addition, all Servicing
Transfer Costs incurred by parties other than the terminated Servicer shall be
paid by the terminated Servicer promptly upon presentation of reasonable
documentation of such costs. If such predecessor Servicer defaults in its
obligations to pay such costs, such costs shall be paid by the successor
Servicer (in which case the successor Servicer shall be entitled to
reimbursement therefor from the Trust Fund or if the successor Servicer fails to
pay, the Trustee pays such amounts from the Trust Fund.). If the Trustee is the
predecessor Servicer (except in the case where the Trustee in its role as
successor Servicer is being terminated pursuant to Section 7.01 by reason of an
Event of Default caused solely by the Trustee as the successor Servicer and not
by the predecessor Servicer's actions or omissions), such costs shall be paid by
the prior terminated Servicer promptly upon presentation of reasonable
documentation of such costs.
Any successor to the Servicer as servicer shall give notice to the
Mortgagors of such change of Servicer, in accordance with applicable federal and
state law, and shall, during the term of its service as Servicer, maintain in
force the policy or policies that the Servicer is required to maintain pursuant
to Section 3.13.
Any such successor Servicer shall be required to satisfy the
requirements of a successor Servicer under this Section 7.02.
Section 7.03 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to the Servicer, the Trustee shall
give prompt written notice thereof to Certificateholders, and to each Rating
Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders, and each Rating Agency
notice of each such Event of Default hereunder known to the Trustee, unless such
Event of Default shall have been cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of an Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default has occurred and remains uncured, the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own bad faith or willful misfeasance.
Unless an Event of Default known to the Trustee has occurred and is
continuing,
(a) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of the duties and obligations specifically set
forth in this Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee, and the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement which it believed in good faith
to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights relating to the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Agreement.
Section 8.02 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties and the Trustee shall have no responsibility to
ascertain or confirm the genuineness of any signature of any such party or
parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(c) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement, nor shall
the Trustee be liable for acts or omissions of the other;
(d) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the investment
security and except with respect to the investment of funds in the Distribution
Account not made at the direction of the Depositor during the Trustee Float
Period);
(h) the Trustee shall not be deemed to have knowledge of an Event of
Default until a Responsible Officer of the Trustee shall have received written
notice thereof except as otherwise provided in Section 7.01; and
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document other than with respect to the Trustee's execution and
authentication of the Certificates. The Trustee shall not be accountable for the
use or application by the Depositor or the Servicer of any funds paid to the
Depositor or the Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or the Servicer.
The Trustee shall have no responsibility for filing or recording any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become the successor
Servicer).
The Trustee executes the Certificates not in its individual capacity
but solely as Trustee of the Trust Fund created by this Agreement, in the
exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust Fund in the Certificates is made and intended not
as a personal undertaking or agreement by the Trustee but is made and intended
for the purpose of binding only the Trust Fund.
Section 8.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
Section 8.05 Trustee's Fees and Expenses. As compensation for its
activities under this Agreement, the Trustee may withdraw from the Distribution
Account on each Distribution Date the Trustee Fee for the Distribution Date and,
during the Trustee Float Period, any interest or investment income earned on
funds deposited in the Distribution Account. The Trustee and any director,
officer, employee, or agent of the Trustee shall be indemnified by the Trust
Fund and held harmless against any loss, liability, or expense (including
reasonable attorneys' fees) incurred in connection with any claim or legal
action relating to:
(a) this Agreement,
(b) the Certificates, or
(c) the performance of any of the Trustee's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any breach of the
Servicer's obligations in connection with this Agreement for which the Servicer
has performed its obligation to indemnify the Trustee pursuant to Section 6.05,
(ii) resulting from any breach of the Responsible Party's obligations in
connection with the Responsible Party Agreements for which the Responsible Party
has performed its obligation to indemnify the Trustee pursuant to the
Responsible Party Agreements or (iii) incurred because of willful misfeasance,
bad faith, or negligence in the performance of any of the Trustee's duties under
this Agreement. This indemnity shall survive the termination of this Agreement
or the resignation or removal of the Trustee under this Agreement. Without
limiting the foregoing, except as otherwise agreed upon in writing by the
Depositor and the Trustee, and except for any expense, disbursement, or advance
arising from the Trustee's negligence, bad faith, or willful misfeasance, the
Trust Fund shall pay or reimburse the Trustee, for all reasonable expenses,
disbursements, and advances incurred or made by the Trustee in accordance with
this Agreement with respect to:
(A) the reasonable compensation, expenses, and disbursements of its
counsel not associated with the closing of the issuance of the Certificates; and
(B) the reasonable compensation, expenses, and disbursements of any
accountant, engineer, or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage them to perform services
under this Agreement.
Except as otherwise provided in this Agreement or a separate letter
agreement between the Trustee and the Depositor, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
paying agent under this Agreement or for any other expenses incurred by the
Trustee; provided, however, no expense shall be reimbursed hereunder if it would
not constitute an "unanticipated expense incurred by the REMIC" within the
meaning of the REMIC Provisions.
Section 8.06 Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times be a corporation or association organized and doing
business under the laws of a state or the United States of America, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000, subject to supervision or examination by
federal or state authority and with a credit rating which would not cause any of
the Rating Agencies to reduce their respective then current ratings of the
Certificates (or having provided such security from time to time as is
sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.06
the combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
entity serving as Trustee may have normal banking and trust relationships with
the Depositor and its affiliates or the Servicer and its affiliates; provided,
however, that such entity cannot be an affiliate of the Depositor or the
Servicer other than the Trustee in its role as successor to the Servicer.
Section 8.07 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice of resignation to the Depositor, the Servicer, and each Rating
Agency not less than 60 days before the date specified in such notice, when,
subject to Section 8.08, such resignation is to take effect, and acceptance by a
successor trustee in accordance with Section 8.08 meeting the qualifications set
forth in Section 8.06. If no successor trustee meeting such qualifications shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice or resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.06 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor or the Servicer may remove the Trustee and
appoint a successor trustee by written instrument, in triplicate, one copy of
which shall be delivered to the Trustee, one copy to the Servicer and one copy
to the successor trustee.
The Holders of Certificates entitled to a majority of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to the Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. The
successor trustee shall notify each Rating Agency of any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.08.
Section 8.08 Successor Trustee. Any successor trustee appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee and the Servicer an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The Depositor, the
Servicer and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for more fully and
certainly vesting and confirming in the successor trustee all such rights,
powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 8.09 Merger or Consolidation of the Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.06
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider appropriate. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request to do so, or in the case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this Agreement
to advance funds on behalf of the Servicer, shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or as
successor to the Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the applicable Trust
Fund or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of each Trust REMIC described in the
Preliminary Statement and that in such capacity it shall:
(a) prepare and file in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit (REMIC) Income Tax Return (Form 1066 or any successor form
adopted by the Internal Revenue Service) and prepare and file with the Internal
Revenue Service and applicable state or local tax authorities income tax or
information returns for each taxable year with respect to each Trust REMIC
described in the Preliminary Statement containing such information and at the
times and in the manner as may be required by the Code or state or local tax
laws, regulations, or rules, and furnish to Certificateholders the schedules,
statements or information at such times and in such manner as may be required
thereby;
(b) within thirty days of the Closing Date, the Trustee will apply
for an employer identification number from the Internal Revenue Service via Form
SS-4 or any other acceptable method for all tax entities and shall also furnish
to the Internal Revenue Service, on Form 8811 or as otherwise may be required by
the Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) make an election that each of Pooling-Tier REMIC-1, Pooling-Tier
REMIC-2, the Lower-Tier REMIC and the Upper-Tier REMIC be treated as a REMIC on
the federal tax return for its first taxable year (and, if necessary, under
applicable state law);
(d) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any original
issue discount using the prepayment assumption (as described in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee (a "Non-Permitted Transferee"), or an agent (including a broker,
nominee or other middleman) of a Non-Permitted Transferee, or a pass-through
entity in which a Non-Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so as
to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any Trust
REMIC created hereunder;
(h) pay, from the sources specified in the second to last paragraph
of this Section 8.11, the amount of any federal or state tax, including
prohibited transaction taxes as described below, imposed on each Trust REMIC
before its termination when and as the same shall be due and payable (but such
obligation shall not prevent the Trustee or any other appropriate Person from
contesting any such tax in appropriate proceedings and shall not prevent the
Trustee from withholding payment of such tax, if permitted by law, pending the
outcome of such proceedings);
(i) cause federal, state or local income tax or information returns
to be signed by the Trustee or such other person as may be required to sign such
returns by the Code or state or local laws, regulations or rules; and
(j) maintain records relating to each of the Trust REMICs, including
the income, expenses, assets, and liabilities thereof on a calendar year basis
and on the accrual method of accounting and the fair market value and adjusted
basis of the assets determined at such intervals as may be required by the Code,
as may be necessary to prepare the foregoing returns, schedules, statements or
information.
The Holder of the largest Percentage Interest of the Class R-2
Certificates shall act as Tax Matters Person for Pooling-Tier REMIC-1 and the
holder of the largest Percentage Interest of the Class R-1 Certificates shall
act as the Tax Matters Person for Pooling-Tier REMIC-2, the Lower-Tier REMIC and
the Upper-Tier REMIC, in each case, within the meaning of Treasury Regulations
Section 1.860F-4(d), and the Trustee is hereby designated as agent of such
Certificateholders for such purpose (or if the Trustee is not so permitted, such
Holder shall be the Tax Matters Person in accordance with the REMIC Provisions).
In such capacity, the Trustee shall, as and when necessary and appropriate,
represent any Trust REMIC in any administrative or judicial proceedings relating
to an examination audit by any governmental taxing authority, request an
administrative adjustment as to any taxable year of any Trust REMIC, enter into
settlement agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of any Trust REMIC, and otherwise act on
behalf of each Trust REMIC in relation to any tax matter or controversy
involving it.
The Trustee shall treat the rights of the Class P Certificateholders
to receive Prepayment Premiums, the rights of the Class X Certificateholders to
receive amounts from the Excess Reserve Fund Account and the Supplemental
Interest Trust (subject to the obligation to pay Basis Risk Carry Forward
Amounts and Upper-Tier Carry Forward Amounts) and the rights of the LIBOR
Certificateholders to receive Basis Risk Carry Forward Amounts and Upper-Tier
Carry Forward Amounts as the beneficial ownership of interests in a grantor
trust and not as obligations of any Trust REMIC created hereunder, for federal
income tax purposes. The Trustee shall file or cause to be filed with the
Internal Revenue Service Form 1041 or such other form as may be applicable and
shall furnish or cause to be furnished, to the Class P, Class X
Certificateholders and the LIBOR Certificateholders, the respective amounts
described above that are received, in the time or times and in the manner
required by the Code.
To enable the Trustee to perform its duties under this Agreement,
the Depositor shall provide to the Trustee within ten days after the Closing
Date all information or data that the Trustee requests in writing and determines
to be relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption, and projected
cash flows of the Certificates and the Mortgage Loans. Moreover, the Depositor
shall provide information to the Trustee concerning the value, if any, to each
Class of LIBOR Certificates of the right to receive Basis Risk Carry Forward
Amounts from the Excess Reserve Fund Account and Basis Risk Carry Forward
Amounts or Upper-Tier Carry Forward Amounts from the Supplemental Interest
Trust. Thereafter, the Depositor shall provide to the Trustee promptly upon
written request therefor any additional information or data that the Trustee
may, from time to time, reasonably request to enable the Trustee to perform its
duties under this Agreement; provided, however, that the Depositor shall not be
required to provide any information regarding the Mortgage Loans after the
Closing Date or any information that the Servicer is required to provide to the
Trustee pursuant to this Agreement. The Depositor hereby indemnifies the Trustee
for any losses, liabilities, damages, claims, or expenses of the Trustee arising
from any errors or miscalculations of the Trustee that result from any failure
of the Depositor to provide, pursuant to this paragraph, accurate information or
data to the Trustee on a timely basis.
If any tax is imposed on "prohibited transactions" of any Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Pooling-Tier REMIC-1 as defined in Section 860G(c)
of the Code, on any contribution to any Trust REMIC after the Start-up Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed, including,
if applicable, any minimum tax imposed on any Trust REMIC pursuant to Sections
23153 and 24874 of the California Revenue and Taxation Code, if not paid as
otherwise provided for herein, the tax shall be paid by (i) the Trustee if such
tax arises out of or results from negligence of the Trustee in the performance
of any of its obligations under this Agreement, (ii) the Servicer, in the case
of any such minimum tax, and otherwise if such tax arises out of or results from
a breach by the Servicer of any of its obligations under this Agreement, (iii)
the Purchaser if such tax arises out of or results from the Purchaser's
obligation to repurchase a Mortgage Loan pursuant to Section 2.03, or (iv) in
all other cases, or if the Trustee, the Servicer or the Purchaser fails to honor
its obligations under the preceding clause (i), (ii), or (iii), any such tax
will be paid with amounts otherwise to be distributed to the Certificateholders,
as provided in Section 4.02(a).
For as long as each Trust REMIC shall exist, the Trustee shall act
in accordance with this Agreement and shall comply with any directions of the
Depositor or a Servicer as provided herein so as to assure such continuing
treatment. The Trustee shall not (a) sell or permit the sale of all or any
portion of the Mortgage Loans unless pursuant to a repurchase or substitution in
accordance with this Agreement, or of any investment of deposits in an Account,
and (b) accept any contribution to any Trust REMIC after the Startup Day without
receipt of a REMIC Opinion.
Section 8.12 Periodic Filings. (a) The Trustee and the Servicer
shall reasonably cooperate with the Depositor in connection with the Trust's
satisfying the reporting requirements under the Exchange Act. The Trustee shall
prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar
securities as required by the Exchange Act and the Rules and Regulations of the
Securities and Exchange Commission thereunder, and the Trustee shall sign and
file (via the Securities and Exchange Commission's Electronic Data Gathering and
Retrieval System) such Forms on behalf of the Depositor, if an officer of the
Depositor signs the Certification pursuant to paragraph (b) of this Section
8.12, or otherwise on behalf of the Trust. In the event the Trustee is signing
on behalf of the Depositor pursuant to the preceding sentence, the Depositor
hereby grants to the Trustee a limited power of attorney to execute and file
each such document on behalf of the Depositor. Such power of attorney shall
continue until the earlier of either (i) receipt by the Trustee from the
Depositor of written termination of such power of attorney and (ii) the
termination of the Trust. Notwithstanding the foregoing, the Trustee shall
prepare such Form 10-K to be signed by the Depositor and the Depositor shall
sign such form unless the Securities and Exchange Commission has indicated that
it will accept a Certification signed by the Depositor where the related Form
10-K is signed by the Trustee on behalf of the Depositor.
(b) The Depositor shall prepare or cause to be prepared and file the
current Report on Form 8-K attaching this Agreement as an exhibit and,
thereafter, each Form 8-K shall be filed by the Trustee within 15 days after
each Distribution Date, including a copy of the statement to the
Certificateholders for such Distribution Date as an exhibit thereto. On or prior
to March 30th of each year (or such earlier date as may be required by the
Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission), the Trustee shall file a Form 10-K, in substance as required by
applicable law or applicable Securities and Exchange Commission staff's
interpretations. Such Form 10-K shall include as exhibits the Servicer's annual
statement of compliance described under Section 3.22 and the accountant's report
described under Section 3.23, in each case to the extent they have been timely
delivered to the Trustee (and upon which the Trustee may rely in delivering its
certification hereunder). 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 N (the "Certification"), which shall, except as
described below, be signed by the senior officer of the Depositor in charge of
securitization. Notwithstanding the foregoing, if it is determined by the
Depositor that the Certification may be executed by multiple persons, the
Trustee shall sign the Certification in respect of items 1 through 3 thereof and
the Servicer shall cause the senior officer in charge of servicing at the
Servicer to sign the Certification in respect of items 4 and 5 thereof, and the
Trustee may rely on the Certification signed by the Servicer to the same extent
as provided in subsection (c) below.
(c) In the event the Certification is to be signed by an officer of
the Depositor, the Trustee shall sign a certification (in the form attached
hereto as Exhibit O) for the benefit of the Depositor and its officers,
directors and Affiliates in respect of items 1 through 3 of the Certification
(provided, however, that the Trustee shall not undertake an analysis of the
accountant's report attached as an exhibit to the Form 10-K), and the Servicer
shall sign a certification (in the form attached hereto as Exhibit P) for the
benefit of the Depositor, the Trustee and their officers, directors and
Affiliates in respect of items 4 and 5 of the Certification. Each such
certification shall be delivered to the Depositor and the Trustee by March 20th
of each year (or if not a Business Day, the immediately preceding Business Day).
The Certification attached hereto as Exhibit N shall be delivered to the Trustee
by March 25th for filing on or prior to March 30th of each year (or if not a
Business Day, the immediately preceding Business Day). In addition, (i) the
Trustee shall indemnify and hold harmless the Depositor and its officers,
directors and Affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon a breach of the
Trustee's obligations under this Section 8.12(c) or the Trustee's negligence,
bad faith or willful misconduct in connection therewith, and (ii) the Servicer,
shall indemnify and hold harmless the Depositor, the Trustee and their
respective officers, directors, employees, agents and Affiliates from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach of such Servicer's obligations under this
Section 8.12(c) or the Servicer's negligence, bad faith or willful misconduct in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless the indemnified party, then (i) the Trustee
agrees in connection with a breach of the Trustee's obligations under this
Section 8.12(c) or the Trustee's negligence, bad faith or willful misconduct in
connection therewith that it shall contribute to the amount paid or payable by
the Depositor as a result of the losses, claims, damages or liabilities of the
Depositor in such proportion as is appropriate to reflect the relative fault of
the Depositor on the one hand and the Trustee on the other and (ii) the Servicer
agrees that it shall contribute to the amount paid or payable by the Depositor
and/or the Trustee as a result of the losses, claims, damages or liabilities of
the Depositor and/or the Trustee in such proportion as is appropriate to reflect
the relative fault of the Depositor or the Trustee, as the case may be, on the
one hand and the Servicer on the other in connection with a breach of the
Servicer's obligations under this Section 8.12(c) or the Servicer's negligence,
bad faith or willful misconduct in connection therewith.
(d) Upon any filing with the Securities and Exchange Commission, the
Trustee shall promptly deliver to the Depositor a copy of any such executed
report, statement or information.
(e) Prior to January 30 of the first year in which the Trustee is
able to do so under applicable law, the Trustee shall file a Form 15 Suspension
Notification with respect to the Trust.
Section 8.13 Tax Treatment of Upper-Tier Carry Forward Amounts and
Basis Risk Carry Forward Amounts. The Trustee shall treat the rights that each
Class of LIBOR Certificates has to receive payments of Upper-Tier Carry Forward
Amounts and, to the extent not paid from the Excess Reserve Fund Account, Basis
Risk Carry Forward Amounts from the Supplemental Interest Trust (together with
Basis Risk Carry Forward Amounts from the Excess Reserve Fund Account) as rights
to receive payments under a limited recourse interest rate cap contract written
by the Class X Certificateholders in favor of each such Class. Accordingly, each
Class of Certificates (excluding the Class X, Class P and Class R Certificates)
will be comprised of two components - an Upper-Tier Regular Interest and an
interest in an interest rate cap contract, and the Class X Certificate will be
comprised of four components - two Upper-Tier Regular Interests (the Class X
Interest and the Class IO Interest), ownership of the Excess Reserve Fund
Account, subject to an obligation to pay Basis Risk Carry Forward Amounts, and
ownership of the Supplemental Interest Trust and the Interest Rate Swap
Agreement, subject to the obligation to pay Upper-Tier Carry Forward Amounts
and, without duplication, Basis Risk Carry Forward Amounts. The Trustee shall
allocate the issue price for a Class of LIBOR Certificates among the respective
components for purposes of determining the issue price of the Upper-Tier Regular
Interest component based on information received from the Depositor. Unless
otherwise advised by the Depositor in writing, for federal income tax purposes,
the Trustee is hereby directed to assign a value of zero to the right of each
Holder of an LIBOR Certificate to receive the related Upper-Tier Carry Forward
Amounts and, without duplication, the related Basis Risk Carry Forward Amount
for purposes of allocating the purchase price of an initial LIBOR
Certificateholder between such right and the related Upper-Tier Regular
Interest.
Holders of LIBOR Certificates shall also be treated as having agreed
to pay, on each Distribution Date, to the Holders of the Class X Certificates an
aggregate amount equal to the excess, if any, of (i) Net Swap Payments and Swap
Termination Payments (other than Defaulted Swap Termination Payments) over (ii)
the sum of amounts payable on the Class X Interest available for such payments
and amounts payable on the Class IO Interest (such excess, a "Class IO
Shortfall"), first from interest and then from principal distributable on the
LIBOR Certificates. A Class IO Shortfall payable from interest collections shall
be allocated pro rata among such LIBOR Certificates based on the amount of
interest otherwise payable to such Class of LIBOR Certificates, and a Class IO
Shortfall payable from principal collections shall be allocated in reverse
sequential order beginning with the most subordinate Class of LIBOR Certificates
then outstanding.
Any payments of Class IO Shortfalls shall be treated for tax
purposes as having been received by the Holders of such Class of LIBOR
Certificates in respect of the corresponding Upper-Tier Regular Interest and as
having been paid by such Holders to the Holders of the Class X Certificates
through the Supplemental Interest Trust.
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 9.03, the obligations and responsibilities of
the Depositor, the Servicer and the Trustee created hereby with respect to the
Trust Fund shall terminate upon the earlier of (a) the purchase, on the Optional
Termination Date, of all Mortgage Loans (and REO Properties) at the price equal
to the sum of (i) 100% of the unpaid principal balance of each Mortgage Loan
(other than in respect of REO Property) plus accrued and unpaid interest thereon
at the applicable Mortgage Interest Rate, (ii) the lesser of (x) the appraised
value of any REO Property as determined by the higher of two appraisals
completed by two independent appraisers selected by the Person electing to
terminate the Trust Fund (or in the case of the Servicer, acting at the
direction of the Majority Class X Certificateholder, selected by the Majority
Class X Certificateholder), at the expense of such Person (or in the case of the
Servicer, acting at the direction of the Majority Class X Certificateholder, the
Majority Class X Certificateholder), plus accrued and unpaid interest on the
related Mortgage Loan at the applicable Mortgage Interest Rates and (y) the
unpaid principal balance of each Mortgage Loan related to any REO Property, in
each case plus accrued and unpaid interest thereon at the applicable Mortgage
Interest Rate, and (iii) any Swap Termination Payment owed to the Swap Provider
(as provided to the Trustee by the Swap Provider pursuant to the Interest Rate
Swap Agreement) ("Termination Price") and (b) the later of (i) the maturity or
other Liquidation Event (or any Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all REO
Property and (ii) the distribution to Certificateholders of all amounts required
to be distributed to them pursuant to this Agreement. In no event shall the
trusts created hereby continue beyond the expiration of 21 years from the death
of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of
the United States to the Court of St. James's, living on the date hereof.
Section 9.02 Final Distribution on the Certificates. If on any
Remittance Date, the Servicer notifies the Trustee that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than the
funds in the Collection Account, the Servicer shall direct the Trustee promptly
to send a Notice of Final Distribution to each Certificateholder and the Swap
Provider. If the Servicer (at the direction of the Majority Class X
Certificateholder) elects to terminate the Trust Fund pursuant to clause (a) of
Section 9.01, by the 25th day of the month preceding the month of the final
distribution, the Servicer shall notify the Depositor and the Trustee of the
date the Servicer intends to terminate the Trust Fund and of the applicable
Termination Price of the Mortgage Loans and REO Properties. The Servicer, when
acting at the direction of the Majority Class X Certificateholder, shall be
entitled to reasonably rely on a representation from the Majority Class X
Certificateholder that it is the Majority Class X Certificateholder and is
entitled under this Agreement to direct the Servicer to terminate the Trust
Fund.
A Notice of Final Distribution, specifying the Distribution Date on
which Certificateholders may surrender their Certificates for payment of the
final distribution and cancellation, shall be given promptly by the Trustee by
letter to Certificateholders mailed not later than the 15th day of the month of
such final distribution. Any such Notice of Final Distribution shall specify (a)
the Distribution Date upon which final distribution on the Certificates will be
made upon presentation and surrender of Certificates at the office therein
designated, (b) the amount of such final distribution, (c) the location of the
office or agency at which such presentation and surrender must be made, and (d)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Trustee will give such Notice
of Final Distribution to each Rating Agency at the time such Notice of Final
Distribution is given to Certificateholders.
In the event such Notice of Final Distribution is given and the
Person electing to terminate the Trust Fund is the Servicer (at the direction of
the Majority Class X Certificateholder), the Majority Class X Certificateholder
shall remit the applicable Termination Price in immediately available funds to
the Servicer at least two Business Days prior to the applicable Distribution
Date, and, upon receipt of such funds from the Majority Class X
Certificateholder, the Servicer shall promptly deposit such funds in the
Collection Account. During the time such funds are held in the Collection
Account, such funds shall be invested, at the direction of the Majority Class X
Certificateholder, in Permitted Investments, and the Majority Class X
Certificateholder shall be entitled to all income from such investments, and
shall be responsible for, and shall reimburse the Servicer for all losses from
such investments. The Majority Class X Certificateholder shall be obligated to
reimburse the Servicer for its reasonable out-of-pocket expenses incurred in
connection with its termination of the Trust Fund at the direction of the
Majority Class X Certificateholder and shall indemnify and hold harmless the
Servicer for any losses, liabilities or expenses resulting from any claims
directly resulting from or relating to the Servicer's termination of the Trust
Fund at the direction of the Majority Class X Certificateholder, except to the
extent such losses, liabilities or expenses arise out of or result from the
Servicer's negligence, bad faith or willful misconduct. In connection with any
such termination of the Trust Fund, the Servicer shall cause all funds in the
Collection Account, including the applicable Termination Price for the Mortgage
Loans and REO Properties if the Servicer is electing to terminate the Trust
Fund, to be remitted to the Trustee for deposit in the Distribution Account on
the Business Day prior to the applicable Distribution Date. Upon such final
deposit with respect to the Trust Fund and the receipt by the Trustee of a
Request for Release therefor, the Trustee shall promptly release to the Person
electing to terminate the Trust Fund, or its designee, the Custodial Files for
the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Certificateholders of each Class (after
reimbursement of all amounts due to the Servicer (including all unreimbursed
Advances and any Servicing Fees accrued and unpaid as of the date the
Termination Price is paid), the Depositor and the Trustee hereunder), in each
case on the final Distribution Date and in the order set forth in Section 4.02,
in proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, an amount up to an amount equal to (i) as
to each Class of Regular Certificates (except the Class X Certificates), the
Certificate Balance thereof plus for each such Class and the Class X
Certificates accrued interest thereon in the case of an interest bearing
Certificate and all other amounts to which such Classes are entitled pursuant to
Section 4.02, (ii) as to the Residual Certificates, the amount, if any, which
remains on deposit in the Distribution Account (other than the amounts retained
to meet claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for cancellation,
the Class R Certificateholders shall be entitled to all unclaimed funds and
other assets of the Trust Fund which remain subject hereto.
Section 9.03 Additional Termination Requirements. In the event a
Person elects to terminate the Trust Fund as provided in Section 9.01, the Trust
Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee has been supplied with an Opinion of Counsel,
at the expense of the electing Person, to the effect that the failure to comply
with the requirements of this Section 9.03 will not (i) result in the imposition
of taxes on "prohibited transactions" on any Trust REMIC as defined in Section
860F of the Code, or (ii) cause any Trust REMIC to fail to qualify as a REMIC at
any time that any Certificates are outstanding:
(a) The Trustee shall sell all of the assets of the Trust Fund to
the Person electing to terminate the Trust Fund, or its designee, and, within 90
days of such sale, shall distribute to the Certificateholders the proceeds of
such sale in complete liquidation of each of the Trust REMICs; and
(b) The Trustee shall attach a statement to the final federal income
tax return for each of the Trust REMICs stating that pursuant to Treasury
Regulations Section 1.860F 1, the first day of the 90 day liquidation period for
each such Trust REMIC was the date on which the Trustee sold the assets of the
Trust Fund to the electing Person.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Servicer and the Trustee without the consent of any
of the Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct
any defective provision herein or to supplement any provision herein which may
be inconsistent with any other provision herein, (iii) to add to the duties of
the Depositor or the Servicer, (iv) to add any other provisions with respect to
matters or questions arising hereunder or (v) to modify, alter, amend, add to or
rescind any of the terms or provisions contained in this Agreement; provided,
that any action pursuant to clause (iv) or (v) above shall not, as evidenced by
an Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Trustee or the Trust Fund), adversely affect in any material respect the
interests of any Certificateholder; provided, further, that the amendment shall
not be deemed to adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, the Depositor and the Servicer also may
at any time and from time to time amend this Agreement, but without the consent
of the Certificateholders to modify, eliminate or add to any of its provisions
to such extent as shall be necessary or helpful to (i) maintain the
qualification of each Trust REMIC under the REMIC Provisions, (ii) avoid or
minimize the risk of the imposition of any tax on any Trust REMIC pursuant to
the Code that would be a claim at any time prior to the final redemption of the
Certificates or (iii) comply with any other requirements of the Code; provided,
that the Trustee has been provided an Opinion of Counsel, which opinion shall be
an expense of the party requesting such opinion but in any case shall not be an
expense of the Trustee or the Trust Fund, to the effect that such action is
necessary or helpful to, as applicable, (i) maintain such qualification, (ii)
avoid or minimize the risk of the imposition of such a tax or (iii) comply with
any such requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates evidencing Percentage Interests aggregating not less than 662/3% of
each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, payments required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
clause (i), without the consent of the Holders of Certificates of such Class
evidencing, as to such Class, Percentage Interests aggregating not less than
662/3%, or (iii) reduce the aforesaid percentages of Certificates the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless (i) it shall
have first received an Opinion of Counsel, which opinion shall not be an expense
of the Trustee or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on any Trust REMIC or the Certificateholders or
cause any Trust REMIC to fail to qualify as a REMIC or the grantor trust to fail
to qualify as a grantor trust at any time that any Certificates are outstanding
and (ii) the party seeking such amendment shall have provided written notice to
the Rating Agencies (with a copy of such notice to the Trustee) of such
amendment, stating the provisions of the Agreement to be amended.
Notwithstanding the foregoing provisions of this Section 10.01, with
respect to any amendment that significantly modifies the permitted activities of
the Trustee or the Servicer, any Certificate beneficially owned by the Depositor
or any of its Affiliates shall be deemed not to be outstanding (and shall not be
considered when determining the percentage of Certificateholders consenting or
when calculating the total number of Certificates entitled to consent) for
purposes of determining if the requisite consents of Certificateholders under
this Section 10.01 have been obtained.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 10.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment which modifies its obligations or liabilities without its consent and
in all cases without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee or the Trust Fund), satisfactory to the Trustee that
(i) such amendment is permitted and is not prohibited by this Agreement and that
all requirements for amending this Agreement have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 10.01.
Section 10.02 Recordation of Agreement; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Servicer at the expense of the Trust, but only upon receipt of
an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. It is, further, not the intention of the
parties that such conveyances be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, such assets are held to be the
property of the Depositor, as the case may be, or if for any other reason this
Agreement is held or deemed to create a security interest in either such assets,
then (i) this Agreement shall be deemed to be a security agreement within the
meaning of the Uniform Commercial Code of the State of New York and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The Depositor, for the benefit of the Certificateholders, shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Trust Fund, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement.
Section 10.05 Notices. (a) The Trustee shall use its best efforts to
promptly provide notice to each Rating Agency with respect to each of the
following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of a Servicer or the Trustee and
the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to
Sections 2.03, 2.07 or 3.28; and
5. The final payment to Certificateholders.
(b) In addition, the Trustee shall promptly furnish to each Rating
Agency copies of the following:
1. Each report to Certificateholders described in Section 4.03.
2. Any notice of a purchase of a Mortgage Loan pursuant to Section
3.28.
All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to (a) in the case of
the Depositor, to GS Mortgage Securities Corp., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Principal Finance Group/Xxxxxxxxxxx X. Xxxxxxx and Asset
Management Group/Senior Asset Manager (and, in the case of the Officer's
Certificate delivered pursuant to Section 3.22, to PricewaterhouseCoopers LLP,
000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, Attention:
Xxxxxxxx Xxxxxxx), or such other address as may be hereafter furnished to the
Trustee and the Servicer by the Depositor in writing; (b) in the case of the
Servicer, to Countrywide Home Loans Servicing LP, 0000 Xxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxx Xxxx, or such other address as may be
hereafter furnished to the Depositor and Trustee by the Servicer in writing, (c)
in the case of the Trustee, to the Corporate Trust Office, or such other address
as the Trustee may hereafter furnish to the Depositor, and the Servicer, and (d)
in the case of each of the Rating Agencies, the address specified therefor in
the definition corresponding to the name of such Rating Agency. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
Section 10.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 10.07 Assignment; Sales; Advance Facilities. (a)
Notwithstanding anything to the contrary contained herein, except as provided in
Section 6.04, this Agreement may be assigned by the Servicer with the prior
written consent of the Depositor and the Trustee. In addition, for so long as a
Servicer is acting as the Servicer hereunder (i) the Servicer is hereby
authorized to enter into an advance facility ("Advance Facility") under which
(A) the Servicer sells, assigns or pledges to an Advancing Person the Servicer's
rights under this Agreement to be reimbursed for any P&I Advances or Servicing
Advances and/or (B) an Advancing Person agrees to fund some or all P&I Advances
or Servicing Advances required to be made by the Servicer pursuant to this
Agreement and (ii) the Servicer is hereby authorized to assign its rights to the
Servicing Fee; it being understood neither the Trust Fund nor any party hereto
shall have a right or claim to an Advance Reimbursement Amount so assigned or to
the portion of the Servicing Fee so assigned; it being further understood that
upon resignation or termination of the Servicer and reimbursement of all amounts
due to the Servicer hereunder, the assignment of further Advance reimbursement
rights to such Advance Facility (in the case of clause (i)) and such assignment
(in the case of clause (ii)) shall be terminated with respect to amounts due
related to this Agreement. No consent of the Trustee, Certificateholders, or any
other party is required before the Servicer may enter into an Advance Facility.
Notwithstanding the existence of any Advance Facility under which an Advancing
Person agrees to fund P&I Advances and/or Servicing Advances on the Servicer's
behalf, the Servicer shall remain obligated pursuant to this Agreement to make
P&I Advances and Servicing Advances pursuant to and as required by this
Agreement, and shall not be relieved of such obligations by virtue of such
Advance Facility.
(b) Advance reimbursement amounts ("Advance Reimbursement Amounts")
shall consist solely of amounts in respect of P&I Advances and/or Servicing
Advances made with respect to the Mortgage Loans for which the Servicer would be
permitted to reimburse itself in accordance with this Agreement, assuming the
Servicer had made the related P&I Advance(s) and/or Servicing Advance(s).
(c) The Servicer shall maintain and provide to any successor
Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced
by, pledged or assigned to, and reimbursed to any Advancing Person. The
successor Servicer shall be entitled to rely on any such information provided by
the predecessor Servicer, and the successor Servicer shall not be liable for any
errors in such information.
(d) An Advancing Person who purchases or receives an assignment or
pledge of the rights to be reimbursed for P&I Advances and/or Servicing
Advances, and/or whose obligations hereunder are limited to the funding of P&I
Advances and/or Servicing Advances shall not be required to meet the criteria
for qualification of a Subservicer set forth in this Agreement.
(e) Advance Reimbursement Amounts distributed with respect to each
Mortgage Loan shall be allocated to outstanding xxxxxxxxxxxx X&X Advances or
Servicing Advances (as the case may be) made with respect to that Mortgage Loan
on a "first-in, first out" (FIFO) basis. Such documentation shall also require
the Servicer to provide to the related Advancing Person or its designee
loan-by-loan information with respect to each such Advance Reimbursement Amount
distributed to such Advancing Person or Advance Facility trustee on each
Distribution Date, to enable the Advancing Person or Advance Facility trustee to
make the FIFO allocation of each such Advance Reimbursement Amount with respect
to each Mortgage Loan. The Servicer shall remain entitled to be reimbursed by
the Advancing Person or Advance Facility trustee for all P&I Advances and
Servicing Advances funded by such Servicer to the extent the related rights to
be reimbursed therefor have not been sold, assigned or pledged to an Advancing
Person.
(f) Any amendment to this Section 10.07 or to any other provision of
this Agreement that may be necessary or appropriate to effect the terms of an
Advance Facility as described generally in this Section 10.07, including
amendments to add provisions relating to a successor Servicer, may be entered
into by the Trustee, the Depositor and the Servicer without the consent of any
Certificateholder, notwithstanding anything to the contrary in this Agreement,
provided, that the Trustee has been provided an Opinion of Counsel that such
amendment has no material adverse effect on the Certificateholders which opinion
shall be an expense of the Servicer entering into the Advance Facility but in
any case shall not be an expense of the Trustee or the Trust Fund; provided,
further, that the amendment shall not be deemed to adversely affect in any
material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency (instead of
obtaining an Opinion of Counsel) stating that the amendment would not result in
the downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such rating letter in and
of itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. Prior to entering into an Advance Facility, the
Servicer shall notify the lender under such facility in writing that: (a) the
Advances financed by and/or pledged to the lender are obligations owed to the
Servicer on a non-recourse basis payable only from the cash flows and proceeds
received under this Agreement for reimbursement of Advances only to the extent
provided herein, and the Trustee and the Trust are not otherwise obligated or
liable to repay any Advances financed by the lender; (b) the Servicer will be
responsible for remitting to the lender the applicable amounts collected by it
as reimbursement for Advances funded by the lender, subject to the restrictions
and priorities created in this Agreement; and (c) the Trustee shall not have any
responsibility to track or monitor the administration of the financing
arrangement between the Servicer and the lender.
Section 10.08 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 10.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 10.09 Inspection and Audit Rights. The Servicer agrees that
on reasonable prior notice, it will permit any representative of the Depositor,
or the Trustee during the Servicer's normal business hours, to examine all the
books of account, records, reports and other papers of the Servicer relating to
the Mortgage Loans, to make copies and extracts therefrom, to cause such books
to be audited by independent certified public accountants selected by the
Depositor or the Trustee and to discuss its affairs, finances and accounts
relating to the Mortgage Loans with its officers, employees and independent
public accountants (and by this provision the Servicer hereby authorizes said
accountants to discuss with such representative such affairs, finances and
accounts), all at such reasonable times and as often as may be reasonably
requested. Any reasonable out-of-pocket expense of the Servicer incident to the
exercise by the Depositor, or the Trustee of any right under this Section 10.09
shall be borne by the Servicer. The Servicer may impose commercially reasonable
restrictions on dissemination of information the Servicer defines as
confidential.
Nothing in this Section 10.09 shall limit the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of the Servicer to provide access as
provided in this Section 10.09 as a result of such obligation shall not
constitute a breach of this Section. Nothing in this Section 10.09 shall require
the Servicer to collect, create, collate or otherwise generate any information
that it does not generate in its usual course of business. The Servicer shall
not be required to make copies of or to ship documents to any Person who is not
a party to this Agreement, and then only if provisions have been made for the
reimbursement of the costs thereof.
Section 10.10 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 10.11 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW)
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
Section 10.12 Limitation of Damages. NOTWITHSTANDING ANYTHING
CONTAINED HEREIN TO THE CONTRARY, THE PARTIES AGREE THAT NO PARTY SHALL BE
LIABLE TO ANY OTHER PARTY FOR ANY PUNITIVE DAMAGES WHATSOEVER, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL
OR EQUITABLE PRINCIPLE, PROVIDED, HOWEVER, THAT SUCH LIMITATION SHALL NOT BE
APPLICABLE WITH RESPECT TO THIRD PARTY CLAIMS MADE AGAINST A PARTY.
Section 10.13 Rights of the Swap Provider. The Swap Provider shall
be deemed a third-party beneficiary of this Agreement to the same extent as if
it were a party hereto and shall have the right to enforce its rights under this
Agreement.
* * * * * * *
IN WITNESS WHEREOF, the Depositor, the Trustee and the Servicer have
caused their names to be signed hereto by their respective officers thereunto
duly authorized as of the day and year first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
solely as Trustee and not in its
individual capacity
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Associate
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
COUNTRYWIDE HOME LOANS SERVICING LP
By: COUNTRYWIDE GP, INC.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
SCHEDULE I
Mortgage Loan Schedule
(Delivered to the Trustee on the Closing Date)
SCHEDULE II
GSAMP Mortgage Loan Trust 2005-AHL,
Mortgage Pass-Through Certificates
Representations and Warranties of Countrywide Home Loans Servicing LP, as
Servicer
Countrywide Home Loans Servicing LP ("Countrywide") hereby makes the
representations and warranties set forth in this Schedule II to the Depositor
and the Trustee, as of the Closing Date, or if so specified herein, as of the
Cut-off Date:
(1) Countrywide is duly organized as a limited partnership and is
validly existing and in good standing under the laws of the State of Texas, and
is licensed and qualified to transact any and all business contemplated by this
Pooling and Servicing Agreement to be conducted by Countrywide in any state in
which a Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is in compliance
with the doing business laws of any such State, to the extent necessary to
ensure its ability to enforce each Mortgage Loan and to service the Mortgage
Loans in accordance with the terms of this Pooling and Servicing Agreement;
(2) Countrywide has the full power and authority to service each
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by this Pooling and Servicing Agreement
and has duly authorized by all necessary action on the part of Countrywide the
execution, delivery and performance of this Pooling and Servicing Agreement; and
this Pooling and Servicing Agreement, assuming the due authorization, execution
and delivery thereof by the Depositor and the Trustee, constitutes a legal,
valid and binding obligation of Countrywide, enforceable against Countrywide in
accordance with its terms, except to the extent that (a) the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium, receivership and
other similar laws relating to creditors' rights generally and (b) the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to the equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought;
(3) The execution and delivery of this Pooling and Servicing
Agreement by Countrywide, the servicing of the Mortgage Loans by Countrywide
hereunder, the consummation by Countrywide of any other of the transactions
herein contemplated, and the fulfillment of or compliance with the terms hereof
are in the ordinary course of business of Countrywide and will not (A) result in
a breach of any term or provision of the organizational documents of Countrywide
or (B) conflict with, result in a breach, violation or acceleration of, or
result in a default under, the terms of any other material agreement or
instrument to which Countrywide is a party or by which it may be bound, or any
statute, order or regulation applicable to Countrywide of any court, regulatory
body, administrative agency or governmental body having jurisdiction over
Countrywide; and Countrywide is not a party to, bound by, or in breach or
violation of any indenture or other agreement or instrument, or subject to or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects or, to Countrywide's knowledge, would in the
future materially and adversely affect, (x) the ability of Countrywide to
perform its obligations under this Pooling and Servicing Agreement or (y) the
business, operations, financial condition, properties or assets of Countrywide
taken as a whole;
(4) Countrywide is an approved seller/servicer for Xxxxxx Xxx and an
approved servicer for Xxxxxxx Mac in good standing;
(5) No litigation is pending against Countrywide that would
materially and adversely affect the execution, delivery or enforceability of
this Pooling and Servicing Agreement or the ability of Countrywide to service
the Mortgage Loans or to perform any of its other obligations hereunder in
accordance with the terms hereof;
(6) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Countrywide of, or compliance by Countrywide with, this Pooling
and Servicing Agreement or the consummation by Countrywide of the transactions
contemplated by this Pooling and Servicing Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained prior to
the Closing Date; and
(7) Countrywide covenants that its computer and other systems used
in servicing the Mortgage Loans operate in a manner such that Countrywide can
service the Mortgage Loans in accordance with the terms of this Pooling and
Servicing Agreement.
With respect to each Mortgage Loan, to the extent Countrywide
serviced such Mortgage Loan and to the extent Countrywide provided monthly
reports to the three credit repositories, Countrywide has fully furnished, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (i.e., favorable and unfavorable) on its
borrower credit files to Equifax, Experian, and Trans Union Credit Information
Company (three of the credit repositories), on a monthly basis.
EXHIBIT A-1
FORM OF CLASS A, CLASS M AND CLASS B CERTIFICATES [To be added to
the Class M-6, Class B-1 and Class B-2 Certificates while they remain Private
Certificates: IF THIS CERTIFICATE IS A PHYSICAL CERTIFICATE, NEITHER THIS
CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER (THE "TRANSFEROR LETTER")
IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE
TRUSTEE RECEIVES A RULE 144A LETTER (THE "144A LETTER") IN THE FORM OF EXHIBIT I
TO THE AGREEMENT REFERRED TO HEREIN OR A LETTER (THE "NON-RULE 144A INVESTMENT
LETTER") IN THE FORM OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (II)
THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE
TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE
DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.
In the event that a transfer of a Private Certificate which is a Book-Entry
Certificate is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer will be deemed to
have made as of the transfer date each of the certifications set forth in the
Transferor Certificate in respect of such Certificate and the transferee will be
deemed to have made as of the transfer date each of the certifications set forth
in the Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate.]
[To be added to the Class B-2 Certificates: NEITHER THIS CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE
EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A
PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR, IF THE
TRANSFEREE IS AN INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT IS USING THE
ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE, TO THE
EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR
RESULT IN A PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE DEPOSITOR OR
THE SERVICER TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS
AGREEMENT OR TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR
SIMILAR LAW WITHOUT THE REPRESENTATION LETTER OR OPINION OF COUNSEL SATISFACTORY
TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER
ASSETS.
AS LONG AS THE INTEREST RATE SWAP AGREEMENT IS IN EFFECT, EACH BENEFICIAL OWNER
OF THIS CERTIFICATE, OR ANY INTEREST THEREIN, SHALL BE DEEMED TO HAVE
REPRESENTED THAT EITHER (I) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A
PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, NOR A PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR ARRANGEMENT NOR USING THE ASSETS OF ANY SUCH PLAN OR
ARRANGEMENT OR (II) THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE ELIGIBLE
FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AT LEAST ONE OF PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 84-14, XXXX 00-0, XXXX 00-0, XXXX 95-60 OR PTCE 96-23
OR A COMPARABLE EXEMPTION AVAILABLE UNDER SIMILAR LAW.
Certificate No. :
Cut-off Date : May 1, 2005
First Distribution Date : June 27, 2005
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate
Balances of all Class Certificate
Certificates of this Class : Class Balance
--------- -----------------
Class A-1 $269,282,000
Class A-2 $145,242,000
Class A-3 $77,440,000
Class M-1 $46,190,000
Class M-2 $31,620,000
Class M-3 $9,300,000
Class M-4 $7,749,000
Class M-5 $5,580,000
Class M-6 $5,270,000
Class B-1 $4,340,000
Class B-2 $6,200,000
CUSIP : Class CUSIP No.
--------- -----------
Class A-1 36242D Z7 1
Class A-2 36242D Z8 9
Class A-3 36242D Z9 7
Class M-1 36242D 2A 0
Class M-2 36242D 2B 8
Class M-3 36242D 2C 6
Class M-4 36242D 2D 4
Class M-5 36242D 2E 2
Class M-6 36242D 3A 9
Class B-1 36242D 3B 7
Class B-2 36242D 3C 5
ISIN : Class ISIN
--------- ------------
Class A-1 US36242DZ718
Class A-2 US36242DZ890
Class A-3 US36242DZ973
Class M-1 US36242D2A07
Class M-2 US36242D2B89
Class M-3 US36242D2C62
Class M-4 US36242D2D46
Class M-5 US36242D2E29
Class M-6 US36242D3A97
Class B-1 US36242D3B70
Class B-2 US36242D3C53
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL
Mortgage Pass-Through Certificates, Series 2005-AHL
[Class A-] [Class M-] [Class B-]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer or the Trustee referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Countrywide Home Loans Servicing LP, as
servicer, (the "Servicer"), and Deutsche Bank National Trust Company, as trustee
(the "Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed. Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity, but
solely as
Trustee
By:
------------------------------------
Authenticated:
By:
---------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-AHL Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes, or such other location specified in the notice to Certificateholders
of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
Dated:
-------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _______________, or, if mailed by check, to ____________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT B
FORM OF CLASS P CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (ii) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE, OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
WITHOUT THE REPRESENTATION LETTER SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [1]
Cut-off Date : May 1, 2005
First Distribution Date : June 27, 2005
Percentage Interest of
this Certificate
("Denomination") : [__]%
CUSIP : 36242D 4Q 3
ISIN : US36242D4Q31
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL
Mortgage Pass-Through Certificates, Series 2005-AHL
Class P
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Servicer or
the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Countrywide Home Loans Servicing LP, as
servicer, (the "Servicer"), and Deutsche Bank National Trust Company, as trustee
(the "Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Trustee for such purpose.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached to the Pooling 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 to the Trustee that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from the
1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel
shall be an expense of the transferor.
No transfer of a Certificate of this Class shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA, Section 4975 of the Code or any materially
similar provisions of applicable Federal, state or local law ("Similar Law"), or
a person acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Trustee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
* * *
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY, not
in its individual capacity, but solely
as Trustee
By:
------------------------------------
Authenticated:
By
------------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-AHL Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
Dated:
-------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _______________, or, if mailed by check, to ____________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT C-1
FORM OF CLASS R-1 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN THREE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS
OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT SUCH
REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : May 1, 2005
First Distribution Date : June 27, 2005
Initial Certificate Balance
of this Certificate
("Denomination") : $100
Initial Certificate Balance
of all Certificates of this
Class : $100
CUSIP : 36242D 4M 2
ISIN : US36242D4M27
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL
Mortgage Pass-Through Certificates, Series 2005-AHL
Class R-1
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class R-1 Certificate is not entitled to
distributions in respect of interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Servicer, or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that ______________ is the registered owner of the
Percentage Interest specified above of any monthly distributions due to the
Class R-1 Certificates pursuant to a Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Countrywide Home Loans Servicing LP, as
servicer (the "Servicer"), and Deutsche Bank National Trust Company, as trustee
(the "Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class R-1
Certificate at the offices designated by the Trustee for such purposes.
No transfer of a Class R-1 Certificate shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, a plan or arrangement subject to
Section 4975 of the Code or a plan subject to Similar Law, or a person acting on
behalf of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer, which representation letter shall not be an
expense of the Trustee, the Servicer or the Trust Fund. In the event that such
representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of
the Code or a plan subject to Similar Law, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement,
such attempted transfer or acquisition shall be void and of no effect.
Each Holder of this Class R-1 Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R-1 Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class R-1 Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R-1 Certificate shall be a
Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee, (ii) no Ownership
Interest in this Class R-1 Certificate may be registered on the Closing Date or
thereafter transferred, and the Trustee shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered to
the Trustee under Section 5.02(b) of the Agreement, the Trustee shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R-1 Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R-1 Certificate,
(B) to obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer of this
Class R-1 Certificate, (C) not to cause income with respect to the Class R-1
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person and (D) not to Transfer the Ownership Interest in this
Class R-1 Certificate or to cause the Transfer of the Ownership Interest in this
Class R-1 Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee and (iv) any attempted or purported
Transfer of the Ownership Interest in this Class R-1 Certificate in violation of
the provisions herein shall be absolutely null and void and shall vest no rights
in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY, not
in its individual capacity, but solely
as Trustee
By:
------------------------------------
Authenticated:
By:
------------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-AHL Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Trustee and the Depositor and any agent of the Trustee or the
Depositor may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
Dated:
-------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _______________, or, if mailed by check, to ____________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT C-2
FORM OF CLASS R-2 CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS
OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT SUCH
REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : May 1, 2005
First Distribution Date : June 27, 2005
Initial Certificate Balance
of this Certificate
("Denomination") : $100
Initial Certificate Balances
of all Certificates of this
Class : $100
CUSIP : 36242D 4N 0
ISIN : US36242D4N00
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL
Mortgage Pass-Through Certificates, Series 2005-AHL
Class R-2
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class R-2 Certificate is not entitled to
distributions in respect of interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Servicer, or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that _____________ is the registered owner of the
Percentage Interest specified above of any monthly distributions due to the
Class R-2 Certificates pursuant to a Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Countrywide Home Loans Servicing LP, as
servicer (the "Servicer"), and Deutsche Bank National Trust Company, as trustee
(the "Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class R-2
Certificate at the offices designated by the Trustee for such purposes.
No transfer of a Class R-2 Certificate shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, a plan or arrangement subject to
Section 4975 of the Code or a plan subject to Similar Law, or a person acting on
behalf of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer, which representation letter shall not be an
expense of the Trustee, the Servicer or the Trust Fund. In the event that such
representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of
the Code or a plan subject to Similar Law, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement,
such attempted transfer or acquisition shall be void and of no effect.
Each Holder of this Class R-2 Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R-2 Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class R-2 Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R-2 Certificate shall be a
Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee, (ii) no Ownership
Interest in this Class R-2 Certificate may be registered on the Closing Date or
thereafter transferred, and the Trustee shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered to
the Trustee under Section 5.02(b) of the Agreement, the Trustee shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R-2 Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R-2 Certificate,
(B) to obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer of this
Class R-2 Certificate, (C) not to cause income with respect to the Class R-2
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person and (D) not to Transfer the Ownership Interest in this
Class R-2 Certificate or to cause the Transfer of the Ownership Interest in this
Class R-2 Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee and (iv) any attempted or purported
Transfer of the Ownership Interest in this Class R-2 Certificate in violation of
the provisions herein shall be absolutely null and void and shall vest no rights
in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY, not
in its individual capacity, but solely
as Trustee
By:
------------------------------------
Authenticated:
By:
------------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-AHL Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
Dated:
-------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _______________, or, if mailed by check, to ____________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT D
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS TWO
"REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER ASSETS.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (ii) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I
AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE
MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT
SUBJECT THE TRUSTEE, THE DEPOSITOR OR THE SERVICER TO ANY OBLIGATION IN ADDITION
TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I
OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION
LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : May 1, 2005
First Distribution Date : June 27, 2005
Percentage Interest of this
Certificate ("Denomination") : [__]%
CUSIP : 36242D 4P 5
ISIN : US36242D4P57
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL
Mortgage Pass-Through Certificates, Series 2005-AHL
Class X
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class X Certificate has no Certificate Balance
and is not entitled to distributions in respect of principal or interest. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that _____________ is the registered owner of the
Percentage Interest specified above of any monthly distributions due to the
Class X Certificates pursuant to a Pooling and Servicing Agreement dated as of
the Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Countrywide Home Loans Servicing LP, as
servicer (the "Servicer"), and Deutsche Bank National Trust Company, as trustee
(the "Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class X
Certificate at the offices designated by the Trustee for such purposes.
No transfer of a Class X Certificate shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan or arrangement subject to Section 406 of ERISA, a plan or
arrangement subject to Section 4975 of the Code or a plan subject to Similar
Law, or a person acting on behalf of any such plan or arrangement nor using the
assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Trustee, the Depositor, the
Servicer or the Trust Fund, or (ii) if the Class X Certificate has been the
subject of an ERISA Qualifying Underwriting and the transferee is an insurance
company, a representation letter that it is purchasing such Certificates with
the assets of its general account and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60, or (iii) in the
case of a Class X Certificate presented for registration in the name of an
employee benefit plan subject to ERISA, or a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent enactments)
or a plan subject to Similar Law, or a trustee of any such plan or any other
person acting on behalf of any such plan or arrangement or using such plan's or
arrangement's assets, an Opinion of Counsel satisfactory to the Trustee, which
Opinion of Counsel shall not be an expense of the Trustee, the Depositor, the
Servicer or the Trust Fund, addressed to the Trustee, to the effect that the
purchase or holding of such Certificate will not constitute or result in a
non-exempt prohibited transaction within the meaning of ERISA, Section 4975 of
the Code or any Similar Law and will not subject the Trustee, the Depositor or
the Servicer to any obligation in addition to those expressly undertaken in this
Agreement or to any liability. In the event that such representation is
violated, or any attempt is made to transfer to a plan or arrangement subject to
Section 406 of ERISA or a plan subject to Section 4975 of the Code or a plan
subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement, such attempted
transfer or acquisition shall be void and of no effect.
Each Holder of this Class X Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class X Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class X Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class X Certificate shall be a
Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee, (ii) no Ownership
Interest in this Class X Certificate may be registered on the Closing Date or
thereafter transferred, and the Trustee shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered to
the Trustee under Section 5.02(b) of the Agreement, the Trustee shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class X Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class X Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of this Class X
Certificate, (C) not to cause income with respect to the Class X Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person and (D) not to Transfer the Ownership Interest in this Class X
Certificate or to cause the Transfer of the Ownership Interest in this Class X
Certificate to any other Person if it has actual knowledge that such Person is
not a Permitted Transferee and (iv) any attempted or purported Transfer of the
Ownership Interest in this Class X Certificate in violation of the provisions
herein shall be absolutely null and void and shall vest no rights in the
purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
By:
------------------------------------
Authenticated:
By:
------------------------------------
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2005-AHL
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2005-AHL Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders of
such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and neither the Depositor, the Trustee, nor any
such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
Dated:
-------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number _______________, or, if mailed by check, to ____________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
----------------------
----------------------
Re: Pooling and Servicing Agreement among GS Mortgage Securities
Corp., as Depositor, Countrywide Home Loans Servicing LP, as
Servicer, and Deutsche Bank National Trust Company, as
Trustee, XXXXX Xxxxx, 0000-XXX
Xxxxxxxxx:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, for each Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Mortgage Loan listed in the attached schedule of exceptions), certifies that
it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed Assignment of Mortgage (which may be included
in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability, recordability or
genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or the perfection or priority of any Mortgage. Notwithstanding anything
herein to the contrary, the Trustee has made no determination and makes no
representations as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as Noteholder or assignee
thereof, in and to that Mortgage Note or (ii) any assignment is in recordable
form or sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF TRUSTEE
[date]
[Depositor]
[Servicer]
---------------------
---------------------
Re: Pooling and Servicing Agreement among GS Mortgage Securities
Corp., as Depositor, Countrywide Home Loans Servicing LP, as
Servicer, and Deutsche Bank National Trust Company, as
Trustee, XXXXX Xxxxx, 0000-XXX
Xxxxxxxxx:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on the
attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in
Section 2.01 of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator
to the last endorsee.
(ii) The original recorded Mortgage or a certified copy thereof.
(iii) A duly executed Assignment of Mortgage endorsed in blank in
the form provided in Section 2.01 of the Pooling and Servicing Agreement;
or, if the Trustee has actual knowledge that the related Mortgage has not
been returned from the applicable recording office, a copy of the
Assignment of Mortgage (excluding information to be provided by the
recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage endorsed in blank showing a complete chain of
assignment from the originator to the last endorsee.
(v) The original or duplicate original or certified copy lender's
title policy and all riders thereto or, any one of an original title
binder, an original preliminary title report or an original title
commitment, or a copy thereof certified by the title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (1), (2) and (13) of
the Mortgage Loan Schedule and the Data Tape Information accurately reflects
information set forth in the Custodial File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Pooling and Servicing Agreement. The Trustee makes
no representations as to: (i) the validity, legality, sufficiency,
enforceability, recordability or genuineness of any of the documents contained
in each Mortgage File of any of the Mortgage Loans identified on the Mortgage
Loan Schedule or (ii) the collectability, insurability, effectiveness or
suitability of any such Mortgage Loan or the perfection or priority of any
Mortgage. Notwithstanding anything herein to the contrary, the Trustee has made
no determination and makes no representations as to whether (i) any endorsement
is sufficient to transfer all right, title and interest of the party so
endorsing, as Noteholder or assignee thereof, in and to that Mortgage Note or
(ii) any assignment is in recordable form or sufficient to effect the assignment
of and transfer to the assignee thereof, under the Mortgage to which the
assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:____________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT G
FORM OF RESIDUAL TRANSFER AFFIDAVIT
GSAMP Trust 2005-AHL,
Mortgage Pass-Through Certificates
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in a Residual Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement dated as
of May 1, 2005 (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Countrywide Home Loans Servicing LP, as servicer
(the "Servicer"), and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). Capitalized terms used, but not defined herein or in Exhibit 1
hereto, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee for the benefit of the Depositor and the Trustee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit H to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee has historically paid its debts as they have come
due, intends to pay its debts as they come due in the future, and understands
that the taxes payable with respect to the Certificate may exceed the cash flow
with respect thereto in some or all periods and intends to pay such taxes as
they become due. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check one of the following:
|_| The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on such
Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates
losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
|_| The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to
which income from the Certificate will only be taxed in the
United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Certificate only to another
"eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii)
and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury
Regulations; and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and
reinvestment assumptions, tax rates and other factors specific
to the Transferee) that it has determined in good faith.
|_| None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any Federal, state or local law that is substantially similar to
Title I of ERISA or Section 4975 of the Code, and the Transferee is not acting
on behalf of or investing plan assets of such a plan. Re:
Re: IN WITNESS WHEREOF, the Transferee has caused this instrument to
be executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this __ day of ________, 20__.
---------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
Title:
[Corporate Seal]
ATTEST:
------------------------------------
[Assistant] Secretary
Personally appeared before me the above-named __________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ___________ of the Transferee, and acknowledged that he executed the same
as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this __ day of ________, 20__.
---------------------------------------
NOTARY PUBLIC
My Commission expires the __ day
of _________, 20__
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Deutsche Bank National Trust Company,
as Trustee
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Re: GSAMP Trust 2005-AHL, Mortgage Pass-Through Certificates, Series
2005-AHL, Class [ ]
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (C) we have no
reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
---------------------------------------
Print Name of Transferor
By:
------------------------------------
Authorized Officer
EXHIBIT I
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Deutsche Bank National Trust Company,
as Trustee
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Re: GSAMP Trust 2005-AHL, Mortgage Pass-Through Certificates, Series
2005-AHL Class [ ]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either we are purchasing a Class M-6 or Class B-1
Certificate, or we are not an employee benefit plan that is subject to Title I
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
a plan or arrangement that is subject to Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), or a plan subject to any federal, state
or local law materially similar to the foregoing provisions of ERISA or the
Code, nor are we acting on behalf of any such plan or arrangement nor using the
assets of any such plan or arrangement to effect such acquisition, or, with
respect to a Class B-2 or a Class X Certificate, the purchaser is an insurance
company that is purchasing this certificate with funds contained in an
"insurance company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60, (e) we have not, nor has anyone acting on our behalf offered,
transferred, pledged, sold or otherwise disposed of the Certificates, any
interest in the Certificates or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute a
distribution of the Certificates under the Securities Act or that would render
the disposition of the Certificates a violation of Section 5 of the Securities
Act or require registration pursuant thereto, nor will act, nor has authorized
or will authorize any person to act, in such manner with respect to the
Certificates, and (f) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act and have completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex 2. We
are aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, we understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Securities Act.
ANNEX 1 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $ 1 in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule 144A and (ii)
the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or
territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is
attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
--------
1 Buyer must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
____ Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security
Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
---------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
Title:
Date:
----------------------------------
ANNEX 2 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
____ The Buyer owned $ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
---------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
Title:
IF AN ADVISER:
---------------------------------------
Print Name of Buyer
Date:
----------------------------------
EXHIBIT J
FORM OF INVESTMENT LETTER (NON-RULE 144A)
---------------------
Date
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Re: GSAMP Trust 2005-AHL, Mortgage Pass-Through Certificates,
Series 2005-AHL, Class [M-6] [B-1]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
institutional "accredited investor" (within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Act, and have such knowledge and experience
in financial and business matters that we are capable of evaluating the merits
and risks of investments in the Certificates, (c) we have had the opportunity to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates, (d)
we are acquiring the Certificates for investment for our own account and not
with a view to any distribution of such Certificates (but without prejudice to
our right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (f) below), (e) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action which would result in a violation of Section 5 of the
Act, and (f) we will not sell, transfer or otherwise dispose of any Certificates
unless (1) such sale, transfer or other disposition is made pursuant to an
effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide an
opinion of counsel satisfactory to the addressees of this Certificate that such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) the purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with any
conditions for transfer set forth in the Pooling and Servicing Agreement.
---------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
Title:
Date:
----------------------------------
EXHIBIT K
FORM OF REQUEST FOR RELEASE
(for Trustee)
To: [Address]
Re:
In connection with the administration of the Mortgage Loans held by
you as the Trustee on behalf of the Certificateholders we request the release,
and acknowledge receipt, of the (Custodial File/[specify documents]) for the
Mortgage Loan described below, for the reason indicated.
Mortgagor's Name, Address & Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
____1. Mortgage Loan Paid in Full. (The Company hereby certifies that all
amounts received in connection therewith have been credited to the
Collection Account as provided in the Pooling and Servicing
Agreement.)
____2. Mortgage Loan Repurchase Pursuant to Section 2.03 of the Pooling and
Servicing Agreement. (The Company hereby certifies that the
repurchase price has been credited to the Collection Account as
provided in the Pooling and Servicing Agreement.)
____3. Mortgage Loan Liquidated by _________________. (The Company hereby
certifies that all proceeds of foreclosure, insurance, condemnation
or other liquidation have been finally received and credited to the
Collection Account pursuant to the Pooling and Servicing Agreement.)
____4. Mortgage Loan in Foreclosure.
____5. Other (explain).__________________________________________________
If box 1, 2 or 3 above is checked, and if all or part of the Custodial File was
previously released to us, please release to us our previous request and receipt
on file with you, as well as any additional documents in your possession
relating to the specified Mortgage Loan.
If Box 4 or 5 above is checked, upon our return of all of the above documents to
you as the Trustee, please acknowledge your receipt by signing in the space
indicated below, and returning this form, if requested.
Address to which {Trustee
Deliver the Trustee's Mortgage File:
_______________________________________
_______________________________________
_______________________________________
By:
------------------------------------
(authorized signer)
Issuer:________________________________
Address:_______________________________
_______________________________________
Date:__________________________________
Trustee
Acknowledged receipt by:
Deutsche Bank National Trust Company, as Trustee
By:
---------------------------------------------
Name:
Title:
Date:
EXHIBIT L
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and which shall be retained by the Servicer or delivered to and
retained by the Trustee, as applicable:
(a) The documents or instruments set forth as items (i) to (vii)
in Section 2.01(b) of the Agreement.
(b) Evidence of payment of taxes and insurance, insurance claim
files, correspondence, current and historical computerized
data files (which include records of tax receipts and payment
history from the date of origination), and all other
processing, underwriting and closing papers and records which
are customarily contained in a mortgage loan file and which
are required to document the Mortgage Loan or to service the
Mortgage Loan.
EXHIBIT M
SERVICER REPORTING REQUIREMENTS
Data File Layout
XXXXXXX XXXXX LOAN SERVICER INFORMATION REQUEST LIST
Legend:
A=Available at Inception
T=Tech staff to resolve
B=Best efforts to provide data
N=Not available
FIELD NAME FIELD DESCRIPTION FORMAT
---------- ----------------- ------
ONE TIME, STATIC FIELDS Legend
----------------------- ------
Loan Number A Loan Number currently being used to service this loan. Text
Prior Loan Number A Prior Loan Number (if any). If servicing has transferred Text
this should contain the Loan Number used by the previous
servicer.
Trustee File Number T Trustee ID used to file documents. This can be the Text
Trustee's only id or a category used to arrange documents
into proper pools.
Trustee Loan Number T Trustee secondary ID used to file documents. Often this is Text
used in conjunction with Trustee File Number to uniquely
identify loans.
Origination Date A Origination Date shown on loan documents. Date
Original Balance A Original amount of loan granted to borrower. In the case Numeric
of construction loans this should be the full amount
extended on which the monthly payments are based.
First Payment Date A This is the contractual date when the first payment was to
be made. If the loan has been modified this should be the
first scheduled payment date following the modification.
Original Maturity Date A This is the contractual date when the last payment on the Date
loan is scheduled to be made. For balloons it should be
the balloon date. For modified loans it should not be the
modified maturity date.
Original Term A The number of months from First Payment Date to Maturity Number
Date inclusive.
Balloon Flag A Code/literal to identify balloon loans. Example: Y, N. Text
Loan Type A Code/literal to identify the loan type. See Enumerations Text
worksheet.
Amortization Type A Generic category to describe loan type. See Enumerations Text
worksheet.
Original Amortization Term A Original Amortization Term of the loan in number of Number
months. For fully amortizing loans would be the same as
Original Term. For balloon loans this would exceed
Original Term. For IO loans this would have no value.
Interest Calculation Method A The basis on which interest is calculated. See
Enumerations worksheet.
Daily Simple Interest Flag T Flag to identify loans where interest is due is calculated
based on the date that each payment is actually received.
Original Principal and A Original contractual principal and interest payment amount. Number
Interest
Original Interest Rate A Original contractual interest rate for loan.
Negative Amortization Flag A Code/literal to identify loans where negative amortization Text
is allowed. Example: Y=neg am allowed, N=no neg am allowed.
Negam Percent Cap A Maximum percentage of original balance that a loan may Number
negatively amortize by. Example: 1.25, 1, 10.
Servicing Fee A Servicing Fee rate due servicer. Example: 0.25%. Number
Property Type A Code/literal that identifies the type of property securing Text
the loan. See Enumerations worksheet.
Property Address A Property address, not billing address. Text
Property City A Property city. Text
Property State A Property state. Text
Property Zip A Property zip. Number
Borrower Name A Name of borrower. Preferably in a fixed format. Text
Example:
XXXXX XXXX W.
CoBorrower Name A Name of Co borrower. Preferably in a fixed format. Text
Example:
XXXXX XXXX W.
Borrower Social Security A Eleven character ID. Example: 111-22-3333. Number
Number/TIN
CoBorrower Social Security A Eleven character ID. Example: 111-22-3333. Number
Number/TIN
Original FICO score A Credit bureau score obtained at application. Number
Original Credit Grade A Internal credit grade assigned at origination. Text
Original Loan To Value Ratio A Ratio representing the Original Loan Balance to the lower
of the Original Appraised Value or Original Purchase
Price. Example: 80.00.
Original Appraised Value A Appraised value at time of application. Number
Original Appraisal Date A Date of the original Appraisal Date
Original Appraisal Firm A Name of the Appraisal firm Text
Original Purchase Price A Price paid for home. Number
Purchase BPO A BPO at the time of Purchase by GS. Number
Purchase BPO Date A Date of the Purchase BPO Date
Lien Position A Number used to identify the lien position in effect at the Number
time of application. Example: 1, 2, 3
PMI Provider A Name or code for company providing private mortgage
insurance.
PMI Coverage Percentage A Percentage of insurance provided by PMI agreement.
PMI Certificate ID A Unique ID to identify PMI insurance certificate.
Occupancy Type A Occupancy status at time of application. See Enumerations Text
worksheet.
Purpose of Loan A Code/literal used to identify the original purpose of the Text
loan. See Enumerations worksheet.
Prepayment Flag A Code/Flag to determine if loan was originated with a Text
prepayment penalty.
Prepayment Penalty Type T Code/literal to identify characteristics of penalty. Text
Example: 6 MO INT ON 80% XXXX, 5/4/3/2/1, 3%.
Prepayment Term A Original number of months that penalty was imposed. Number
Front Ratio T Front End Ratio at time of application. Mortgage debt to Number
borrower income.
Back Ratio T Back End Ratio at time of application. Total debt to Number
borrower income.
MONTHLY LOAN DATA UPDATES
As Of Date A As Of Date for data sent. Date
Loan Number A Loan Number currently being used to service this loan. Number
Investor Number A This is the servicer assigned number for reporting purposes. Number
Investor Category A This is the servicer assigned category for reporting
purposes.
Current Maturity Date A This is the actual date when the last payment on the loan Date
is scheduled to be made. For balloons it should be the
balloon date. For modified loans it should be the modified
maturity date.
Remaining Term A The Remaining Term of the loan Number
Current Principal & Interest A Principal & Interest in effect for currently outstanding Number
Payment payment.
Current Interest Rate A Interest Rate in effect for currently outstanding payment. Number
Next Due Date A Date next payment is due.
Interest Paid To Date A Date interest is paid to. Typically for 30/360 loans it
is one month prior to Next Due Date.
Last Payment Date A Date last payment was made. Date
Current Balance A Actual outstanding balance of loan. Number
Current Balance Net Present T The net present value of the current balance Number
Value
Days Past Due A Number of days loan is past due.
Delinquency Convention Indicates if ABS or MBS method for reporting delinquencies
is used.
Delinquency Status A Indicates delinquency reported. Example: 30, 60, 90. Number
Status of Loan A Code/literal used to identify loan status. See Text
Enumerations worksheet.
12 Month Pay String T 12 character string representing the timing of payments
received on a rolling 12 month basis. String should begin
with January and end with December.
Time 30 Days Delinquent in A Indicates the number of times a loan payment has been made
Past 12 Months 30 or more days delinquent in the past 12 months.
Time 60 Days Delinquent in A Indicates the number of times a loan payment has been made
Past 12 Months 60 or more days delinquent in the past 12 months.
Time 90 Days Delinquent in A Indicates the number of times a loan payment has been made
Past 12 Months 90 or more days delinquent in the past 12 months.
Last Modification Date B Date that loan was last modified.
Last Extension Date B Date loan term was last extended.
Total Extension Months B Number of months loan has been extended in total.
Restructured Interest B Total amount of restructured interest.
Property Sale Date A Date property sold. Date
Debt To Income Ratio A Debt To Income Ratio Number
Senior Lien Amount A Most recently recorded senior lien amount. Number
Recent Property Valuation A Most recent appraised value or BPO value. Number
Recent Property Valuation Date A Date of most recent valuation. Date
Valuation Method A Identify method used to obtain new valuation. See Text
Enumerations worksheet.
Valuation Firm T Name of the Firm who appraised the property Text
Current FICO T Current FICO score. Number
FICO Date T FICO Date. Date
MONTHLY SERVICING UPDATES
Borrower Payments
Total Monthly Payment A Total cash received from borrower. Number
Total Monthly Payment A Cash applied to principal. Number
Principal
Total Monthly Payment Interest A Cash applied to interest. Number
Total Monthly Payment A Cash applied to fees. Text
Penalties / Fee
Total Monthly Escrow Payment A Cash applied to escrow account. Number
Total Monthly Prepayment T Total amount borrower prepaid Number
Amount
Payment Date A Date the payment was made. Date
Scheduled P&I A Borrower Scheduled P&I payment for the month Number
REO Rent Collection A Collection of rent on an REO Property
Servicer Payments
Monthly Escrow Advances A Net escrow advances made or recovered by servicer. Number
Positive value denotes payments made by servicer.
Monthly Corporate Advances A Net corporate advances made or recovered by servicer. Number
Positive value denotes payments made by servicer.
Monthly Non Recoverable A Net Non Recoverable Corporate Advances made or recovered by Number
Corporate Advances Servicer. Positive value denotes payments made by Servicer.
Principal Advances A Total outstanding principal advances made by servicer. Number
Interest Advances A Total outstanding interest advances made by servicer. Number
LPMI Flag A Code/Flag to determine if PMI is paid by owner of loan Text
LPMI Rate A Rate per annum of LPMI premiums Number
Account Balances
Beginning Scheduled Balance A Beginning scheduled loan balance. If the loan is serviced Number
on a scheduled balance basis
Ending Scheduled Balance A Ending scheduled loan balance. If the loan is serviced on
a scheduled balance basis
Escrow Balance A Current balance of escrow account (borrower's positive Number
funds).
Escrow Advance Balance A Total outstanding escrow advance balance. Number
Recoverable Corporate Advance A Total outstanding Recoverable corporate advance balance Number
Balance amount.
Non Recoverable Corporate A Total outstanding Non Recoverable corporate advance balance Number
Advance Balance amount.
Suspense Account Balance A Total suspense account balance Number
Accrued Interest A Total Accrued Interest on loan. Number
Account Management Statistics
Forced Placed Insurance Flag T Code indicating loan is on forced placed insurance.
Annual Forced Placed Insurance T Amount of forced placed policy.
Stop Advance Flag B Code indicating loan has been placed in a stop advance Text
status. Example: Y=Stop Advance.
Stop Advance Recovered B Amount of principal and interest advances recovered at stop
date.
Stop Advance Start Date B Date loan was initially placed on a stop advance status. Date
Stop Advance Reversal Date B Date stop advance status was reversed. Date
Stop Advance Reversal Amount B Amount of advances reversed. Number
Last Contact Date A Date of Servicer's last contact with the borrower. Date
Last Attempt Date A Date of the Servicer's last attempt to contact the borrower. Date
Bankruptcy Flag A Flag indicating loan is in bankruptcy. Text
Bankruptcy Chapter A Chapter of bankruptcy (7, 11, 12, 13). Text
Bankruptcy Start Date A Bankruptcy filing date. Date
Bankruptcy End Date A Dismissal/Discharge date. Date
Bankruptcy Post Petition Due A Payment due date of Bankruptcy payment plan. In essence Date
Date the new due date.
Motion for Relief Request Date A Motion for Relief Request Date. Date
Motion for Relief Filing Date A Date
Motion for Relief Hearing Date A Motion for Relief Hearing Date. Date
Motion for Relief Granted Date A Motion for Relief Granted Date. Date
Motion for Relief Denied Date N Date the motion was Denied (if applicable) Date
In Demand Flag T Code indicating demand letter has been sent. Text
In Demand Start Date T Date demand letter was sent. Date
In Demand End Date T Expiration of demand letter. Date
Foreclosure Start Date A Date foreclosure flag placed on loan. Date
Due Date At Referral T The revised due date on any payment modification. Date
Foreclosure Estimated End Date T On loans that are in Foreclosure the Servicer estimate of
when the FCL will be completed.
Foreclosure Sale Date A Date of actual foreclosure sale. Date
Foreclosure end date T Date of recording of foreclosure deed. Date
First Legal Date A Date of first legal action taken on foreclosure. Date
Foreclosure Resolution Flag B Indicates if the loan has moved out of foreclosure (i.e. Number
Did not go to REO).
Foreclosure Resolution Type B Method used by the servicer to prevent the foreclosed loan
from moving into REO (i.e. Reinstated, Paid Off, Worked out
Repayment plan....)
Foreclosure On Hold B Flag indicating that the loan is in foreclosure but on hold.
Foreclosure Hold Start Date B Date indicating when the loan's foreclosure proceedings Date
were put on hold.
Bankruptcy Cash Delays B Number of days an active foreclosure has been in BK
subsequent to its initial foreclosure start date.
Forbearance Cash Delays B Number of days an active foreclosure has been in
forbearance subsequent to its initial foreclosure start
date.
Non - Cash Delays B Number of allowable days that a loan's foreclosure
proceedings have been on hold due to a non cash delay (i.e.
Title problem...) [again as per Fannie time line]
Forbearance Start Date A Date forbearance plan was initiated. Date
Forbearance Payment A Amount of payment under Forbearance plan. Number
Forbearance End Date A Date forbearance plan scheduled to be complete. Date
Eviction Start Date A Date eviction flag placed on loan. Date
Eviction End Date A Date property is vacated. Date
REO Start Date A Date REO flag placed on loan (including any redemption Date
periods).
REO End Date A Date property is sold. Date
REO Sub Status A Status while within REO. See Enumerations worksheet.
Not Acquired Date T Date that the REO enters "Not Acquired" sub status Date
Eviction Date A Date that the REO enters "Eviction" sub status Date
Possession Date T Date that the REO enters "Possession" sub status Date
Listed Date A Date that the REO enters "Listed" sub status Date
Under Contract Date T Date that the REO enters "Under Contract" sub status Date
Estimated Sale Date A Servicer estimated closing date on loan Date
Days In REO A Number of Days from the REO becomes marketable to the As of Number
Date
Estimated Sales Price A Servicer estimated REO Sales Price Number
Possession Date A Date when the servicer takes possession of the property.
Date we have full access to the property, eviction completed
Redemption End Date A Legal time period, determined by State, when borrower can
redeem their property. Property not available for sale
until redemption completed (no beginning date, just an end
date)
Initial Listing Price A First listing price of property. Number
Initial Listing Date A Date of the first listing price of property Date
Current List Price A Most recent listing price of property. Number
Current List Date A Date of the most recent listing price of property. Date
Reason For Default A Servicer Code representing the Reason for Default. See
Enumerations worksheet.
LIQUIDATED LOANS (Liquidated and Paid Off loans)
Termination Type A Type of liquidation. See Enumerations worksheet. Text
Balance at Termination A Actual Principal balance at time of termination. Number
Scheduled Sale Date A Dates of planned sales for properties in Foreclosure Date
Property Sales Price A Sales price if liquidation was short sale or REO sale. Number
Liquidation Date A Date property liquidated. Date
Gross Total Proceeds A Gross Total Proceeds. Number
Net Total Proceeds A Gross total proceeds less expenses.
Principal Advanced A Total of principal advanced at time of liquidation. Number
Interest Advanced A Total of interest advanced at time of liquidation. Number
Deferred Interest T Amount of deferred interest on the loan @ liquidation Number
Accrued Servicing Fee Recovered T Servicing fee recovered at time of liquidation. Number
Corporate Advances Recovered A The amount of the Total Corporate Advance balance recovered Number
at Termination at termination
Escrow Advances Recovered at A The amount of the Total Escrow Advance balance recovered at Number
Termination termination
Commission A The broker commission amount on liquidation Number
Seller Concession A The dollar amt of seller concessions upon liquidation. Number
Taxes A Taxes paid on liquidation Number
Repairs A Cost of Repairs to property Number
Water and Sewer A Water & Sewer costs Number
Expenses Recovered at A The amount of the Total Expenses recovered at termination Number
Termination
Corporate Advances at A Corporate advance balance at time of liquidation. Number
Termination
Escrow Advances at Termination T Escrow advance balance at time of liquidation. Number
Days from Acquisition to Close A Days from Acquisition to Close Number
Days from Possession to Close A Days from Possession to Close Number
Charge-off amount A Loss amount. Number
Severity A Severity percentage.
Severity Formula A Formula for calculating Severity percentage. Text
Potential Deficiency Judgment N Flag indicating loan is referred for deficiency collections. Text
Flag
Potential Deficiency Amount N Deficiency balance reported to borrower/IRS. Number
Deficiency Proceeds (this N Deficiency proceeds collected in current month. Number
period)
Deficiency Proceeds Total (to N Deficiency proceeds collected to date. Number
date)
Deficiency Vendor Expense N Deficiency vendor out of pocket expenses. Number
Deficiency Servicer Expense N Deficiency vendor collection fee Number
Hazard Insurance Claim Date B Date hazard claim filed. Date
Hazard Insurance Claim Due Date B Date hazard claim due. Number
Hazard Insurance Claim Amount B Amount of hazard claim. Date
Hazard Insurance Claim Paid B Amount of hazard claim paid to investor. Number
Amount
MI Insurance Claim Date A Date MI claim filed.
MI Insurance Claim Due Date A Date MI claim is due to be paid.
MI Insurance Claim Amount A Expected MI proceeds.
MI Insurance Claim Paid Amount A Actual MI proceeds received.
Servicer Hold Back Amount B Amount servicer withholds for future trailing expenses.
----------------------------------
InterestCalculation
Method
----------------------------------
3360 30/360
A360 Actual/360
A365 Actual/365
AA Actual/Actual
----------------------------------
----------------------------------------------------
Loan Type
----------------------------------------------------
COMI Conventional, with mi.
Collecting a premium from the
borrower for mortgage insurance
and is FHA and is VA
CONV Conventional, no mi
FHA FHA Mortgage
HEL Home Equity Line of credit
CC Credit Card
A Auto
B Boats
RV RV's
MFG Manufactured Housing
ATV ATV
VA VA Mortgage
OTH Other
----------------------------------------------------
---------------------------------------
Occupancy Type
---------------------------------------
2ND 2nd Home
NOO Non Owner Occupied
OO Owner Occupied
VA Vacant
---------------------------------------
-----------------------------------------
Property Type
-----------------------------------------
2F 2 Family
3F 3 Family
4F 4 Family
2-4F 2-4 Family
AUTO Automobile
BOAT Boat
COND Condominium
COOP Cooperative
HR-CONDO High Rise Condo
HVAC HVAC
MF Multi Family
MH Manufactured Housing
MX Mixed Use
OF Office
OTH Other
PUDA PUD - Attached
PUDD PUD - Detached
PWR PowerSports
RT Retail
RV Recreational Vehicle
SF Single Family
TH TownHouse
-----------------------------------------
----------------------------------------------------
Purpose of Loan
----------------------------------------------------
PUR Purchase
RELO Relocation
REFI Rate/Term Refinance
CASH Cash Out Refinance
DEBT Cash Out Debt Consolidation
IMPR Cash Out Home Improvement
EDUC Cash Out Medical or Educational
Expense
TIT1 Title One Home Improvement
CONST New Construction
REO Facilitate REO
----------------------------------------------------
-------------------------------------------------
Status of Loan
-------------------------------------------------
BU Bankrupt - Unknown Status
C Current
DISP Dispute
F Foreclosure
NE Non Equity (NPV of current
balance < $7,500)
FB Forbearance
ID In Demand
LIT Litigation
NLS No Longer Serviced
PO Paid Off- Borrower paid down
entire balance
REO Real Estate Owned - MUST
Include a REO sub status
RSLD Resolved
LIQ Liquidated - MUST include a
Termination Type
U Unknown
-------------------------------------------------
--------------------------------------------------
Termination Type
--------------------------------------------------
CO Charge Off
COC Charge Off with cash possible
NLPO Negotiated Loan Payoff
NS Negotiated Sale
PO Paid Off
PPOC PPO with More Cash Possible
REOS REO Sale
TPPO Third Party Paid Off
--------------------------------------------------
------------------------------------
Valuation Method
------------------------------------
DB Drive By
WT Walk Through
OTH Other
APPR Appraisal
DD Due Diligence
PRFC Pre Foreclosure
SUPP Supplemental
RR Re-review
------------------------------------
-----------------------------------
REO Sub Status
-----------------------------------
AC Acquired
PS Possession
EV Eviction
LS Listed
UC Under Contract
-----------------------------------
----------------------------------------------
Reason For Default
----------------------------------------------
ABP Abandonment of Property
BF Business Failure
CI Curtailment Of Income
D Death
EO Excessive Obligations
ILL Illness
ITR Inability To Rent
MD Marital Difficulties
MS Military Service
MI Mortgagor Incarcerated
N No Reason
PD Payment Dispute
PP Property Problem
SP Servicing Problems
TOP Transfer Of Ownership Pen
UC Unable To Contact
UEMP Unemployment
----------------------------------------------
EXHIBIT N
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM-10-K
Re: GSAMP Trust 2005-AHL (the "Trust") Mortgage Pass-Through
Certificates, Series 2005-AHL, issued pursuant to the Pooling and
Servicing Agreement, dated as of May 1, 2005 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Countrywide Home Loans Servicing LP, as
servicer (the "Servicer"), and Deutsche Bank National Trust Company,
as trustee (the "Trustee")
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K ("Annual Report"), and all
reports on Form 8-K containing distribution reports (collectively with
this Annual Report, the "Reports") filed in respect of periods included in
the year covered by this Annual Report, of the Trust;
2. Based on my knowledge, the information in the Reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this Annual Report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to the Trustee by the Servicer under the Pooling and
Servicing Agreement for inclusion in the Reports is included in the
Reports;
4. Based on my knowledge and upon the annual compliance statement included in
this Annual Report and required to be delivered to the Trustee in
accordance with the terms of the Pooling and Servicing Agreement, and
except as disclosed in the Reports, the Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement; and
5. The Reports disclose all significant deficiencies relating to the
Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a
review in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar procedure, as set forth in the Pooling and
Servicing Agreement, that is included in the Reports.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: the Trustee and the
Servicer.
Date:__________________________
_______________________________
[Signature]
[Title]
EXHIBIT O
FORM OF TRUSTEE CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAMP Trust 2005-AHL (the "Trust") Mortgage Pass-Through
Certificates, Series 2005-AHL, issued pursuant to the Pooling and
Servicing Agreement, dated as of May 1, 2005 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Countrywide Home Loans Servicing LP, as
servicer (the "Servicer"), and Deutsche Bank National Trust Company,
as trustee (the "Trustee")
I, [identify the certifying individual], a [title] of Deutsche Bank
National Trust Company certify to the Depositor and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed the annual report on Form 10-K (the "Annual Report") for
the fiscal year [___], and all reports on Form 8-K containing distribution
reports filed in respect of periods included in the year covered by the
Annual Report (collectively with the Annual Report, the "Reports"), of the
Trust;
2. Based on my knowledge, the information in the Reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by the Annual Report; and
3. Based on my knowledge, the distribution or servicing information required
to be provided to the Trustee by the Servicer under the Pooling and
Servicing Agreement for inclusion in the Reports is included in the
Reports.
Date: _________________________
DEUTSCHE BANK NATIONAL TRUST COMPANY
By: _________________________________
Name: _______________________________
Title: ______________________________
EXHIBIT P
FORM OF SERVICER CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAMP Trust 2005-AHL (the "Trust") Mortgage Pass-Through
Certificates, Series 2005-AHL, issued pursuant to the Pooling and
Servicing Agreement, dated as of May 1, 2005 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Countrywide Home Loans Servicing LP, as
servicer ("Countrywide"), and Deutsche Bank National Trust Company,
as trustee (the "Trustee")
Countrywide, certifies to the Depositor and the Trustee, and their
respective officers, directors and affiliates, and with the knowledge and intent
that they will rely upon this certification, that:
1. Based on our knowledge, the information prepared by Countrywide and
relating to the mortgage loans serviced by Countrywide pursuant to the
Pooling and Servicing Agreement and provided by Countrywide to the Trustee
in its reports to the Trustee is accurate and complete in all material
respects as of the last day of the period covered by such report;
2. Based on our knowledge, the servicing information required to be provided
to the Trustee by Countrywide pursuant to the Pooling and Servicing
Agreement has been provided to the Trustee;
3. Based upon the review required under the Pooling and Servicing Agreement,
and except as disclosed in its annual compliance statement required to be
delivered pursuant to the Pooling and Servicing Agreement, Countrywide as
of the last day of the period covered by such annual compliance statement
has fulfilled its obligations under the Pooling and Servicing Agreement;
and
4. Countrywide has disclosed to its independent auditor, who issues the
independent auditor's report on the Uniform Single Attestation Program for
Mortgage Bankers for Countrywide, any significant deficiencies relating to
Countrywide's compliance with minimum servicing standards.
COUNTRYWIDE HOME LOANS SERVICING LP
Date: _________________________
_______________________________
[Signature]
[Title]
EXHIBIT Q
RESPONSIBLE PARTY AGREEMENTS
================================================================================
FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
------------------------------------------------
XXXXXXX XXXXX MORTGAGE COMPANY,
Purchaser
ACCREDITED HOME LENDERS, INC.,
Seller
------------------------------------------------
Dated as of August 1, 2003
Conventional,
Adjustable and Fixed Rate Residential Mortgage Loans
==============================================================================
TABLE OF CONTENTS
SECTION 1. DEFINITIONS................................................
SECTION 2. AGREEMENT TO PURCHASE......................................
SECTION 3. MORTGAGE SCHEDULES.........................................
SECTION 4. PURCHASE PRICE.............................................
SECTION 5. EXAMINATION OF MORTGAGE FILES..............................
SECTION 6. CONVEYANCE FROM SELLER TO PURCHASER........................
Subsection 6.01 Conveyance of Mortgage Loans.........................
Subsection 6.02 Books and Records....................................
Subsection 6.03 Delivery of Mortgage Loan Documents..................
Subsection 6.04 Quality Control Procedures...........................
SECTION 7. SERVICING OF THE MORTGAGE LOANS............................
SECTION 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER;
REMEDIES FOR BREACH........................................
Subsection 8.01 Representations and Warranties Regarding the
Seller..................................................
Subsection 8.02 Representations and Warranties Regarding
Individual Mortgage Loans...............................
Subsection 8.03 Remedies for Breach of Representations and
Warranties..............................................
Subsection 8.04 Repurchase of Mortgage Loans With Early Payment
Defaults................................................
Subsection 8.05 Purchaser's Right to Review..........................
SECTION 9. CLOSING....................................................
SECTION 10. CLOSING DOCUMENTS..........................................
SECTION 11. COSTS......................................................
SECTION 12. COOPERATION OF SELLER WITH A RECONSTITUTION................
SECTION 13. THE SELLER.................................................
Subsection 13.01 Additional Indemnification by the Seller.............
Subsection 13.02 Merger or Consolidation of the Seller................
SECTION 14. FINANCIAL STATEMENTS.......................................
SECTION 15. MANDATORY DELIVERY; GRANT OF SECURITY INTEREST.............
SECTION 16. NOTICES....................................................
SECTION 17. SEVERABILITY CLAUSE........................................
SECTION 18. COUNTERPARTS...............................................
SECTION 19. GOVERNING LAW..............................................
SECTION 20. INTENTION OF THE PARTIES...................................
SECTION 21. SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT...
SECTION 22. WAIVERS....................................................
SECTION 23. EXHIBITS...................................................
SECTION 24. GENERAL INTERPRETIVE PRINCIPLES............................
SECTION 25. REPRODUCTION OF DOCUMENTS..................................
SECTION 26. FURTHER AGREEMENTS.........................................
SECTION 27. RECORDATION OF ASSIGNMENTS OF MORTGAGE.....................
SECTION 28. NO SOLICITATION............................................
SECTION 29. CONFIDENTIALITY............................................
SECTION 30. WAIVER OF TRIAL BY JURY....................................
SECTION 31. SUBMISSION TO JURISDICTION; WAIVERS........................
EXHIBITS
EXHIBIT A CONTENTS OF EACH MORTGAGE FILE
EXHIBIT B CONTENTS OF EACH CREDIT FILE
EXHIBIT C MORTGAGE LOAN SCHEDULE FIELDS
EXHIBIT D MORTGAGE LOAN SCHEDULE
EXHIBIT E FORM OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT F FORM OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT G INTENTIONALLY OMITTED
EXHIBIT H FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT I UNDERWRITING GUIDELINES
EXHIBIT J INTENTIONALLY OMITTED
EXHIBIT K SERVICER ACKNOWLEDGMENT
EXHIBIT L SELLER LITIGATION
EXHIBIT M FORM OF ASSIGNMENT AND CONVEYANCE
FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
----------------------------------------------------
This FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT, dated as
of August 1, 2003 ("Agreement"), by and between Xxxxxxx Xxxxx Mortgage Company,
a New York limited partnership, having an office at 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the "Purchaser") and Accredited Home Lenders, Inc., a California
corporation, having an office at 00000 Xxxxxx xx Xxxxxxx, #000, Xxx Xxxxx, XX
00000 (the "Seller").
W I T N E S S E T H:
WHEREAS, from time to time, the Seller desires to sell to the
Purchaser, and, from time to time, the Purchaser desires to purchase from the
Seller, certain first and second lien, adjustable and fixed rate residential
mortgage loans (the "Mortgage Loans") on a servicing released basis as described
herein, and which shall be delivered as pools of whole loans;
WHEREAS, each Mortgage Loan is secured by a mortgage, deed of trust
or other security instrument creating a first or second lien, as applicable, on
a residential dwelling located in the jurisdiction indicated on the related
Mortgage Loan Schedule;
WHEREAS, the Purchaser and the Seller wish to prescribe the manner
of the conveyance, and control of the Mortgage Loans; and
WHEREAS, following its purchase of the Mortgage Loans from the
Seller, the Purchaser desires to sell some or all of the Mortgage Loans to one
or more purchasers as a whole loan transfer or a public or private, rated or
unrated mortgage pass-through transaction;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Purchaser and the
Seller agree as follows:
SECTION 1. Definitions.
For purposes of this Agreement the following capitalized terms shall
have the respective meanings set forth below.
Accepted Servicing Practices: With respect to any Mortgage Loan
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
Act: The National Housing Act, as amended from time to time.
Adjustable Rate Mortgage Loan: A Mortgage Loan purchased pursuant to
this Agreement the Mortgage Interest Rate of which is adjusted from time to time
in accordance with the terms of the related Mortgage Note.
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 Flow Mortgage Loan Purchase and Warranties Agreement
and all amendments hereof and supplements hereto.
ALTA: The American Land Title Association, or any successor thereto.
Appraised Value: The value of the related Mortgaged Property based
upon the appraisal made for the originator at the time of origination of the
Mortgage Loan or the sales price of the Mortgaged Property if purchased at or
within twelve months prior to such time of origination, whichever is less.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
Authorized Signatory: Any of (i) Managing Director, (ii) Manager,
Funded Asset Management or (iii) Supervisor, Collateral Management.
Business Day: Any day other than (i) a Saturday or Sunday or (ii) a
day on which banking and savings and loan institutions in (a) the State of New
York, (b) the state in which the Seller's servicing operations are located or
(c) the State in which the Custodian's operations are located, are authorized or
obligated by law or executive order to be closed.
Closing Date: The date or dates set forth on the related Purchase
Price and Terms Agreement on which the Purchaser from time to time shall
purchase and the Seller from time to time shall sell, the Mortgage Loans listed
on the related Mortgage Loan Schedule
CLTV: As of the date of origination and as to any Second Lien
Mortgage Loan, the ratio, expressed as a percentage, of the (a) sum of (i) the
outstanding principal balance of the Second Lien Mortgage Loan as of the date of
origination and (ii) the outstanding principal balance as of the date of
origination of any mortgage loan or mortgage loans that are senior or equal in
priority to the Second Lien Mortgage Loan and which are secured by the same
Mortgaged Property to (b) the Appraised Value.
Code: Internal Revenue Code of 1986, as amended.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage
Loan purchased pursuant to this Agreement which contains a provision whereby the
Mortgagor is permitted to convert the Adjustable Rate Mortgage Loan to a Fixed
Rate Mortgage Loan in accordance with the terms of the related Mortgage Note.
Credit File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit B annexed hereto, and any additional documents required
to be added to the Credit File pursuant to this Agreement.
Custodial Account: The separate account or accounts created and
maintained pursuant to the Servicing Agreement.
Custodial Agreement: That certain Custodial Agreement, by and
between the Purchaser and the Custodian, set forth in the related Purchase Price
and Term Agreement, governing the retention of the originals of each Mortgage
Note, Mortgage, Assignment of Mortgage and other Mortgage Loan Documents.
Custodian: The custodian set forth in the related Purchase Price and
Terms Agreement, or any successor thereto under the Custodial Agreement.
Cut-off Date: The date set forth on the related Purchase Price and
Terms Agreement.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased by the
Seller in accordance with the terms of this Agreement.
Determination Date: The 15th calendar day (or if such 15th day is
not a Business Day, the Business Day immediately preceding such 15th day) of
each month.
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
Xxxxxx Xxx: Xxxxxx Xxx, or any successor thereto.
Xxxxxx Mae Guides: The Xxxxxx Xxx Selling Guide and the Xxxxxx Mae
Servicing Guide and all amendments or additions thereto.
FDIC: Federal Deposit Insurance Corporation, or any successor
thereto.
Fitch: Fitch Ratings, or any successor thereto.
First Lien Loan: Any Mortgage Loan secured by a first lien Mortgage
on the related Mortgaged Property.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased
pursuant to this Agreement.
Xxxxxxx Mac: Xxxxxxx Mac, or any successor thereto.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which amount
is added to the Index in accordance with the terms of the related Mortgage Note
to determine on each Interest Rate Adjustment Date the Mortgage Interest Rate
for such Mortgage Loan.
HUD: The Department of Housing and Urban Development, or any federal
agency or official thereof which may from time to time succeed to the functions
thereof.
Index: With respect to each Adjustable Rate Mortgage Loan, a rate
per annum set forth on the related Mortgage Loan Schedule.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the related
Mortgage Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Interim Funder: With respect to each MERS Designated Mortgage Loan,
the Person named on the MERS(R) System as the interim funder pursuant to the
MERS Procedures Manual.
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS(R) System as the investor pursuant to the MERS
Procedures Manual.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the term of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the amount per annum set forth on the related Mortgage Loan Schedule.
Limited Documentation Program: The guidelines under which the Seller
generally originates Mortgage Loans principally on the basis of the
Loan-to-Value Ratio of the related Mortgage Loan and the creditworthiness of the
Mortgagor.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio (expressed as a percentage) of the outstanding principal amount of the
Mortgage Loan as of the related origination date (unless otherwise indicated),
to the Appraised Value of the Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc., its successors
and assigns.
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Seller has designated or will designate MERS as, and has taken or will take such
action as is necessary to cause MERS to be, the mortgagee of record, as nominee
for the Seller, in accordance with MERS Procedure Manual and (b) the Seller has
designated or will designate the Custodian as the Investor on the MERS(R)
System.
MERS Procedure Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
MERS(R) System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Moody's: Xxxxx'x Investors Service, Inc., and its successors in
interest.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first or second lien on an unsubordinated estate
in fee simple in real property securing the Mortgage Note; except that with
respect to real property located in jurisdictions in which the use of leasehold
estates for residential properties is a widely-accepted practice, the mortgage,
deed of trust or other instrument securing the Mortgage Note may secure and
create a first or second lien upon a leasehold estate of the Mortgagor.
Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit A annexed hereto, and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the related Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage File, the Credit File, the Servicing
File, the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, Servicing Rights, Prepayment
Penalties, and all other rights, benefits, proceeds and obligations arising from
or in connection with such Mortgage Loan, excluding replaced or repurchased
mortgage loans.
Mortgage Loan Documents: The documents required to be delivered to
the Custodian pursuant to Section 6.03 hereof with respect to any Mortgage Loan.
Mortgage Loan Package: A pool of Mortgage Loans sold to the
Purchaser by the Seller on a Closing Date.
Mortgage Loan Schedule: With respect to each Mortgage Loan Package,
a schedule of Mortgage Loans annexed to the related Assignment and Conveyance as
Exhibit 1, setting forth the information attached hereto as Exhibit C.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property (or leasehold estate, if
applicable) securing repayment of the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or a President or a Vice President and
by the Treasurer or the Secretary or one of the Assistant Treasurers or
Assistant Secretaries of the Seller, and delivered to the Purchaser as required
by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Seller, reasonably acceptable to the Purchaser.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may increase or decrease on
an Interest Rate Adjustment Date above or below the Mortgage Interest Rate
previously in effect.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof.
Preliminary Mortgage Schedule: As defined in Section 3.
Prepayment Penalty: With respect to each Mortgage Loan, the fee, if
any, payable upon the prepayment, in whole or in part, of such Mortgage Loan, as
set forth in the related Mortgage Note.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
including any Prepayment Penalty or premium thereon and which is not accompanied
by an amount of interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans in the related
Mortgage Loan Package as calculated in Section 4 of this Agreement.
Purchase Price and Terms Agreement: With respect to each purchase of
a Mortgage Loan Package hereunder, that certain letter agreement setting forth
the general terms and conditions of such transaction consummated herein and
identifying the Mortgage Loans to be purchased hereunder, by and between the
Seller and the Purchaser.
Purchaser: Xxxxxxx Sachs Mortgage Company, a New York limited
partnership, and its successors in interest and assigns, and any successor to
the Purchaser under this Agreement as herein provided.
Rating Agency: Any of Fitch, Moody's or Standard & Poor's, or their
respective successors designated by the Purchaser.
Reconstitution: A Whole Loan Transfer or a Securitization Transfer.
Reconstitution Agreement: As defined in Section 12.
Reconstitution Date: As defined in Section 12.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to (a) the then outstanding principal balance of the Mortgage Loan to be
repurchased, plus (b) accrued interest thereon at the Mortgage Interest Rate
from the date on which interest had last been paid through the date of such
repurchase, plus (c) the amount of any outstanding advances owed to and
reasonably incurred by any servicer, and plus (d) all costs and expenses
reasonably incurred by the Purchaser or any servicer arising out of or based
upon such breach, including without limitation costs and expenses incurred in
the enforcement of the Seller's repurchase obligation hereunder.
RESPA: Real Estate Settlement Procedures Act, as amended from time
to time.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second lien
Mortgage on the related Mortgaged Property.
Securitization Transfer: The sale or transfer of some or all of the
Mortgage Loans to a trust or other entity as part of a publicly-issued or
privately-placed, rated or unrated mortgage pass-through or other
mortgage-backed securities transaction.
Seller: Accredited Home Lenders, Inc., a California corporation and
its successors in interest.
Servicing Agreement: The Flow Interim Servicing Agreement of even
date herewith between the Purchaser and the Seller, providing for the Seller to
service the Mortgage Loans, as specified therein.
Servicing Rights: Any and all of the following: (a) any and all
rights to service the Mortgage Loans; (b) any payments to or monies received by
the Seller for servicing the Mortgage Loans; (c) any late fees, penalties or
similar payments with respect to the Mortgage Loans but not including any
Prepayment Penalties; (d) all agreements or documents creating, defining or
evidencing any such servicing rights to the extent they relate to such servicing
rights and all rights of the Seller thereunder; (e) Escrow Payments or other
similar payments with respect to the Mortgage Loans and any amounts actually
collected by the Seller with respect thereto; (f) all accounts and other rights
to payment related to any of the property described in this paragraph; and (g)
any and all documents, files, records, servicing files, servicing documents,
servicing records, data tapes, computer records, or other information pertaining
to the Mortgage Loans or pertaining to the past, present or prospective
servicing of the Mortgage Loans.
Standard & Poor's: Standard & Poor's Ratings Group, a division of
The XxXxxx-Xxxx Companies Inc., and its successors in interest.
Stated Principal Balance: As to each Mortgage Loan, (i) the
principal balance of the Mortgage Loan at the related Cut-off Date after giving
effect to scheduled payments of principal due on or before such date, whether or
not collected, minus (ii) all amounts previously distributed to the Purchaser
with respect to the related Mortgage Loan representing payments or recoveries of
principal or advances in lieu thereof.
Successor Servicer: A servicer designated by the Purchaser pursuant
to Section 8.03 which is entitled to the benefits of the indemnifications set
forth in such Section and Section 13.01.
Transfer Date: The date on which the Purchaser, or its designee,
shall receive the transfer of servicing responsibilities and begin to perform
the servicing of all or a portion of the Mortgage Loans, and the Seller shall
cease all servicing responsibilities as set forth in the Servicing Agreement.
Underwriting Guidelines: The underwriting guidelines of the Seller
with respect to a Mortgage Loan Package, a copy of which shall be attached to
the related Purchase Price and Terms Agreement.
Whole Loan Agreement: Any Reconstitution Agreement in respect of a
Whole Loan Transfer.
Whole Loan Transfer: The sale or transfer by Purchaser of some or
all of the Mortgage Loans in a whole loan or participation format pursuant to a
Reconstitution Agreement.
SECTION 2. Agreement to Purchase.
The Seller, on each related Closing Date, agrees to sell, and the
Purchaser agrees to purchase, Mortgage Loans having an aggregate principal
balance on the related Cut-off Date in an amount as set forth in the related
Purchase Price and Terms Agreement, or in such other amount as agreed by the
Purchaser and the Seller as evidenced by the aggregate scheduled principal
balance of the Mortgage Loans accepted by the Purchaser on the related Closing
Date.
SECTION 3. Mortgage Schedules.
The Seller shall provide the Purchaser with certain information
constituting a preliminary listing of the Mortgage Loans in the Mortgage Loan
Package to be purchased on a Closing Date in accordance with the related
Purchase Price and Terms Agreement and this Agreement (a "Preliminary Mortgage
Schedule").
The Seller shall deliver the related Mortgage Loan Schedule for the
Mortgage Loans in the Mortgage Loan Package to be purchased on a Closing Date to
the Purchaser at least two (2) Business Days prior to the related Closing Date
or such later date on which the Purchaser has identified to the Seller the final
list of Mortgage Loans the Purchaser desires to purchase.
SECTION 4. Purchase Price.
The Purchase Price for each Mortgage Loan in the related Mortgage
Loan Package shall be the percentage of par as stated in the related Purchase
Price and Terms Agreement (subject to adjustment as provided therein),
multiplied by the aggregate scheduled principal balance, as of the related
Cut-off Date, of the Mortgage Loans listed on the related Closing Schedule,
after application of scheduled payments of principal due on or before the
related Cut-off Date whether or not collected.
In addition to the Purchase Price as described above, the Purchaser
shall pay to the Seller, on the related Closing Date, accrued but unpaid
interest on the principal balance of the Mortgage Loans in the related Mortgage
Loan Package as of the related Cut-off Date at a rate equal to the weighted
average Mortgage Interest Rate minus the Servicing Fee Rate (as defined in the
Servicing Agreement), from the related Cut-off Date through the day prior to the
related Closing Date, inclusive. The Purchase Price plus accrued interest as set
forth in the preceding paragraph shall be paid to the Seller by wire transfer of
immediately available funds to an account or accounts designated by the Seller
in writing.
The Purchaser shall be entitled to (1) all scheduled principal due
after the related Cut-off Date, (2) all other recoveries of principal collected
after the related Cut-off Date (provided, however, that all scheduled payments
of principal due on or before the related Cut-off Date shall belong to the
Seller), (3) all payments of interest on the Mortgage Loans (minus that portion
of any such payment which is allocable to the period prior to the related
Cut-off Date) and (4) all other recoveries of late charges, assumption fees,
prepayment penalties or other charges collected after the related Cut-off Date.
The principal balance of each Mortgage Loan as of the related Cut-off Date is
determined after application of payments of principal due on or before the
related Cut-off Date whether or not collected. Therefore, payments of scheduled
principal and interest prepaid for a due date beyond the related Cut-off Date
shall not be applied to the principal balance as of the related Cut-off Date.
Such prepaid amounts (minus interest at the Servicing Fee Rate) shall be the
property of the Purchaser. The Seller shall deposit any such prepaid amounts
into the Custodial Account, which account is established for the benefit of the
Purchaser for subsequent remittance by the Seller to the Purchaser.
SECTION 5. Examination of Mortgage Files.
At least five (5) Business Days prior to the related Closing Date,
the Seller shall either (a) deliver to the Purchaser or its designee in escrow,
for examination with respect to each Mortgage Loan to be purchased, the related
Mortgage File, including a copy of the Assignment of Mortgage (except with
respect to each MERS Designated Mortgage Loan ), pertaining to each Mortgage
Loan, or (b) make the related Mortgage File available to the Purchaser for
examination at such other location as shall otherwise be acceptable to the
Purchaser. Such examination of the Mortgage Files may be made by the Purchaser
or its designee at any reasonable time before or after the related Closing Date.
The Purchaser may, at its option and without notice to the Seller, purchase some
or all of the Mortgage Loans without conducting any partial or complete
examination. The fact that the Purchaser or its designee has conducted or has
failed to conduct any partial or complete examination of the Mortgage Files or
the Credit Files shall not impair in any way the Purchaser's (or any of its
successor's) rights to demand repurchase, substitution or other remedy as
provided in this Agreement; provided that Purchaser may not demand repurchase or
other relief or remedy on the basis that a Mortgage Loan examined by Purchaser
or its designee prior to purchase does not comply with the related Underwriting
Guidelines. Notwithstanding the preceding qualification, it is understood and
agreed that the Purchaser maintains its rights pursuant to Section 8.03 to
demand repurchase of any loan in breach of the Seller's representations and
warranties contained in Section 8.02, excluding Section 8.02(v).
SECTION 6. Conveyance from Seller to Purchaser.
Subsection 6.01. Conveyance of Mortgage Loans.
The Seller, on each related Closing Date, does hereby sell,
transfer, assign, set over and convey to the Purchaser, without recourse, but
subject to the terms of this Agreement, all rights, title and interest of the
Seller in and to the Mortgage Loans in the related Mortgage Loan Package,
together in and to the Mortgage Loans and the Mortgage Files and all rights and
obligations arising under the documents contained therein for each Mortgage Loan
in the related Mortgage Loan Package.
Subsection 6.02. Books and Records.
Record title to each Mortgage as of the related Closing Date shall
be in the name of the Seller, an Affiliate of the Seller, the Purchaser, MERS or
one or more designees of the Purchaser. Notwithstanding the foregoing,
beneficial title of each Mortgage and related Mortgage Note shall be possessed
solely by the Purchaser or the appropriate designee of the Purchaser, as the
case may be. Except as expressly set forth in this Agreement, all rights arising
out of the Mortgage Loans including, but not limited to, all funds received by
the Seller after the related Cut-off Date on or in connection with a Mortgage
Loan shall be vested in the Purchaser or one or more designees of the Purchaser;
provided, however, that all funds received on or in connection with a Mortgage
Loan shall be received and held by the Seller in trust for the benefit of the
Purchaser or the appropriate designee of the Purchaser, as the case may be, as
the owner of the Mortgage Loans pursuant to the terms of this Agreement.
The sale of each Mortgage Loan shall be reflected on the Seller's
balance sheet and other financial statements as a sale of assets by the Seller.
The Seller shall be responsible for maintaining, and shall maintain,
a complete set of books and records for each Mortgage Loan which shall be marked
clearly to reflect the ownership of each Mortgage Loan by the Purchaser. In
particular, the Seller shall maintain in its possession, available for
inspection by the Purchaser, and shall deliver within five (5) business days to
the Purchaser upon demand, evidence of compliance prior to the related Transfer
Date with all federal, state and local laws, rules and regulations, including
but not limited to flood certifications, documentation evidencing insurance
coverage and periodic inspection reports. To the extent that, prior to the
related Transfer Date, original documents are not required for purposes of
realization of Liquidation Proceeds or Insurance Proceeds, documents maintained
by the Seller may be in the form of microfilm, microfiche or electronic imaging
so long as the Seller complies with the requirements of the Xxxxxx Xxx Guides.
Subsection 6.03. Delivery of Mortgage Loan Documents.
The Seller shall deliver and release to the Custodian no later than
five (5) Business Days prior to the related Closing Date the documents and
instruments in the Mortgage File for each Mortgage Loan in the related Mortgage
Loan Package.
The Custodian shall certify its receipt of all such Mortgage Loan
Documents required to be delivered pursuant to the Custodial Agreement for the
related Closing Date, as evidenced by the certification and trust receipt of the
Custodian in the form annexed to the Custodial Agreement. The Purchaser shall
pay all fees and expenses of the Custodian from and after the related Closing
Date.
The Seller shall forward to the Custodian, or to such other Person
as the Purchaser shall designate in writing, original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two weeks of their
execution, provided, however, that the Seller shall provide the Custodian, or to
such other Person as the Purchaser shall designate in writing, with a certified
true copy of any such document submitted for recordation within two weeks of its
execution, and shall promptly provide the original of any document submitted for
recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within ninety
days of its submission for recordation.
In the event the original of any copy of any document submitted for
recordation to the appropriate public recording office, is not delivered to the
Custodian or to such other Person as the Purchaser shall designate in writing,
within 180 days following the related Closing Date, the related Mortgage Loan
shall, upon the request of the Purchaser, be repurchased by the Seller at the
price and in the manner specified in Subsection 8.03. The foregoing repurchase
obligation shall not apply in the event that the Seller cannot deliver such
original or copy of any document submitted for recordation to the appropriate
public recording office within the specified period due to a delay caused by the
recording office in the applicable jurisdiction, provided that (i) the Seller
shall deliver a recording receipt of such recording office or, if such recording
receipt is not available, an officer's certificate of a servicing officer of the
Seller, confirming that such documents have been accepted for recording (upon
request of the Purchaser and delivery by the Purchaser to the Seller of a
schedule of the related Mortgage Loans, the Seller shall reissue and deliver to
the Purchaser or its designee said officer's certificate relating to the related
Mortgage Loans), and (ii) such document is delivered within 270 days of the
related Closing Date.
The Seller shall pay all initial recording fees, if any, for the
assignments of mortgage and any other fees or costs for a one-time transfer of
all original documents to the Custodian or, upon written request of the
Purchaser, to the Purchaser or the Purchaser's designee. The Purchaser or the
Purchaser's designee shall be responsible for recording any Assignments of
Mortgage and shall be reimbursed by the Seller for the costs associated
therewith pursuant to the preceding sentence.
Subsection 6.04. Quality Control Procedures.
The Seller shall maintain an internal quality control program that
verifies in a manner consistent with accepted industry procedures, on a regular
basis, the existence and accuracy of the legal documents, credit documents,
property appraisals, and underwriting decisions. The program shall include
evaluating and monitoring the overall quality of the Seller's loan production
and the servicing activities of the Seller. The program ensures that the
Mortgage Loans are originated and serviced in accordance with Accepted Servicing
Practices and the Underwriting Guidelines, guard against dishonest, fraudulent,
or negligent acts; and guard against errors and omissions by officers,
employees, or other authorized persons.
SECTION 7. Servicing of the Mortgage Loans.
The Mortgage Loans in each Mortgage Loan Package shall be sold by
the Seller to the Purchaser on a servicing released basis. Subject to, and upon
the terms and conditions of this Agreement, with respect to the Mortgage Loans
in each Mortgage Loan Package, the Seller hereby sells, transfers, assigns and
delivers to the Purchaser, on the related Closing Date, the Servicing Rights.
The Seller shall take any actions necessary to cause any current servicer to
terminate servicing the Mortgage Loans on behalf of the Seller. The Seller shall
be responsible for all servicing fees with respect to the Mortgage Loans
accruing through the related Closing Date. On and after the related Transfer
Date, the Purchaser shall have the right to assign the servicing rights to a
Successor Servicer in its sole discretion.
SECTION 8. Representations, Warranties and Covenants of the Seller;
Remedies for Breach.
Subsection 8.01. Representations and Warranties Regarding the
Seller.
The Seller represents, warrants and covenants to the Purchaser and
the Successor Servicer that as of the date hereof and as of each Closing Date:
(a) Due Organization and Authority. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or formation and has all licenses necessary to
carry on its business as now being conducted and is licensed, qualified and in
good standing in each state wherein it owns or leases any material properties or
where a Mortgaged Property is located, if the laws of such state require
licensing or qualification in order to conduct business of the type conducted by
the Seller, and in any event the Seller is in compliance with the laws of any
such state to the extent necessary to ensure the enforceability of the related
Mortgage Loan in accordance with the terms of this Agreement; the Seller has the
full corporate power, authority and legal right to hold, transfer and convey the
Mortgage Loans and to execute and deliver this Agreement and to perform its
obligations hereunder; the execution, delivery and performance of this Agreement
(including all instruments of transfer to be delivered pursuant to this
Agreement) by the Seller and the consummation of the transactions contemplated
hereby have been duly and validly authorized; this Agreement and all agreements
contemplated hereby have been duly executed and delivered and constitute the
valid, legal, binding and enforceable obligations of the Seller, regardless of
whether such enforcement is sought in a proceeding in equity or at law, subject
to bankruptcy, insolvency, and similar laws affecting the rights of creditors
generally and to general principles of equity; and all requisite corporate
action has been taken by the Seller to make this Agreement and all agreements
contemplated hereby valid and binding upon the Seller in accordance with their
terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Seller, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by the Seller,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Seller's charter, by-laws
or other organizational documents or any legal restriction or any agreement or
instrument to which the Seller is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject, or result in the creation or
imposition of any lien, charge or encumbrance that would have an adverse effect
upon any of its properties pursuant to the terms of any mortgage, contract, deed
of trust or other instrument, or impair the ability of the Purchaser to realize
on the Mortgage Loans, impair the value of the Mortgage Loans, or impair the
ability of the Purchaser to realize the full amount of any insurance benefits
accruing pursuant to this Agreement;
(d) Ability to Perform; Solvency. The Seller does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. The Seller is solvent and the sale
of the Mortgage Loans will not cause the Seller to become insolvent. The sale of
the Mortgage Loans is not undertaken with the intent to hinder, delay or defraud
any of Seller's creditors;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Seller, before any court,
administrative agency or other tribunal (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or (iii) except as disclosed in writing by the
Seller to the Purchaser on Exhibit L hereto or otherwise, which, either in any
one instance or in the aggregate, is likely to result in any material adverse
change in the business, operations, financial condition, properties or assets of
the Seller, or in any material impairment of the right or ability of the Seller
to carry on its business substantially as now conducted, or in any material
liability on the part of the Seller, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any action taken or to be
taken in connection with the obligations of the Seller contemplated herein, or
which would be likely to impair materially the ability of the Seller to perform
under the terms of this Agreement, or (iv) except as disclosed in writing by the
Seller to the Purchaser on Exhibit L hereto or otherwise, the Seller is not
subject to any outstanding litigation for fraud, origination, predatory lending,
servicing or closing practices. The Mortgage Loans are not subject to any
outstanding litigation for fraud, origination, predatory lending, servicing or
closing practices. Notwithstanding the Seller's disclosure of ongoing litigation
pursuant to Exhibit L hereto or otherwise, Accredited shall remain liable to the
Purchaser to repurchase and/or indemnify for any Mortgage Loan affected by any
outstanding litigation.
(f) No Consent Required. No consent, approval, authorization or
order of, or registration or filing with, or notice to any court or governmental
agency or body is required for the execution, delivery and performance by the
Seller of or compliance by the Seller with this Agreement or the Mortgage Loans,
the delivery of a portion of the Mortgage Files to the Custodian or the sale of
the Mortgage Loans or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval-, authorization or order of,
or registration or filing with, or notice has been obtained prior to the related
Closing Date;
(g) Selection Process. The Mortgage Loans were selected from among
the outstanding one- to four-family mortgage loans in the Seller's portfolio at
the related Closing Date as to which the representations and warranties set
forth in Subsection 8.02 could be made and such selection was not intentionally
made in a manner so as to affect adversely the interests of the Purchaser;
(h) Delivery to the Custodian. The Mortgage Note, the Mortgage, the
Assignment of Mortgage, if applicable, and any other documents required to be
delivered with respect to each Mortgage Loan pursuant to this Agreement, shall
be delivered to the Custodian all in compliance with the specific requirements
of this Agreement. With respect to each Mortgage Loan, the Seller will be in
possession of a complete Mortgage File in compliance with Exhibit A hereto,
except for such documents as will be delivered to the Custodian;
(i) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form, or other document
furnished or to be furnished by Seller pursuant to this Agreement or any
Reconstitution Agreement or in connection with the transactions contemplated
hereby (including any Securitization Transfer or Whole Loan Transfer) contains
or will contain any untrue statement of material fact or omits or will omit to
state a material fact necessary to make the statements contained herein or
therein not misleading;
(j) Financial Statements. The Seller has delivered to the Purchaser
financial statements as requested by the Purchaser. All such financial
statements fairly present the pertinent results of operations and changes in
financial position for each of such periods and the financial position at the
end of each such period of the Seller and its subsidiaries and have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set forth in the
notes thereto. There has been no change in the business, operations, financial
condition, properties or assets of the Seller since the date of the Seller's
financial statements that would have a material adverse effect on its ability to
perform its obligations under this Agreement. The Seller has completed any forms
requested by the Purchaser in a timely manner and in accordance with the
provided instructions;
(k) Loan Experience. The Seller has delivered information as to its
loan experience as requested by the Purchaser, and all such information so
delivered shall be true and correct in all material respects;
(l) No Brokers. The Seller has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans;
(m) Sale Treatment. The Seller acknowledges that under generally
accepted accounting principles the transfer of the Mortgage Loans may be treated
as a sale on the books and records of the Seller and the Seller has determined
that the disposition of the Mortgage Loans pursuant to this Agreement will be
afforded sale treatment for tax and accounting purposes;
(n) Owner of Record. Except for a MERS Designated Mortgage Loan, the
Seller is the owner of record of each Mortgage and the indebtedness evidenced by
each Mortgage Note, except for any Assignments of Mortgage which have been sent
for recording, and upon recordation the Seller will be the owner of record of
each Mortgage and the indebtedness evidenced by each Mortgage Note, and upon the
sale of the Mortgage Loans to the Purchaser, the Seller will retain the Mortgage
Files with respect thereto in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan;
(o) Reasonable Purchase Price. The consideration received by the
Seller upon the sale of the Mortgage Loans under this Agreement constitutes fair
consideration and reasonably equivalent value for the Mortgage Loans;
(p) Seller's Origination. The Seller's decision to originate any
mortgage loan or to deny any mortgage loan application is an independent
decision based upon Seller's underwriting guidelines, and is in no way made as a
result of Purchaser's decision to purchase, or not to purchase, or the price
Purchaser may offer to pay for, any such mortgage loan, if originated;
(q) Reports. On or prior to the date which is two Business Days
after the related Closing Date, Seller will provide the Custodian and the
Purchaser with a MERS Report reflecting the Custodian as Investor with respect
to each MERS Designated Mortgage Loan and no Person as Interim Funder for each
MERS Designated Mortgage Loan;
(r) MERS Designations. With respect to each MERS Designated Mortgage
Loan, on the related Closing Date, the Seller has initiated the process of
designating the Custodian as the Investor on the MERS(R) System. With respect to
each MERS Designated Mortgage Loan, no Person is listed as Interim Funder on the
MERS(R) System.
Subsection 8.02. Representations and Warranties Regarding Individual
Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser and the
Successor Servicer that, as to each Mortgage Loan, as of the related Closing
Date for such Mortgage Loan:
(a) Mortgage Loans as Described. The information set forth in the
related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to the
related Closing Date for the Mortgage Loan under the terms of the Mortgage Note,
other than payments not yet 30 days delinquent, have been made and credited. No
payment required under the Mortgage Loan is 30 days or more delinquent nor has
any payment under the Mortgage Loan been 30 days or more delinquent at any time
since the origination of the Mortgage Loan;
(c) No Outstanding Charges. Except for payment defaults of less than
30 days, there are no defaults in complying with the terms of the Mortgage, and
all taxes, governmental assessments, insurance premiums, water, sewer and
municipal charges, leasehold payments or ground rents which previously became
due and owing have been paid, or an escrow of funds has been established in an
amount sufficient to pay for every such item which remains unpaid and which has
been assessed but is not yet due and payable. The Seller has not advanced funds,
or induced, solicited or knowingly received any advance of funds by a party
other than the Mortgagor, directly or indirectly, for the payment of any amount
required under the Mortgage Loan, except for interest accruing from the date of
the Mortgage Note or date of disbursement of the Mortgage Loan proceeds,
whichever is earlier, to the day which precedes by one month the Due Date of the
first installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and
Mortgage have not been impaired, waived, altered or modified in any respect,
from the date of origination except by a written instrument which has been
recorded, if necessary to protect the interests of the Purchaser, and which has
been delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing, and the terms of which are reflected in the related
Mortgage Loan Schedule. The substance of any such waiver, alteration or
modification has been approved by the title insurer, if any, to the extent
required by the policy, and its terms are reflected on the related Mortgage Loan
Schedule, if applicable. No Mortgage Loan has been modified so as to restructure
the payment obligations or re-age the Mortgage Loan. No Mortgagor has been
released, in whole or in part, except in connection with an assumption
agreement, approved by the issuer of the title insurer, to the extent required
by the policy, and which assumption agreement is part of the Mortgage Loan File
delivered to the Custodian or to such other Person as the Purchaser shall
designate in writing and the terms of which are reflected in the related
Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto, and no Mortgagor
was a debtor in any state or federal bankruptcy or insolvency proceeding at, or
subsequent to, the time the Mortgage Loan was funded;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured by a
generally acceptable insurer acceptable under the Xxxxxx Xxx Guides against loss
by fire, hazards of extended coverage and such other hazards as are provided for
in the Xxxxxx Mae Guides or by Xxxxxxx Mac, in an amount which is at least equal
to the lesser of (i) the maximum insurable value of the improvements securing
such Mortgage Loan and (ii) the greater of (a) the outstanding principal balance
of the Mortgage Loan and (b) an amount such that the proceeds thereof shall be
sufficient to prevent the Mortgagor or the loss payee from becoming a
co-insurer. If required by the National Flood Insurance Act of 1968, as amended,
each Mortgage Loan is covered by a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
as in effect which policy conforms to Xxxxxx Mae and Xxxxxxx Mac, with a
generally acceptable insurance carrier acceptable under the Xxxxxx Mae Guides in
an amount representing coverage not less than the lesser of (i) the aggregate
unpaid principal balance of the Mortgage Loan, (ii) maximum amount of insurance
which is available under the National Flood Insurance Act of 1968, as amended
(regardless of whether the area in which such Mortgaged Property is located is
participating in such program), and (iii) the full replacement value of the
improvements which are part of such Mortgaged Property. All individual insurance
policies contain a standard mortgagee clause naming the Seller and its
successors and assigns as mortgagee, and all premiums thereon have been paid and
such policies may not be reduced, terminated or cancelled without 30 days' prior
written notice to the mortgagee. The Mortgage obligates the Mortgagor thereunder
to maintain the hazard insurance policy at the Mortgagor's cost and expense, and
on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to
obtain and maintain such insurance at such Mortgagor's cost and expense, and to
seek reimbursement therefor from the Mortgagor. Where required by state law or
regulation, the Mortgagor has been given an opportunity to choose the carrier of
the required hazard insurance, provided the policy is not a "master" or
"blanket" hazard insurance policy covering a condominium, or any hazard
insurance policy covering the common facilities of a planned unit development.
The hazard insurance policy is the valid and binding obligation of the insurer,
is in full force and effect, and will be in full force and effect and inure to
the benefit of the Purchaser upon the consummation of the transactions
contemplated by this Agreement. None of the Seller, the Mortgagor or any
servicer have engaged in any act or omission which would impair the coverage of
any such policy, the benefits of the endorsement provided for herein, or the
validity and binding effect of such policy, including, without limitation, no
unlawful fee, commission, kickback or other unlawful compensation or value of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Seller;
(g) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity and disclosure laws or unfair and deceptive practices
laws applicable to the Mortgage Loan have been complied with, the consummation
of the transactions contemplated hereby will not involve the violation of any
such laws or regulations, and the Seller shall maintain in its possession,
available for the Purchaser's inspection, and shall deliver to the Purchaser
upon demand, evidence of compliance with all such requirements;
(h) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated (except to a senior mortgage in the case of a
Second Lien Mortgage Loan) or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission. The Seller has not waived the
performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has the
Seller waived any default resulting from any action or inaction by the
Mortgagor;
(i) Location and Type of Mortgaged Property. The Mortgaged Property
is a fee simple property located in the state identified in the related Mortgage
Loan Schedule except that with respect to real property located in jurisdictions
in which the use of leasehold estates for residential properties is a
widely-accepted practice, the Mortgaged Property may be a leasehold estate and
consists of a single parcel of real property with a detached single family
residence erected thereon, or a two- to four-family dwelling, or an individual
residential condominium unit in a condominium project, or an individual unit in
a planned unit development or a manufactured home and no residence or dwelling
is a mobile home, provided, however, that any condominium unit or planned unit
development shall conform with the related Underwriting Guidelines. In the case
of any Mortgaged Properties that are manufactured homes (a "Manufactured Home
Mortgage Loans"), (i) such Manufactured Home Mortgage Loan conforms with the
applicable Xxxxxx Xxx or Xxxxxxx Mac requirements regarding mortgage loans
related to manufactured dwellings, (ii) the related manufactured dwelling is
permanently affixed to the land, (iii) the related manufactured dwelling and the
related land are subject to a Mortgage properly filed in the appropriate public
recording office and naming Seller as mortgagee, (iv) the applicable laws of the
jurisdiction in which the related Mortgaged Property is located will deem the
manufactured dwelling located on such Mortgaged Property to be a part of the
real property on which such dwelling is located, and (v) such Manufactured Home
Mortgage Loan is (x) a qualified mortgage under Section 860G(a)(3) of the
Internal Revenue Code of 1986, as amended and (y) secured by manufactured
housing treated as a single family residence under Section 25(e)(10) of the
Code. As of the date of origination, no portion of the Mortgaged Property was
used for commercial purposes, and since the date of origination, no portion of
the Mortgaged Property has been used for commercial purposes; provided, that a
Mortgaged Property which contains a home office shall not be considered as being
used for commercial purposes as long as the Mortgaged Property has not been
altered for commercial purposes and is not storing any chemicals or raw
materials other than those commonly used for homeowner repair, maintenance
and/or household purposes; notwithstanding the forgoing, the Mortgaged Property
is not characterized as mixed-use under which the Mortgaged Property falls into
two or more land use classifications.
(j) Valid First or Second Lien. The Mortgage is a valid, subsisting,
enforceable (subject to bankruptcy, insolvency, and similar laws affecting the
rights of creditors generally and to general principles of equity) and
perfected, first or second lien (as applicable) on the Mortgaged Property,
including all buildings and improvements on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems located in or annexed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing. The lien of the
Mortgage is subject only to:
(1) the lien of current real property taxes and assessments not yet
due and payable;
(2) covenants, conditions and restrictions, rights of way, easements
and other matters of the public record as of the date of recording
acceptable to prudent mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy delivered
to the originator of the Mortgage Loan and (a) specifically referred to or
otherwise considered in the appraisal made for the originator of the
Mortgage Loan or (b) which do not adversely affect the Appraised Value of
the Mortgaged Property set forth in such appraisal;
(3) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property; and
(4) with respect to Second Lien Mortgage Loans, the lien of the
first mortgage on the Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid, subsisting, enforceable (subject to bankruptcy, insolvency and
similar laws affecting the rights of creditors and general principles of equity)
and perfected (A) first lien and first priority security interest with respect
to each first lien mortgage loan, or (B) second lien and second priority
security interest with respect to each Second Lien Mortgage Loan, in either
case, on the property described therein and Seller has full right to sell and
assign the same to Purchaser.
(k) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws relating to or
affecting the rights of creditors generally, and by general equity principles
(regardless of whether such enforcement is considered a proceeding in equity or
a law). All parties to the Mortgage Note, the Mortgage and any other such
related agreement had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note, the Mortgage and any such agreement, and
the Mortgage Note, the Mortgage and any other such related agreement have been
duly and properly executed by other such related parties. The documents,
instruments and agreements submitted for loan underwriting were not falsified
and contain no untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the information and
statements therein not misleading. No fraud, error, omission, misrepresentation,
negligence, or similar occurrence with respect to a Mortgage Loan has taken
place on the part of any Person, including without limitation, the Mortgagor,
any appraiser, or any other party involved in the origination or servicing of
the Mortgage Loan. The Seller has reviewed all of the documents constituting the
Servicing File and has made such inquiries as it deems necessary to make and
confirm the accuracy of the representations set forth herein;
(l) Full Disbursement of Proceeds. Except to the extent the Mortgage
Loan is subject to completion escrows which have been disclosed to and
acknowledged by the Purchaser and which meet the requirements of the related
Underwriting Guidelines, and as to which a completed Xxxxxx Xxx form 442 has
been delivered to the Purchaser as of the related Closing Date, the Mortgage
Loan has been closed and the proceeds of the Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder, and any
and all requirements as to completion of any on-site or off-site improvement and
as to disbursements of any escrow funds therefor have been complied with. All
costs, fees and expenses incurred in making or closing the Mortgage Loan and the
recording of the Mortgage were paid, and the Mortgagor is not entitled to any
refund of any amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. Except for the interests of the Seller's warehouse
lender, which interests will be released upon payment of the related Purchase
Price, the Seller is the sole owner and holder of the Mortgage Loan, the
Mortgage Loan has neither been assigned nor pledged, and the Seller has good and
marketable title thereto, and has full right to transfer and sell the Mortgage
Loan and the related Servicing Rights to the Purchaser free and clear of any
encumbrance, equity, lien, pledge, chare, claim or security interest and has
full right and authority subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Mortgage Loan and the
related Servicing Rights to the Purchaser pursuant to the terms of this
Agreement.
(n) Doing Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (2) either (i) organized
under the laws of such state, or (ii) qualified to do business, or exempt from
such qualification, in such state, or (iii) a federal savings and loan
association, a savings bank or a national bank having a principal office in such
state, or (3) not doing business in such state;
(o) CLTV, LTV. No Mortgage Loan that is a Second Lien Mortgage Loan
has a CLTV in excess of 100%. No Mortgage Loan has an LTV greater than 100%.
(p) Title Insurance. The Mortgage Loan is covered by an ALTA
lender's title insurance policy, or with respect to any Mortgage Loan for which
the related Mortgaged Property is located in California a CLTA lender's title
insurance policy, or other generally acceptable form of policy or insurance
acceptable to Xxxxxx Xxx or Xxxxxxx Mac and each such title insurance policy is
issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified
to do business in the jurisdiction where the Mortgaged Property is located,
insuring the Seller, its successors and assigns, as to the first priority lien
(with respect to first lien Mortgage Loans) or second priority lien (with
respect to Second Lien Mortgage Loans) of the Mortgage in the original principal
amount of the Mortgage Loan, subject only to the exceptions contained in clauses
(1), (2), (3) and (4) of paragraph (j) of this Subsection 8.02, and in the case
of Adjustable Rate Mortgage Loans, against any loss by reason of the invalidity
or unenforceability of the lien resulting from the provisions of the Mortgage
providing for adjustment to the Mortgage Interest Rate and Monthly Payment.
Where required by state law or regulation, the Mortgagor has been given the
opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender's title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or any
interest therein. The title policy does not contain any special exceptions
(other than the standard exclusions) for zoning and uses and has been marked to
delete the standard survey exception or to replace the standard survey exception
with a specific survey reading. The Seller, its successor and assigns, are the
sole insureds of such lender's title insurance policy, and such lender's title
insurance policy is valid and remains in full force and effect and will be in
force and effect upon the consummation of the purchase transactions contemplated
by this Agreement. No claims have been made under such lender's title insurance
policy, and no prior holder of the related Mortgage, including the Seller, has
done, by act or omission, anything which would impair the coverage of such
lender's title insurance policy, including without limitation, no unlawful fee,
commission, kickback or other unlawful compensation or value of any kind has
been or will be received, retained or realized by any attorney, firm or other
person or entity, and no such unlawful items have been received, retained or
realized by the Seller;
(q) No Defaults. Other than payments due but not yet 30 days or more
delinquent, there is no default, breach, violation or event which would permit
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event which
would permit acceleration, and neither the Seller nor any of its affiliates nor
any of their respective predecessors, have waived any default, breach, violation
or event which would permit acceleration. With respect to each Second Lien
Mortgage Loan, (i) the prior mortgage is in full force and effect, (ii) there is
no default, breach, violation or event of acceleration existing under such prior
mortgage or the related mortgage note and (iii) as of the related Closing Date,
no event which, with the passage of time or with notice and the expiration of
any grace or cure period, would constitute a default, breach, violation or event
of acceleration thereunder, and either (A) the prior mortgage contains a
provision which allows or (B) the applicable law or applicable Mortgage
requires, the mortgagee under the Second Lien Mortgage Loan to receive notice
of, and affords such mortgagee an opportunity to cure any default by payment in
full or otherwise under the prior mortgage;
(r) No Mechanics' Liens. Except as insured against by the related
title insurance, there are no mechanics' or similar liens or claims which have
been filed for work, labor or material (and no rights are outstanding that under
law could give rise to such liens) affecting the related Mortgaged Property
which are or may be liens prior to, or equal or coordinate with, the lien of the
related Mortgage;
(s) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(t) Origination; Payment Terms. The Mortgage Loan was originated by
a mortgagee approved by the Secretary of Housing and Urban Development pursuant
to Sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or other similar institution which is supervised and examined by a federal or
state authority. No Mortgage Loan contains terms or provisions which would
result in negative amortization. Principal payments on the Mortgage Loan
commenced no more than sixty days after funds were disbursed in connection with
the Mortgage Loan. The Mortgage Interest Rate as well as the Lifetime Rate Cap
and the Periodic Cap for an Adjustable Rate Mortgage Loan are as set forth on
the related Mortgage Loan Schedule. The Mortgage Note is payable in equal
monthly installments of principal and interest, except for those Mortgage Loans
identified on the related Mortgage Loan Schedule subject to a balloon payment,
which installments of interest, with respect to Adjustable Rate Mortgage Loans,
are subject to change due to the adjustments to the Mortgage Interest Rate on
each Interest Rate Adjustment Date, with interest calculated and payable in
arrears, sufficient to amortize the Mortgage Loan fully by the stated maturity
date, over an original term of not more than thirty years from commencement of
amortization. Unless otherwise specified on related Mortgage Loan Schedule, the
Mortgage Loan is payable on the first day of each month. There are no
Convertible Mortgage Loans which contain a provision allowing the Mortgagor to
convert the Mortgage Note from an adjustable interest rate Mortgage Note to a
fixed interest rate Mortgage Note;
(u) Customary Provisions. The Mortgage contains customary and
enforceable (subject to bankruptcy, insolvency, and similar laws affecting the
rights of creditors generally and to general principles of equity) provisions
such as to render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (i) in the case of a Mortgage designated as a deed
of trust, by trustee's sale, and (ii) otherwise by judicial foreclosure. Upon
default by a Mortgagor on a Mortgage Loan and foreclosure on, or trustee's sale
of, the Mortgaged Property pursuant to the proper procedures, the holder of the
Mortgage Loan will be able to deliver good and merchantable title to the
Mortgaged Property. There is no homestead or other exemption available to a
Mortgagor which would interfere with the right to sell the Mortgaged Property at
a trustee's sale or the right to foreclose the Mortgage, subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy and
right of redemption or similar law;
(v) Conformance with Agency and Underwriting Guidelines. The
Mortgage Loan was underwritten in accordance with the related Underwriting
Guidelines. The Mortgage Note and Mortgage are on forms generally acceptable in
the secondary market and the Seller has not made any representations to a
Mortgagor that are inconsistent with the mortgage instruments used.
(w) Occupancy of the Mortgaged Property. The Mortgaged Property is
not unlawfully occupied under applicable law. All inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy, have been made or
obtained from the appropriate authorities;
(x) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral except the lien of the corresponding Mortgage and
the security interest of any applicable security agreement or chattel mortgage
referred to in clause (j) above;
(y) Deeds of Trust. In the event the Mortgage constitutes a deed of
trust, a trustee, authorized and duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(z) Acceptable Investment. To the Seller's knowledge, there are no
circumstances or conditions with respect to the Mortgage, the Mortgaged
Property, the Mortgagor, the Mortgage File or the Mortgagor's credit standing
(other than the status of the Mortgage Loan as a subprime mortgage loan) that
can reasonably be expected to cause private institutional investors to regard
the Mortgage Loan as an unacceptable investment, cause the Mortgage Loan to
become delinquent, or adversely affect the value or marketability of the
Mortgage Loan, or cause the Mortgage Loans to prepay during any period
materially faster or slower than the mortgage loans originated by the Seller
generally;
(aa) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage, if applicable, and any other documents
required to be delivered to the Custodian under this Agreement for each Mortgage
Loan have been delivered to the Custodian. The Seller is in possession of a
complete, true and accurate Mortgage File in compliance with Exhibit A hereto,
except for such documents the originals of which have been delivered to the
Custodian;
(bb) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project is acceptable to Seller and underwritten in accordance with the related
Underwriting Guidelines;
(cc) Transfer of Mortgage Loans. The Assignment of Mortgage, (except
with respect to any Mortgage that has been recorded in the name of MERS or its
designee), with respect to each Mortgage Loan is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located. The transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller are not subject to the bulk
transfer or similar statutory provisions in effect in any applicable
jurisdiction;
(dd) Due-On-Sale. With respect to each Fixed Rate Mortgage Loan, the
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent of
the mortgagee thereunder, and, subject to applicable law, such provision is
enforceable;
(ee) Assumability. None of the Mortgage Loans are, by their terms,
assumable;
(ff) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any separate
account established by the Seller, the Mortgagor, or anyone on behalf of the
Mortgagor, or paid by any source other than the Mortgagor nor does it contain
any other similar provisions which may constitute a "buydown" provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature;
(gg) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the related Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first or second lien priority by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated interest or by
other title evidence acceptable to Xxxxxx Xxx and Xxxxxxx Mac. The consolidated
principal amount does not exceed the original principal amount of the Mortgage
Loan;
(hh) Mortgaged Property Undamaged; No Condemnation Proceedings.
There is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property. The Mortgaged Property is undamaged by
waste, fire, earthquake or earth movement, windstorm, flood, tornado or other
casualty so as to affect adversely the value of the Mortgaged Property as
security for the Mortgage Loan or the use for which the premises were intended
and each Mortgaged Property is in good repair;
(ii) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. The origination, servicing and collection practices used by the
Seller or the current servicer with respect to the Mortgage Loan have been in
all respects in compliance with Accepted Servicing Practices, applicable laws
and regulations, and have been in all respects legal and proper and prudent in
the mortgage origination and servicing business. With respect to escrow deposits
and Escrow Payments, all such payments are in the possession of, or under the
control of, the current servicer and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. All Escrow Payments have been collected in full compliance with state and
federal law and the provisions of the related Mortgage Note and Mortgage. To the
extent there exists an escrow of funds, such escrow of funds is not prohibited
by applicable law and has been established in an amount sufficient to pay for
every item that remains unpaid and has been assessed but is not yet due and
payable. No escrow deposits or Escrow Payments or other charges or payments due
the Seller have been capitalized under the Mortgage or the Mortgage Note. All
Mortgage Interest Rate adjustments have been made in strict compliance with
state and federal law and the terms of the related Mortgage and Mortgage Note on
the related Interest Rate Adjustment Date. The Seller executed and delivered any
and all notices required under applicable law and the terms of the related
Mortgage Note and Mortgage regarding the Mortgage Interest Rate and the Monthly
Payment adjustments. Any interest required to be paid pursuant to state, federal
and local law has been properly paid and credited;
(jj) Conversion to Fixed Interest Rate. With respect to Adjustable
Rate Mortgage Loans, the Mortgage Loan is not a Convertible Mortgage Loan;
(kk) No Violation of Environmental Laws. The Mortgaged Property is
free from any and all toxic or hazardous substances and there exists no
violation of any local, state or federal environmental law, rule or regulation.
There is no pending action or proceeding directly involving the Mortgaged
Property in which compliance with any environmental law, rule or regulation is
an issue; there is no violation of any environmental law, rule or regulation
with respect to the Mortgage Property; and nothing further remains to be done to
satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(ll) Soldiers' and Sailors' Civil Relief Act. The Mortgagor has not
notified the Seller, of any relief requested or allowed to the Mortgagor under
the Soldiers' and Sailors' Civil Relief Act of 1940 or any similar state or
local law;
(mm) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by a qualified appraiser who had no interest, direct or indirect in
the Mortgaged Property or in any loan made on the security thereof, and whose
compensation was not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfied the requirements of Xxxxxx
Xxx or Xxxxxxx Mac and Title XI of the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989 and the regulations promulgated thereunder, all as
in effect on the date the Mortgage Loan was originated;
(nn) Disclosure Materials. The Mortgagor has received all disclosure
materials required by, and the Seller has complied with, all applicable law with
respect to the making of the Mortgage Loans;
(oo) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made to finance the construction or rehabilitation of a
Mortgaged Property or facilitating the trade-in or exchange of a Mortgaged
Property;
(pp) Value of Mortgaged Property. The Seller has no knowledge of any
circumstances existing that could be expected to adversely affect the value or
the marketability of any Mortgaged Property or Mortgage Loan or to cause the
Mortgage Loans to prepay during any period materially faster or slower than
similar mortgage loans held by the Seller generally secured by properties in the
same geographic area as the related Mortgaged Property;
(qq) No Defense to Insurance Coverage. The Seller has caused to be
performed any and all acts required to preserve the rights and remedies of the
Purchaser in any insurance policies applicable to the Mortgage Loans including,
without limitation, any necessary notifications of insurers, assignments of
policies or interests therein, and establishments of coinsured, joint loss payee
and mortgagee rights in favor of the Purchaser. No action has been taken or
failed to be taken, no event has occurred and no state of facts exists or has
existed on or prior to the related Closing Date (whether or not known to the
Seller on or prior to such date) which has resulted or will result in an
exclusion from, denial of, or defense to coverage under any applicable, special
hazard insurance policy, or bankruptcy bond (including, without limitation, any
exclusions, denials or defenses which would limit or reduce the availability of
the timely payment of the full amount of the loss otherwise due thereunder to
the insured) whether arising out of actions, representations, errors, omissions,
negligence, or fraud of the Seller, the related Mortgagor or any party involved
in the application for such coverage, including the appraisal, plans and
specifications and other exhibits or documents submitted therewith to the
insurer under such insurance policy, or for any other reason under such
coverage, but not including the failure of such insurer to pay by reason of such
insurer's breach of such insurance policy or such insurer's financial inability
to pay;
(rr) Escrow Analysis. With respect to each Mortgage for which taxes
and insurance are being escrowed, the current servicer has within the last
twelve months (unless such Mortgage was originated within such twelve month
period) analyzed the required Escrow Payments for each Mortgage and adjusted the
amount of such payments so that, assuming all required payments are timely made,
any deficiency will be eliminated on or before the first anniversary of such
analysis, or any overage will be refunded to the Mortgagor, in accordance with
RESPA and any other applicable law;
(ss) Prior Servicing. Each Mortgage Loan has been serviced in all
material respects in strict compliance with Accepted Servicing Practices and the
related servicer has reported the Mortgagor credit files monthly to each of the
three credit repositories in a timely manner on a monthly basis;
(tt) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Seller to the Purchaser, that Seller has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded from furnishing
the same to any subsequent or prospective purchaser of such Mortgage;
(uu) Leaseholds. If a Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple interest in
the land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate and the acquisition by the holder of the Mortgage of the rights
of the lessee upon foreclosure or assignment in lieu of foreclosure or provide
the holder of the Mortgage with substantially similar protections; (3) the terms
of such lease do not (A) allow the termination thereof upon the lessee's default
without the holder of the Mortgage being entitled to receive written notice of,
and opportunity to cure, such default, (B) allow the termination of the lease in
the event of damage or destruction as long as the Mortgage is in existence, (C)
prohibit the holder of the Mortgage from being insured (or receiving proceeds of
insurance) under the hazard insurance policy or policies relating to the
Mortgaged Property or (D) permit any increase in rent other than pre-established
increases set forth in the lease; (4) the original term of such lease is not
less than 15 years; (5) the term of such lease does not terminate earlier than
five years after the maturity date of the Mortgage Note; and (6) the Mortgaged
Property is located in a jurisdiction in which the use of leasehold estates in
transferring ownership in residential properties is a widely accepted practice;
(vv) Prepayment Penalty. Each Mortgage Loan is subject to a
Prepayment Penalty unless otherwise set forth on the related Mortgage Loan
Schedule hereof, enforceable under the terms of the related Mortgage Note and
originated in compliance with all applicable federal, state, and local laws. No
Mortgage Loan has a Prepayment Penalty period in excess of five years. With
respect to each Mortgage Loan that contains a Prepayment Penalty: (i) a mortgage
loan without a prepayment penalty was available to the Mortgagor at an interest
rate and/or fee structure higher than that of the Mortgage Loan, (ii) prior to
the Mortgage Loan's funding, the Mortgagor had the option of obtaining a
mortgage loan that did not require payment of such a premium, and (iii) the
Prepayment Penalty was disclosed to the Mortgagor in the Mortgage Loan documents
pursuant to applicable state and federal law;
(ww) Predatory Lending Regulations. None of the Mortgage Loans are
(i) covered by the Home Ownership and Equity Protection Act of 1994 or (ii) in
violation of, or classified as "high cost", "threshold," "covered" or
"predatory" loans under, any other applicable state, federal or local law.
(xx) Single-premium Credit Life Insurance Policy. In connection with
the origination of any Mortgage Loan, no proceeds from any Mortgage Loan were
used to finance a single-premium credit life insurance policy. No Mortgagor was
required to purchase any credit life, disability, accident or health insurance
product as a condition of obtaining the extension of credit. No Mortgagor
obtained a prepaid single-premium credit life, disability, accident or health
insurance policy in connection with the origination of the Mortgage Loan;
(yy) Tax Service Contract; Flood Certification Contract. Each
Mortgage Loan is covered by a paid in full, life of loan, tax service contract
and a paid in full, life of loan, flood certification contract and each of these
contracts is assignable to the Purchaser;
(zz) Qualified Mortgage. The Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code;
(aaa) Regarding the Mortgagor. The Mortgagor is one or more natural
persons and/or an Illinois land trust or a "living trust" and such "living
trust" is in compliance with Xxxxxx Mae guidelines for such trusts;
(bbb) Recordation. Each original Mortgage was recorded and, except
for those Mortgage Loans subject to the MERS identification system, all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
Seller, or is in the process of being recorded;
(ccc) FICO Scores. Except as permitted by the related Underwriting
Guidelines, each Mortgagor has a non-zero FICO score;
(ddd) Compliance with Anti-Money Laundering Laws. The Seller has
complied with all applicable anti-money laundering laws and regulations,
including without limitation the USA Patriot Act of 2001 (collectively, the
"Anti-Money Laundering Laws");
(eee) Georgia Mortgage Loans. There is no Mortgage Loan that was
funded prior to March 7, 2003 and is secured by property located in the State of
Georgia. There is no Mortgage Loan that was funded after March 7, 2003, which is
a "high-cost home loan" as defined under the Georgia Fair Lending Act;
(fff) Mortgaged Premises Located in New York State. No Mortgage Loan
(a) is secured by property located in the state of New York; (b) had an original
principal balance of $300,000 or less, and (c) has an application date on or
after April 1, 2003, the terms of which Mortgage Loan equal or exceed either the
APR or the points and fees threshold for "high-cost home loans," as defined in
Section 6-L of the New York State Banking Law;
(ggg) Mortgaged Premises Located in New Jersey. No Mortgage Loan is
secured by property located in the state of New Jersey unless such Mortgage Loan
is ratable by all three of the Ratings Agencies; and
(hhh) Litigation. The Mortgage Loan is not subject to any
outstanding litigation for fraud, origination, predatory lending, servicing or
closing practices.
(iii) Origination Practices. No borrower was encouraged or required
to select a Mortgage Loan product offered by the Mortgage Loan's originator
which is a higher cost product designed for less creditworthy borrowers, unless
at the time of the Mortgage Loan's origination, such borrower did not qualify
taking into account credit history and debt-to-income ratios for a lower-cost
credit product then offered by the Mortgage Loan's originator or any affiliate
of the Mortgage Loan's originator. If, at the time of loan application, the
borrower may have qualified for a for a lower-cost credit product then offered
by any mortgage lending affiliate of the Mortgage Loan's originator, the
Mortgage Loan's originator referred the borrower's application to such affiliate
for underwriting consideration;
(jjj) Underwriting Methodology. The methodology used in underwriting
the extension of credit for each Mortgage Loan employs, in part, objective
mathematical principles which relate the borrower's income, assets and
liabilities to the proposed payment and such underwriting methodology does not
rely on the extent of the borrower's equity in the collateral as the principal
determining factor in approving such credit extension. Such underwriting
methodology confirmed that at the time of origination (application/approval) the
borrower had a reasonable ability to make timely payments on the Mortgage Loan.
Subsection 8.03. Remedies for Breach of Representations and
Warranties.
It is understood and agreed that the representations and warranties
set forth in Subsections 8.01 and 8.02 shall survive the sale of the Mortgage
Loans to the Purchaser and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment of Mortgage, subject to Section 5, or the examination or failure to
examine any Mortgage File. Upon discovery by either the Seller or the Purchaser
of a breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the other.
Within 60 days of the earlier of either discovery by or notice to
the Seller of any breach of a representation or warranty which materially and
adversely affects the value of the Mortgage Loans or the interest of the
Purchaser therein (or which materially and adversely affects the value of the
applicable Mortgage Loan or the interest of the Purchaser therein in the case of
a representation and warranty relating to a particular Mortgage Loan), the
Seller shall use its best efforts promptly to cure such breach in all material
respects and, if such breach cannot be cured, the Seller shall, at the
Purchaser's option, within thirty (30) calendar days of Seller's receipt of
request from the Purchaser, repurchase such Mortgage Loan at the Repurchase
Price. Notwithstanding the above sentence, within 60 days of the earlier of
either discovery by, or notice to, the Seller of any breach of the
representations or warranties set forth in clauses (vv), (ww), (xx) or (zz) of
Subsection 8.02, the Seller shall repurchase such Mortgage Loan at the
Repurchase Price. In the event that such a breach shall involve any
representation or warranty set forth in Subsection 8.01, and such breach cannot
be cured within 60 days of the earlier of either discovery by or notice to the
Seller of such breach, all of the Mortgage Loans materially and adversely
affected thereby shall, at the Purchaser's option, be repurchased by the Seller
at the Repurchase Price. Any repurchase of a Mortgage Loan or Loans pursuant to
the foregoing provisions of this Subsection 8.03 shall be accomplished by direct
remittance of the Repurchase Price to the Purchaser or its designee in
accordance with the Purchaser's instructions.
At the time of repurchase, the Purchaser and the Seller shall
arrange for the reassignment of the Deleted Mortgage Loan to the Seller, free
and clear of any lien, charge or encumbrance suffered or incurred by the
Purchaser, and the delivery to the Seller of any documents held by the Custodian
relating to the Deleted Mortgage Loan.
In addition to such repurchase obligation, the Seller shall
indemnify the Purchaser and the Successor Servicer and hold it harmless against
any losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Seller representations and warranties contained
in this Agreement or any Reconstitution Agreement. It is understood and agreed
that the obligations of the Seller set forth in this Subsection 8.03 to cure, or
repurchase a defective Mortgage Loan and to indemnify the Purchaser as provided
in this Subsection 8.03 constitute the sole remedies of the Purchaser and the
Successor Servicer respecting a breach of the foregoing representations and
warranties. For purposes of this paragraph, "Purchaser" shall mean the Person
then acting as the Purchaser under this Agreement and any and all Persons who
previously were "Purchasers" under this Agreement and "Successor Servicer" shall
mean the Person then acting as the Successor Servicer under this Agreement and
any and all Persons who previously were "Successor Servicers" under this
Agreement.
Upon the request of the Purchaser, the Seller hereby agrees to
execute a recognition agreement in the form of Exhibit K hereto recognizing the
servicer designated by the Purchaser therein as the Successor Servicer.
Any cause of action against the Seller relating to or arising out of
the breach of any representations and warranties made in Subsections 8.01 and
8.02 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by
the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by
the Seller to cure such breach or repurchase such Mortgage Loan as specified
above and (iii) demand upon the Seller by the Purchaser for compliance with this
Agreement.
Subsection 8.04. Repurchase of Mortgage Loans With Early Payment
Defaults.
With respect to each Mortgage Loan, if the related Mortgagor fails
to make the first Monthly Payment due after the related Cut-off Date before the
date which is 30 days after the related Due Date (the "Early Payment Default
Date"), the Seller, at the Purchaser's option exercised in its sole discretion,
shall, within thirty (30) calendar days of Seller's receipt of notice of
Purchaser's request for repurchase, repurchase such Mortgage Loan from the
Purchaser at a price equal to the Repurchase Price.
Subsection 8.05. Purchaser's Right to Review.
Prior to the related Closing Date, the Purchaser or its designees
shall have the right to perform on-site due diligence at the premises of the
Seller with respect to the Mortgage Loans. The Seller will provide information
and otherwise cooperate with the due diligence reviews of the Purchaser, its
co-investor's, its financial partner's, and the rating agencies. The Seller
shall make the legal files and the credit files, together with any payment
histories, collection histories, bankruptcy histories, broker's price opinions,
to the extent available, and any other information with respect to the Mortgage
Loans requested by the Purchaser, available at the Seller's offices for review
by Purchaser or its agents during normal business hours before the related
Closing Date. The Purchaser shall have the right to order additional broker's
price opinions in its sole discretion at the Purchaser's expense.
The Purchaser shall have the right to reject any Mortgage Loan (a)
for which the documentation listed in Section 6.03 is missing or defective in
whole or in part, (b) for which the related broker's price opinion is below the
appraisal provided in connection with the origination of the related Mortgage
Loan, (c) for which the loan-to-value ratio calculated based upon the broker's
price opinion is greater than 100%, (d) which does not conform to the Seller's
underwriting guidelines, (e) which does not conform to the terms of the related
Purchase Price and Terms Agreement or is in breach of the representations and
warranties set forth in this Purchase Agreement, (f) that is not securitizable
in the reasonable opinion of the Purchaser, or (g) which does not conform to the
terms of any applicable federal, state, or local law or regulation. The
Purchaser shall use its best efforts to notify the Seller of any such rejected
Mortgage Loan immediately upon discovery.
The fact that the Purchaser or its designees have conducted or
failed to conduct any partial or complete examination of the files shall not
affect the Purchaser's (or any of its successor's) rights to demand repurchase
or other relief for breach of Mortgage Loan representations and warranties,
missing or defective documents or as otherwise provided in this Agreement;
provided, however, that Purchaser may not demand repurchase or other relief or
remedy on the basis that a Mortgage Loan examined by Purchaser or its designee
prior to purchase does not comply with the related Underwriting Guidelines.
SECTION 9. Closing.
Each closing for the purchase and sale of the Mortgage Loans shall
take place on the related Closing Date. At the Purchaser's option, each Closing
shall be either: by telephone, confirmed by letter or wire as the parties shall
agree, or conducted in person, at such place as the parties shall agree.
The closing for the Mortgage Loans to be purchased on each Closing
Date shall be subject to each of the following conditions:
(i) at least two Business Days prior to the related Closing Date
or such later date on which the Purchaser has identified to
the Seller the final list of Mortgage Loans the Purchaser
desires to purchase, the Seller shall deliver to the Purchaser
via electronic medium a related Mortgage Loan Schedule
acceptable to the Purchaser;
(ii) all of the representations and warranties of the Seller under
this Agreement shall be true and correct as of the related
Closing Date and no event shall have occurred which, with
notice or the passage of time, would constitute a default
under this Agreement;
(iii) the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, all Closing Documents
as specified in Section 10 of this Agreement, in such forms as
are agreed upon and reasonably acceptable to the Purchaser,
duly executed by all signatories other than the Purchaser as
required pursuant to the terms hereof;
(iv) the Seller shall have delivered and released to the Custodian
all documents required hereunder; and
(v) all other terms and conditions of this Agreement and the
related Purchase Price and Terms Agreement shall have been
complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Seller on the related Closing Date the Purchase Price, plus accrued interest
pursuant to Section 4 of this Agreement, by wire transfer of immediately
available funds to the account(s) designated by the Seller.
SECTION 10. Closing Documents.
(a) The Closing Documents for the Mortgage Loans to be purchased on
the initial Closing Date shall consist of fully executed originals of the
following documents:
1. this Agreement;
2. the Interim Servicing Agreement;
3. the related Mortgage Loan Schedule, one copy to be attached
hereto, and one copy to be attached to the Custodian's
counterpart of the Custodial Agreement;
4. a Custodian's Certification, as required under this Agreement;
5. an Officer's Certificate, in the form of Exhibit E hereto with
respect to the Seller, including all attachments thereto;
6. an Opinion of Counsel of the Seller (who may be an employee of
the Seller), in the form of Exhibit F hereto ("Opinion of
Counsel of the Seller");
7. a Security Release Certification, substantially in the form of
Exhibit G or H, as applicable, hereto executed by any person,
as requested by the Purchaser, if any of the Mortgage Loans
have at any time been subject to any security interest, pledge
or hypothecation for the benefit of such person; and
8. a certificate or other evidence of merger or change of name,
signed or stamped by the applicable regulatory authority, if
any of the Mortgage Loans were acquired by the Seller by
merger or acquired or originated by the Seller while
conducting business under a name other than its present name,
if applicable.
(b) The Closing Documents to be delivered on each Closing Date shall
consist of fully executed originals of the following documents:
1. an Assignment and Conveyance in the form of Exhibit M hereto,
including all exhibits;
2. an Acknowledgment Agreement in the form of Exhibit 6 to the
Interim Servicing Agreement;
3. a Purchase Price and Terms Agreement;
4. the related Mortgage Loan Schedule, with one copy to be
attached to the related Assignment and Conveyance;
5. each of the documents required to be delivered by the Seller
pursuant to Section 6.03 hereof;
6. the initial certification of the Custodian with respect to the
related Mortgage Loan Package;
7. a Security Release Certification, substantially in the form of
Exhibit H, hereto executed by any person, as requested by the
Purchaser, if any of the Mortgage Loans have at any time been
subject to any security interest, pledge or hypothecation for
the benefit of such person; and
8. a certificate or other evidence of merger or change of name,
signed or stamped by the applicable regulatory authority, if
any of the Mortgage Loans were acquired by the Seller by
merger or acquired or originated by the Seller while
conducting business under a name other than its present name,
if applicable.
9. if requested by the Purchaser in connection with a material
change in Seller's financial condition or corporate structure,
an updated Officer's Certificate, in the form of Exhibit E
hereto, including all attachments thereto and an updated
Opinion of Counsel of the Seller, in the form of Exhibit F
hereto.
The Seller shall bear the risk of loss of the closing documents
until such time as they are received by the Purchaser or its attorneys.
SECTION 11. Costs.
The Purchaser shall pay its due diligence fees the fees and expenses
of its counsel and the ongoing fees of its document custodian. All servicing
fees incurred prior to the related Closing Date (other than servicing fees to be
netted from payments collected for the account of the Purchaser), and all costs
and expenses incurred in connection with the one-time transfer of the Mortgage
Loans, including the fees to transfer files and prepare
assignments/endorsements, all initial recording fees, if any, for the
assignments of mortgage for all Mortgage Loans not recorded in the name of MERS,
and all fees, if any, for transferring record ownership on the MERS system of
Mortgage Loans recorded in the name of MERS, the costs associated with clearing
exceptions, (including costs to record intervening assignments and any existing
assumption and modification agreements), together with the fees and expenses of
Seller's counsel, shall be payable by the Seller.
SECTION 12. Cooperation of Seller with a Reconstitution.
The Seller and the Purchaser agree that with respect to some or all
of the Mortgage Loans, after the related Closing Date, on one or more dates
(each a "Reconstitution Date") at the Purchaser's sole option, the Purchaser may
effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans
then subject to this Agreement, without recourse, to:
(i) one or more third party purchasers in one or more Whole Loan
Transfers; or
(ii) one or more trusts or other entities to be formed as part of
one or more Securitization Transfers.
With respect to each Whole Loan Transfer and each Securitization
Transfer entered into by the Purchaser, the Seller agrees (1) to use its
reasonable best efforts to cooperate with the Purchaser and any prospective
purchaser with respect to all reasonable requests and due diligence procedures;
(2) to restate as of the Reconstitution Date for the benefit of the Purchaser
and the Successor Servicer, the same representations and warranties as to the
Mortgage Loans as set forth herein, but modified, if necessary, to reflect
changes due to events that may have occurred since the related Closing Date
(including events which occur after the related Closing Date which are
reasonably unknown to the Seller), and (3) to execute, deliver and perform a
pooling and servicing agreement or other agreement in connection with such
Reconstitution setting forth such restated representations and warranties and
the remedies for breach of same (which remedies will be the same as those set
forth herein) (a "Reconstitution Agreement"). The Seller shall use its
reasonable best efforts to provide to such master servicer or issuer, as the
case may be, and any other participants or purchasers in such Reconstitution:
(i) any and all information and appropriate verification of information which
may be reasonably available to the Seller or its affiliates, whether through
letters of its auditors and counsel or otherwise, as the Purchaser or any such
other participant shall request (provided, if the Seller is required to engage a
third party service provider to fulfill a Purchaser request pursuant to this
subsection, the Purchaser shall reimburse the Seller for any reasonable
out-of-pocket costs incurred by the Seller with respect to such service
provider); (ii) delivering an opinion of counsel as to customary corporate
matters (which may be from in-house counsel) in form and substance reasonably
satisfactory to the Seller and the Purchaser if requested by the Purchaser; and
(iii) to execute, deliver and satisfy all conditions set forth in any indemnity
agreement required by the Purchaser or any such participant (provided, that such
agreement shall set forth an indemnity substantially similar to that set forth
in this paragraph). Moreover, the Seller agrees to cooperate with all reasonable
requests made by the Purchaser to effect such Reconstitution Agreements. The
Seller shall indemnify the Purchaser, each Affiliate designated by the
Purchaser, each Person who controls the Purchaser or such Affiliate and the
Successor Servicer and hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that each of
them may sustain in any way related to any information provided by or on behalf
of the Seller regarding the Seller, the Mortgage Loans or the related
Underwriting Guidelines which is set forth in any offering document prepared in
connection with any Reconstitution. For purposes of the previous sentence,
"Purchaser" shall mean the Person then acting as the Purchaser under this
Agreement and any and all Persons who previously were "Purchasers" under this
Agreement.
All Mortgage Loans not sold or transferred pursuant to a
Reconstitution shall remain subject to this Agreement and with respect thereto
this Agreement shall remain in full force and effect.
SECTION 13. The Seller.
Subsection 13.01. Additional Indemnification by the Seller.
The Seller shall indemnify the Purchaser and the Successor Servicer
and hold it harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, legal fees (including (without limitation) legal fees
incurred in connection with the enforcement of the Seller's indemnification
obligation under this Subsection 13.01) and related reasonable costs, judgments,
and any other reasonable costs, fees and expenses that the Purchaser or the
Successor Servicer may sustain in any way related to the failure of the Seller
to perform its duties under this Agreement or any breach of any of Seller's
representations, warranties or covenants set forth in this Agreement, and to
perform its duties in strict compliance with the terms of any Reconstitution
Agreement entered into pursuant to Section 12.
Subsection 13.02. Merger or Consolidation of the Seller.
The Seller will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and 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 this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement.
Any Person into which the Seller may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Seller shall be a party, or any Person succeeding to the business of the
Seller, shall be the successor of the Seller hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or surviving Person shall have a net worth of at least $25,000,000.
SECTION 14. Financial Statements.
Financial information regarding the Seller may be provided to
prospective purchasers for a period of two (2) years following the related
Closing Date; provided, however, that such information will be limited to the
publicly available audited financial statements of the Seller.
The Seller also agrees to allow reasonable access to a knowledgeable
financial or accounting officer for the purpose of answering questions asked by
any prospective purchaser regarding recent developments affecting the Seller or
the financial statements of the Seller.
SECTION 15. Mandatory Delivery; Grant of Security Interest.
The sale and delivery on the related Closing Date of the Mortgage
Loans in the related Mortgage Loan Package is mandatory from and after the date
of the execution of the related Purchase Price and Terms Agreement, it being
specifically understood and agreed that each such Mortgage Loan is unique and
identifiable on the date hereof and that an award of money damages would be
insufficient to compensate the Purchaser for the losses and damages incurred by
the Purchaser (including damages to prospective purchasers of the Mortgage
Loans) in the event of the Seller's failure to deliver (i) each of the related
Mortgage Loans or (ii) one or more Mortgage Loans otherwise acceptable to the
Purchaser on or before the related Closing Date. Upon the consummation of the
transactions contemplated by this Agreement, the Seller hereby grants to the
Purchaser a lien on and a continuing security interest in each Mortgage Loan and
each document and instrument evidencing each such Mortgage Loan to secure the
performance by the Seller of its obligations under the related Purchase Price
and Terms Agreement, and the Seller agrees that it shall hold such Mortgage
Loans in custody for the Purchaser subject to the Purchaser's (i) right to
reject any Mortgage Loan under the terms of this Agreement and to require
another Mortgage Loan to be substituted therefor, and (ii) obligation to pay the
Purchase Price for the Mortgage Loans. Subject to Subsection 8.03, all rights
and remedies of the Purchaser under this Agreement are distinct from, and
cumulative with, any other rights or remedies under this Agreement or afforded
by law or equity and all such rights and remedies may be exercised concurrently,
independently or successively.
SECTION 16. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, by registered or
certified mail, return receipt requested, or, if by other means, when received
by the other party at the address as follows:
(i) if to the Seller:
Accredited Home Lenders, Inc.
000000 Xxxxxx xx Xxxxxxx, #000
Xxx Xxxxx, XX 00000
Attention: Director of Operations
Telephone: 000-000-0000
Fax: 000-000-0000
(ii) if to the Purchaser:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx Xxxxxxx
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
SECTION 17. Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or unenforceable or is held to be void or unenforceable in
any jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
SECTION 18. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
SECTION 19. Governing Law.
This Agreement shall be deemed in effect when a fully executed
counterpart thereof is received by the Purchaser in the State of New York and
shall be deemed to have been made in the State of New York. The Agreement shall
be construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with the substantive laws of the State of New York (without regard to
conflicts of laws principles), except to the extent preempted by Federal law.
SECTION 20. Intention of the Parties.
It is the intention of the parties that the Purchaser is purchasing,
and the Seller is selling the Mortgage Loans in each Mortgage Loan Package and
not a debt instrument of the Seller or another security. Accordingly, the
parties hereto each intend to treat the transaction for Federal income tax
purposes and accounting purposes as a sale by the Seller, and a purchase by the
Purchaser, of the Mortgage Loans. Moreover, the arrangement under which the
Mortgage Loans are held shall be consistent with classification of such
arrangement as a grantor trust in the event it is not found to represent direct
ownership of the Mortgage Loans. The Purchaser shall have the right to review
the Mortgage Loans and the related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect the Federal income tax
consequences of owning the Mortgage Loans and the Seller shall cooperate with
all reasonable requests made by the Purchaser in the course of such review.
SECTION 21. Successors and Assigns; Assignment of Purchase
Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and the respective permitted
successors and assigns of the Seller and the successors and assigns of the
Purchaser. Except as set forth under Section 13.02 above, this Agreement shall
not be assigned, pledged or hypothecated by the Seller to a third party without
the prior written consent of the Purchaser, which consent may be withheld by the
Purchaser in its sole discretion. This Agreement may be assigned, pledged or
hypothecated by the Purchaser in whole or in part, and with respect to one or
more of the Mortgage Loans, with written notice to the Seller. There shall be no
limitation on the number of assignments or transfers allowable by the Purchaser
with respect to the Mortgage Loans and this Agreement. In the event the
Purchaser assigns this Agreement, and the assignee assumes any of the
Purchaser's obligations hereunder, the Seller acknowledges and agrees to look
solely to such assignee, and not to the Purchaser, for performance of the
obligations so assumed. The Purchaser shall deliver written notice to the Seller
of any such assumption of the Purchaser's obligations and upon delivery thereof
the Purchaser shall be relieved from any liability to the Seller with respect to
such obligations. The Successor Servicer shall be an intended third party
beneficiary of this Agreement to the same extent as if it were a party hereto,
and shall have the right to enforce the provisions of this Agreement.
SECTION 22. Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
SECTION 23. Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
SECTION 24. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires: (
a) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular, and the
use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration.
SECTION 25. Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 26. Further Agreements.
The Seller and the Purchaser each agree to execute and deliver to
the other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of this
Agreement.
SECTION 27. Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, for Mortgage Loans which
are not registered with MERS, each of the Assignments of Mortgage is subject to
recordation in the appropriate public offices for real property records in the
county or other comparable jurisdiction in which the related Mortgaged Property
is situated, such recordation to be effected at the Seller's expense in the
event recordation is either necessary under applicable law or requested by the
Purchaser at its sole option.
SECTION 28. No Solicitation.
From and after the related Closing Date, the Seller agrees that it
will not take any action or cause any action to be taken by any of its agents or
affiliates, or by any independent contractors on the Seller's behalf, to
personally, by telephone or mail, solicit the borrower or obligor under any
Mortgage Loan for any purpose whatsoever, including to refinance a Mortgage
Loan, in whole or in part, without the prior written consent of the Purchaser.
It is understood and agreed that all rights and benefits relating to the
solicitation of any Mortgagors and the attendant rights, title and interest in
and to the list of such Mortgagors and data relating to their Mortgages
(including insurance renewal dates) shall be transferred to the Purchaser
pursuant hereto on the related Closing Date and the Seller shall take no action
to undermine these rights and benefits. Notwithstanding the foregoing, it is
understood and agreed that promotions undertaken by the Seller or any affiliate
of the Seller which are directed to the general public at large, including,
without limitation, mass mailing based on commercially acquired mailing lists,
newspaper, internet (other than targeted e-mail) radio and television
advertisements shall not constitute solicitation under this Section 28.
SECTION 29. Confidentiality.
The Seller and Purchaser understand and agree that this Agreement,
any other agreements executed in connection with the sale contemplated
hereunder, any agreements executed in connection with any Reconstitution, and
any offering circulars or other disclosure documents produced in connection with
any Reconstitution are confidential and proprietary to the Purchaser or Seller,
and the Seller and Purchaser agree to hold such documents confidential and not
to divulge such documents to anyone except (a) to the extent required by law or
judicial order or to enforce its rights or remedies under this Agreement, (b) to
the extent such information enters into the public domain other than through the
wrongful act of the Seller or the Purchaser, as the case may be, (c) as is
necessary in working with legal counsel, rating agencies, auditors, agents,
taxing authorities or other governmental agencies or (d) the federal income tax
treatment of the transactions hereunder, any fact relevant to understanding the
federal tax treatment of the transactions hereunder, and all materials of any
kind (including opinions or other tax analyses) relating to such federal income
tax treatment; provided that the Seller may not disclose the name of or
identifying information with respect to Purchaser or any pricing terms or other
nonpublic business or financial information that is unrelated to the purported
or claimed federal income tax treatment of the transactions hereunder and is not
relevant to understanding the purported or claimed federal income tax treatment
of the transactions hereunder. Notwithstanding the foregoing, the Seller may
disclose (i) in its periodic public filings the Purchaser's name and the total
dollar amount of Mortgage Loans purchased by the Purchaser during the related
period and (ii) the Purchaser's identity and the Purchase Price in connection
with obtaining the release of the liens of the Seller's warehouse lenders.
SECTION 30. Waiver of Trial by Jury.
THE SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 31. Submission To Jurisdiction; Waivers.
The Seller and the Purchaser each hereby irrevocably and
unconditionally:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH THE OTHER PARTY SHALL HAVE BEEN
NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO XXX IN ANY OTHER JURISDICTION.
[Signatures Commence on Following Page]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
XXXXXXX SACHS MORTGAGE COMPANY, a New
York limited partnership
(Purchaser)
By: XXXXXXX XXXXX REAL ESTATE
FUNDING CORP., a New York
corporation, as General Partner
By:______________________________
Name:
Title:
ACCREDITED HOME LENDERS, INC.
(Seller)
By:____________________________________
Name:
Title:
Exhibit A
EXHIBIT A
CONTENTS OF EACH MORTGAGE FILE
------------------------------
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and any prospective Purchaser, and which shall be delivered to the
Custodian, or to such other Person as the Purchaser shall designate in writing,
pursuant to Section 6 of the Flow Mortgage Loan Purchase and Warranties
Agreement to which this Exhibit is attached (the "Agreement"):
(a) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _________, without recourse" and signed in the
name of the last endorsee (the "Last Endorsee") by an authorized officer. To the
extent that there is no room on the face of the Mortgage Notes for endorsements,
the endorsement may be contained on an allonge, if state law so allows. If the
Mortgage Loan was acquired by the Seller in a merger, the endorsement must be by
"[Last Endorsee], successor by merger to [name of predecessor]". If the Mortgage
Loan was acquired or originated by the Last Endorsee while doing business under
another name, the endorsement must be by "[Last Endorsee], formerly known as
[previous name]";
(b) the original Mortgage with evidence of recording thereon;
(c) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(d) except with respect to each MERS Designated Mortgage Loan, the
original Assignment of Mortgage for each Mortgage Loan, in form and substance
acceptable for recording. The Assignment of Mortgage must be duly recorded only
if recordation is either necessary under applicable law or commonly required by
private institutional mortgage investors in the area where the Mortgaged
Property is located or on direction of the Purchaser as provided in this
Agreement. If the Assignment of Mortgage is to be recorded, the Mortgage shall
be assigned to the Purchaser. If the Assignment of Mortgage is not to be
recorded, the Assignment of Mortgage shall be delivered in blank. If the
Mortgage Loan was acquired by the Seller in a merger, the Assignment of Mortgage
must be made by "[Seller], successor by merger to [name of predecessor]". If the
Mortgage Loan was acquired or originated by the Seller while doing business
under another name, the Assignment of Mortgage must be by "[Seller], formerly
known as [previous name]";
(e) the originals of all intervening assignments of mortgage (if
any) evidencing a complete chain of assignment from the Seller to the Last
Endorsee (or to MERS with respect to each MERS Designated Mortgage Loan) with
evidence of recording thereon;
(f) the original mortgagee policy of title insurance or, in the
event such original title policy is unavailable, a copy of the related policy
binder, preliminary report or commitment for title; and
(g) Any security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage.
If in connection with any Mortgage Loan, the Seller cannot deliver or cause to
be delivered an original document with evidence of recording thereon on or prior
to the related Closing Date because of a delay caused by the public recording
office where such document has been delivered for recordation or because such
document has been lost or because such public recording office retains the
original recorded document, the Seller shall deliver or cause to be delivered to
the Custodian, a photocopy of such document, together with (i) in the case of a
delay caused by the public recording office, a copy of such document certified
by an Authorized Signatory of the Seller (or certified by the title company,
escrow agent, or closing attorney) to be a true and correct copy of such
document dispatched to the appropriate public recording office for recordation,
and the original recorded document will be promptly delivered to the Custodian
upon receipt thereof by the Seller; or (ii) in the case of a document where a
public recording office retains the original recorded document or in the case
where a document is lost after recordation in a public recording office, a copy
of such document certified by such public recording office to be a true and
complete copy of the original recorded document.
Exhibit B
EXHIBIT B
CONTENTS OF EACH CREDIT FILE
(a) Any security agreement, chattel mortgage or equivalent executed
in connection with the Mortgage.
(b) Evidence of the original hazard insurance policy and, if
required by law, flood insurance policy.
(c) Residential loan application.
(d) Mortgage Loan closing statement.
(e) All applicable verification of employment and income except for
Mortgage Loans originated under a Limited Documentation Program.
(f) Verification of acceptable evidence of source and amount of
downpayment, if applicable.
(g) Credit report on the Mortgagor.
(h) Residential appraisal report.
(i) Photograph of the Mortgaged Property.
(j) Survey of the Mortgaged Property, if any.
(k) Copy of each instrument necessary to complete identification of
any exception set forth in the exception schedule in the title policy, i.e., map
or plat, restrictions, easements, sewer agreements, home association
declarations, etc.
(l) All required disclosure statements (other than the 3-day
packages, copies of which shall be retained by the Seller and made available
upon request).
(m) If available, termite report, structural engineer's report,
water potability and septic certification.
(n) Sales contract, if it is a purchase transaction.
(o) Tax receipts, insurance premium receipts, ledger sheets, payment
history from date of origination, insurance claim files, correspondence, current
and historical computerized data files, and all other processing, underwriting
and closing papers and records which are customarily contained in a mortgage
loan file and which are required to document the Mortgage Loan or to service the
Mortgage Loan.
(p) The original power of attorney, if applicable, with evidence of
recording thereon, or a certified copy thereof.
Exhibit C
EXHIBIT C
MORTGAGE LOAN SCHEDULE FIELDS
(1) the Seller's Mortgage Loan identifying number;
(2) the Mortgagor's name;
(3) the street address of the Mortgaged Property including the city,
state and zip code;
(4) a code indicating whether the Mortgaged Property is
owner-occupied, a second home or investment property;
(5) the number and type of residential units constituting the
Mortgaged Property (i.e. a single family residence, a 2-4 family residence, a
unit in a condominium project or a unit in a planned unit development,
manufactured housing);
(6) a code indicating whether the Mortgage Loan is secured by a
leasehold estate;
(7) the original months to maturity or the remaining months to
maturity from the related Cut-off Date, in any case based on the original
amortization schedule and, if different, the maturity expressed in the same
manner but based on the actual amortization schedule;
(8) with respect to First Lien Loans, the LTV at the origination;
(9) with respect to Second Lien Loans, the CLTV at the origination;
(10) with respect to Second Lien Loans, the outstanding principal
balance of the senior mortgage loan;
(11) a code indicating whether the Mortgage Loan is a piggyback
loan:
(12) the Mortgage Interest Rate as of the related Cut-off Date;
(13) the date on which the Monthly Payment was due on the Mortgage
Loan and, if such date is not consistent with the Due Date currently in effect,
such Due Date;
(14) the stated maturity date;
(15) the amount of the Monthly Payment as of the related Cut-off
Date;
(16) the last payment date on which a payment was actually applied
to the outstanding principal balance;
(17) the original principal amount of the Mortgage Loan;
(18) the principal balance of the Mortgage Loan as of the close of
business on the related Cut-off Date, after deduction of payments of principal
due and collected on or before the related Cut-off Date;
(19) with respect to Adjustable Rate Mortgage Loans, the Interest
Rate Adjustment Date;
(20) with respect to Adjustable Rate Mortgage Loans, the Gross
Margin;
(21) with respect to Adjustable Rate Mortgage Loans, the Lifetime
Rate Cap under the terms of the Mortgage Note;
(22) with respect to Adjustable Rate Mortgage Loans, a code
indicating the type of Index;
(23) with respect to Adjustable Rate Mortgage Loans, the Periodic
Rate Cap under the terms of the Mortgage Note;
(24) with respect to Adjustable Rate Mortgage Loans, the Periodic
Rate Cap at the initial interest rate adjustment date;
(25) with respect to the Mortgagor, monthly income;
(26) Current LTV;
(27) with respect to Adjustable Rate Mortgage Loans, the next
interest rate adjustment date;
(28) first time homebuyer flag;
(29) a code indicating the race of the Mortgagor;
(30) a code indicating the gender of the Mortgagor;
(31) with respect to Adjustable Rate Mortgage Loans, the Periodic
Rate Floor under the terms of the Mortgage Note;
(32) the type of Mortgage Loan (i.e., Fixed Rate, Adjustable Rate,
First Lien, Second Lien and/or balloon Mortgage Loan);
(33) a code indicating the purpose of the loan (i.e., purchase, rate
and term refinance, equity take-out refinance);
(34) a code indicating the documentation style (i.e. full,
alternative or reduced);
(35) the loan credit classification (as described in the related
Underwriting Guidelines);
(36) whether such Mortgage Loan provides for a Prepayment Penalty;
(37) the Prepayment Penalty period of such Mortgage Loan, if
applicable;
(38) a description of the Prepayment Penalty, if applicable (which
may be delivered separately);
(39) the Mortgage Interest Rate as of origination;
(40) the credit risk score (FICO score) at origination;
(41) the date of origination;
(42) the Mortgage Interest Rate adjustment period;
(43) the Mortgage Interest Rate adjustment percentage;
(44) the Mortgage Interest Rate floor;
(45) the Mortgage Interest Rate calculation method (i.e., 30/360,
simple interest, other);
(46) the Current CLTV;
(47) the Due Date for the first Monthly Payment;
(48) the original Monthly Payment due;
(49) with respect to the related Mortgagor, the debt-to-income
ratio;
(50) the Appraised Value of the Mortgaged Property;
(51) the sales price of the Mortgaged Property if the Mortgage Loan
was originated in connection with the purchase of the Mortgaged Property;
(52) the MERS Identification Number; and
(53) with respect to Adjustable Rate Mortgage Loans, the Index.
With respect to the Mortgage Loans in the aggregate:
(1) the number of Mortgage Loans;
(2) the current aggregate outstanding principal balance of the
Mortgage Loans;
(3) the weighted average Mortgage Interest Rate of the Mortgage
Loans; and
(4) the weighted average maturity of the Mortgage Loans.
EXHIBIT D
EXHIBIT D
[INTENTIONALLY OMITTED]
Exhibit E
EXHIBIT E
SELLER'S OFFICER'S CERTIFICATE
I, ____________________, hereby certify that I am the duly elected
[Executive/Assistant] [Vice] President of ________________ Accredited Home
Lenders, Inc., a [state] [federally] chartered institution organized under the
laws of the [state of ____________] [United States] (the "Company") and further
as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy
of the charter of the Company which is in full force and effect on the date
hereof and which has been in effect without amendment, waiver, rescission or
modification.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy
of the bylaws of the Company which are in effect on the date hereof and which
have been in effect without amendment, waiver, rescission or modification.
3. Attached hereto as Exhibit 3 is an original certificate of good
standing of the Company issued within ten days of the date hereof, and no event
has occurred since the date thereof which would impair such standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete copy
of the corporate resolutions of the Board of Directors of the Company
authorizing the Company to execute and deliver agreements such as the Flow
Mortgage Loan Purchase and Warranties Agreement, dated as of August 1, 2003, by
and between Xxxxxxx Xxxxx Mortgage Company (the "Purchaser") and the Company
(the "Purchase Agreement"), and to endorse the Mortgage Notes and execute the
Assignments of Mortgages by original [or facsimile] signature], and such
resolutions are in effect on the date hereof and have been in effect without
amendment, waiver, rescission or modification.
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with the Purchase
Agreement, the Interim Servicing Agreement or the sale of the mortgage loans or
the consummation of the transactions contemplated by such Agreement; or (ii) any
required consent, approval, authorization or order has been obtained by the
Company.
6. Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of the Purchase Agreement conflicts or will
conflict with or results or will result in a breach of or constitutes or will
constitute a default under the charter or by-laws of the Company, the terms of
any indenture or other agreement or instrument to which the Company is a party
or by which it is bound or to which it is subject, or any statute or order,
rule, regulations, writ, injunction or decree of any court, governmental
authority or regulatory body to which the Company is subject or by which it is
bound.
7. Except as disclosed by the Company to the Purchaser and attached
to the Purchase Agreement as Exhibit L, there is no action, suit, proceeding or
investigation pending or to the best of my knowledge, threatened against the
Company which, in my judgment, either in any one instance or in the aggregate,
is likely to result in any material adverse change in the business, operations,
financial condition, properties or assets of the Company or in any material
impairment of the right or ability of the Company to carry on its business
substantially as now conducted or in any material liability on the part of the
Company or which would draw into question the validity of the Purchase
Agreement, or the mortgage loans or of any action taken or to be taken in
connection with the transactions contemplated hereby, or which would be likely
to impair materially the ability of the Company to perform under the terms of
the Purchase Agreement.
8. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Company, signed (a) the Purchase Agreement, and
(b) any other document delivered before or on the date hereof in connection with
any purchase described in the agreements set forth above was, at the respective
times of such signing and delivery, a duly elected or appointed, qualified and
acting officer or representative of the Company, who holds the office set forth
opposite his or her name on Exhibit 5, and the signatures of such persons
appearing on such documents are their genuine signatures.
9. The Company is duly authorized to engage in the transactions
described and contemplated in the Purchase Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Dated:____________________ By:___________________________
Name:_________________________
[Seal] Title: [Executive/Assistant] [Vice] President
I, ________________________, an [Assistant] Secretary of
______________ Accredited Home Lenders, Inc., hereby certify that ____________
is the duly elected, qualified and acting [Executive/Assistant] [Vice] President
of the Company and that the signature appearing above is [her] [his] genuine
signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:____________________ By:___________________________
Name:_________________________
Title: [Assistant] Secretary
EXHIBIT 5 to
Company's Officer's Certificate
NAME TITLE SIGNATURE
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Exhibit F
EXHIBIT F
FORM OF OPINION OF COUNSEL TO THE SELLER
(date)
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
You have requested [our] [my] opinion, as [Assistant] General
Counsel to Accredited Home Lenders, Inc. (the "Company"), with respect to
certain matters in connection with the sale by the Company of the Mortgage Loans
pursuant to that certain Flow Mortgage Loan Purchase and Warranties Agreement by
and between the Company and Xxxxxxx Xxxxx Mortgage Company (the "Purchaser"),
dated as of August 1, 2003 (the "Purchase Agreement") which sale is in the form
of whole loans. Capitalized terms not otherwise defined herein have the meanings
set forth in the Purchase Agreement.
[We] [I] have examined the following documents:
1. the Purchase Agreement;
2. the form of Assignment of Mortgage;
3. the form of endorsement of the Mortgage Notes; and
4. such other documents, records and papers as we have deemed
necessary and relevant as a basis for this opinion.
To the extent [we] [I] have deemed necessary and proper, [we] [I]
have relied upon the representations and warranties of the Company contained in
the Purchase Agreement. [We] [I] have assumed the authenticity of all documents
submitted to [us] [me] as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
documents.
Based upon the foregoing, it is [our] [my] opinion that:
1. The Company is a [type of entity] duly organized, validly
existing and in good standing under the laws of ___________
and is qualified to transact business in, and is in good
standing under, the laws of [the state of incorporation].
2. The Company has the power to engage in the transactions
contemplated by the Purchase Agreement and all requisite
power, authority and legal right to execute and deliver the
Purchase Agreement and to perform and observe the terms and
conditions of the Purchase Agreement.
3. The Purchase Agreement has been duly authorized, executed and
delivered by the Company, and is a legal, valid and binding
agreement enforceable in accordance with its respective terms
against the Company, subject to bankruptcy laws and other
similar laws of general application affecting rights of
creditors and subject to the application of the rules of
equity, including those respecting the availability of
specific performance, none of which will materially interfere
with the realization of the benefits provided thereunder or
with the Purchaser's ownership of the Mortgage Loans.
4. The Company has been duly authorized to allow certain of its
officers to execute any and all documents by original
signature in order to complete the transactions contemplated
by the Purchase Agreement.
5. The Company has been duly authorized to allow certain of its
officers to execute by original [or facsimile] signature the
endorsements to the Mortgage Notes and any Assignments of
Mortgages, and the original [or facsimile] signature of the
officer at the Company executing the endorsements to the
Mortgage Notes and the Assignments of Mortgages represents the
legal and valid signature of said officer of the Company.
6. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by the Company of or
compliance by the with the Purchase Agreement and the sale of
the Mortgage Loans by the Company or the consummation of the
transactions contemplated by the Purchase Agreement or (ii)
any required consent, approval, authorization or order has
been obtained by the Company.
7. Neither the consummation of the transactions contemplated by,
nor the fulfillment of the terms of, the Purchase Agreement
conflicts or will conflict with or results or will result in a
breach of or constitutes or will constitute a default under
the charter or by-laws of the Company, the terms of any
indenture or other agreement or instrument to which the
Company is a party or by which it is bound or to which it is
subject, or violates any statute or order, rule, regulations,
writ, injunction or decree of any court, governmental
authority or regulatory body to which the Company is subject
or by which it is bound.
8. Except as previously disclosed by the Company to the Purchaser
and amended to the Purchase Agreement as Exhibit L, there is
no action, suit, proceeding or investigation pending or, to
the best of [our] [my] knowledge, threatened against the
Company which, in [our] [my] judgment, either in any one
instance or in the aggregate, may result in any material
adverse change in the business, operations, financial
condition, properties or assets of the Company or in any
material impairment of the right or ability of the Company to
carry on its business substantially as now conducted or in any
material liability on the part of the Company or which would
draw into question the validity of the Agreements to which it
is a party or the Mortgage Loans or of any action taken or to
be taken in connection with the transactions contemplated
thereby, or which would be likely to impair materially the
ability of the Company to perform under the terms of the
Agreements.
9. The sale of each Mortgage Note and Mortgage as and in the
manner contemplated by the Purchase Agreement is sufficient to
fully transfer to the Purchaser all right, title and interest
of the Company thereto as noteholder and mortgagee.
10. I have reviewed the form of Assignment of Mortgage for a
Mortgage Loan secured by a Mortgaged Property located in the
State of California, and upon the completion of all blanks in
such form with appropriate information, such form would be
acceptable for recording in the State of California. The
endorsement of the Mortgage Notes, the delivery to the
Purchaser, or its designee, of any Assignments of Mortgage,
the transfer to the Purchaser, or its designee, in the MERS
System of beneficial ownership of each MERS Designated
Mortgage Loan, and the delivery of the original endorsed
Mortgage Notes to the Purchaser, or its designee, are
sufficient to permit the Purchaser or its designee to avail
itself of all protection available under applicable law
against the claims of any present or future creditors of the
Company, and are sufficient to prevent any other sale,
transfer, assignment, pledge or hypothecation of the Mortgages
and the Mortgage Notes by the Company from being enforceable.
I am admitted to the bar of the State of California, and I express
no opinion as to the laws of any other jurisdiction except as to matters that
are governed by federal law. This opinion is given to you for your sole benefit,
and no other person or entity is entitled to rely hereon except that the
purchaser or purchasers to which you initially and directly resell the Mortgage
Loans may rely on this opinion as if it were addressed to them as of its date. I
make no undertaking to supplement or update this opinion if, after the date
hereof, facts or circumstances come to my attention or changes in the law occur
which could affect such opinion.
Very truly yours,
-----------------------------
[Name]
[Assistant] General Counsel
Exhibit G
EXHIBIT G
[INTENTIONALLY OMITTED]
Exhibit H
EXHIBIT H
FORM OF SECURITY RELEASE CERTIFICATION
--------------------------------------
I. Release of Security Interest
----------------------------
Upon receipt of the sum of $_________ in immediately available funds
in accordance with wiring instructions separately provided, the financial
institution named below hereby relinquishes any and all right, title and
interest it may have in the Mortgage Loans identified in the attached schedule
to be purchased by Xxxxxxx Xxxxx Mortgage Company from Accredited Home Lenders,
Inc. (the "Company"), and certifies that all notes, mortgages, assignments and
other documents in its possession relating to such Mortgage Loans have been
delivered and released to the Company named below or its designees, as of the
date and time of the sale of such Mortgage Loans to Xxxxxxx Sachs Mortgage
Company.
Name and Address of Financial Institution
--------------------------------
(name)
--------------------------------
(Address)
By:_____________________________
II. Certification of Release
----------------------------
The Company named below hereby certifies to Xxxxxxx Xxxxx Mortgage
Company that, as of the date and time of the sale of the above-mentioned
Mortgage Loans to Xxxxxxx Sachs Mortgage Company, the security interests in the
Mortgage Loans released by the above-named financial institution comprise all
security interests relating to or affecting any and all such Mortgage Loans. The
Company warrants that, as of such time, there are and will be no other security
interests affecting any or all of such Mortgage Loans.
-----------------------------
By:__________________________
Title:_________________________
Date:_________________________
Exhibit I
EXHIBIT I
[INTENTIONALLY OMITTED]
Exhibit J
EXHIBIT J
[INTENTIONALLY OMITTED]
Exhibit K
EXHIBIT K
SERVICER ACKNOWLEDGMENT
-----------------------
As of [_________]
Accredited Home Lenders, Inc.
[Street]
[City, State]
Re: Letter Agreement in connection with the purchase by Xxxxxxx
Sachs Mortgage Company (the "Purchaser") and the sale by
Accredited Home Lenders, Inc. (the "Company") of mortgage
loans pursuant to that certain Flow Mortgage Loan Purchase and
Warranties Agreement (the "Agreement"), dated as of August 1,
2003, by and between the Company and the Purchaser
--------------------------------------------------------------
Ladies and Gentlemen:
In connection with the above-referenced transaction, and in
consideration of the mutual agreements hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Purchaser and the Company hereby agree as follows:
1. Unless otherwise specified in this letter agreement, all
capitalized terms herein shall have the meaning as provided in
the Agreement.
2. The Purchaser hereby requests, and the Company hereby
acknowledges, that [SERVICER] shall be the "Successor
Servicer" under the agreement.
3. This letter may be executed in any number of counterparts each
of which shall constitute one and the same instrument, and
either party hereto may execute this letter by signing any
such counterpart.
[the remainder of this page intentionally left blank]
4. This letter shall be deemed in effect when a fully executed
counterpart thereof is received by the Company in the State of
New York and shall be deemed to have been made in the State of
New York. This letter shall be construed in accordance with
the laws of the State of New York, and the obligations, rights
and remedies of the parties hereunder shall be determined in
accordance with the laws of the State of New York except to
the extent preempted by Federal law.
Very truly yours,
XXXXXXX XXXXX MORTGAGE COMPANY
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Accepted and Agreed:
ACCREDITED HOME LENDERS, INC.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
EXHIBIT L
---------
LITIGATION
EXHIBIT M
EXHIBIT M
ASSIGNMENT AND CONVEYANCE
-------------------------
On this __ day of _________, 200_, Accredited Home Lenders, Inc., as
the Seller, under that certain Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of August 1, 2003 (the "Agreement") does hereby sell,
transfer, assign, set over and convey to Xxxxxxx Sachs Mortgage Company, as
Purchaser under the Agreement all rights, title and interest of the Seller in
and to (a) the Mortgage Loans listed on the related Mortgage Loan Schedule
attached as Exhibit 1 hereto, and (b) the Servicing Rights, together with the
related Mortgage Files and all rights and obligations arising under the
documents contained therein. Pursuant to Section 2 of the Agreement, the Seller
has delivered to the Custodian the documents for each Mortgage Loan to be
purchased as set forth in the Agreement. The ownership of each Mortgage Note,
Mortgage, and the contents of each Mortgage File is vested in the Purchaser and
the ownership of all records and documents with respect to the related Mortgage
Loan prepared by or which come into the possession of the Seller shall
immediately vest in the Purchaser and shall be delivered promptly by the Seller
to the Purchaser.
The Seller confirms to the Purchaser that, unless otherwise agreed
upon in writing by the Seller and the Purchaser, the representations and
warranties set forth in Section 7 of the Agreement with respect to the Mortgage
Loans listed on the Mortgage Loan Schedule attached hereto, and the
representations and warranties in Section 6 of the Agreement with respect to the
Seller are true and correct as of the date hereof.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Agreement.
ACCREDITED HOME LENDERS, INC.
(Seller)
By:________________________
Name:______________________
Title:_______________________
EXHIBIT 1
---------
MORTGAGE LOAN SCHEDULE
AMENDMENT NO. 1
TO PURCHASE AGREEMENT
Amendment No. 1, dated as of July 15, 2004 (this "Amendment"), by
and between XXXXXXX XXXXX MORTGAGE COMPANY (the "Purchaser") and ACCREDITED HOME
LENDERS, INC. (the "Seller").
RECITALS
The Seller and the Purchaser are parties to that certain Flow
Mortgage Loan Purchase and Warranties Agreement, dated as of August 1, 2003,
(the "Existing Purchase Agreement"; as amended by this Amendment, the "Purchase
Agreement"). Capitalized terms used but not otherwise defined herein shall have
the meanings given to them in the Existing Purchase Agreement.
The Seller and the Purchaser have agreed, subject to the terms and
conditions of this Amendment, that the Existing Purchase Agreement be amended to
reflect certain agreed upon revisions to the terms of the Existing Purchase
Agreement.
Accordingly, the Seller and the Purchaser hereby agree, in
consideration of the mutual promises and mutual obligations set forth herein,
that the Existing Purchase Agreement is hereby amended as follows:
SECTION 1. Section 1 of the existing Purchase Agreement is hereby
amended by:
(a) deleting the definition of "Repurchase Price" in its entirety
and replacing it with the following language:
Repurchase Price: With respect to any Mortgage Loan, a price equal
to (a) the then outstanding principal balance of the Mortgage Loan to be
repurchased, plus (b) accrued interest thereon at the Mortgage Interest Rate
from the date on which interest had last been paid through the date of such
repurchase, plus (c) the amount of any outstanding advances owed to and
reasonably incurred by any servicer, and plus (d) all costs and expenses
reasonably incurred by the Purchaser or any servicer arising out of or based
upon such breach, including without limitation costs and expenses incurred in
the enforcement of the Seller's repurchase obligation hereunder, plus (e) any
costs and damages incurred by the related trust with respect to any
securitization of the Mortgage Loan in connection with any violation by such
Mortgage Loan of any predatory- or abusive-lending law.
SECTION 2. Section 8.02 of the existing Purchase Agreement is hereby
amended by:
(a) deleting the existing subsection (g) in its entirety and
replacing it with the following:
(g) Compliance with Applicable Laws. Any and all requirements
of any federal, state or local law including, without limitation,
usury, truth-in-lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity and disclosure laws or
unfair and deceptive practices laws applicable to the Mortgage Loan
including, without limitation, any provisions relating to prepayment
penalties, have been complied with, the consummation of the
transactions contemplated hereby will not involve the violation of
any such laws or regulations. Each Mortgage Loan at the time it was
made complied in all material respects with applicable local, state,
and federal laws, including, but not limited to, all applicable
predatory and abusive lending laws. The Seller shall maintain in its
possession, available for the Purchaser's inspection, and shall
deliver to the Purchaser upon demand, evidence of compliance with
all such requirements;
(b) deleting the existing subsection (ll) in its entirety and
replacing it with the following:
(ll) Servicemembers' Civil Relief Act. The Mortgagor has not
notified the Seller, and the Seller has no knowledge of any relief
requested or allowed to the Mortgagor under the Servicemembers'
Civil Relief Act or any similar state or local law;
(c) deleting the existing subsection (mm) in its entirety and
replacing it with the following:
(mm) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the
Mortgage Loan application by a qualified appraiser who had no
interest, direct or indirect in the Mortgaged Property or in any
loan made on the security thereof, and whose compensation was not
affected by the approval or disapproval of the Mortgage Loan, and
the appraisal and appraiser both satisfied the requirements of
Xxxxxx Mae or Xxxxxxx Mac and Title XI of the Financial Institutions
Reform, Recovery, and Enforcement Act of 1989 and the regulations
promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated. Such appraisal is (a) with respect to First
Lien Loans, on appraisal form 1004 or form 2055 with an interior
inspection and (b) with respect to Second Lien Mortgage Loans, on
form 1004, 704, 2065 or 2055 forms with an interior inspection or an
exterior only inspection.
(d) deleting the existing subsection (ww) in its entirety and
replacing it with the following:
(ww) Predatory Lending Regulations. None of the Mortgage Loans
are (i) covered by the Home Ownership and Equity Protection Act of
1994 or (ii) in violation of, or classified as "high cost",
"threshold," "covered" or "predatory" loans under, any other
applicable state, federal or local law. No Mortgage Loan is a High
Cost Loan or Covered Loan, as applicable (as such terms are defined
in the then current Standard & Poor's LEVELS(R) Glossary);
SECTION 3. The second paragraph of Section 8.03 of the existing
Purchase Agreement is hereby amended by deleting the existing section in its
entirety and replacing it with the following:
Within 60 days of the earlier of either discovery by or notice
to the Seller of any breach of a representation or warranty which
materially and adversely affects the value of the Mortgage Loans or
the interest of the Purchaser therein (or which materially and
adversely affects the value of the applicable Mortgage Loan or the
interest of the Purchaser therein in the case of a representation
and warranty relating to a particular Mortgage Loan), the Seller
shall use its best efforts promptly to cure such breach in all
material respects and, if such breach cannot be cured, the Seller
shall, at the Purchaser's option, within thirty (30) calendar days
of Seller's receipt of request from the Purchaser, repurchase such
Mortgage Loan at the Repurchase Price. Notwithstanding the above
sentence, within 60 days of the earlier of either discovery by, or
notice to, the Seller of any breach of the representations or
warranties set forth in clauses (vv), (ww), (xx), (zz), (eee), or
(fff) of Subsection 8.02, the Seller shall repurchase such Mortgage
Loan at the Repurchase Price. In the event that such a breach shall
involve any representation or warranty set forth in Subsection 8.01,
and such breach cannot be cured within 60 days of the earlier of
either discovery by or notice to the Seller of such breach, all of
the Mortgage Loans materially and adversely affected thereby shall,
at the Purchaser's option, be repurchased by the Seller at the
Repurchase Price. Any repurchase of a Mortgage Loan or Loans
pursuant to the foregoing provisions of this Subsection 8.03 shall
be accomplished by direct remittance of the Repurchase Price to the
Purchaser or its designee in accordance with the Purchaser's
instructions.
SECTION 4. Exhibit C to the existing Purchase Agreement is hereby
amended by adding the following language as a new clause (54) thereto:
(54) a code indicating if the Mortgage Loan is a High Cost
Loan as such terms are defined in the then current Standard & Poor's
LEVELS (R) Glossary.
SECTION 5. Conditions Precedent. This Amendment shall become
effective on July 15, 2004 (the "Amendment Effective Date") subject to the
satisfaction of the following conditions precedent:
5.1 Delivered Documents. On the Amendment Effective Date, the
Purchaser shall have received the following documents, each of which shall be
satisfactory to the Purchaser in form and substance:
(a) this Amendment, executed and delivered by duly authorized
officers of the Seller and the Purchaser;
(b) such other documents as the Purchaser or counsel to the
Purchaser may reasonably request.
SECTION 6. Representations and Warranties. The Seller hereby
represents and warrants to the Purchaser that it is in compliance with all the
terms and provisions set forth in the Existing Purchase Agreement on its part to
be observed or performed, and hereby confirms and reaffirms the representations
and warranties contained in Section 8.01 of the Existing Purchase Agreement.
SECTION 7. Limited Effect. Except as expressly amended and modified
by this Amendment, the Existing Purchase Agreement shall continue to be, and
shall remain, in full force and effect in accordance with its terms.
SECTION 8. Limited Effect. Except as expressly amended and modified
by this Amendment, the Existing Purchase Agreement shall continue to be, and
shall remain, in full force and effect in accordance with its terms.
SECTION 9. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
SECTION 10. Counterparts. This Amendment may be executed in one or
more counterparts and by different parties hereto on separate counterparts, each
of which, when so executed, shall constitute one and the same agreement.
SECTION 11. Conflicts. The parties hereto agree that in the event
there is any conflict between the terms of this Amendment, and the terms of the
Existing Purchase Agreement, the provisions of this Amendment shall control.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
Purchaser: XXXXXXX SACHS MORTGAGE COMPANY,
a New York limited partnership
By: Xxxxxxx Xxxxx Real Estate Funding
Corp., its general partner
By:____________________________________
Name:
Title:
Seller: ACCREDITED HOME LENDERS, INC.
By:____________________________________
Name:
Title:
AMENDMENT NO. 2
TO PURCHASE AGREEMENT
Amendment No. 2, dated as of February 1, 2005 (this "Amendment"), by
and between XXXXXXX SACHS MORTGAGE COMPANY (the "Purchaser") and ACCREDITED HOME
LENDERS, INC. (the "Seller").
RECITALS
The Seller and the Purchaser are parties to that certain Flow
Mortgage Loan Purchase and Warranties Agreement, dated as of August 1, 2003, and
as amended July 15, 2004 (the "Existing Purchase Agreement"; as amended by this
Amendment, the "Purchase Agreement"). Capitalized terms used but not otherwise
defined herein shall have the meanings given to them in the Existing Purchase
Agreement.
The Seller and the Purchaser have agreed, subject to the terms and
conditions of this Amendment, that the Existing Purchase Agreement be amended to
reflect certain agreed upon revisions to the terms of the Existing Purchase
Agreement.
Accordingly, the Seller and the Purchaser hereby agree, in
consideration of the mutual promises and mutual obligations set forth herein,
that the Existing Purchase Agreement is hereby amended as follows:
SECTION 1. Section 8.02 of the existing Purchase Agreement is hereby
amended by:
(a) adding the following language to existing subsection (tt) after
the first sentence:
The Seller has in its capacity as servicer, for each Mortgage
Loan, fully furnished, in accordance with the Fair Credit Reporting
Act and its implementing regulations, accurate and complete
information (e.g., favorable and unfavorable) on its borrower credit
files to Equifax, Experian and Trans Union Credit Information
Company (three of the credit repositories), on a monthly basis;
(b) adding the following language in bold to existing subsection
(uu):
(uu) Leaseholds. If a Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple
interest in the land; (2) the terms of such lease expressly permit
the mortgaging of the leasehold estate, the assignment of the lease
without the lessor's consent or the necessary consents have been
obtained and the acquisition by the holder of the Mortgage of the
rights of the lessee upon foreclosure or assignment in lieu of
foreclosure or provide the holder of the Mortgage with substantially
similar protections; (3) the terms of such lease do not (A) allow
the termination thereof upon the lessee's default without the holder
of the Mortgage being entitled to receive written notice of, and
opportunity to cure, such default, (B) allow the termination of the
lease in the event of damage or destruction as long as the Mortgage
is in existence, (C) prohibit the holder of the Mortgage from being
insured (or receiving proceeds of insurance) under the hazard
insurance policy or policies relating to the Mortgaged Property or
(D) permit any increase in rent other than pre-established increases
set forth in the lease; (4) the original term of such lease is not
less than 15 years; (5) the term of such lease does not terminate
earlier than five years after the maturity date of the Mortgage
Note; and (6) the Mortgaged Property is located in a jurisdiction in
which the use of leasehold estates in transferring ownership in
residential properties is a widely accepted practice;
(c) deleting the existing subsection (vv) in its entirety and
replacing it with the following:
(vv) Prepayment Penalty. The Mortgage Loan is subject to a
prepayment penalty as provided in the related Mortgage Note except
as set forth on the related Mortgage Loan Schedule. With respect to
each Mortgage Loan that has a prepayment penalty feature, each such
prepayment penalty is enforceable and will be enforced by the Seller
for the benefit of the Purchaser, and each prepayment penalty is
permitted pursuant to federal, state and local law. Each such
prepayment penalty is in an amount not more than the maximum amount
permitted under applicable law and no Mortgage Loan has a prepayment
penalty in excess of five (5) years With respect to any Mortgage
Loan that contains a provision permitting imposition of a premium
upon a prepayment prior to maturity: (i) prior to the loan's
origination, the Mortgagor agreed to such premium in exchange for a
monetary benefit, including but not limited to a rate or fee
reduction, (ii) prior to the loan's origination, the Mortgagor was
offered the option of obtaining a mortgage loan that did not require
payment of such a premium, (iii) the prepayment premium is disclosed
to the Mortgagor in the loan documents pursuant to applicable state,
local and federal law, and (iv) notwithstanding any state, local or
federal law to the contrary, the Servicer shall not impose such
prepayment premium in any instance when the mortgage debt is
accelerated as the result of the Mortgagor's default in making the
loan payments;
(d) deleting the existing subsection (xx) in its entirety and
replacing it with the following:
(xx) Single-premium Credit Life Insurance Policy. In
connection with the origination of any Mortgage Loan, no proceeds
from any Mortgage Loan were used to finance or acquire a
single-premium credit life insurance policy. No Mortgagor was
required to purchase any single-premium credit insurance policy
(e.g., life, disability, accident, unemployment, or health insurance
product) or debt cancellation agreement as a condition of obtaining
the extension of credit. No Mortgagor obtained a prepaid
single-premium credit insurance policy (e.g., life, disability,
accident, unemployment, mortgage, or health insurance product) in
connection with the origination of the Mortgage Loan; no proceeds
from any Mortgage Loan were used to purchase single-premium credit
insurance policies or debt cancellation agreements as part of the
origination of, or as a condition to closing, such Mortgage Loan;
(e) adding the following as subsection (kkk):
(kkk) Balloon Loans. No Mortgage Loan is a balloon mortgage
loan that has an original stated maturity of less than seven (7)
years;
(f) adding the following as subsection (lll):
(lll) Disclosure of Points and Fees. All points and fees
related to each Mortgage Loan were disclosed in writing to the
Mortgagor in accordance with applicable state and federal law and
regulation.
(g) adding the following as subsection (mmm):
(mmm) Fees and Charges. All fees and charges (including
finance charges) and whether or not financed, assessed, collected or
to be collected in connection with the origination and servicing of
each Mortgage Loan has been disclosed in writing to the Mortgagor in
accordance with applicable state and federal law and regulation;
(h) adding the following as subsection (nnn):
(nnn) Arbitration. With respect to any Mortgage Loan
originated on or after August 1, 2004, neither the related Mortgage
nor the related Mortgage Note requires the Mortgagor to submit to
arbitration to resolve any dispute arising out of or relating in any
way to the Mortgage Loan transaction.
SECTION 2. Limited Effect. Except as expressly amended and modified
by this Amendment, the Existing Purchase Agreement shall continue to be, and
shall remain, in full force and effect in accordance with its terms.
SECTION 3. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
SECTION 4. Counterparts. This Amendment may be executed in one or
more counterparts and by different parties hereto on separate counterparts, each
of which, when so executed, shall constitute one and the same agreement.
SECTION 5. Conflicts. The parties hereto agree that in the event
there is any conflict between the terms of this Amendment, and the terms of the
Existing Purchase Agreement, the provisions of this Amendment shall control.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
Purchaser: XXXXXXX XXXXX MORTGAGE COMPANY,
a New York limited partnership
By: Xxxxxxx Sachs Real Estate Funding Corp.,
its general partner
By:
------------------------------------
Name:
Title:
Seller: ACCREDITED HOME LENDERS, INC.
By:
------------------------------------
Name:
Title:
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated May 26,
2005 ("Agreement"), among Xxxxxxx Xxxxx Mortgage Company ("Assignor"), GS
Mortgage Securities Corp. ("Assignee") and Accredited Home Lenders, Inc. (the
"Company").
For and in consideration of the sum of TEN DOLLARS ($10.00) and
other valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
Assignment and Conveyance
1. The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee (x) all of the right, title and interest of the Assignor, as
purchaser, in, to and under (a) those certain Mortgage Loans listed on the
schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans") including, without limitation, principal outstanding as of,
and interest due after, May 1, 2005, and (b) except as described below, that
certain Flow Mortgage Loan Purchase and Warranties Agreement, dated as of August
1, 2003, between the Assignor, as purchaser (in such capacity, the "Purchaser"),
and the Company, as seller, as amended by Amendment No. 1 To Purchase Agreement,
dated as of July 15, 2004, and as further amended by Amendment No. 2 To Purchase
Agreement, dated as of February 1, 2005 (the "Purchase Agreement") (copies of
which are attached hereto as Exhibit B), solely insofar as the Purchase
Agreement relates to the Mortgage Loans and (y) other than as provided below
with respect to the enforcement of representations and warranties, none of the
obligations of the Assignor under the Purchase Agreement.
The Assignor specifically reserves and does not assign to the
Assignee hereunder (i) any and all right, title and interest in, to and under
and any obligations of the Assignor with respect to any mortgage loans subject
to the Purchase Agreement that are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement or (ii) the
rights of the Purchaser under Section 12 and Subsection 13.01 of the Purchase
Agreement.
Recognition of the Company
2. From and after the date hereof (the "Securitization Closing
Date"), the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Purchase Agreement
(solely to the extent set forth herein) and this Agreement to GSAMP Trust
2005-AHL (the "Trust") created pursuant to a Pooling and Servicing Agreement,
dated as of May 1, 2005 (the "Pooling Agreement"), among the Assignee, Deutsche
Bank National Trust Company, as trustee (including its successors in interest
and any successor trustees under the Pooling Agreement, the "Trustee"), and
Countrywide Home Loans Servicing LP, as servicer of the Mortgage Loans
(including its successors in interest and any successor servicer under the
Pooling Agreement, the "Servicer"). The Company hereby acknowledges and agrees
that from and after the date hereof (i) the Trust will be the owner of the
Mortgage Loans, (ii) the Company shall look solely to the Trust (including the
Trustee and the Servicer acting on the Trust's behalf) for performance of any
obligations of the Assignor insofar as they relate to the enforcement of the
representations, warranties and covenants with respect to the Mortgage Loans,
(iii) the Trust (including the Trustee and the Servicer acting on the Trust's
behalf) shall have all the rights and remedies available to the Assignor,
insofar as they relate to the Mortgage Loans, under the Purchase Agreement,
including, without limitation, the enforcement of the document delivery
requirements set forth in Subsection 6.03 of the Purchase Agreement, and shall
be entitled to enforce all of the obligations of the Company thereunder insofar
as they relate to the Mortgage Loans, including without limitation, the remedies
for breaches of representations and warranties set forth in Subsection 8.03 of
the Purchase Agreement, and (iv) all references to the Purchaser (insofar as
they relate to the rights, title and interest and, with respect to obligations
of the Purchaser, only insofar as they relate to the enforcement of the
representations, warranties and covenants of the Company) or the Custodian under
the Purchase Agreement insofar as they relate to the Mortgage Loans, shall be
deemed to refer to the Trust (including the Trustee and the Servicer acting on
the Trust's behalf). Neither the Company nor the Assignor shall amend or agree
to amend, modify, waiver, or otherwise alter any of the terms or provisions of
the Purchase Agreement which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans or the Company's performance under
the Purchase Agreement with respect to the Mortgage Loans without the prior
written consent of the Trustee.
Representations and Warranties of the Company
3. The Company warrants and represents to the Assignor, the Assignee
and the Trust as of the date hereof that:
(a) The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(b) The Company has full power and authority to execute, deliver and
perform its obligations under this Agreement and has full power and
authority to perform its obligations under this Agreement. The execution
by the Company of this Agreement is in the ordinary course of the
Company's business and will not conflict with, or result in a breach of
any of the terms, conditions or provisions of the Company's charter or
bylaws or any legal restriction, or any material agreement or instrument
to which the Company is now a party or by which it is bound, or result in
the violation of any law, rule, regulation, order, judgment or decree to
which the Company or its property is subject. The execution, delivery and
performance by the Company of this Agreement have been duly authorized by
all necessary action on the part of the Company. This Agreement has been
duly executed and delivered by the Company and, upon the due
authorization, execution and delivery by the Assignor and the Assignee,
will constitute the valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity
regardless of whether enforceability is considered in a proceeding in
equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be
obtained or made by the Company in connection with the execution, delivery
or performance by the Company of this Agreement or the consummation by it
of the transaction contemplated hereby; and
(d) There is no action, suit, proceeding or investigation pending
or, to the Company's knowledge, threatened against the Company, before any
court, administrative agency or other tribunal, which would draw into
question the validity of this Agreement or the Purchase Agreement, or
which, either in any one instance or in the aggregate, is likely to result
in any material adverse change in the ability of the Company to perform
its obligations under this Agreement or the Purchase Agreement, and the
Company is solvent.
4. Pursuant to Section 12 of the Purchase Agreement, the Company
hereby represents and warrants, for the benefit of the Assignor, the Assignee
and the Trust, that (i) the representations and warranties set forth in
Subsections 8.01 and 8.02 of the Purchase Agreement are true and correct as of
the applicable Transfer Date indicated on the Mortgage Loan Schedule as if such
representations and warranties were as of such date, and (ii) to the Company's
actual knowledge no acts or omissions have occurred or failed to occur following
the related Transfer Date to the date hereof that would cause any such
representation or warranty to be untrue or incorrect, except as set forth in
Section 7(e) below.
Remedies for Breach of Representations and Warranties of the Company
5. The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the Trustee and
the Servicer acting on the Trust's behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections 3 and 4
hereof shall be as set forth in Subsection 8.03 of the Purchase Agreement as if
they were set forth herein (including without limitation the repurchase and
indemnity obligations set forth therein). Notwithstanding anything to the
contrary contained herein or in the Purchase Agreement, any obligation of the
Company to pay to the Assignor an amount equal to the product of (i) the excess
of the purchase price percentage for such Mortgage Loan as set forth in the
related Purchase Price and Terms Agreement between the Assignor and the Company
over 100% and (ii) the then outstanding balance of such Mortgage Loan as of the
date of such repurchase is not being sold or assigned and rather is being
retained by the Assignor.
At the time of repurchase pursuant to this Section 5 or Section 6
hereof, the Assignee and the Company shall arrange for the reassignment of the
repurchased Mortgage Loan to the Company and the delivery to the Company of any
documents held by the Trustee relating to the repurchased Mortgage Loan. Any
repurchase of a Mortgage Loan or Mortgage Loans pursuant to the foregoing
provisions shall be accomplished by direct remittance of the Repurchase Price to
the Trust or its designee in accordance with the Trust's instructions.
6. In the event a Mortgage Loan is required to be repurchased
pursuant to Subsection 8.04 of the Purchase Agreement, the Company shall pay to
the Trust the Repurchase Price.
Representations and Warranties of the Assignor
7. The Assignor warrants and represents to the Assignee and the
Trust as of the date hereof that, with respect to each Mortgage Loan:
(a) The Assignor is the sole owner of record and holder of the
Mortgage Loan and the indebtedness evidenced by each Mortgage Note. The
Mortgage Loan is not assigned or pledged, and the Assignor has good,
indefeasible and marketable title thereto, and has full right to transfer
and sell the Mortgage Loan to the Assignee free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim
or security interest, and has full right and authority subject to no
interest or participation of, or agreement with, any other party, to sell
and assign each Mortgage Loan pursuant to this Agreement and following the
sale of each Mortgage Loan, the Assignee will own such Mortgage Loan free
and clear of any encumbrance, equity, participation interest, lien,
pledge, charge, claim or security interest. The Assignor intends to
relinquish all rights to possess, control and monitor the Mortgage Loan;
(b) The Assignor has not waived the performance by the Mortgagor of
any action, if the Mortgagor's failure to perform such action would cause
the Mortgage Loan to be in default, nor has the Company waived any default
resulting from any action or inaction by the Mortgagor;
(c) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit
opportunity and disclosure laws or unfair and deceptive practices laws
applicable to the Mortgage Loan have been complied with, the consummation
of the transactions contemplated hereby will not involve the violation of
any such laws or regulations;
(d) No Mortgage Loan is a High Cost or Covered Loan, as applicable,
and no loan originated on or after October 1, 2002 through March 6, 2003
is governed by the Georgia Fair Lending Act. For the purposes of this
Section 7(d) the following definitions shall apply:
Covered Loan: A Mortgage Loan categorized as Covered pursuant to Appendix E of
Standard & Poor's Glossary.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to Appendix E of
Standard & Poor's Glossary.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R) Glossary, as may be
in effect from time to time.
High Cost Loan: A Mortgage Loan (a) covered by the Home Ownership and Equity
Protection Act of 1994, (b) classified as a "high cost home," "threshold,"
"covered," (excluding New Jersey "Covered Home Loans" as that term is defined in
clause (1) of the definition of that term in the New Jersey Home Ownership
Security Act of 2002), "high risk home," "predatory" or similar loan under any
other applicable state, federal or local law (or a similarly classified loan
using different terminology under a law imposing heightened regulatory scrutiny
or additional legal liability for residential mortgage loans having high
interest rates, points and/or fees) or (c) categorized as High Cost pursuant to
Appendix E of Standard & Poor's Glossary. For avoidance of doubt, the parties
agree that this definition shall apply to any law regardless of whether such law
is presently, or in the future becomes, the subject of judicial review or
litigation; and
(e) Nothing has occurred or failed to occur from and after the
Transfer Date to the date hereof that would cause any of the
representations and warranties relating to the Mortgage Loans set forth in
Subsection 8.02 of the Purchase Agreement to be incorrect in any material
respects as of the date hereof as if made on the date hereof, except that
as of May 1, 2005, approximately 0.25% of the mortgage loans were two
payments past due and approximately 0.92% of the mortgage loans were one
payment past due.
Remedies for Breach of Representations and Warranties of the Assignor
8. The Assignor hereby acknowledges and agrees that in the event of
any breach of any of the representations and warranties with respect to any
Mortgage Loan made by the Assignor set forth in Section 7 hereof that materially
and adversely affects the value of such Mortgage Loan or the interest of the
Assignee or the Trust therein and such breach is not cured by the Assignor, it
shall, subject to the substitution provisions set forth below, purchase or cause
the purchase of the applicable Mortgage Loan at the repurchase price as set
forth in the Pooling Agreement within 60 days of the earlier of either discovery
by or notice to the Assignor of such breach of a representation or warranty.
In addition, if the Assignor discovers or receives notice of any
breach of the representations and warranties made by the Assignor in Section 7
hereof within two years of the Securitization Closing Date, the Assignor shall,
at the Trust's option, and provided that the Assignor has a Substitute Mortgage
Loan (as defined below), rather than repurchase such Mortgage Loan as provided
above, remove such Mortgage Loan and substitute in its place a Substitute
Mortgage Loan or Mortgage Loans, provided that any such substitution shall be
effected not later than two years after the Securitization Closing Date. If the
Assignor has no Substitute Mortgage Loan, the Assignor shall, if such breach is
not cured by the Assignor, repurchase the deficient Mortgage Loan. Any
repurchase of a Mortgage Loan or Mortgage Loans pursuant to the foregoing
provisions shall be accomplished by direct remittance of the applicable
repurchase price to the Trust or its designee in accordance with the Trust's
instructions.
At the time of repurchase or substitution, the Assignor shall
arrange for the reassignment of the deleted Mortgage Loan to the Assignor and
the delivery to the Assignor of any documents held by the Trustee relating to
the deleted Mortgage Loan. In the event of a repurchase or substitution, the
Assignor shall (i) simultaneously with such reassignment, give written notice to
the Trust that such repurchase or substitution has taken place, (ii) amend, or
cooperate with the Trust in amending, the Mortgage Loan Schedule to reflect the
withdrawal of the deleted Mortgage Loan and (iii) in the case of substitution,
identify a Substitute Mortgage Loan and amend, or cooperate with the Trust in
amending, the Mortgage Loan Schedule to reflect the addition of such Substitute
Mortgage Loan. In connection with any such substitution, the Assignor shall be
deemed to have made as to such Substitute Mortgage Loan the representations and
warranties set forth in Subsection 8.02 of the Purchase Agreement except that
all such representations and warranties set forth in this Agreement shall be
deemed made as of the date of such substitution. The Assignor shall effect such
substitution by delivering to the Trustee or to its designee the documents
required by the Pooling Agreement, with the Mortgage Note endorsed as required
by the Pooling Agreement. No substitution will be made in any calendar month
after the initial determination date for such month. The Assignor shall remit
directly to the Trust, or its designee in accordance with the Trust's
instructions, the monthly payment less the servicing fee due, if any, on such
Substitute Mortgage Loan or Mortgage Loans in the month following the date of
such substitution. Monthly payments due with respect to Substitute Mortgage
Loans in the month of substitution shall be retained by the Assignor. For the
month of substitution, distributions to the Trust shall include the monthly
payment due on any deleted Mortgage Loan in the month of substitution, and the
Assignor shall thereafter be entitled to retain all amounts subsequently
received by the Assignor in respect of such deleted Mortgage Loan.
For any month in which the Assignor substitutes a Substitute
Mortgage Loan for a deleted Mortgage Loan, the Trust shall determine the amount
(if any) by which the aggregate principal balance of all Substitute Mortgage
Loans as of the date of substitution is less than the aggregate stated principal
balance of all deleted Mortgage Loans (after application of scheduled principal
payments due in the month of substitution). The amount of such shortfall shall
be distributed by the Assignor directly to the Trust or its designee in
accordance with the Trust's instructions within two (2) business days of such
substitution.
Any cause of action against the Assignor relating to or arising out
of the breach of any representations and warranties made in Subsection 8.02 of
the Purchase Agreement shall accrue as to any Mortgage Loan upon (i) discovery
of such breach by the Trust or notice thereof by the Assignor to the Trust, (ii)
failure by the Assignor to cure such breach, repurchase such Mortgage Loan or
substitute a Substitute Mortgage Loan as specified above, and (iii) demand upon
the Assignor by the Trust for compliance with this Agreement.
It is understood and agreed that the obligation of the Assignor set
forth herein to cure, repurchase or substitute for a Mortgage Loan in breach of
a representation or warranty contained in Section 7 hereof constitutes the sole
remedy of the Trust or any other person or entity with respect to such breach.
A Substitute Mortgage Loan ("Substitute Mortgage Loan") is a
mortgage loan eligible to be substituted by the Assignor for a deleted Mortgage
Loan which must, on the date of such substitution, (i) have an outstanding
principal balance, after deduction of all scheduled payments due in the month of
substitution (or in the case of a substitution of more than one mortgage loan
for a deleted Mortgage Loan, an aggregate principal balance), not in excess of
the outstanding principal balance of the deleted Mortgage Loan (the amount of
any shortfall will be paid by the Assignor to the Trust or its designee in the
month of substitution); (ii) have a mortgage interest rate not less than, and
not more than 1% greater than, the mortgage interest rate of the deleted
Mortgage Loan; (iii) have a remaining term to maturity not greater than, and not
more than one year less than, that of the deleted Mortgage Loan; (iv) be of the
same type as the deleted Mortgage Loan (i.e., fixed rate or adjustable rate with
same Periodic Rate Cap and Index); and (v) comply with each representation and
warranty (respecting individual Mortgage Loans) set forth in Subsection 8.02 of
the Purchase Agreement.
Miscellaneous
9. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
10. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Trustee.
11. This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including the Trustee and
the Servicer acting on the Trust's behalf). Any entity into which the Assignor,
Assignee or Company may be merged or consolidated shall, without the requirement
for any further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
12. Each of this Agreement and the Purchase Agreement shall survive
the conveyance of the Mortgage Loans and the assignment of the Purchase
Agreement (to the extent assigned hereunder) by the Assignor to the Assignee and
by Assignee to the Trust and nothing contained herein shall supersede or amend
the terms of the Purchase Agreement, except as expressly set forth herein, and
then only with respect to the Mortgage Loans.
13. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
14. In the event that any provision of this Agreement conflicts with
any provision of the Purchase Agreement with respect to the Mortgage Loans, the
terms of this Agreement shall control.
15. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
GS MORTGAGE SECURITIES CORP.
By: ___________________________________
Name: _________________________________
Title: ________________________________
XXXXXXX XXXXX MORTGAGE COMPANY,
a New York limited partnership
By: XXXXXXX SACHS REAL ESTATE FUNDING
CORP., a New York corporation, its
General Partner
By: ___________________________________
Name: _________________________________
Title: ________________________________
ACCREDITED HOME LENDERS, INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
EXHIBIT A
MORTGAGE LOAN SCHEDULE
(Delivered to the Trustee on the Closing Date)
EXHIBIT B
PURCHASE AGREEMENT
(Available upon request to the Trustee)
