GS MORTGAGE SECURITIES CORP.,
Depositor,
COUNTRYWIDE HOME LOANS SERVICING LP,
Servicer,
NEW CENTURY MORTGAGE CORPORATION,
Servicer,
NC CAPITAL CORPORATION,
Responsible Party,
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2004
------------------------------------------------------------
GSAA HOME EQUITY TRUST 2004-9
ASSET-BACKED CERTIFICATES,
SERIES 2004-9
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Definitions...................................................6
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans.................................40
Section 2.02 Acceptance by the Trustee of the Mortgage Loans..............44
Section 2.03 Representations, Warranties and Covenants of the
Responsible Party and the Servicer...........................45
Section 2.04 Non-Qualified Mortgages......................................48
Section 2.05 Execution and Delivery of Certificates.......................48
Section 2.06 REMIC Matters................................................48
Section 2.07 Representations and Warranties of the Depositor..............48
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans...........................50
Section 3.02 Subservicing Agreements between the Servicer and
Subservicers.................................................52
Section 3.03 Successor Subservicers.......................................53
Section 3.04 Liability of the Servicer....................................53
Section 3.05 No Contractual Relationship between Subservicers and the
Trustee......................................................53
Section 3.06 Assumption or Termination of Subservicing Agreements by
Trustee......................................................53
Section 3.07 Collection of Certain Mortgage Loan Payments.................54
Section 3.08 Subservicing Accounts........................................55
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts..............................................55
Section 3.10 Collection Account...........................................56
Section 3.11 Withdrawals from the Collection Account......................58
Section 3.12 Investment of Funds in the Collection Account and the
Distribution Account.........................................59
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions
and Fidelity Coverage........................................61
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption
Agreements...................................................62
Section 3.15 Realization upon Defaulted Mortgage Loans....................63
Section 3.16 Release of Mortgage Files....................................65
Section 3.17 Title, Conservation and Disposition of REO Property..........66
Section 3.18 Notification of Adjustments..................................67
Section 3.19 Access to Certain Documentation and Information
Regarding the Mortgage Loans.................................68
Section 3.20 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Trustee..........................68
Section 3.21 Servicing Compensation.......................................68
Section 3.22 Annual Statement as to Compliance............................69
Section 3.23 Annual Independent Public Accountants' Servicing
Statement; Financial Statements..............................69
Section 3.24 Trustee to Act as Servicer...................................70
Section 3.25 Compensating Interest........................................71
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act.....................71
Section 3.27 Excess Reserve Fund Account; Distribution Account............71
Section 3.28 Optional Purchase of Delinquent Mortgage Loans...............72
Section 3.29 Transfer of Servicing for the Mortgage Loans.................73
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances.....................................................73
Section 4.02 Priorities of Distribution...................................74
Section 4.03 Monthly Statements to Certificateholders.....................80
Section 4.04 Certain Matters Relating to the Determination of LIBOR.......83
Section 4.05 Allocation of Applied Realized Loss Amounts..................84
Section 4.06 The Class A-1 Certificate Insurance Policy...................84
Section 4.07 Effect of Payments by the Class A-1 Certificate Insurer;
Subrogation..................................................86
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................87
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates.....................................88
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates............93
Section 5.04 Persons Deemed Owners........................................93
Section 5.05 Access to List of Certificateholders' Names and
Addresses....................................................93
Section 5.06 Maintenance of Office or Agency..............................93
Section 5.07 Rights of the Class A-1 Certificate Insurer to Exercise
Rights of Class A-1 Certificateholders.......................94
Section 5.08 Class A-1 Certificate Insurer Default........................94
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.01 Respective Liabilities of the Depositor and the Servicer.....95
Section 6.02 Merger or Consolidation of the Depositor or the Servicer.....95
Section 6.03 Limitation on Liability of the Depositor, the Servicer
and Others...................................................95
Section 6.04 Limitation on Resignation of the Servicer....................96
Section 6.05 Additional Indemnification by the Servicer; Third Party
Claims.......................................................96
ARTICLE VII
DEFAULT
Section 7.01 Events of Default............................................96
Section 7.02 Trustee to Act; Appointment of Successor.....................99
Section 7.03 Notification to Certificateholders..........................101
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee.......................................101
Section 8.02 Certain Matters Affecting the Trustee.......................102
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.......103
Section 8.04 Trustee May Own Certificates................................103
Section 8.05 Trustee's Fees and Expenses.................................103
Section 8.06 Eligibility Requirements for the Trustee....................104
Section 8.07 Resignation and Removal of the Trustee......................105
Section 8.08 Successor Trustee...........................................105
Section 8.09 Merger or Consolidation of the Trustee......................106
Section 8.10 Appointment of Co-Trustee or Separate Trustee...............106
Section 8.11 Tax Matters.................................................107
Section 8.12 Periodic Filings............................................110
Section 8.13 Tax Classification of the Excess Reserve Fund Account
and the Corridor Agreement..................................112
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the Mortgage
Loans.......................................................112
Section 9.02 Final Distribution on the Certificates......................113
Section 9.03 Additional Termination Requirements.........................114
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment...................................................115
Section 10.02 Recordation of Agreement; Counterparts......................117
Section 10.03 Governing Law...............................................117
Section 10.04 Intention of Parties........................................117
Section 10.05 Notices.....................................................118
Section 10.06 Severability of Provisions..................................119
Section 10.07 Assignment; Sales; Advance Facilities.......................119
Section 10.08 Limitation on Rights of Certificateholders..................121
Section 10.09 Inspection and Audit Rights.................................121
Section 10.10 Certificates Nonassessable and Fully Paid...................122
Section 10.11 The Class A-1 Certificate Insurer Default...................122
Section 10.12 Third Party Beneficiary.....................................122
Section 10.13 Waiver of Jury Trial........................................122
SCHEDULES
Schedule I Mortgage Loan Schedule
Schedule II Representations and Warranties of the Countrywide Servicing
Schedule III Representations and Warranties of the Responsible Party as to
the Mortgage Loans
Schedule IV Representations and Warranties of the Responsible Party
Schedule V Representations and Warranties of New Century
EXHIBITS
Exhibit A Form of Class A, Class M and Class B Certificates
Exhibit B Form of Class R Certificate
Exhibit C Form of Class P Certificate
Exhibit D Form of Class X Certificate
Exhibit E Form of Initial Certification of Trustee
Exhibit F Form of Document Certification and Exception Report of Trustee
Exhibit G Form of Residual Transfer Affidavit
Exhibit H Form of Transferor Certificate
Exhibit I Form of Rule 144A Letter
Exhibit J Form of Request for Release
Exhibit K Form of Contents for Each Mortgage File
Exhibit L Countrywide Reporting Requirements
Exhibit M Form of Certification to be provided with Form 10-K
Exhibit N Form of Trustee Certification to be provided to Depositor
Exhibit O Form of Servicer Certification to be provided to Depositor
THIS POOLING AND SERVICING AGREEMENT, dated as of October 1, 2004,
among GS MORTGAGE SECURITIES CORP., a Delaware corporation (the "Depositor"),
COUNTRYWIDE HOME LOANS SERVICING LP, a Texas limited partnership, NC CAPITAL
CORPORATION, a California corporation, NEW CENTURY MORTGAGE CORPORATION, a
California corporation, and DEUTSCHE BANK NATIONAL TRUST COMPANY, a national
banking association (the "Trustee"),
W I T N E S S E T H:
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Trustee shall elect that two segregated asset pools within the
Trust Fund be treated for federal income tax purposes as comprising two REMICs
(each, a "Trust REMIC" or, in the alternative, the Lower Tier REMIC and the
Upper Tier REMIC, respectively). The Class X Regular Interest and each Class of
Offered Certificates (other than the right of each Class of Offered Certificates
to receive Basis Risk Carry Forward Amounts) represents ownership of a regular
interest in a REMIC for purposes of the REMIC Provisions. The Class R
Certificates represent ownership of the sole class of residual interest in each
of the Lower Tier REMIC and the Upper Tier REMIC for purposes of the REMIC
Provisions. The 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 assets described in the definition
of "Trust Fund" herein (other than the Prepayment Premiums, the Corridor
Agreement and the Excess Reserve Fund Account). Each such Lower Tier Regular
Interest is hereby designated as a regular interest in the Lower Tier REMIC. The
Class LT-A-1, Class A-2, Class LT-M-1, Class LT-M-2, Class LT-M-3, Class LT-M-4,
Class LT-M-5, Class LT-B-1 and Class LT-B-2 Interests are hereby designated the
LT-Accretion Directed Classes (the "LT-Accretion Directed Classes").
Each Class of Offered Certificates represents a beneficial ownership
of a regular interest in the Upper Tier REMIC and the right to receive Basis
Risk Carry Forward Amounts, the Class X Certificates represent beneficial
ownership of the Class X Regular Interest, the Excess Reserve Fund Account and
the Corridor Agreement, the Class P Certificates represent beneficial ownership
of the Prepayment Premiums, which portions of the Trust Fund shall be treated as
a grantor trust.
Corresponding
Upper Tier
Lower Tier Regular Lower Tier Initial Lower Tier Principal REMIC Regular
Interest Interest Rate 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-M-1 (1) 1/2 initial Class Certificate M-1
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-M-2 (1) 1/2 initial Class Certificate M-2
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-M-3 (1) 1/2 initial Class Certificate M-3
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-M-4 (1) 1/2 initial Class Certificate M-4
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-M-5 (1) 1/2 initial Class Certificate M-5
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-B-1 (1) 1/2 initial Class Certificate B-1
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-B-2 (1) 1/2 initial Class Certificate B-2
Balance of Corresponding
Upper Tier REMIC Regular
Interest
Class LT-Accrual (1) 1/2 Pool Stated Principal
Balance plus 1/2
Overcollateralized Amount,
less aggregate Initial Lower
Tier Principal Amounts of
Class LT-Group I and
Class LT-Group II Interests
Class LT-Group I (2) 0.001% aggregate Stated
Principal Balance of Group I
Mortgage Loans (5)
Class LT-Group II (3) 0.001% aggregate Stated
Principal Balance of
Group II Mortgage Loans (5)
Class LT-R (4) (4)
--------------------------------------------------------------------------------
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the WAC Cap (without
reduction for the Premium Rate).
(2) The interest rate with respect to any Distribution Date for the Class
LT-Group I Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the Loan Group I Cap.
(3) The interest rate with respect to any Distribution Date for the Class
LT-Group II Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the Loan Group II
Cap.
(4) The Class LT-R Interest is the sole Class of residual interest in the
Lower Tier REMIC and it does not have a principal amount or an interest
rate.
(5) For all Distribution Dates, the Lower Tier Principal Amount of these Lower
Tier Regular Interests shall be rounded to eight decimal places.
The Lower Tier REMIC shall hold as assets all of the assets included
in definition of "Trust Fund" other than Prepayment Premiums, the Corridor
Agreement and the Excess Reserve Fund Account.
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount will be payable as a reduction of the Lower Tier
Principal Amount of the LT-Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralized
Amount that is attributable to a reduction in the Class Certificate Balance of
its Corresponding Class) and will be accrued and added to the Lower Tier
Principal Amount of the Class LT-Accrual Interest. On each Distribution Date,
the increase in the Lower Tier Principal Amount of the Class LT-Accrual Interest
may not exceed interest accruals for such Distribution Date for the Class
LT-Accrual Interest. In the event that: (i) 50% of the increase in the
Overcollateralized Amount exceeds (ii) interest accruals on the Class LT-Accrual
Interest for such Distribution Date, the excess for such Distribution Date
(accumulated with all such excesses for all prior Distribution Dates) will be
added to any increase in the Overcollateralized Amount for purposes of
determining the amount of interest accrual on the Class LT-Accrual Interest
payable as principal on the LT-Accretion Directed Classes on the next
Distribution Date pursuant to the first sentence of this paragraph. All payments
of scheduled principal and prepayments of principal generated by the Mortgage
Loans or paid under the Class A-1 Certificate Insurance Policy shall be
allocated (i) 50% to the Class LT-Accrual Interest, the Class LT-Group I
Interest and Class LT-Group II Interest (and further allocated among these Lower
Tier Regular Interests in the manner described below) and (ii) 50% to the
LT-Accretion Directed Classes (principal payments shall be allocated among such
LT-Accretion Directed Classes in an amount equal to 50% of the principal amounts
allocated to their respective Corresponding Classes), until paid in full.
Notwithstanding the above, principal payments allocated to the Class X Interest
that result in the reduction in the Overcollateralized Amount shall be allocated
to the Class LT-Accrual Interest (until paid in full). Realized Losses shall be
applied so that after all distributions have been made on each Distribution Date
(i) the principal balance of each of the LT-Accretion Directed Classes is equal
to 50% of the Class Certificate Balance of their Corresponding Class, and (ii)
the Class LT-Accrual Interest, the Class LT-Group I Interest and the Class
LT-Group II Interest (and further allocated among these Lower Tier Regular
Interests in the manner described below) is equal to 50% of the aggregate Stated
Principal Balance of the Mortgage Loans plus 50% of the Overcollateralized
Amount. As among the Class LT-Accrual Interest, the Class LT Group I Interest
and the Class LT Group II Interest, all payments of scheduled principal and
prepayments of principal generated by the Mortgage Loans, and all Realized
Losses, allocable to such Lower Tier Regular Interests shall be allocated (i) to
the Class LT-Group I Interest and the Class LT-Group II Interest, each from the
related Loan Group so that their respective Lower Tier Principal Amounts
(computed to at least eight decimal places) are equal to 0.001% of the aggregate
Stated Principal Balance of the Mortgage Loans in the related Loan Group and
(ii) the remainder of such Realized Losses to the Class LT-Accrual Interest.
Upper Tier REMIC
The Upper Tier REMIC shall issue the following classes of Upper Tier
Regular Interests, and each such interest, other than the Class UT-R Interest,
is hereby designated as a regular interest in the Upper Tier REMIC.
Upper Tier
Interest Rate Initial Upper Tier
and Principal Amount
Corresponding and Corresponding Corresponding
Upper Tier Class Class Class Certificate Class of
Designation Pass-Through Rate Balance Certificates
----------------- ----------------- ------------------ -------------
Class A-1 (1) $217,272,000 Class A-1(6)
Class A-2 (2) $114,355,000 Class A-2(6)
Class M-1 (3) $25,668,000 Class M-1(6)
Class M-2 (3) $20,739,000 Class M-2(6)
Class M-3 (3) $ 6,161,000 Class M-3(6)
Class M-4 (3) $ 5,133,000 Class M-4(6)
Class M-5 (3) $ 4,928,000 Class M-5(6)
Class B-1 (3) $ 3,491,000 Class B-1(6)
Class B-2 (3) $ 4,107,000 Class B-2(6)
Class X (4) 0(4) Class X(4)
Class UT-R (5) 0 Class R
(1) The Class A-1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the least of (i) LIBOR plus 0.300%, (ii) the Loan Group
I Cap and (iii) the WAC Cap or (b) after the Optional Termination Date,
the least of (i) LIBOR plus 0.600%, (ii) the Loan Group I Cap and (iii)
the WAC Cap.
(2) The Class A-2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the least of (i) LIBOR plus 0.380%, (ii) the Loan Group
II Cap and (iii) the WAC Cap or (b) after the Optional Termination Date,
the least of (i) LIBOR plus 0.760%, (ii) the Loan Group II Cap and (iii)
the WAC Cap.
(3) The Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class B-1 and
Class B-2 Interests will bear interest during each Interest Accrual Period
at a per annum rate equal to (a) on or prior to the Optional Termination
Date, the lesser of (i) LIBOR plus 0.650%, 1.150%, 1.320%, 1.800%, 1.900%,
3.000% and 3.000%, respectively, and (ii) the WAC Cap or (b) after the
Optional Termination Date, the lesser of (i) LIBOR plus 0.975%, 1.725%,
1.980%, 2.700%, 2.850%, 4.500% and 4.500%, respectively, and (ii) the WAC
Cap.
(4) The Class X Interest has an initial principal balance of $8,830,146.84,
but it will not accrue interest on such balance but will accrue interest
on a notional principal balance. As of any Distribution Date, the Class X
Interest shall have a notional principal balance equal to the aggregate of
the principal balances of the Lower Tier Regular Interests as of the first
day of the related Interest Accrual Period. With respect to any Interest
Accrual Period, the Class X Interest shall bear interest at a rate equal
to the excess, if any, of the WAC Cap over the product of (i) 2 and (ii)
the weighted average Pass-Through Rate of the Lower Tier REMIC Interests,
where the interest rates on the Class LT-Accrual, Class LT-Group I and
Class LT-Group II Interests are subject to a cap equal to zero and each
LT-Accretion Directed Class is subject to a cap equal to the Pass-Through
Rate on its Corresponding Class; provided, however, that if the
Pass-Through Rate of the Class A-1 Interest is calculated by reference to
clause (a)(i) (or clause (b)(i) after the Optional Termination Date) of
its Pass-Through Rate, the cap with respect to the Class LT-A-1 Interest
shall be increased by the lesser of (A) the Premium Rate and (B) the
excess of (1) the lesser of (I) clause (a)(ii) (or clause (b)(ii) after
the Optional Termination Date) of such Class's Pass-Through Rate and (II)
clause (a)(iii) (or clause (b)(iii) after the Optional Termination Date)
of such Class's Pass-Through Rate over (2) the amount in clause (a)(i) (or
clause (b)(i) after the Optional Termination Date) thereof for purposes of
the calculation. With respect to any Distribution Date, interest that so
accrues on the notional principal balance of the Class X Interest shall be
deferred in an amount equal to any increase in the Overcollateralized
Amount on such Distribution Date. Such deferred interest shall not itself
bear interest. The Class X Certificates will represent beneficial
ownership of the Class X Interest, the Corridor Agreement and amounts in
the Excess Reserve Fund Account, subject to the obligation to make
payments from the Excess Reserve Fund Account in respect of Basis Risk
Carry Forward Amounts. For federal income tax purposes, the Trustee will
treat a Class X Certificateholder's obligation to make payments from the
Excess Reserve Fund Account as payments made pursuant to an interest rate
cap contract written by the Class X Certificateholders in favor of each
Class of Offered Certificates. Such rights of the Class X
Certificateholders and Offered Certificateholders shall be treated as held
in a portion of the Trust Fund that is treated as a grantor trust under
subpart E, Part I of subchapter J of the Code.
(5) The Class UT-R Interest is the sole class of residual interest in the
Upper Tier REMIC. The Class UT-R Interest does not have an interest rate.
(6) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper Tier Regular Interest but also the right to
receive payments from the Excess Reserve Fund Account in respect of any
Basis Risk Carry Forward Amounts. For federal income tax purposes, the
Trustee will treat an Offered Certificateholder's right to receive
payments from the Excess Reserve Fund Account as payments made pursuant to
an interest rate cap contract written by the Class X Certificateholders.
The minimum denomination for each Class of Offered 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 of the Class R Certificates will be a 100% Percentage
Interest in such Class, (b) each of the Class P Certificates will be 100%
Percentage Interest and (c) the Class X Certificates will be a 10% Percentage
Interest in such Class.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates...... All Classes of Certificates other than the
Physical Certificates.
Class A Certificates......... Class A-1 and Class A-2 Certificates.
Delay Certificates........... None.
ERISA-Restricted
Certificates............... Class R Certificates, Class P Certificates and
Class X Certificates; any certificate with a
rating below the lowest applicable permitted
rating under the Underwriters' Exemption.
Non-Delay Certificates....... Offered Certificates.
Offered Certificates......... All Classes of Certificates other than the Private
Certificates.
Physical Certificates........ Class X, Class P and Class R Certificates.
Private Certificates......... Class X, Class P and Class R Certificates.
Rating Agencies.............. Standard & Poor's and Moody's.
Regular Certificates......... All Classes of Certificates other than the Class R
and Class P Certificates.
Residual Certificates........ Class R Certificates.
Subordinated Certificates.... Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class B-1 and Class B-2 Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Accepted Servicing Practices: With respect to any Mortgage
Loan, those mortgage servicing practices set forth in Section 3.01(a) of this
Agreement.
Account: Any of the Collection Account, the Distribution
Account, the Policy Payment 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 the Offered Certificates, the amount
of interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior to
such Distribution Date, as reduced by such Class's share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for such Distribution
Date allocated to such Class pursuant to Section 4.02.
Adjusted Net Mortgage Interest Rate: As to each Mortgage Loan
and at any time, the per annum rate equal to the Mortgage Interest Rate less the
Expense Fee Rate.
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.
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.
Advance Reimbursement Amounts: As defined in Section 10.07.
Affiliate: With respect to any Person, any other Person
controlling, controlled by or under common control with such first Person. For
the purposes of this definition, "control" means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all
amendments or supplements hereto.
Amount Held for Future Distribution: As to the Certificates on
any Distribution Date, the aggregate amount held in the Collection Account at
the close of business on the related Remittance Date on account of (i) Principal
Prepayments, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds
on the Mortgage Loans received after the end of the related Prepayment Period
and (ii) all Scheduled Payments on the Mortgage Loans due after the end of the
related Due Period.
Applied Realized Loss Amount: With respect to any Distribution
Date, the amount, if any, by which the aggregate Class Certificate Balance of
the Offered 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: With respect to any Mortgage Loan, the value
of the related Mortgaged Property based upon either the appraisal made or
Insured AVM, if any, for the originator at the time of origination of the
Mortgage Loan or the sales price of the Mortgaged Property at such time of
origination, whichever is less; provided, however, that in the case of a
refinanced Mortgage Loan, such value is based solely upon the appraisal made or
the Insured AVM supplied, if any, at the time of origination of such refinanced
Mortgage Loan.
Assignment of Mortgage: An assignment of the Mortgage, notice
of transfer or equivalent instrument in recordable form (other than the
assignee's name and recording information not yet returned from the recording
office), reflecting the sale of the Mortgage to the Trustee.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Trustee (x) the sum of (i) all
scheduled installments of interest (net of the related Expense Fees) and
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 (excluding Prepayment Premiums)
received during the related Prepayment Period together with all Compensating
Interest paid by the Servicer in connection therewith; (iv) amounts received
with respect to such Distribution Date as the Substitution Adjustment Amount or
as the purchase price in respect of a Deleted Mortgage Loan or a repurchased by
the Responsible Party or the Depositor as of such Distribution Date; and (v) the
proceeds received with respect to the termination of the Trust Fund pursuant to
clause (a) of Section 9.01, reduced by (y) amounts in reimbursement for 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.
Balloon Loan: Any Mortgage Loan that provided on the date of
origination for an amortization schedule extending beyond its stated maturity
date.
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
Offered Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of Offered Certificates is
based upon a Loan Group Cap or the WAC Cap, the excess of (i) the amount of
interest such Class of Offered Certificates would otherwise be entitled to
receive on such Distribution Date had such rate been calculated as the sum of
LIBOR and the applicable Pass-Through Margin, for such Class of Certificates for
such Distribution Date, over (ii) the amount of interest payable on such Class
of Certificates with respect to the Class A-1 Certificates, the lesser of the
Loan Group I Cap or the WAC Cap, and with respect to the Class A-2 Certificates,
the lesser of the Loan Group II Cap or the WAC Cap, and (B) the Basis Risk 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
sum of LIBOR and the applicable Pass-Through Margin for such Class of
Certificates for such Distribution Date.
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).
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 or 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
Certificates, other than the Class P, Class X or Class R Certificates, at any
date, the maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the Denomination thereof minus
all distributions of principal previously made with respect thereto and in the
case of any Subordinated Certificates, reduced by any Applied Realized Loss
Amounts applicable to such Class of Certificates; provided, however, that
immediately following the Distribution Date on which a Subsequent Recovery is
distributed, the Class Certificate Balances of any Class or Classes of
Certificates that have been previously reduced by Applied Realized Loss Amounts
will be increased, in order of seniority, by the amount of the Subsequent
Recovery distributed on such Distribution Date (up to the amount of Applied
Realized Loss Amounts allocated to such Class or Classes). The Class P, Class X
and Class R Certificates have no Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to
Section 5.02.
Certificateholder or Holder: The person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purpose of giving any consent pursuant to this Agreement, any Certificate
registered in the name of the Depositor or any affiliate of the Depositor shall
be deemed not to be Outstanding and the Percentage Interest evidenced thereby
shall not be taken into account in determining whether the requisite amount of
Percentage Interests necessary to effect such consent has been obtained;
provided, however, that if any such Person (including the Depositor) owns 100%
of the Percentage Interests evidenced by a Class of Certificates, such
Certificates shall be deemed to be Outstanding for purposes of any provision
hereof that requires the consent of the Holders of Certificates of a particular
Class as a condition to the taking of any action hereunder. The Trustee is
entitled to rely conclusively on a certification of the Depositor or any
affiliate of the Depositor in determining which Certificates are registered in
the name of an affiliate of the Depositor.
Certification: As defined in Section 8.12(b).
Class: All Certificates bearing the same class designation as
set forth in the Preliminary Statement.
Class A Certificates: The Class A-1 Certificates and the Class
A-2 Certificates.
Class A Principal Allocation Percentage: For any Distribution
Date, the percentage equivalent of a fraction, determined as follows: (A) with
respect to the Class A-1 Certificates, a fraction, the numerator of which is the
portion of the Principal Remittance Amount for such Distribution Date that is
attributable to the principal received or advanced on the Group I Mortgage Loans
and the denominator of which is the Principal Remittance Amount for such
Distribution Date; and (B) with respect to the Class A-2 Certificates, a
fraction, the numerator of which is the portion of the Principal Remittance
Amount for such Distribution Date that is attributable to the principal received
or advanced on the Group II Mortgage Loans and the denominator of which is the
Principal Remittance Amount for such Distribution Date.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class Certificate Balances of
the Class A Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) 61.50% (rounded to two decimal places) of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class A-1 Certificates: All Certificates bearing the class
designation of "Class A-1."
Class A-1 Certificate Insured Amount: With respect to any
Distribution Date and the Class A-1 Certificates, an amount equal to the sum of:
(i) the excess, if any, of (x) the Accrued Certificate
Interest Distribution Amount for the Class A-1 Certificates for such
Distribution Date over (y) the sum of (1) the amount of Available
Funds allocated to pay such Accrued Certificate Interest
Distribution Amount pursuant to Section 4.02(a)(i)(A)(1)(y) and (2)
the amount of Available Funds allocated to pay such Accrued
Certificate Interest Distribution Amount pursuant to the proviso at
the end of Section 4.02(a)(i)(A); plus
(ii) the Class A-1 Realized Loss Amount, if any, for such
Distribution Date; and
(iii) the Class Certificate Balance of the Class A-1
Certificates on the Final Scheduled Distribution Date or, if
earlier, the date on which the final distribution is made to the
Class A-1 Certificateholders pursuant to Article IX, in each case
after giving effect to distributions made on such date from sources
other than Class A-1 Certificate Insurance Policy for the Class A-1
Certificates.
Class A-1 Certificate Insurance Policy: The Ambac Assurance
Corporation Certificate Guaranty Insurance Policy No. AB0818BE, and all
endorsements thereto dated the Closing Date, issued by the Class A-1 Certificate
Insurer for the benefit of the Class A-1 Certificateholders.
Class A-1 Certificate Insurer: Ambac Assurance Corporation, a
Wisconsin-domiciled stock insurance corporation, and its successors in interest.
Class A-1 Certificate Insurer Default: The existence and
continuance of any of the following:
(a) the Class A-1 Certificate Insurer shall have failed to
make a required payment when due under the Class A-1 Certificate Insurance
Policy in accordance with its terms;
(b) the Class A-1 Certificate Insurer shall have (i) filed a
petition or commenced any case or proceeding under any provision or chapter of
the United States Bankruptcy Code, the New York State Insurance Law or any other
similar federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation, or reorganization, (ii) made a general assignment for the benefit
of its creditors or (iii) had an order for relief entered against it under the
United States Bankruptcy Code, the New York State Insurance Law or any other
similar federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation, or reorganization that is final and nonappealable; or
(c) a court of competent jurisdiction, the New York Department
of Insurance or any other competent regulatory authority shall have entered a
final and nonappealable order, judgment or decree (i) appointing a custodian,
trustee, agent, or receiver for the Class A-1 Certificate Insurer or for all or
any material portion of its property or (ii) authorizing the taking of
possession by a custodian, trustee, agent, or receiver of the Class A-1
Certificate Insurer (or the taking of possession of all or any material portion
of property of the Class A-1 Certificate Insurer).
Class A-1 Realized Loss Amount: With respect to the Class A-1
Certificates and any Distribution Date on which the Class Certificate Balances
of all of the Subordinated Certificates have been reduced to zero, the excess,
of (i) the aggregate Class Certificate Balance of the Class A-1 Certificates on
such Distribution Date, after taking into account all payments of principal to
be made on the Class A-1 Certificates on such Distribution Date from sources
other than the Class A-1 Certificate Insurance Policy, over (ii) the aggregate
Stated Principal Balances of the Group I Mortgage Loans for such Distribution
Date. With respect to the first Distribution Date, the Class A-1 Realized Loss
Amount shall equal zero.
Class A-2 Certificates: All Certificates bearing the class
designation of "Class A-2."
Class B Certificates: The Class B-1 and Class B-2
Certificates.
Class B-1 Certificates: All Certificates bearing the class
designation of "Class B-1."
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), and (G) the Class
Certificate Balance of the Class B-1 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 93.70% (rounded to two decimal
places) of the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class B-2 Certificates: All Certificates bearing the class
designation of "Class B-2."
Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date), and (H) the Class Certificate Balance of the Class B-2 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) 95.70%
(rounded to two decimal places) of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class Certificate Balance: With respect to any Class and as to
any date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class LT-R Interest: The residual interest in the Lower Tier
REMIC as described in the Preliminary Statement and the related footnote
thereto.
Class M Certificates: The Class M-1, Class M-2, Class M-3,
Class M-4 and Class M-5 Certificates.
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) 74.00%
(rounded to two decimal places) of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class 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) 84.10% (rounded to two decimal places) of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class 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) 87.10% (rounded to two decimal
places) of the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class 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) 89.60%
(rounded to two decimal places) of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class 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) 92.00% (rounded to two decimal places) of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class P Certificates: All Certificates bearing the class
designation of "Class P."
Class R Certificates: All Certificates bearing the class
designation of "Class R."
Class UT-R Interest: The residual interest in the Upper Tier
REMIC as described in the Preliminary Statement and the related footnote
thereto.
Class X Certificates: All Certificates bearing the class
designation of "Class X."
Class X Distributable Amount: On any Distribution Date, (i) as
a distribution in respect of interest, the amount of interest that has accrued
on the Class X Interest and not applied as an Extra Principal Distribution
Amount on such Distribution Date, plus any such accrued interest remaining
undistributed from prior Distribution Dates, plus, without duplication, (ii) as
a distribution in respect of principal, any portion of the principal balance of
the Class X Interest which is distributable as an Overcollateralization
Reduction Amount, minus (iii) any amounts paid as a Basis Risk Payment.
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: October 28, 2004.
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 voluntary Principal Prepayments in Full by the Mortgagor
(excluding any payments made upon liquidation of the Mortgage Loan), 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.
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-GS0409, facsimile
no. (000) 000-0000, and which is the address to which notices to and
correspondence with the Trustee should be directed.
Corresponding Class: The class of interests in one Trust REMIC
created under this Agreement that corresponds to the class of interests in the
other Trust REMIC or to a Class of Certificates in the manner set out below:
Corresponding
Lower Tier Upper Tier Certificates or
Class Designation Regular Interest Regular Interest
----------------- ---------------- ----------------
Class LT-A-1 Class A-1 Class A-1
Class LT-A-2 Class A-2 Class A-2
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-M-4 Class M-4 Class M-4
Class LT-M-5 Class M-5 Class M-5
Class LT-B-1 Class B-1 Class B-1
Class LT-B-2 Class B-2 Class B-2
N/A Class X Class X
Corridor Agreement: The interest rate corridor agreement,
dated October 28, 2004, between the Purchaser and the Corridor Provider, and its
successors in interest.
Corridor Agreement Provider: Xxxxxxx Sachs Capital Markets,
L.P., a Delaware limited partnership, and its successors in interest.
Countrywide Servicing: Countrywide Home Loans Servicing LP, a
Texas limited partnership, and its successors in interest.
Covered Loan: A Mortgage Loan categorized as Covered pursuant
to Appendix E of Standard & Poor's Glossary.
Cumulative Loss Percentage: With respect to any Distribution
Date, the percentage equivalent of a fraction, the numerator of which is the
aggregate amount of Realized Losses incurred from the Cut-off Date to the last
day of the calendar month preceding the month in which such Distribution Date
occurs and the denominator of which is the Cut-off Date Pool Principal Balance
of the Mortgage Loans.
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: October 1, 2004.
Cut-off Date Pool Principal Balance: The aggregate Stated
Principal Balances of all Mortgage Loans as of the Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the
Stated Principal Balance thereof as of the close of business on the Cut-off Date
(after giving effect to payments of principal due on that date, whether or not
received).
Data File: As defined in Section 4.03(f).
Data File Delivery Date: As defined in Section 4.03(f).
Data Tape Information: The information provided by the
Responsible Party as of the Cut-off Date to the Depositor setting forth the
following information with respect to each Mortgage Loan: (1) 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, manufactured housing); (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; (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)
the Adjustment Date; (16) the Gross Margin; (17) the Lifetime Rate Cap under the
terms of the Mortgage Note; (18) a code indicating the type of Index; (19) the
Periodic Mortgage Interest Rate Cap under the terms of the Mortgage Note; (20)
the Periodic Mortgage Interest Rate Floor under the terms of the Mortgage Note;
(21) the type of Mortgage Loan (i.e., fixed rate, adjustable rate, first lien,
second lien); (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 Cut-Off Date; (31) the date of the purchase of the Mortgage Loan; (32)
a code indicating whether the Mortgage is a Balloon Loan; (33) a code indicating
whether the Mortgage Loan is assumable; (34) the date of origination; (35) the
Mortgage Interest Rate adjustment period; (36) the Mortgage Interest Rate
adjustment percentage; (37) the Mortgage Interest Rate floor; (38) the Mortgage
Interest Rate calculation method (i.e., 30/360, simple interest, other); (39) a
code indicating whether the Mortgage Loan has been modified; (40) the one year
payment history; (41) the Due Date for the first Scheduled Payment; (42) the
original Scheduled Payment due; (43) with respect to the related Mortgagor, the
debt-to-income ratio; (44) the Appraised Value of the Mortgaged Property; and
(45) the sales price of the Mortgaged Property if the Mortgage Loan was
originated in connection with the purchase of the Mortgaged Property; (46) S&P
doc type code; (47) S&P appraisal type code; (48) escrow holdbacks, if any, and
(49) total points and fees paid by Mortgagor. 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.
Deficient Valuation: With respect to any Mortgage Loan, a
valuation of the related Mortgaged Property by a court of competent jurisdiction
in an amount less than the then outstanding principal balance of the Mortgage
Loan, which valuation results from a proceeding initiated under the United
States Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a
Physical Certificate and any Certificate issued in lieu of a Book-Entry
Certificate pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Deleted Mortgage Loan: As defined in Section 2.03(d).
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, A-1 by Standard & Poor's and F1+ by Fitch (in each
case, to the extent they are designated as Rating Agencies in the Preliminary
Statement).
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 GSAA Home Equity Trust
2004-9 Asset-Backed Certificates, Series 2004-9." 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 November 2004.
Document Certification and Exception Report: The report
attached to Exhibit F hereto.
Due Date: The day of the month on which the Scheduled Payment
is due on a Mortgage Loan, exclusive of any days of grace.
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 and the
Class A-1 Certificate Insurer. 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 GSAA
Home Equity Trust 2004-9, Asset-Backed Certificates, Series 2004-9." 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 and, for
purposes of determining the Loan Group I Cap and the WAC Cap in the case of the
Class A-1 Certificates, the Premium 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 as contemplated by this Agreement), a
determination made by the Servicer that all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries which the
Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer shall
maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
Final Scheduled Distribution Date: The Final Scheduled
Distribution Date for each Class of Certificates is the Distribution Date in
each of the following months:
Month of
Final Scheduled
Distribution Date
-----------------
Class A-1 Certificates.................................... September 2034
Class A-2 Certificates.................................... September 2034
Class M-1 Certificates.................................... September 2034
Class M-2 Certificates.................................... September 2034
Class M-3 Certificates.................................... September 2034
Class M-4 Certificates.................................... September 2034
Class M-5 Certificates.................................... September 2034
Class B-1 Certificates.................................... September 2034
Class B-2 Certificates.................................... September 2034
Class P Certificates...................................... September 2034
Class X Certificates...................................... September 2034
Class R Certificates...................................... September 2034
First Lien Mortgage Loan: Any Mortgage Loan secured by a first
lien Mortgage on the related Mortgaged Property.
Fitch: Fitch, Inc., and its successors in interest. If Fitch
is designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Fitch shall be Fitch, Inc., Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: MBS Monitoring - GSAA
Home Equity Trust 2004-9, or such other address as Fitch may hereafter furnish
to the Depositor, the Servicer and the Trustee.
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 Mortgage Loan, the fixed
percentage amount set forth in the related Mortgage Note to be added to the
applicable Index to determine the Mortgage Interest Rate.
Group I Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group I Mortgage Loans.
Group II Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group II Mortgage Loans.
High-Cost Mortgage Loan: A Mortgage Loan (a) covered by the
Home Ownership and Equity Protection Act of 1994, (b) classified as "High-Cost,"
"threshold," "covered" or "predatory" 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) a Mortgage Loan categorized as High-Cost pursuant to
Appendix E of Standard & Poor's Glossary.
Index: As to each 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 Agreement: The Insurance and Indemnity Agreement,
dated as of October 28, 2004, among the Depositor, the Trustee and the Class A-1
Certificate Insurer.
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 Offered
Certificates and each corresponding Class of Lower Tier Regular Interests and
any Distribution Date, the period commencing on the Distribution Date occurring
in the month preceding the month in which the current Distribution Date occurs
and ending on the day immediately preceding the current Distribution Date;
provided, that in the case of the first Distribution Date, the Interest Accrual
Period is the period from and including the Closing Date to but excluding such
first Distribution Date). For purposes of computing interest accruals on each
Class of Offered Certificates, each Interest Accrual Period has the actual
number of days in such period and each year is assumed to have 360 days.
Interest Rate Corridor Payment: For the first 33 Distribution
Dates, the amount, if any, equal to the product of (a) the excess, if any, of
the lesser of (i) one month LIBOR (as determined pursuant to the Corridor
Agreement) as of the related reset date and (ii) 10.00% over a cap strike rate
set forth on the interest rate corridor agreement schedule attached to the
Corridor Agreement, and (b) the interest rate corridor notional amount for such
date set forth on such schedule.
Interest Remittance Amount: With respect to any Distribution
Date and the Mortgage Loans in a Loan Group, that portion of Available Funds
attributable to interest relating to the Mortgage Loans in such Loan Group.
Investment Account: As defined in Section 3.12(a).
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.
Late Payment Rate: The lesser of (a) the greater of (i) the
per annum rate of interest publicly announced from time to time by Citibank,
N.A. as its prime or base lending rate (any change in such rate of interest to
be effective on the date such change is announced by Citibank, N.A.) plus 2%,
and (ii) the then applicable highest rate of interest on the Class A-1
Certificates and (b) the maximum rate permissible under applicable usury or
similar laws limiting interest rates as determined by the Class A-1 Certificate
Insurer. The Late Payment Rate shall be computed on the basis of the actual
number of days elapsed over a year consisting of 360 days.
LIBOR: With respect to any Interest Accrual Period for the
Offered 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 Determination Date: With respect to any Interest Accrual
Period for each Class of Offered Certificates, the second London Business Day
preceding the commencement of such Interest Accrual Period.
Lifetime Rate Cap: The provision of each Mortgage Note which
provides for an absolute maximum Mortgage Interest Rate thereunder. The Mortgage
Interest Rate during the term of each Mortgage Loan shall not at any time exceed
the Mortgage Interest Rate at the time of origination of such Adjustable Rate
Mortgage Loan by more than the amount per annum set forth on the Mortgage Loan
Schedule.
Liquidated Mortgage Loan: With respect to any Distribution
Date, a defaulted Mortgage Loan (including any REO Property) which was
liquidated or charged off in the calendar month preceding the month of such
Distribution Date and as to which the Servicer has certified (in accordance with
this Agreement) that it has made a Final Recovery Determination.
Liquidation Event: With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made as to such Mortgage Loan; or (iii) such Mortgage
Loan is removed from coverage under this Agreement by reason of its being
purchased, sold or replaced pursuant to or as contemplated by this Agreement.
With respect to any REO Property, either of the following events: (i) a Final
Recovery Determination is made as to such REO Property; or (ii) such REO
Property is removed from coverage under this Agreement by reason of its being
purchased pursuant to this Agreement.
Liquidation Proceeds: The amounts, other than Insurance
Proceeds, Condemnation Proceeds or those received following the acquisition of
REO Property, received in connection with the liquidation of a defaulted
Mortgage Loan, whether through a trustee's sale, foreclosure sale or otherwise,
including any Subsequent Recoveries.
Loan Group: The Group I Mortgage Loans or the Group II
Mortgage Loans, as applicable.
Loan Group Cap: The Loan Group I Cap or the Loan Group II Cap,
as applicable.
Loan Group I Cap: With respect to the Group I Mortgage Loans
as of any Distribution Date, the product of the weighted average of the Adjusted
Net Mortgage Interest Rates then in effect on the beginning of the related Due
Period on the Group I Mortgage Loans, multiplied by 30 and divided by the actual
number of days in the related Interest Accrual Period.
Loan Group II Cap: With respect to the Group II Mortgage Loans
as of any Distribution Date, the product of the weighted average of the Adjusted
Net Mortgage Interest Rates then in effect on the beginning of the related Due
Period on the Group II Mortgage Loans, multiplied by 30 and divided by the
actual number of days in the related Interest Accrual Period.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan,
the ratio (expressed as a percentage) of the original outstanding principal
amount of the Mortgage Loan as of the Cut-off Date (unless otherwise indicated),
to the lesser of (a) if the Mortgage Loan was made to finance the acquisition of
the related Mortgaged Property, the purchase price of the Mortgaged Property and
(ii) the Appraisal Value of the Mortgaged Property at origination.
London Business Day: Any day on which dealings in deposits of
United States dollars are transacted in the London interbank market.
Lower Tier Principal Amount: As described in the Preliminary
Statement.
Lower Tier Regular Interest: Each of the Class LT-A-1, Class
LT-A-2, Class LT-M-1, Class LT-M-2, Class LT-M-3, Class LT-M-4, Class LT-M-5,
Class LT-B-1, Class LT-B-2, Class LT-Group I, Class LT-Group II and Class
LT-Accrual Interests as described in the Preliminary Statement.
Lower Tier REMIC: As described in the Preliminary Statement.
Majority Class X Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class X Certificates.
Market Value Change Report: A report setting forth changes in
property value of the Mortgaged Properties in a format agreed upon by the
Servicer and the Depositor.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.03.
Moody's: Xxxxx'x Investors Service, Inc. If Xxxxx'x is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 10.05(b) the address for notices to Moody's shall be Xxxxx'x Investors
Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Mortgage Pass-Through Group, or such other address as Moody's may
hereafter furnish to the Depositor, the Servicer and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument
identified on the Mortgage Loan Schedule as securing a Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage
Loan contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the
subject of this Agreement, each Mortgage Loan originally sold and subject to
this Agreement being identified on the Mortgage Loan Schedule, which Mortgage
Loan includes, without limitation, the Mortgage File, the Custodial File, the
Servicing File, the Scheduled Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition proceeds,
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'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) 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; (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)
the Adjustment Date; (16) the Gross Margin; (17) the Lifetime Rate Cap under the
terms of the Mortgage Note; (18) a code indicating the type of Index; (19) the
Periodic Mortgage Interest Rate Cap under the terms of the Mortgage Note; (20)
the Periodic Mortgage Interest Rate Floor under the terms of the Mortgage Note;
(21) the type of Mortgage Loan (i.e., fixed rate, adjustable rate, first lien,
second lien); (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 Cut-Off Date; (31) the date of the purchase of the Mortgage Loan; (32)
a code indicating whether the Mortgage Loan is a Balloon Loan; (33) a code
indicating whether the Mortgage Loan is assumable; (34) the date of origination;
(35) the Mortgage Interest Rate adjustment period; (36) the Mortgage Interest
Rate adjustment percentage; (37) the Mortgage Interest Rate floor; (38) the
Mortgage Interest Rate calculation method (i.e., 30/360, simple interest,
other); (39) a code indicating whether the Mortgage Loan has been modified; (40)
the one year payment history; (41) the Due Date for the first Scheduled Payment;
(42) the original Scheduled Payment due; (43) with respect to the related
Mortgagor, the debt-to-income ratio; (44) the Appraised Value of the Mortgaged
Property; (45) the sales price of the Mortgaged Property if the Mortgage Loan
was originated in connection with the purchase of the Mortgaged Property; and
(46) a code indicating whether the Mortgage Loan is a Group I Mortgage Loan or a
Group II Mortgage Loan. With respect to the Mortgage Loans in the aggregate: (1)
the number of Mortgage Loans; (2) the current aggregate outstanding principal
balance of the Mortgage Loans; (3) the weighted average Mortgage Interest Rate
of the Mortgage Loans; and (4) the weighted average maturity of the Mortgage
Loans.
Mortgage Note: The note or other evidence of the indebtedness
of a Mortgagor under a Mortgage Loan, including all riders thereto.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the
amount remaining for distribution pursuant to Section 4.02(a)(iii) (before
giving effect to distributions pursuant to such Section 4.02(a)(iii)).
Net Prepayment Interest Shortfall: For any Distribution Date,
the amount by which the sum of the Prepayment Interest Shortfalls exceeds the
sum of the Compensating Interest payments made with respect to such Distribution
Date.
New Century: New Century Mortgage Corporation, a California
corporation, and its successors in interest.
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.
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-Delay Certificates: As specified in the Preliminary
Statement.
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.
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 and the Class A-1 Certificate Insurer
pursuant to this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for the Servicer or the Subservicer, reasonably acceptable to
the Trustee and the Class A-1 Certificate Insurer; provided, that any Opinion of
Counsel relating to (a) qualification of either Trust REMIC as a REMIC or (b)
compliance with the REMIC Provisions, must be (unless otherwise stated in such
Opinion of Counsel) an opinion of counsel who (i) is in fact independent of the
Servicer of the Mortgage Loans, (ii) does not have any material direct or
indirect financial interest in the Servicer of the Mortgage Loans or in an
affiliate of either and (iii) is not connected with the Servicer of the Mortgage
Loans as an officer, employee, director or person performing similar functions.
Optional Termination Date: The date determined as follows: the
Servicer (at the direction of the Majority Class X Certificateholders (as
evidenced on the Certificate Register)) shall cause the Optional Termination
Date to occur on the Distribution Date when the aggregate Stated Principal
Balance of the Mortgage Loans, as of the last day of the related Due Period, is
equal to 10% or less of the Cut-off Date Pool Principal Balance (provided, that
if the Depositor or an Affiliate of the Depositor is one of the Holders
constituting such majority, then there must be at least one other unaffiliated
Holder constituting such majority and the Class X Certificates held by such
Holder (or unaffiliated Holders in the aggregate) must represent at least a 10%
Percentage Interest in the Class X Certificates).
Original Sale Date: August 27, 2004.
OTS: Office of Thrift Supervision, and any successor thereto.
Outstanding: With respect to the Certificates as of any date
of determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore 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
Offered 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 Offered 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 Offered
Certificates, the following percentages: Class A-1 Certificates, 0.300%; Class
A-2 Certificates, 0.380%; Class M-1 Certificates, 0.650%; Class M-2
Certificates, 1.150%; Class M-3 Certificates, 1.320%; Class M-4 Certificates,
1.800%; Class M-5 Certificates, 1.900%; Class B-1 Certificates, 3.000% and Class
B-2 Certificates, 3.000%. On the first Distribution Date after the Optional
Termination Date, the Pass-Through Margins shall increase to: Class A-1
Certificates, 0.600%; Class A-2 Certificates, 0.760%; Class M-1 Certificates,
0.975%; Class M-2 Certificates, 1.725%; Class M-3 Certificates, 1.980%; Class
M-4 Certificates, 2.700%; Class M-5 Certificates, 2.850%; Class B-1
Certificates, 4.500%; and Class B-2 Certificates, 4.500%.
Pass-Through Rate: For each Class of Certificates and each
Lower Tier Regular Interest, the per annum rate set forth or calculated in the
manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made on the related
Class, such percentage interest being set forth on the face thereof or equal to
the percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Periodic Mortgage Interest Rate Cap: With respect to each
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 Mortgage
Loan is the rate set forth on the Mortgage Loan Schedule.
Periodic Mortgage Interest Rate Floor: With respect to each
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
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 and "F1+" by Fitch;
(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 and "AAAm," "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 either 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.
Policy Payment Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Section 4.06(c) in the name of the
Trustee for the benefit of the Class A-1 Certificateholders and the Class A-1
Certificate Insurer and designated "Deutsche Bank National Trust Company in
trust for Ambac Assurance Corporation and the registered holders of GSAA Home
Equity Trust 2004-9, Asset-Backed Certificates, Series 2004-9, Class A-1."
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.
Preference Amount: Any amounts covered by the Class A-1
Certificate Insurance Policy that were distributed in respect of the Class A-1
Certificates which are recovered from any Holder of a Class A-1 Certificate as a
voidable preference by a trustee in bankruptcy pursuant to the United States
Bankruptcy Code or other similar law in accordance with a final, nonappealable
order of a court having competent jurisdiction and which have not theretofore
been repaid to such Holders.
Preference Claim: As defined in Section 4.06(f) hereof.
Premium Amount: The product of the Premium Rate and the Class
Certificate Balance of the Class A-1 Certificates immediately prior to such
Distribution Date.
Premium Rate: The rate set forth in the definition of "Premium
Percentage" in the Insurance Agreement.
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 Remittance Date, the
calendar month preceding the calendar month in which such Remittance 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 in Full 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 prior to 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 Mortgage
Loan, the repurchase obligation for which arose during the related Prepayment
Period, that was repurchased during the period from the Remittance Date prior to
the prior Distribution Date (or from the Closing Date in the case of the first
Distribution Date) through the Remittance Date for the current Distribution
Date, (v) the principal portion of all Substitution Adjustment Amounts with
respect to the substitutions of Mortgage Loans that occur during the Prepayment
Period preceding such Distribution Date 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 Gramm 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
October 25, 2004, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchase Agreement: The Flow Mortgage Loan Purchase and
Warranties Agreement, dated as of August 25, 2004 between the Purchaser and the
Responsible Party.
Purchaser: Xxxxxxx Sachs Mortgage Company, a New York limited
partnership, and its successors in interest.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee. References
herein to a given rating or rating category of a Rating Agency shall mean such
rating category without giving effect to any modifiers. For purposes of Section
10.05(b), the addresses for notices to each Rating Agency shall be the address
specified therefor in the definition corresponding to the name of such Rating
Agency, or such other address as either such Rating Agency may hereafter furnish
to the Depositor and the Servicer.
Realized Losses: With respect to any date of determination and
any Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid
principal balance of such Liquidated Mortgage Loan together with accrued and
unpaid interest thereon exceeds (b) the Liquidation Proceeds with respect
thereto net of the expenses incurred by the Servicer in connection with the
liquidation of such Liquidated Mortgage Loan and net of the amount of
unreimbursed Servicing Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close
of business on the last day of the related Interest Accrual Period; provided,
however, that for any Certificate issued in definitive form, the Record Date
shall be the close of business on the last 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.
Reimbursement Amount: As of any Distribution Date, the sum of
(i) all Class A-1 Certificate Insured Amounts and Preference Amounts previously
received by the Trustee previously paid by the Class A-1 Certificate Insurer and
in each case not previously repaid to the Class A-1 Certificate Insurer pursuant
to Section 4.02 plus (ii) interest accrued on each such Class A-1 Certificate
Insured Amount and Preference Amount not previously repaid calculated at the
Late Payment Rate for the Class A-1 Certificates from the date the Trustee
received the related Class A-1 Certificate Insured Amounts or Preference Amounts
paid by the Class A-1 Certificate Insurer.
Relief Act Interest Shortfall: With respect to any
Distribution Date and any Mortgage Loan, any reduction in the amount of interest
collectible on such Mortgage Loan for the most recently ended Due Period as a
result of the application of the Servicemembers Civil Relief Act or any similar
state statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Opinion: As defined in Section 9.03.
REMIC Provisions: Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations promulgated thereunder, as the foregoing may be in
effect from time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, no
later than 12:30 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, 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 or the Trustee, as the case may be, in respect of a breach or defect,
including, without limitation, expenses arising out of the Servicer's or
Trustee's, as the case may be, enforcement of the Responsible Party's repurchase
obligation, to the extent not included in clause (iii), and (iv) any costs and
damages incurred by the Trust in connection with any violation by such Mortgage
Loan of any predatory lending law or abusive lending law.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee, substantially in the form of Exhibit J.
Residual Certificates: As specified in the Preliminary
Statement.
Responsible Officer: When used with respect to the Trustee,
any vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any associate or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers who at such time shall be officers to whom, with respect to
a particular matter, such matter is referred because of such officer's knowledge
of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement.
Responsible Party: NC Capital Corporation, a California
corporation, and its successors in interest.
Review Appraisal Value: As defined in the Underwriting
Guidelines.
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, 38.50%.
Servicer: New Century and Countrywide Servicing and if a
successor servicer is appointed hereunder, such successor servicer. When the
term "Servicer" is used in this Agreement prior to the Servicing Transfer Date,
New Century, and on and after the Servicing Transfer Date, Countrywide
Servicing, unless the context otherwise requires.
Servicer Remittance Report: As defined in Section 4.03(d).
Servicing Advances: The reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred by the Servicer 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 and (iv) the performance of its obligations under Sections 3.01, 3.09,
3.13 and 3.15. Servicing Advances also include any reasonable "out of pocket"
costs and expenses (including legal fees) incurred by the Servicer in connection
with executing and recording instruments of satisfaction, deeds of reconveyance
or Assignments of Mortgage in connection with any satisfaction or foreclosures
in respect of any Mortgage Loan to the extent not recovered from the Mortgagor
or otherwise payable under this Agreement and (v) obtaining or correcting any
legal documentation required to be included in the Mortgage Files and necessary
for the Servicer to perform its obligations under this Agreement. 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 K hereto.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee by the Servicer on the Closing Date pursuant to this Agreement, as
such list may from time to time be amended.
Servicing Transfer Costs: All reasonable out of pocket costs
and expenses incurred by the Trustee 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 7.03) to service the Mortgage Loans properly and
effectively.
Servicing Transfer Date: With respect to any Mortgage Loan,
December 2, 2004.
Similar Law: As defined in Section 5.02(b).
Six-Month LIBOR Index: With respect to each Mortgage Loan, the
rate as determined on the basis of rates at which six-month U.S. dollar deposits
are offered to prime banks in the London interbank market on such date as
provided in the related Mortgage Note.
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with
respect to which any portion of a Scheduled Payment is, as of the last day of
the prior Due Period, two months or more past due (without giving effect to any
grace period), each Mortgage Loan in foreclosure, each 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 2.15% of the Cut-off Date Pool Principal Balance. On
and after the Stepdown Date, an amount equal to 4.30% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, subject,
until the Class Certificate Balance of each Class of Offered 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.
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 - GSAA Home Equity Trust
2004-9, 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
related Remittance Date and any unscheduled principal payments and other
unscheduled principal collections received during the related Prepayment Period,
and the Stated Principal Balance of any Mortgage Loan that has prepaid in full
or has become a Liquidated Mortgage Loan during the related Prepayment Period
shall be zero.
Stepdown Date: The earlier to occur of (a) the date on which
the aggregate Class Certificate Balances of the Class A Certificates have been
reduced to zero, and (b) the later to occur of (i) the Distribution Date in
November 2007, and (ii) the first Distribution Date on which the Senior
Enhancement Percentage is greater than or equal to the Senior Specified
Enhancement Percentage.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subsequent Recoveries: Amounts received with respect to any
Liquidated Mortgage Loan after it has become a Liquidated Mortgage Loan.
Subservicer: As defined in Section 3.02(a).
Subservicing Account: As defined in Section 3.08.
Subservicing Agreements: As defined in Section 3.02(a).
Substitute Mortgage Loan: A Mortgage Loan substituted by the
Responsible Party for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in a Request for Release, substantially in the form
of Exhibit J, (i) have a Stated Principal Balance, after deduction of the
principal portion of the Scheduled Payment due in the month of substitution, not
in excess of the Stated Principal Balance of the Deleted Mortgage Loan; (ii) be
accruing interest at a rate no lower than and not more than 1% per annum higher
than, that of the Deleted Mortgage Loan; (iii) have a Loan-to-Value Ratio no
higher than that of the Deleted Mortgage Loan; (iv) have a remaining term to
maturity no greater than (and not more than one year less than that of) the
Deleted Mortgage Loan; and (v) comply with each representation and warranty set
forth in Section 2.03.
Substitution Adjustment Amount: As defined in Section 2.03(g).
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.
Total Monthly Excess Spread: As to any Distribution Date, an
amount equal to the excess if any, of (i) the interest collected on the Mortgage
Loans received by the Servicer on or prior to the related Determination Date or
advanced by the Servicer for the related Remittance Date (net of Expense Fees
over (ii) the sum of amounts payable to the Offered Certificates and to the
Class A-1 Certificate Insurer on such Distribution Date pursuant to Section
4.02(a)(i).
Transfer: Any direct or indirect transfer or sale of any
Ownership Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a
Trigger Event exists if (i) the quotient (expressed as a percentage) of (1) the
rolling three month average of the aggregate unpaid principal balance of 60+ Day
Delinquent Mortgage Loans, divided by (2) the aggregate unpaid principal balance
of the Mortgage Loans as of the last day of the related Due Period, equals or
exceeds 23.00% 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
--------------------------------------------------------------------------
November 2007 through October 2008 3.250% for the first month, plus an
additional 1/12th of 1.000% for each
month thereafter (e.g., approximately
3.333% in December 2007)
November 2008 through October 2009 4.350% for the first month, plus an
additional 1/12th of 0.750% for each
month thereafter (e.g., approximately
4.313% in December 2008)
November 2009 through October 2010 5.000% for the first month, plus an
additional 1/12th of 0.250% for each
month thereafter (e.g., approximately
5.021% in December 2009)
November 2010 and thereafter 5.250%
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder
consisting of (i) the Mortgage Loans and all interest and principal received on
or with respect thereto after the related Cut-off Date, other than such amounts
which were due on the Mortgage Loans on or before the related Cut-off Date; (ii)
the Collection Account, 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 Corridor
Agreement; and (v) all proceeds of the conversion, voluntary or involuntary, of
any of the foregoing.
Trust REMIC: Either 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, 0.0065%
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.
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 Amount: As of any Distribution Date and any
Class of Certificates, the sum of (a) the portion of the Accrued Certificate
Interest Distribution Amount from Distribution Dates prior to the current
Distribution Date remaining unpaid immediately prior to the current Distribution
Date and (b) interest on the amount in clause (a) above at the applicable
Pass-Through Rate (to the extent permitted by applicable law).
Upper Tier Regular Interest: As described in the Preliminary
Statement.
Upper Tier REMIC: As described in the Preliminary Statement.
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.
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 (a) the weighted average of the
Mortgage Interest Rates for each Mortgage Loan (in each case, less 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.
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 and the Class A-1 Certificate Insurer, 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 and the Class A-1 Certificate Insurer 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 the Mortgage Notes for
endorsements, the endorsement may be contained on an allonge, unless
the Trustee is advised by the Responsible Party that state law does
not allow for the use of an allonge. 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 of any guarantee executed in connection with
the Mortgage Note;
(iii) 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 (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Responsible Party
(or certified by the title company, escrow agent, or closing
attorney) stating that such 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 (ii) in the case
of a Mortgage where a public recording office retains the original
recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such Mortgage
certified by such public recording office to be a true and complete
copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification,
consolidation or extension agreements, (if provided), with evidence
of recording thereon or a certified true copy of such agreement
submitted for recording;
(v) the original Assignment of Mortgage for each Mortgage Loan
endorsed in blank and in recordable form;"
(vi) the originals of all intervening Assignments of Mortgage
(if any) evidencing a complete chain of assignment from the
applicable originator to the last endorsee with evidence of
recording thereon, or if any such intervening assignment has not
been returned from the applicable recording office or has been lost
or if such public recording office retains the original recorded
Assignments of Mortgage, the Responsible Party shall deliver or
cause to be delivered to the Trustee, a photocopy of such
intervening assignment, together with (A) in the case of a delay
caused by the public recording office, an Officer's Certificate of
the Responsible Party (or certified by the title company, escrow
agent, or closing attorney) stating that such intervening Assignment
of Mortgage has been dispatched to the appropriate public recording
office for recordation and that such original recorded intervening
Assignment of Mortgage or a copy of such intervening Assignment of
Mortgage certified by the appropriate public recording office to be
a true and complete copy of the original recorded intervening
assignment of mortgage will be promptly delivered to the Trustee
upon receipt thereof by the Responsible Party; or (B) in the case of
an intervening assignment where a public recording office retains
the original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public
recording office, a copy of such intervening assignment certified by
such public recording office to be a true and complete copy of the
original recorded intervening assignment;
(vii) the original mortgagee policy of title insurance or, in
the event such original title policy is unavailable, a certified
true copy of the related policy binder or commitment for title
certified to be true and complete by the title insurance company;
and
(viii) a security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage (if provided).
Each Mortgage Loan for which a Mortgage Note is missing shall be
evidenced by a lost note affidavit as of the Closing Date. In the event, for
purposes of the Closing Date, one or more lost note affidavits are provided to
cover multiple missing Mortgage Notes, the Responsible Party shall deliver to
the Trustee the applicable individual lost note affidavits within ten (10)
Business Days of the Closing Date. If the Responsible Party fails to deliver the
required individual lost note affidavits within the specified period of time,
the Trustee shall notify the Responsible Party to take such remedial actions,
including, without limitation, the repurchase by the Responsible Party of such
Mortgage Loan within 30 days of the Closing Date.
The Responsible Party shall deliver to the Trustee the applicable
recorded document promptly upon receipt from the respective recording office but
in no event later than 120 days from the Closing Date.
From time to time, the Responsible Party shall forward, with respect
to the Mortgage Loans, to the Trustee additional original documents, additional
documents evidencing an assumption, modification, consolidation or extension of
a Mortgage Loan approved by the Responsible Party, in accordance with the terms
of this Agreement. All such mortgage documents held by the Trustee as to each
Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Responsible Party shall deliver
to the Trustee Assignments of Mortgages, in blank, for each Mortgage Loan. The
Responsible Party shall 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,
at no expense to the Trust Fund, the Servicer, the Trustee, the Class A-1
Certificate Insurer 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, each Rating Agency and the Class
A-1 Certificate Insurer has received an opinion of counsel, satisfactory in form
and substance to the Trustee, each Rating Agency and the Class A-1 Certificate
Insurer, to the effect that the recordation of such Assignments of Mortgage in
any specific jurisdiction is not necessary to protect the Trustee's interest in
the related Mortgage Note. If the Assignment of Mortgage is to be recorded, the
Mortgage shall be assigned by the Responsible Party at the Responsible Party's
expense to "Deutsche Bank National Trust Company as trustee under the Pooling
and Servicing Agreement dated as of October 1, 2004, GSAA Home Equity Trust
2004-9." In the event that any such assignment is lost or returned unrecorded
because of a defect therein, the Responsible Party shall promptly prepare a
substitute assignment to cure such defect and thereafter cause each such
assignment to be duly recorded.
On or prior to the Closing Date, the Depositor shall deliver to the
Trustee a copy of the Data Tape Information in electronic, machine readable
medium in a form mutually acceptable to the Depositor 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 Class A-1
Certificate Insurer.
In the event, with respect to each Mortgage Loan, that such original
or copy of any document submitted for recordation to the appropriate public
recording office is not so delivered to the Trustee within 90 days following the
Closing Date, and in the event that the Responsible Party does not cure such
failure within 30 days of discovery or receipt of written notification of such
failure from the Depositor, the related Mortgage Loan shall, upon the request of
the Depositor, be repurchased by the Responsible Party at the price and in the
manner specified in Section 2.03. The foregoing repurchase obligation 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 "GSAA Home Equity Trust
2004-9" and Deutsche Bank National Trust Company is hereby appointed as Trustee
in accordance with the provisions of this Agreement. The parties hereto
acknowledge and agree that it is the policy and intention of the Trust to
acquire only Mortgage Loans meeting the requirements set forth in this
Agreement, including without limitation, the representations and warranties set
forth in paragraph (49) of Schedule III to 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) pursuant to Section 2.01(a).
Section 2.02 Acceptance by the Trustee of the Mortgage Loans. The
Trustee acknowledges receipt of the documents identified in the Initial
Certification in the form annexed hereto as Exhibit E, and declares that it
holds and will hold such documents and the other documents delivered to it
pursuant to Section 2.01, and that it holds or will hold such other assets as
are included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders and the Class A-1 Certificate Insurer.
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 Date, the Trustee shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor, the Servicer and the Class A-1 Certificate Insurer 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, the Servicer and the Class A-1 Certificate Insurer an Initial
Certification, in the form annexed hereto as Exhibit E, and shall deliver to the
Depositor, the Servicer and the Class A-1 Certificate Insurer a Document
Certification and Exception Report, in the form annexed hereto as Exhibit F,
within 90 days after the Closing Date to the effect that, as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in
full or any Mortgage Loan specifically identified in such certification as an
exception and not covered by such certification): (i) all documents required to
be reviewed by it are in its possession; (ii) such documents have been reviewed
by it and appear regular on their face and relate to such Mortgage Loan; (iii)
based on its examination and only as to the foregoing documents, the information
set forth in items (1), (2), (3), (6) (solely with respect to the original
months to maturity), (8) (solely as of origination, not as of the Cut-off Date)
and (13) of the Mortgage Loan Schedule and items (1), (2), (3), (6) (solely with
respect to the original months to maturity), (8) (solely as of origination, not
as of the Cut-off Date) 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 Responsible Party shall 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 documents shall be delivered by the Responsible Party at the Responsible
Party's expense to the Servicer.
Section 2.03 Representations, Warranties and Covenants of the
Responsible Party and the Servicer. (a) Countrywide Servicing and New Century,
severally and not jointly, hereby make the representations and warranties set
forth in Schedule II and Schedule V hereto, respectively, to the Depositor, the
Responsible Party, the Class A-1 Certificate Insurer and the Trustee as of the
Closing Date.
(b) The Responsible Party hereby makes the representations and
warranties set forth in Schedule III and Schedule IV hereto to the Depositor,
Countrywide Servicing, New Century and the Trustee and, in the case of Schedule
III, with respect to the Group I Mortgage Loans only, to the Class A-1
Certificate Insurer.
(c) It is understood and agreed by the Countrywide Servicing, New
Century and the Responsible Party 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,
the Class A-1 Certificate Insurer and the Trustee notwithstanding any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or failure to examine any Mortgage File. Upon
discovery by any of the Responsible Party, the Depositor, the Trustee, the
Servicer or the Class A-1 Certificate Insurer of a breach of any of the
foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the others.
(d) Within 30 days of the earlier of either discovery by or notice
to the Responsible Party that any Mortgage Loan does not conform to the
requirements as determined in the Trustee's review of the related Custodial File
or within 60 days of the earlier of either discovery by or notice to the
Responsible Party of any breach of a representation or warranty set forth in
Section 2.03(b) that materially and adversely affects the value of any Mortgage
Loan or the interest of the Trustee or the Certificateholders therein, the
Responsible Party shall use its best efforts to cause to be remedied a material
defect in a document constituting part of a Mortgage File or promptly to cure
such breach in all material respects and, if such defect or breach cannot be
remedied, the Responsible Party shall (i) if such 30 or 60 day period, as
applicable, expires prior to the second anniversary of the Closing Date, remove
such related Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and
substitute in its place a Substitute Mortgage Loan, in the manner and subject to
the conditions set forth in this Section 2.03, or (ii) repurchase such Mortgage
Loan at the Repurchase Price; provided, however, that any such substitution
pursuant to clause (i) above shall not be effected prior to the delivery to the
Trustee of a Request for Release substantially in the form of Exhibit J, and the
Mortgage File for any such Substitute Mortgage Loan; provided, further, that
with respect to any representations and warranties which are made to the best of
the Responsible Party's knowledge, if it is discovered by the Responsible Party,
the Servicer, the Depositor or the Trustee and, with respect to the Group I
Mortgage Loans, the Class A-1 Certificate Insurer, that the substance of such
representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of the related Mortgage Loans or materially and
adversely affects the interests of the Trustee or the Certificateholders therein
or such inaccuracy materially and adversely affects the value of the related
Mortgage Loan or materially and adversely affects the interests of the Trustee
or the Certificateholders therein in the case of a representation and warranty
relating to a particular Mortgage Loan, notwithstanding the Responsible Party's
lack of knowledge with respect to the substance of such representation and
warranty, such inaccuracy shall be deemed a breach of the applicable
representation and warranty. In the event that a breach which materially and
adversely affects the value of the related Mortgage Loan or Mortgage Loans, as
the case may be, or the interests of the Trustee or the Certificateholders
therein, shall involve any representation or warranty set forth in Schedule IV,
and such breach cannot be cured within 60 days of the earlier of either
discovery by or notice to the Responsible Party of such breach, all of the
Mortgage Loans shall, at the Depositor's option, be repurchased by the
Responsible Party at the Repurchase Price. Notwithstanding the foregoing, a
breach (x) which causes a Mortgage Loan not to constitute a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code or (y) by the Responsible
Party of any of the representations and warranties set forth in paragraphs (28),
(46), (48), (49), (50), (52), (57), (58), (59), (64) or (65) of Schedule III, in
each case, will be deemed automatically to materially and adversely affect the
value of such Mortgage Loan and the interests of the Trustee and
Certificateholders in such Mortgage Loan. In the event that the Trustee receives
notice of a breach by the Responsible Party of any of the representations and
warranties set forth in paragraphs (28), (46), (48), (49), (50), (52), (57),
(58), (59), (64) or (65) of Schedule III, the Trustee shall give notice of such
breach to the Responsible Party and request the Responsible Party to repurchase
the Mortgage Loan at the Repurchase Price within sixty (60) days of the
Responsible Party's receipt of such notice. The Responsible Party shall
repurchase each such Deleted Mortgage Loan within 30 days of the earlier of
discovery or receipt of notice with respect to each such Deleted Mortgage Loan.
(e) With respect to any Substitute Mortgage Loan or Loans, the
Responsible Party shall deliver to the Trustee for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment of
the Mortgage, and such other documents and agreements as are required by Section
2.01, with the Mortgage Note endorsed and the Mortgage assigned as required by
Section 2.01. No substitution is permitted to be made with respect to any
Distribution Date after the end of the related Prepayment Period. Scheduled
Payments due with respect to Substitute Mortgage Loans in the Due Period of
substitution shall not be part of the Trust Fund and will be retained by the
Responsible Party on the next succeeding Distribution Date. For the Due Period
of substitution, distributions to Certificateholders will include the Scheduled
Payment due on any Deleted Mortgage Loan for such Due Period and thereafter the
Responsible Party shall be entitled to retain all amounts received in respect of
such Deleted Mortgage Loan.
(f) In connection with any repurchase or substitution of a Mortgage
Loan pursuant to this Section 2.03, the Servicer shall, based on information
provided by the Responsible Party, amend the Mortgage Loan Schedule for the
benefit of the Certificateholders to reflect the removal of such Deleted
Mortgage Loan and the substitution of the Substitute Mortgage Loan or Loans and
the Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee and
the Class A-1 Certificate Insurer. Upon such substitution, the Substitute
Mortgage Loan or Loans shall be subject to the terms of this Agreement in all
respects, and the Responsible Party shall be deemed to have made with respect to
such Substitute Mortgage Loan or Loans, as of the date of substitution, the
representations and warranties made pursuant to Section 2.03(b) with respect to
such Mortgage Loan. Upon any such substitution and the deposit to the Collection
Account of the amount required to be deposited therein in connection with such
substitution as described in the following paragraph, the Trustee shall release
the Mortgage File held for the benefit of the Certificateholders relating to
such Deleted Mortgage Loan to the Responsible Party and shall execute and
deliver at the Responsible Party's direction such instruments of transfer or
assignment prepared by the Responsible Party, in each case without recourse, as
shall be necessary to vest title in the Responsible Party, or its designee, of
the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to
this Section 2.03.
(g) For any month in which the Responsible Party 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 amount of
such shortage (the "Substitution Adjustment Amount") plus an amount equal to the
aggregate of any unreimbursed Advances with respect to such Deleted Mortgage
Loans shall be remitted by the Responsible Party to the Servicer for deposit
into the Collection Account on or before the next Remittance Date.
(h) In addition to such repurchase and/or substitution obligations,
the Responsible Party shall indemnify the Depositor, any of its Affiliates, the
Servicer, the Trustee and the Class A-1 Certificate Insurer and hold such
parties harmless against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and other
costs and expenses resulting from any claim, demand, defense or assertion based
on or grounded upon, or resulting from, a breach by the Responsible Party of any
of its representations and warranties contained in the Purchase Agreement or
this Agreement.
(i) In the event that the Responsible Party shall have repurchased a
Mortgage Loan, the Repurchase Price therefor shall be deposited in the
Collection Account pursuant to Section 3.10 on or before the next Remittance
Date and upon such deposit of the Repurchase Price and receipt of a Request for
Release in the form of Exhibit J hereto, the Trustee shall release the related
Custodial File held for the benefit of the Certificateholders to such Person as
directed by the Servicer, and the Trustee shall execute and deliver at such
Person's direction such instruments of transfer or assignment prepared by such
Person, in each case without recourse, as shall be necessary to transfer title
from the Trustee. It is understood and agreed that the obligation under this
Agreement of any Person to cure, repurchase or replace any Mortgage Loan as to
which a breach has occurred and is continuing shall constitute the sole remedy
against such Persons respecting such breach available to Certificateholders, the
Depositor, the Servicer, the Class A-1 Certificate Insurer 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 Non-Qualified Mortgages.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.03 shall be made more than two years after
the Closing Date.
(b) Upon discovery by the Depositor, the Responsible Party, the
Servicer or the Trustee, or, with respect to the Group I Mortgage Loans, the
Class A-1 Certificate Insurer, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
party discovering such fact shall promptly (and in any event within five (5)
Business Days of discovery) give written notice thereof to the other parties. In
connection therewith, the Trustee shall require the Responsible Party to
repurchase the affected Mortgage Loan within 30 days of the earlier of discovery
or receipt of notice in the same manner as it would a Mortgage Loan for a breach
of representation or warranty made pursuant to Section 2.03. The Trustee shall
reconvey to the Responsible Party the Mortgage Loan to be released pursuant
hereto in the same manner, and on the same terms and conditions, as it would a
Mortgage Loan repurchased for breach of a representation or warranty contained
in Section 2.03.
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 and for
the benefit of the Class A-1 Certificate Insurer (and all references in this
Agreement for the benefit of or actions on behalf of the Class A-1
Certificateholders shall be deemed to include the Class A-1 Certificate
Insurer). The Trustee shall cooperate with all reasonable requests by the Class
A-1 Certificate Insurer regarding action to preserve or enforce the Class A-1
Certificate Insurer's rights or interests under this Agreement and the Class A-1
Certificates.
Section 2.06 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
The "Start-up Day" for purposes of the REMIC Provisions shall be the Closing
Date. The "latest possible maturity date" is the Distribution Date in September
2034, which is the Distribution Date following the latest Mortgage Loan maturity
date. Amounts paid to the Class X Certificates (prior to any reduction for any
Basis Risk Payment) shall be deemed paid from the Upper Tier REMIC in respect of
the Class X Interest to the holders of the Class X Certificates prior to
distribution of Basis Risk Payments to the Offered Certificates.
Section 2.07 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Trustee, the
Servicer, the Class A-1 Certificate Insurer and the Responsible Party 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
parties hereto, constitutes or will constitute the legal, valid and binding
agreement of the Depositor, enforceable against the Depositor in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law);
(d) No consent, approval, authorization or order of or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been made on or prior to the
Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of trust, contract
or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound; (ii)
results or will result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Depositor of any court or governmental
authority having jurisdiction over the Depositor or its subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or encumbrance which
would have a material adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of each Mortgage Note and each
Mortgage as and in the manner contemplated by this Agreement is sufficient
either (i) fully to transfer to the Trustee, for the benefit of the
Certificateholders and for the benefit of the Class A-1 Certificate Insurer, 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 and
for the benefit of the Class A-1 Certificate Insurer, 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 or to a custodian, as the case may be,
and shall inure to the benefit of the Trustee.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans. (a) For and on
behalf of the Certificateholders and for the benefit of the Class A-1
Certificate Insurer (and all reference in this Agreement for the benefit of
actions on behalf of the Class A-1 Certificateholders shall be deemed to include
the Class A-1 Certificate Insurer), the Servicer shall service and administer
the Mortgage Loans in accordance with the terms of this Agreement and the
respective Mortgage Loans and, 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 the Accepted Servicing Practices set forth above, 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 a power of attorney 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 either 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.
(e) Prior to the Servicing Transfer Date, Countrywide Servicing
shall have no obligation to perform its duties as Servicer under this Agreement.
Section 3.02 Subservicing Agreements between the Servicer and
Subservicers. (a) The Servicer may enter into subservicing agreements with
subservicers (each, a "Subservicer"), for the servicing and administration of
the 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 or the Class A-1
Certificate Insurer, without the consent of the Trustee or the Class A-1
Certificate Insurer, respectively. Any variation without the consent of the
Trustee and the Class A-1 Certificate Insurer 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, the Class A-1 Certificate Insurer 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 Offered 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 reasonable judgment of the Servicer,
maximize recovery on the related Mortgage Loan, or if such Prepayment Premium is
(i) not permitted to be collected by applicable law or the collection thereof
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 thereof is limited (1) by bankruptcy,
insolvency, moratorium, receivership or other similar laws relating to
creditor's rights or (2) 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 in 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");
provided, that the Responsible Party transferred a Tax Service Contract to the
Servicer. Each Tax Service Contract shall be assigned to the Trustee, or its
designee, at the Servicer's expense in the event that the Servicer is terminated
as Servicer of the related Mortgage Loan.
(b) To the extent that the services described in this paragraph (b)
are not otherwise provided pursuant to the Tax Service Contracts described in
paragraph (a) hereof, the Servicer undertakes to perform such functions. 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 (with respect
to taxes and assessments) and Section 3.13 (with respect to hazard insurance);
(iii) refund to Mortgagors any sums as may be determined to be overages; (iv)
apply to the restoration or repair of the Mortgaged Property in accordance with
the Section 3.13; (v) transfer to the Collection Account an 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 Eligible Accounts (such account or accounts, the
"Collection Account"), held in trust for the benefit of the Trustee. On behalf
of the Trustee, the Servicer shall deposit or cause to be deposited in the
clearing account (which account must be an Eligible Account) in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after the Servicer's receipt thereof, and shall
thereafter deposit in the Collection Account, in no event more than two Business
Days after the deposit of such funds into the clearing account, as and when
received or as otherwise required hereunder, the following payments and
collections received or made by it subsequent to the Cut-off Date (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 Liquidation Proceeds;
(iv) any amounts required to be deposited pursuant to Section
3.12 in connection with any losses realized on Permitted Investments
with respect to funds held in the Collection Account;
(v) any amounts required to be deposited by the Servicer
pursuant to the second paragraph of Section 3.13(a) in respect of
any blanket policy deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or
purchased in accordance with this Agreement; 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 to the Responsible Party, 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, the Class A-1 Certificate
Insurer 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.
(xiv) 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 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 the 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. The Servicer shall deposit in the
Collection Account and the 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,
servicing agent, custodian or sub-custodian with respect to certain of the
Permitted Investments, (ii) using Affiliates to effect transactions in certain
Permitted Investments and (iii) effecting transactions in certain Permitted
Investments.
(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 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 B:VI 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 and the Class A-1
Certificate Insurer 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, if any, 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 related 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, to proceed with
respect to the Mortgaged Property. In the event (a) the environmental inspection
report indicates that the Mortgaged Property is contaminated by hazardous or
toxic substances or wastes and (b) the Servicer determines, consistent with
Accepted Servicing Practices, to proceed with foreclosure or acceptance of a
deed in lieu of foreclosure, the Servicer shall be reimbursed for all reasonable
costs associated with such foreclosure or acceptance of a deed in lieu of
foreclosure and any related environmental clean-up costs, as applicable, from
the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse the Servicer, the Servicer shall be entitled to
be reimbursed from amounts in the Collection Account pursuant to Section 3.11.
In the event the Servicer determines not to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, the Servicer shall be reimbursed
from general collections for all Servicing Advances made with respect to the
related Mortgaged Property from the Collection Account pursuant to Section 3.11.
The Trustee shall not be responsible for any determination made by the Servicer
pursuant to this paragraph or otherwise.
Section 3.16 Release of Mortgage Files. (a) Upon the payment in full
of any Mortgage Loan, or the receipt by the Servicer of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Servicer will, within five (5) Business Days of the payment in full, notify the
Trustee by a certification (which certification shall include a statement to the
effect that all amounts received or to be received in connection with such
payment which are required to be deposited in the Collection Account pursuant to
Section 3.10 have been or will be so deposited) of a Servicing Officer and shall
request delivery to it of the Custodial File by completing a Request for
Release. Upon receipt of such certification and a 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 related 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 best efforts to cause the applicable 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.
(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 the time specified in Section 3.17(h) after title has been taken to
such REO Property, unless such 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. 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, 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 Lower Tier REMIC of such REO Property subsequent to such
period will not result in the imposition of taxes on "prohibited transactions"
as defined in Section 860F of the Code or cause either 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 Lower Tier REMIC of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or
any "net income from foreclosure property" which is subject to taxation under
Section 860G(a)(1) of the Code. Pursuant to its efforts to sell such REO
Property, the Servicer shall either itself or through an agent selected by the
Servicer protect and conserve such REO Property in the same manner and to such
extent as is customary in the locality where such REO Property is located and
may, incident to its conservation and protection of the interests of the Trustee
on behalf of the Certificateholders, rent the same, or any part thereof, as the
Servicer deems to be in the best interest of the Trustee on behalf of the
Certificateholders for the period prior to the sale of such REO Property;
provided, however, that any rent received or accrued with respect to such REO
Property qualifies as "rents from real property" as defined in Section 856(d) of
the Code.
Section 3.18 Notification of Adjustments. With respect to each
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 Class A-1 Certificate Insurer, 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 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 its
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 to the
extent 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, the
Class A-1 Certificate Insurer and the Trustee on or before March 15th of each
calendar year, commencing in 2005, an Officer's Certificate stating, as to each
signatory thereof, that (i) a review of the activities of the Servicer during
the preceding calendar year and of performance under this Agreement or a similar
agreement has been made under such officers' supervision, and (ii) to the best
of such officers' knowledge, based on such review, the Servicer has fulfilled
all of its obligations under this Agreement throughout such year, or, if there
has been a default in the fulfillment of any such obligation, specifying each
such default known to such officers and the nature and status thereof. Promptly
after receipt of such Officer's Certificate, the Depositor shall review such
Officer's Certificate and, if applicable, consult with the Servicer as to the
nature of any defaults by the Servicer in the fulfillment of any of the
Servicer's obligations. The obligations of the Servicer under this Section apply
to each Servicer that serviced during the applicable period, whether or not such
Servicer is acting as the 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 2005, the Servicer, at its expense, shall cause a nationally
recognized firm of independent certified public accountants to furnish to the
Depositor, the Rating Agencies, the Class A-1 Certificate Insurer 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 each Servicer that serviced during the applicable period, whether or not such
Servicer is acting as the 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 the 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 held by it and
otherwise use its best efforts to effect the orderly and efficient transfer of
the 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;
provided, however, the Servicer is not required to pay Compensating Interest
during November 2004 or December 2004.
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act. (a) With
respect to each Mortgage Loan, the Servicer shall fully furnish, in accordance
with the Fair Credit Reporting Act and its implementing regulations, accurate
and complete information (e.g., favorable and unfavorable) on the related
Mortgagor credit files to the three national credit repositories, on a monthly
basis.
(b) The Servicer shall comply with all provisions of the Privacy
Laws, relating to the Mortgage Loans, the related borrowers and any "nonpublic
personal information" (as defined in the Privacy Laws) received by the Servicer
incidental to the performance of its obligations under this Agreement,
including, maintaining adequate information security procedures to protect such
nonpublic personal information and providing all privacy notices required by the
Privacy Laws.
Section 3.27 Excess Reserve Fund Account; Distribution Account. (a)
The Trustee shall establish and maintain the Excess Reserve Fund Account, on
behalf of the Class X Certificateholders, to receive any Basis Risk Payment and
to pay to the Offered Certificateholders Basis Risk Carry Forward Amounts.
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class of Offered Certificates, the Trustee shall (1)
withdraw from the Distribution Account and deposit in the Excess Reserve Fund
Account, as set forth in Section 4.02(a)(iii)(I), the lesser of the Class X
Distributable Amount (to the extent remaining after the distributions specified
in Sections 4.02(a)(iii)(A)-(H)) 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 Offered Certificates the applicable Basis
Risk Carry Forward Amounts. Such payments shall be allocated to those Classes
based upon the amount of Basis Risk Carry Forward Amount owed to each such Class
and shall be paid in the priority set forth in Sections 4.02(a)(iii)(J)-(K). In
the event that the Class Certificate Balance of any Class of Certificates is
reduced because of Applied Realized Loss Amounts, the applicable
Certificateholders will not be entitled to receive Basis Risk Carry Forward
Amounts on the written down amounts on such Distribution Date or any future
Distribution Dates (except to the extent such Class Certificate Balance is
increased as a result of any Subsequent Recoveries), even if funds are otherwise
available for distribution.
The 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 either Trust REMIC created pursuant to this Agreement. The
beneficial owners of the Excess Reserve Fund Account are the Class X
Certificateholders. For all federal income tax purposes, amounts transferred by
the Upper Tier REMIC to the Excess Reserve Fund Account shall be treated as
distributions by the Trustee to the Class X Certificateholders in respect of the
Class X Interest and then contributed by the Class X Certificateholders to the
Excess Reserve Fund Account.
Any Basis Risk Carry Forward Amounts distributed by the Trustee to
the Offered 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 Offered Certificates. In addition, the Trustee shall account
for the rights of Holders of each Class of Offered Certificates to receive
payments of Basis Risk Carry Forward Amounts as rights in a separate limited
recourse interest rate cap contract written by the Class X Certificateholders in
favor of Holders of each such Class.
Notwithstanding any provision contained in this Agreement, the
Trustee shall not be required to make any payments from the Excess Reserve Fund
Account except as expressly set forth in this Section 3.27(a).
(b) The Trustee shall establish and maintain the Distribution
Account on behalf of the Certificateholders. The Trustee shall, promptly upon
receipt on the Business Day received, deposit in the Distribution Account and
retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Trustee
pursuant to Section 3.11;
(ii) any amount deposited by the Servicer pursuant to Section
3.12(b) in connection with any losses on Permitted Investments; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that the Servicer shall remit any amount not required
to be remitted, it may at any time direct the Trustee in writing to withdraw
such amount from the Distribution Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering notice to the
Trustee which describes the amounts deposited in error in the Distribution
Account. All funds deposited in the Distribution Account shall be held by the
Trustee in trust for the Certificateholders until disbursed in accordance with
this Agreement or withdrawn in accordance with 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.
Section 3.29 Transfer of Servicing for the Mortgage Loans. Prior to
the Servicing Transfer Date, New Century shall have complied with each of the
servicing transfer requirements in accordance with customary industry
procedures.
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 the 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
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.
(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
Officers' Certificate of the Servicer delivered to the Trustee.
(e) Except as otherwise provided herein, the Servicer shall be
entitled to reimbursement pursuant to Section 3.11 for Servicing Advances from
recoveries from the related Mortgagor or from all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds and Condemnation Proceeds)
with respect to the related Mortgage Loan.
Section 4.02 Priorities of Distribution. (a) On each Distribution
Date, the Trustee shall make the disbursements and transfers from amounts then
on deposit in the Distribution Account in the following order of priority and to
the extent of the Available Funds remaining:
(i) to the holders of each Class of Offered Certificates and to the
Class A-1 Certificate Insurer in the following order of priority:
(A) concurrently:
(1) from the Interest Remittance Amount related to the
Group I Mortgage Loans pursuant to the allocation set forth in
clauses (iv) and (v) of this Section 4.02(a), sequentially,
(x) to the Class A-1 Certificate Insurer, any
accrued and unpaid Premium Amount payable to the Class
A-1 Certificate Insurer for such Distribution Date;
(y) to the Class A-1 Certificates, the related
Accrued Certificate Interest Distribution Amounts and
Unpaid Interest Amounts for the Class A-1 Certificates;
and
(z) to the Class A-1 Certificate Insurer, any
Reimbursement Amount for prior unreimbursed draws under
the Class A-1 Certificate Insurance Policy for either
interest or principal payments to the Class A-1
Certificates; and
(2) from the Interest Remittance Amount related to the
Group II Mortgage Loans pursuant to the allocation set forth
in clauses (iv) and (v) of this Section 4.02(a), to the Class
A-2 Certificates, the related Accrued Certificate Interest
Distribution Amounts and Unpaid Interest Amounts for the Class
A-2 Certificates;
provided, that if the Interest Remittance Amount for either
Loan Group is insufficient to make the related payments set
forth clause (1) or (2) above, any Interest Remittance Amount
relating to the other Loan Group remaining after payment of
the related Accrued Certificate Interest Distribution Amounts
and Unpaid Interest Amounts (and, if applicable, payments and
reimbursements to the Class A-1 Certificate Insurer) will be
available to cover such shortfall;
(B) from any remaining Interest Remittance Amounts, to the Class
M-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(C) from any remaining Interest Remittance Amounts, to the Class
M-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(D) from any remaining Interest Remittance Amounts, to the Class
M-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(E) from any remaining Interest Remittance Amounts, to the Class
M-4 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(F) from any remaining Interest Remittance Amounts, to the Class
M-5 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(G) from any remaining Interest Remittance Amounts, to the Class
B-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
and
(H) from any remaining Interest Remittance Amounts, to the Class
B-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(ii) (A) on each Distribution Date (a) before the Stepdown
Date or (b) with respect to which a Trigger Event is in effect, to
the holders of the related Class or Classes of Offered Certificates
then entitled to distributions of principal and to the Class A-1
Certificate Insurer as set forth below, from amounts remaining on
deposit in the Distribution Account after making distributions
pursuant to clause (i) above, an amount equal to the Principal
Distribution Amount in the following order of priority:
(a) to the Class A Certificates, allocated as described
in Section 4.02(c), until the respective Class Certificate
Balances thereof are reduced to zero;
(b) to the Class A-1 Certificate Insurer, the amount of
any remaining Reimbursement Amount then owing to it on account
of a prior drawing relating to principal on the Class A-1
Certificates;
(c) sequentially to the Class X-0, Xxxxx X-0, Class M-3,
Class M-4, Class M-5, Class B-1 and Class B-2 Certificates, in
that order, until the respective Class Certificate Balances
are reduced to zero;
(B) on each Distribution Date (a) on and after the related Stepdown
Date and (b) as long as a Trigger Event is not in effect, to the holders
of the related Class or Classes of Offered Certificates then entitled to
distribution of principal and to the Class A-1 Certificate Insurer, from
amounts remaining on deposit in the Distribution Account after making
distributions pursuant to clause (i) above, an amount equal to, the
Principal Distribution Amount in the following amounts and order of
priority:
(a) to the Class A Certificates, the lesser of (x) the
Principal Distribution Amount and (y) the Class A Principal
Distribution Amount, allocated as described in Section
4.02(c), until the respective Class Certificate Balances
thereof are reduced to zero;
(b) to the Class A-1 Certificate Insurer, the amount of
any remaining Reimbursement Amount then owing to the Class A-1
Certificate Insurer on account of a prior drawing relating to
principal on the Class A-1 Certificates;
(c) to the Class M-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above and to the Class A-1 Certificate Insurer in
clause (ii)(B)((b) above and (y) the Class M-1 Principal
Distribution Amount to the Class M-1 Certificates, until the
Class Certificate Balance thereof has been reduced to zero;
(d) to the Class M-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above, to the Class A-1 Certificate Insurer in
clause (ii)(B)((b) above and to the Class M-1 Certificates in
clause (ii)(B)(c) above and (y) the Class M-2 Principal
Distribution Amount, until the Class Certificate Balance
thereof has been reduced to zero;
(e) to the Class M-3 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above, to the Class A-1 Certificate Insurer in
clause (ii)(B)((b) above, to the Class M-1 Certificates in
clause (ii)(B)(c) above and to the Class M-2 Certificates in
clause (ii)(B)(d) above, and (y) the Class M-3 Principal
Distribution Amount, until the Class Certificate Balance
thereof has been reduced to zero;
(f) to the Class M-4 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above, to the Class A-1 Certificate Insurer in
clause (ii)(B)(b) above, to the Class M-1 Certificates in
clause (ii)(B)(c) above, to the Class M-2 Certificates in
clause (ii)(B)(d) above, to the Class M-3 Certificates in
clause (ii)(B)(e) above and (y) the Class M-4 Principal
Distribution Amount, until the Class Certificate Balance
thereof has been reduced to zero;
(g) to the Class M-5 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above, to the Class A-1 Certificate Insurer in
clause (ii)(B)(b) above, to the Class M-1 Certificates in
clause (ii)(B)(c) above, to the Class M-2 Certificates in
clause (ii)(B)(d) above, to the Class M-3 Certificates in
clause (ii)(B)(e) above and to the Class M-4 Certificates in
clause (ii)(B)(f) above and (y) the Class M-5 Principal
Distribution Amount, until the Class Certificate Balance
thereof has been reduced to zero;
(h) to the Class B-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above, to the Class A-1 Certificate Insurer in
clause (ii)(B)(b) above, to the Class M-1 Certificates in
clause (ii)(B)(c) above, to the Class M-2 Certificates in
clause (ii)(B)(d) above, to the Class M-3 Certificates in
clause (ii)(B)(e) above, to the Class M-4 Certificates in
clause (ii)(B)(f) above and to the Class M-5 in clause
(ii)(B)(g) above and (y) the Class B-1 Principal Distribution
Amount, until the Class Certificate Balance thereof has been
reduced to zero; and
(i) to the Class B-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the
amount distributed to the Class A Certificates in clause
(ii)(B)(a) above, to the Class A-1 Certificate Insurer in
clause (ii)(B)(b) above, to the Class M-1 Certificates in
clause (ii)(B)(c) above, to the Class M-2 Certificates in
clause (ii)(B)(d) above, to the Class M-3 Certificates in
clause (ii)(B)(e) above, to the Class M-4 Certificates in
clause (ii)(B)(f) above, to the Class M-5 in clause (ii)(B)(g)
above and to the Class B-1 Certificates in clause (ii)(B)(h)
above and (y) the Class B-2 Principal Distribution Amount,
until the Class Certificate Balance thereof has been reduced
to zero.
(iii) any amount remaining after the distributions in
clauses (i) and (ii) above, plus as specifically indicated
below, from amounts on deposit in the Excess Reserve Account,
shall be distributed in the following order of priority:
(A) to the Class A-1 Certificate Insurer, to the
extent of any remaining Reimbursement Amount or Premium
Amount then owing to it;
(B) to the holders of the Class M-1 Certificates,
any Unpaid Interest Amount for such Class;
(C) to the holders of the Class M-2 Certificates,
any Unpaid Interest Amount for such Class;
(D) to the holders of the Class M-3 Certificates,
any Unpaid Interest Amount for such Class;
(E) to the holders of the Class M-4 Certificates,
any Unpaid Interest Amount for such Class;
(F) to the holders of the Class M-5 Certificates,
any Unpaid Interest Amount for such Class;
(G) to the holders of the Class B-1 Certificates,
any Unpaid Interest Amount for such Class;
(H) to the holders of 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 for such Distribution Date;
(J) from funds on deposit in the Excess Reserve
Fund Account (not including any Interest Rate Corridor
Payments included in that account), an amount equal to
any Basis Risk Carry Forward Amount with respect to the
Offered Certificates for such Distribution Date to the
Offered Certificates in the same order and priority in
which Accrued Certificate Interest Distribution Amount
is allocated among those Classes of Certificates with
the allocation to the Class A Certificates being pro
rata based on their respective Class Certificate
Balances;
(K) sequentially, (1) from any Interest Rate
Corridor Payments on deposit in the Excess Reserve Fund
Account with respect to such Distribution Date, an
amount equal to any unpaid remaining Basis Risk Carry
Forward Amount with respect to the Class A-1
Certificates for such Distribution Date, to the Class
A-1 Certificates up to their unpaid remaining Basis Risk
Carry Forward Amount, then (2) from any remaining
Interest Rate Corridor Payments on deposit in the Excess
Reserve Fund Account with respect to such Distribution
Date, an amount equal to any unpaid remaining Basis Risk
Carry Forward Amounts with respect to the Class M and
Class B Certificates for such Distribution Date, pro
rata, based on their respective Class Certificate
Balances, to the Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class B-1 and Class B-2 Certificates, in
each case, up to their respective unpaid remaining Basis
Risk Carry Forward Amounts;
(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)(iii)(A)-(K) and
any remaining Interest Rate Corridor Payments; and
(M) to the holders of the Class R Certificates,
any remaining amount.
(iv) Solely for purposes of interest allocation calculations,
the portion of the interest component attributable to Group I
Mortgage Loans will be allocated:
(A) first, to the Class A-1 Certificates and to
the Class A-1 Certificate Insurer, in accordance with
the priorities set forth in Section 4.02(a)(i)(A)(1),
the amount of any Premium Amount then owing to the Class
A-1 Certificate Insurer, the Accrued Certificate
Interest Distribution Amount and any Unpaid Interest
Amount for the Class A-1 Certificates, and the amount of
any Reimbursement Amount then owing to the Class A-1
Certificate Insurer; and
(B) second, to the Class A-2 Certificates, the
Accrued Certificate Interest Distribution Amount and any
Unpaid Interest Amount for the Class A-2 Certificates,
to the extent not otherwise previously paid from the
interest component of Available Funds attributable to
Group II Mortgage Loans;
(v) Solely for purposes of interest allocation calculations,
the portion of the interest component attributable to Group II
Mortgage Loans will be allocated:
(A) first, to the Class A-2 Certificates, the
Accrued Certificate Interest Distribution Amount and any
Unpaid Interest Amount for the Class A-2 Certificates;
and
(B) second, to the Class A-1 Certificates and to
the Class A-1 Certificate Insurer, in accordance with
the priorities set forth in Section 4.02(a)(i)(A)(1),
the Accrued Certificate Interest Distribution Amount and
any Unpaid Interest Amount for the Class A-1
Certificates, and the amount of any Premium Amount and
any Reimbursement Amount then owing to the Class A-1
Certificate Insurer to the extent not otherwise
previously paid from the interest component of Available
Funds attributable to Group I Mortgage Loans.
If on any Distribution Date, as a result of the foregoing allocation
rules, any Class of Class A Certificates does not receive the related Accrued
Certificate Interest Distribution Amount or the related Unpaid Interest Amount,
if any, then that unpaid amount will be recoverable by the holders of those
Classes, with interest thereon, on future Distribution Dates, as an Unpaid
Interest Amount, subject to the priorities described above. In the event the
Class Certificate Balance of any Class of Offered Certificates has been reduced
to zero, that Class of Certificates shall no longer be entitled to receive any
related unpaid Basis Risk Carry Forward Amounts except to the extent the Class
Certificate Balance is increased as a result of any Subsequent Recovery.
(b) On each Distribution Date, all amounts representing Prepayment
Premiums from the Mortgage Loans received during the related Prepayment Period
shall be distributed by the Trustee to the holders of the Class P Certificates.
(c) All principal distributions to the Holders of the Class A
Certificates on any Distribution Date shall be allocated among the Class A-1
Certificates, on the one hand, and the Class A-2 Certificates, on the other
hand, on a pro rata basis, based on the Class A Principal Allocation Percentage
for the Class A-1 Certificates and the Class A-2 Certificates, as applicable,
for such Distribution Date. However, if the Class Certificate Balances of the
Class A-1 or Class A-2 Certificates are reduced to zero, then the remaining
amount of principal distributions distributable to the Class A Certificates on
such Distribution Date, and the amount of such principal distributions
distributable on all subsequent Distribution Dates, shall be distributed to the
Holders of the other Class A Certificates remaining outstanding, in accordance
with the principal distribution allocations described in this Section 4.02(c),
until their Class Certificate Balances have been reduced to zero (with any
remaining amounts of principal distributions allocable to the Class A-1
Certificates distributed to the Class A-1 Certificate Insurer as reimbursement
for unreimbursed draws under the Class A-1 Certificate Insurance Policy in
respect of Class A-1 Realized Loss Amounts) and if the Class Certificate
Balances of the Class A-1 Certificates are reduced to zero and the Class A-1
Certificate Insurer has been reimbursed for draws under the Class A-1
Certificate Insurance Policy, then the remaining amount of principal
distributions on the Class A Certificates shall be distributed to the holders of
the Class A-2 Certificates remaining outstanding, in accordance with the
principal distribution allocations described in this Section 4.02(c), until
their Class Certificate Balances have been reduced to zero.
Any payments of principal to the Class A-1 Certificates shall be
made first from payments relating to the Group I Mortgage Loans, and any
payments of principal to the Class A-2 Certificates will be made first from
payments relating to the Group II Mortgage Loans.
In the event that the Class Certificate Balances of the Class M and
Class B Certificates and the principal balance of the Class X Certificates have
been reduced to zero, any principal distributions to the Class A Certificates
shall be allocated pro rata to the Class A-1 and Class A-2 Certificates based on
their respective Class Certificate Balances.
(d) On any Distribution Date, any Relief Act Interest Shortfalls and
Net Prepayment Interest Shortfalls for such Distribution Date will be allocated,
pro rata, as a reduction of the Accrued Certificate Interest Distribution 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, the Class A-1 Certificate
Insurer 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 Amount covered by withdrawals from the Excess Reserve Fund
Account on such Distribution Date;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest, including any Basis Risk Carry Forward Amount not covered by
amounts in the Excess Reserve Fund Account;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) the Pool Stated Principal Balance for the following Distribution
Date;
(vi) the amount of the Expense Fees paid to or retained by the
Servicer or the Trustee with respect to such Distribution Date, in the
aggregate and separately stated;
(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 on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on such Distribution Date);
(xv) in the aggregate and for each Class of Certificates, the
aggregate amount of Applied Realized Loss Amounts incurred during the
preceding calendar month and aggregate Applied Realized Loss Amounts
through such Distribution Date;
(xvi) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the Certificateholders
with respect to Unpaid Interest Amounts;
(xvii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xviii) Prepayment Premiums collected by the Servicer;
(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; and
(xxii) the amount of any payment of principal or of interest on the
Class A-1 Certificates to be paid from funds transferred from the Policy
Payment Account.
(b) The Trustee's responsibility for providing the above statement
to the Certificateholders, each Rating Agency, the Servicer, the Responsible
Party, the Class A-1 Certificate Insurer 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) 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), (a)(ii) and (a)(vi) 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 applicable Servicer that
serviced the Mortgage Loans for the period of time to which the monthly
remittance advice statement relates shall furnish to the Trustee 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"). Countrywide Servicing shall not be responsible to provide the monthly
remittance advice until the Reporting Date that occurs in the month following
the Servicing Transfer Date with respect to each Mortgage Loan transferred and
prior to such time New Century will provide the monthly remittance advice.
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) with respect to each Mortgage Loan, the amount of any Realized
Losses for such Mortgage Loan; and
(viii) 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 7th 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 on Exhibit L 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 Offered 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 Offered Certificates for
each Interest Accrual Period shall be determined by the Trustee on each LIBOR
Determination Date so long as the Offered Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the 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 Offered 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. Applied
Realized Loss Amounts will be allocated to the most junior Class of Subordinated
Certificates then outstanding in reduction of the Class Certificate Balance
thereof. In the event Applied Realized Loss Amounts are allocated to any Class
of Offered 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 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 Certificates).
Section 4.06 The Class A-1 Certificate Insurance Policy. (a) Not
later than two (2) Business Days prior to each Distribution Date, the Trustee
shall determine with respect to such Distribution Date, the amount to be on
deposit in the Distribution Account on such Distribution Date to the extent of
Available Funds, excluding the amount of any Class A-1 Certificate Insured
Amount and any Preference Amount.
(b) If on any Distribution Date there is a Class A-1 Certificate
Insured Amount, the Trustee shall complete a notice in the form of Exhibit A to
the Class A-1 Certificate Insurance Policy and submit such notice to the Class
A-1 Certificate Insurer no later than 12:00 noon New York City time on the
second Business Day preceding such Distribution Date as a claim for such Class
A-1 Certificate Insured Amount.
(c) The Trustee shall establish a separate Eligible Account for the
benefit of Holders of the Class A-1 Certificates and the Class A-1 Certificate
Insurer referred to herein as the "Policy Payment Account" over which the
Trustee shall have exclusive control and sole right of withdrawal. The Trustee
shall deposit upon receipt any amount paid under the Class A-1 Certificate
Insurance Policy in the Policy Payment Account and distribute such amount only
for purposes of payment to the Class A-1 Certificateholders of a Class A-1
Certificate Insured Amount or a Preference Amount for which a claim was made and
such amount may not be applied to satisfy any costs, expenses or liabilities of
the Servicer, the Responsible Party, the Trustee or the Trust Fund or to pay any
other Class of Certificates. Amounts paid under the Class A-1 Certificate
Insurance Policy, to the extent needed to pay any Class A-1 Certificate Insured
Amount or any Preference Amount, shall be transferred to the Distribution
Account on the related Distribution Date and disbursed by the Trustee to the
Class A-1 Certificateholders in accordance with Section 4.02. It shall not be
necessary for such payments to be made by checks or wire transfers separate from
the checks or wire transfers used to pay other distributions to the Class A-1
Certificateholders with other funds available to make such payment. However, the
amount of any payment of principal or of interest on the Class A-1 Certificates
to be paid from funds transferred from the Policy Payment Account shall be noted
as provided in paragraph (d) below and in the statement to be furnished to
Holders of the Class A-1 Certificates pursuant to Section 4.03(a). Funds held in
the Policy Payment Account shall not be invested. Any funds remaining in the
Policy Payment Account on the first Business Day following a Distribution Date
shall be returned to the Class A-1 Certificate Insurer pursuant to the written
instructions of the Class A-1 Certificate Insurer by the end of such Business
Day.
(d) The Trustee shall keep a complete and accurate record of the
amount of interest and principal paid in respect of any Class A-1 Certificate
from moneys received under the Class A-1 Certificate Insurance Policy. The Class
A-1 Certificate Insurer shall have the right to inspect such records at
reasonable times during normal business hours upon one Business Day's prior
notice to the Trustee.
(e) In the event that the Trustee has received a certified copy of
an order of the appropriate court that any distribution on the Class A-1
Certificates has been voided in whole or in part as a preference payment under
applicable bankruptcy law, the Trustee shall so notify the Class A-1 Certificate
Insurer, shall comply with the provisions of the Class A-1 Certificate Insurance
Policy to obtain payment by the Class A-1 Certificate Insurer of the amount of
such voided distribution constituting a Preference Amount, and shall, at the
time it provides notice to the Class A-1 Certificate Insurer, notify, by mail to
the Class A-1 Certificateholders of the affected Certificates that, in the event
any Class A-1 Certificateholder's distribution is so recovered as a preference
payment, such Class A-1 Certificateholder will be entitled to payment of an
amount constituting a Preference Amount pursuant to the Class A-1 Certificate
Insurance Policy, a copy of which shall be made available through the Trustee,
the Class A-1 Certificate Insurer or the Class A-1 Certificate Insurer's fiscal
agent, if any, and the Trustee shall furnish to the Class A-1 Certificate
Insurer or its fiscal agent, if any, its records evidencing the payments which
have been made by the Trustee and subsequently recovered from the Class A-1
Certificateholders, and dates on which such payments were made.
(f) The Trustee shall promptly notify the Class A-1 Certificate
Insurer and its fiscal agent of any proceeding or the institution of any action,
of which a Responsible Officer of the Trustee has actual knowledge, seeking the
avoidance as a preferential transfer under applicable bankruptcy, insolvency,
receivership or similar law (a "Preference Claim") of any distribution made with
respect to the Class A-1 Certificates. Each Class A-1 Certificateholder, by its
purchase of Class A-1 Certificates, the Servicer and the Trustee agree that, the
Class A-1 Certificate Insurer (so long as no Class A-1 Certificate Insurer
Default exists) may at any time during the continuation of any proceeding
relating to a Preference Claim direct all matters relating to such Preference
Claim, including, without limitation, (i) the direction of any appeal of any
order relating to such Preference Claim and (ii) the posting of any surety,
supersedes or performance bond pending any such appeal. In addition and without
limitation of the foregoing, the Class A-1 Certificate Insurer shall be
subrogated to, and each Class A-1 Certificateholder and the Trustee hereby
delegates and assigns to the Class A-1 Certificate Insurer, to the fullest
extent permitted by law, the rights of the Trustee and each Class A-1
Certificateholder in the conduct of any such Preference Claim, including,
without limitation, all rights of any party to any adversary proceeding or
action with respect to any court order issued in connection with any such
Preference Claim.
(g) The Trustee shall, upon retirement of the Class A-1
Certificates, furnish to the Class A-1 Certificate Insurer a notice of such
retirement, and, upon retirement of the Class A-1 Certificates and the
expiration of the term of the Class A-1 Certificate Insurance Policy, surrender
the Class A-1 Certificate Insurance Policy to the Class A-1 Certificate Insurer
for cancellation.
(h) The Trustee will hold the Class A-1 Certificate Insurance Policy
in trust as agent for the Holders of the Class A-1 Certificates for the purpose
of making claims thereon and distributing the proceeds thereof. Neither the
Class A-1 Certificate Insurance Policy nor the amounts paid on the Class A-1
Certificate Insurance Policy will constitute part of the Trust Fund created by
this Agreement. Each Holder of Class A-1 Certificates, by accepting its Class
A-1 Certificates, appoints the Trustee as attorney in fact for the purpose of
making claims on the Class A-1 Certificate Insurance Policy.
Section 4.07 Effect of Payments by the Class A-1 Certificate
Insurer; Subrogation. Anything herein to the contrary notwithstanding, any
payment with respect to principal of or interest on the Class A-1 Certificates
which is made with moneys received pursuant to the terms of the Class A-1
Certificate Insurance Policy shall not be considered payment of the Class A-1
Certificates from the Trust Fund (other than for federal income tax purposes).
The Depositor, the Servicer, the Responsible Party and the Trustee acknowledge,
and each Holder by its acceptance of a Class A-1 Certificate agrees, that
without the need for any further action on the part of the Class A-1 Certificate
Insurer, the Depositor, the Servicer, the Responsible Party, the Trustee or the
Certificate Registrar (a) to the extent the Class A-1 Certificate Insurer makes
payments, directly or indirectly, on account of principal of or interest on the
Class A-1 Certificates to the Holders of such Class A-1 Certificates, the Class
A-1 Certificate Insurer will be fully subrogated to, and each Class A-1
Certificateholder, the Servicer and the Trustee hereby delegate and assign to
the Class A-1 Certificate Insurer, to the fullest extent permitted by law, the
rights of such Holders to receive such principal and interest from the Trust
Fund, including, without limitation, any amounts due to the Class A-1
Certificateholders in respect of securities law violations arising from the
offer and sale of the Class A-1 Certificates, and (b) the Class A-1 Certificate
Insurer shall be paid such amounts from the sources and in the manner provided
herein for the payment of such amounts and as provided in this Agreement. The
Trustee and the Servicer shall cooperate in all respects with any reasonable
request by the Class A-1 Certificate Insurer for action to preserve or enforce
the Class A-1 Certificate Insurer's rights or interests under this Agreement
without limiting the rights or affecting the interests of the Holders as
otherwise set forth herein.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral multiples
in excess thereof (except that one Certificate in each Class may be issued in a
different amount) and aggregate denominations per Class set forth in the
Preliminary Statement.
The Depositor hereby directs the Trustee to register the Class X 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.
The Depositor shall provide, or cause to be provided, to the Trustee
on a continuous basis, an adequate inventory of Certificates to facilitate
transfers.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Trustee shall maintain, or cause to be
maintained in accordance with the provisions of Section 5.06, a Certificate
Register for the Trust Fund in which, subject to the provisions of subsections
(b) and (c) below and to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the name
of the designated transferee or transferees, one or more new Certificates of the
same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
holder thereof or his attorney duly authorized in writing. In the event, the
Depositor or an Affiliate transfers the Class X Certificates, or a portion
thereof, to another Affiliate, it shall notify the Trustee in writing of the
affiliated status of the transferee. The Trustee shall have no liability
regarding the lack of notice with respect thereto.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. Except
with respect to (i) the transfer of the Class X, 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 (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 to effect such transfer, (ii) in the case of an
ERISA-Restricted Certificate other than a Residual Certificate or a Class P
Certificate that has been the subject of an ERISA-Qualifying Underwriting and
the purchaser is an insurance company, a representation that the purchaser is an
insurance company that is purchasing such Certificates with funds contained in
an "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60 or (iii) in the case of any such ERISA-Restricted Certificate
other than a Residual Certificate or Class P Certificate presented for
registration in the name of an employee benefit plan subject to Title I of
ERISA, a plan or arrangement subject to Section 4975 of the Code (or comparable
provisions of any subsequent enactments), or a plan subject to Similar Law, or a
trustee of any such plan or any other person acting on behalf of any such plan
or arrangement or using such plan's or arrangement's assets, an Opinion of
Counsel satisfactory to the Trustee and the Depositor, which Opinion of Counsel
shall not be an expense of the Trustee, the Depositor, the Servicer or the Trust
Fund, addressed to the Trustee, to the effect that the purchase or holding of
such ERISA-Restricted Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the Code or
any Similar Law and will not subject the Trustee or the Servicer to any
obligation in addition to those expressly undertaken in this Agreement or to any
liability. For purposes of the preceding sentence, with respect to an
ERISA-Restricted Certificate that is not a Private Certificate or a Residual
Certificate, in the event the representation letter referred to in the preceding
sentence is not furnished, such representation shall be deemed to have been made
to the Trustee by the transferee's (including an initial acquirer's) acceptance
of the ERISA-Restricted Certificates. Notwithstanding anything else to the
contrary herein, (a) any purported transfer of an ERISA Restricted Certificate,
other than a Class P Certificate or 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.
None of the Class R or Class P Certificates may be sold to any
employee benefit plan subject to Title I of ERISA, any plan subject to Section
4975 of the Code, or any plan subject to any Similar Law or any person investing
on behalf of or with plan assets of such plan.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Trustee shall be under no liability to any Person for
any registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee in the form attached hereto as Exhibit G;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and the Rule 144A Letter. The Trustee shall be entitled but
not obligated to recover from any Holder of a Residual Certificate that
was in fact not a Permitted Transferee at the time it became a Holder or,
at such subsequent time as it became other than a Permitted Transferee,
all payments made on such Residual Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of
such Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Trustee, the
Responsible Party or the Servicer, to the effect that the elimination of such
restrictions will not cause either Trust REMIC to fail to qualify as a REMIC at
any time that the Certificates are outstanding or result in the imposition of
any tax on the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any Ownership Interest in a Residual Certificate hereby
consents to any amendment of this Agreement which, based on an Opinion of
Counsel furnished to the Trustee, is reasonably necessary (a) to ensure that the
record ownership of, or any beneficial interest in, a Residual Certificate is
not transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor, or (y) the Depositor notifies the
Depository of its intent to terminate the book-entry system through the
Depository 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, the Class
A-1 Certificate Insurer 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, the Class A-1 Certificate Insurer and any agent of the Servicer, the
Depositor, the Class A-1 Certificate Insurer 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,
the Class A-1 Certificate Insurer 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.
Section 5.07 Rights of the Class A-1 Certificate Insurer to Exercise
Rights of Class A-1 Certificateholders. (a) By accepting its Class A-1
Certificate, each Class A-1 Certificateholder agrees that, unless a Class A-1
Certificate Insurer Default exists, the Class A-1 Certificate Insurer shall be
deemed to be the Class A-1 Certificateholders for all purposes (other than with
respect to the receipt of payment on the Class A-1 Certificates) and shall have
the right to exercise all rights, including voting rights, of the Class A-1
Certificateholders under this Agreement and under the Class A-1 Certificates
without any further consent of the Class A-1 Certificateholders.
(b) All notices, statement reports, certificates or opinions
required by this Agreement to be sent to any Class A-1 Certificateholder shall
also be sent to the Class A-1 Certificate Insurer.
Section 5.08 Class A-1 Certificate Insurer Default. Notwithstanding
anything elsewhere in this Agreement or in the Certificates to the contrary, if
a Class A-1 Certificate Insurer Default exists, or if and to the extent the
Class A-1 Certificate Insurer has delivered its written renunciation of all of
its rights under this Agreement, all provisions of this Agreement which (a)
permit the Class A-1 Certificate Insurer to exercise rights of the Class A-1
Certificateholders, (b) restrict the ability of the Certificateholders, the
Servicer or the Trustee to act without the consent or approval of the Class A-1
Certificate Insurer, (c) provide that a particular act or thing must be
acceptable to the Class A-1 Certificate Insurer, (d) permit the Class A-1
Certificate Insurer to direct (or otherwise to require) the actions of the
Trustee, the Servicer or the Certificateholders, (e) provide that any action or
omission taken with the consent, approval or authorization of the Class A-1
Certificate Insurer shall be authorized hereunder or shall not subject the party
taking or omitting to take such action to any liability hereunder or (f) have a
similar effect, shall be of no further force and effect and the Trustee shall
administer the Trust Fund and perform its obligations hereunder solely for the
benefit of the Holders of the Certificates. Nothing in the foregoing sentence,
nor any action taken pursuant thereto or in compliance therewith, shall be
deemed to have released the Class A-1 Certificate Insurer from any obligation or
liability it may have to any party or to the Class A-1 Certificateholders
hereunder, under any other agreement, instrument or document (including, without
limitation, the Class A-1 Certificate Insurance Policy) or under applicable law.
At such time as the Class A-1 Certificates are no longer outstanding hereunder,
and no amounts owed to the Class A-1 Certificate Insurer hereunder remain
unpaid, the Class A-1 Certificate Insurer's rights hereunder shall terminate.
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 corporation or 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 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 provided, further, that such merger, consolidation or
succession does not adversely affect the then current rating or ratings on the
Offered 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 or 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 2.03 for the benefit of the
Certificateholders) that it may deem necessary or desirable in respect of this
Agreement and the rights and duties of the parties hereto and interests of the
Trustee and the Certificateholders hereunder. In such event, the legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund, and the Depositor, and the
Servicer shall be entitled to be reimbursed therefor out of the Collection
Account.
Section 6.04 Limitation on Resignation of the Servicer. The Servicer
shall not assign this Agreement or resign from the obligations and duties hereby
imposed on it except (i) by mutual consent of the Servicer, the Depositor 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 Responsible Party, the Depositor (and
any Affiliate, director, officer, employee or agent of the Depositor), the Class
A-1 Certificate Insurer, the Trustee and the Servicer that did not service
during the applicable period, and hold each of them harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain in any way related to any breach by the Servicer of
(i) any of its representations and warranties referred to in Section 2.03(a),
(ii) any error in any tax or information return prepared by the Servicer, or
(iii) the failure of the Servicer to perform its duties and service the Mortgage
Loans in compliance with the terms of this Agreement. The Servicer immediately
shall notify the Depositor, the Class A-1 Certificate Insurer, the Trustee and
the Servicer that did not service during the applicable period 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 Responsible Party, the
Depositor or the Trustee in respect of such claim.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. "Event of Default," wherever used
herein, means any one of the following events:
(a) any failure by the Servicer to remit to the Trustee any payment
required to be made under the terms of this Agreement which continues unremedied
for a period of one Business Day after the earlier of the date upon which the
Servicer obtains actual knowledge of such failure and 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, the Class A-1 Certificate Insurer 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 fifteen in the
case of a failure to pay any premium for any insurance policy required to be
maintained under this Agreement) after the earlier of (i) the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by the Depositor or by the Trustee, or to the
Servicer, the Depositor and the Trustee by Certificateholders of Certificates
entitled to at least 25% of the Voting Rights and (ii) actual knowledge of such
failure by a Servicing Officer of the Servicer; provided, however, that in the
case of a failure or breach that cannot be cured within 30 days after notice or
actual knowledge by the Servicer, the cure period may be extended for an
additional 30 days upon delivery by the Servicer to the Trustee of a certificate
to the effect that the Servicer believes in good faith that the failure or
breach can be cured within such additional time period and the Servicer is
diligently pursuing remedial action; or
(c) the failure by the Servicer in any month, (i) 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 the earlier of the date upon which the Servicer obtains actual
knowledge of such failure and the date upon which written notice of such failure
shall have been given to the Servicer.
(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 earlier of the date upon which the Servicer obtains
actual knowledge of such failure and the date upon which written notice of such
breach is given to the Servicer by the Trustee, by the Depositor or the Class
A-1 Certificate Insurer, 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 a Servicer by any Rating Agency which results in the inability of a
Servicer to act as a primary or special servicer for or 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 (h) 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 a
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 a 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 a
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. 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 Servicer (other than liabilities of the 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 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 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, the Class A-1
Certificate Insurer 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, the Class A-1
Certificate Insurer 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;
(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 this Agreement for which the Responsible Party has performed its
obligation to indemnify the Trustee pursuant to Section 2.03(h), or (iii)
incurred because of willful misfeasance, bad faith, or negligence in the
performance of any of the Trustee's duties under this Agreement. This indemnity
shall survive the termination of this Agreement or the resignation or removal of
the Trustee under this Agreement. Without limiting the foregoing, except as
otherwise agreed upon in writing by the Depositor and the Trustee, and except
for any expense, disbursement, or advance arising from the Trustee's negligence,
bad faith, or willful misfeasance, the Trust Fund shall pay or reimburse the
Trustee, for all reasonable expenses, disbursements, and advances incurred or
made by the Trustee in accordance with this Agreement with respect to:
(A) the reasonable compensation, expenses, and disbursements of its
counsel not associated with the closing of the issuance of the Certificates;
(B) the reasonable compensation, expenses, and disbursements of any
accountant, engineer, or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage them to perform services
under this Agreement; and
(C) printing and engraving expenses in connection with preparing any
Definitive Certificates.
Except as otherwise provided in this Agreement or a separate letter
agreement between the Trustee and the Depositor, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
paying agent under this Agreement or for any other expenses.
Section 8.06 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, the Class A-1
Certificate Insurer 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, apply for an employer
identification number from the Internal Revenue Service via Form SS-4 or any
other acceptable method for all tax entities and shall also furnish to the
Internal Revenue Service, on Form 8811 or as otherwise may be required by the
Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) make an election that each of the Lower Tier REMIC and the Upper
Tier REMIC be treated as a REMIC on the federal tax return for its first taxable
year (and, if necessary, under applicable state law);
(d) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any original
issue discount using the prepayment assumption (as described in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee (a "Non-Permitted Transferee"), or an agent (including a broker,
nominee or other middleman) of a Non-Permitted Transferee, or a pass-through
entity in which a Non-Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so as
to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of either Trust
REMIC created hereunder;
(h) pay, from the sources specified in the last paragraph of this
Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on either Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings);
(i) cause federal, state or local income tax or information returns
to be signed by the Trustee or such other person as may be required to sign such
returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to each of the Trust REMICs, including
the income, expenses, assets, and liabilities thereof on a calendar year basis
and on the accrual method of accounting and the fair market value and adjusted
basis of the assets determined at such intervals as may be required by the Code,
as may be necessary to prepare the foregoing returns, schedules, statements or
information; and
(k) as and when necessary and appropriate, represent either Trust
REMIC in any administrative or judicial proceedings relating to an examination
or audit by any governmental taxing authority, request an administrative
adjustment as to any taxable year of either Trust REMIC, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of either Trust REMIC, and otherwise act on
behalf of each Trust REMIC in relation to any tax matter or controversy
involving it.
The Trustee shall treat the rights of the Class P Certificateholders
to receive Prepayment Premiums, the rights of the Class X Certificateholders to
receive amounts from the Corridor Agreement and the Excess Reserve Fund Account
(subject to the obligation to pay Basis Risk Carry Forward Amounts) and the
rights of the Offered Certificateholders to receive Basis Risk Carry Forward
Amounts as the beneficial ownership of interests in a grantor trust and not as
obligations of either 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
Offered 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 Offered Certificates of the right to receive Basis Risk Carry Forward
Amounts from the Excess Reserve Fund Account. Unless otherwise advised by the
Depositor in writing, for federal income tax purposes, the Trustee is hereby
directed to assign a value of zero to the right of each Holder of a Offered
Certificate to receive the related Basis Risk Carry Forward Amount for purposes
of allocating the purchase price of a Offered Certificate acquired by an initial
Holder thereof between such right and the related Upper Tier Regular Interest.
Thereafter, the Depositor shall provide to the Trustee promptly upon written
request therefor any additional information or data that the Trustee may, from
time to time, reasonably request to enable the Trustee to perform its duties
under this Agreement. The Depositor hereby indemnifies the Trustee for any
losses, liabilities, damages, claims, or expenses of the Trustee arising from
any errors or miscalculations of the Trustee that result from any failure of the
Depositor to provide, or to cause to be provided, accurate information or data
to the Trustee on a timely basis.
If any tax is imposed on "prohibited transactions" of either Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Lower Tier REMIC as defined in Section 860G(c) of
the Code, on any contribution to either Trust REMIC after the 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 either Trust REMIC pursuant to
Sections 23153 and 24874 of the California Revenue and Taxation Code, if not
paid as otherwise provided for herein, the tax shall be paid by (i) the Trustee
if such tax arises out of or results from negligence of the Trustee in the
performance of any of its obligations under this Agreement, (ii) the Servicer,
in the case of any such minimum tax, and otherwise if such tax arises out of or
results from a breach by the Servicer of any of its obligations under this
Agreement, (iii) the Responsible Party if such tax arises out of or results from
the Responsible Party'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
Responsible Party fails to honor its obligations under the preceding clause (i),
(ii), or (iii), any such tax will be paid with amounts otherwise to be
distributed to the Certificateholders, as provided in Section 4.02(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 in accordance with
this Agreement, or of any investment of deposits in an Account, and (b) accept
any contribution to either 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. Except as provided
for in Section 8.12(b), the Trustee shall prepare on behalf of the Trust any
Forms 8-K and 10-K customary for similar securities as required by the Exchange
Act and the Rules and Regulations of the Securities and Exchange Commission
thereunder, and the Trustee shall sign and file (via the Securities and Exchange
Commission's Electronic Data Gathering and Retrieval System) such Forms 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 M (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 N) for the benefit of the Depositor and its officers,
directors and Affiliates in respect of items 1 through 3 of the Certification
(provided, however, that the Trustee shall not undertake an analysis of the
accountant's report attached as an exhibit to the Form 10-K), and the Servicer
shall sign a certification (in the form attached hereto as Exhibit O) for the
benefit of the Depositor, the Trustee and their officers, directors and
Affiliates in respect of items 4 and 5 of the Certification. Each such
certification shall be delivered to the Depositor and the Trustee by March 20th
of each year (or if not a Business Day, the immediately preceding Business Day).
The Certification attached hereto as Exhibit M shall be delivered to the Trustee
by March 25 for filing by 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 and Affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon a breach of the
Servicer's obligations under this Section 8.12(c) or the Servicer's negligence,
bad faith or willful misconduct in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the
indemnified party, then (i) the Trustee agrees in connection with a breach of
the Trustee's obligations under this Section 8.12(c) or the Trustee's
negligence, bad faith or willful misconduct in connection therewith that it
shall contribute to the amount paid or payable by the Depositor as a result of
the losses, claims, damages or liabilities of the Depositor in such proportion
as is appropriate to reflect the relative fault of the Depositor on the one hand
and the Trustee on the other and (ii) the Servicer agrees that it shall
contribute to the amount paid or payable by the Depositor and/or the Trustee as
a result of the losses, claims, damages or liabilities of the Depositor and/or
the Trustee in such proportion as is appropriate to reflect the relative fault
of the Depositor or the Trustee, as the case may be, on the one hand and the
Servicer on the other in connection with a breach of the Servicer'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 Classification of the Excess Reserve Fund Account
and the Corridor Agreement. For federal income tax purposes, the Trustee shall
treat the Excess Reserve Fund Account and the Corridor Agreement as beneficially
owned by the holders of the Class X Certificates and shall treat such portion of
the Trust Fund as a grantor trust under subpart E, Part I of subchapter J of the
Code. The Trustee shall treat the rights that each Class of Offered Certificates
has to receive payments of Basis Risk Carry Forward Amounts from the Excess
Reserve Fund Account as rights to receive payments under an interest rate cap
contract written by the Class X Certificateholders in favor of each 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 Certificateholders will be comprised of three components - an Upper Tier
Regular Interest, ownership of the Excess Reserve Fund Account, subject to an
obligation to pay Basis Risk Carry Forward Amounts and an interest in the
Corridor Agreement. The Trustee shall allocate the issue price for a Class of
Certificates among the respective components for purposes of determining the
issue price of the Upper Tier Regular Interest component based on information
received from the Depositor. 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 a Offered Certificate to
receive the related Basis Risk Carry Forward Amount for purposes of allocating
the purchase price of an initial Offered Certificateholder between such right
and the related Upper Tier Regular Interest.
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 9.03, the obligations and responsibilities of
the Depositor, the Servicer and the Trustee created hereby with respect to the
Trust Fund shall terminate upon the earlier of (a) the purchase, on or after the
Optional Termination Date, by the Servicer (at the direction of Majority Class X
Certificateholder) of all Mortgage Loans (and REO Properties) at the price equal
to the sum of (i) 100% of the unpaid principal balance of each Mortgage Loan
(other than in respect of REO Property) plus accrued and unpaid interest thereon
at the applicable Mortgage Interest Rate, together with any unpaid remaining
Basis Risk Carry Forward Amounts, and (ii) the lesser of (x) the appraised value
of any REO Property as determined by the higher of two appraisals completed by
two independent appraisers selected by the Majority Class X Certificateholder,
at the expense of 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 ("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.
No such purchase will be permitted without the consent of the Class
A-1 Certificate Insurer, if the resulting amount available for payment on the
Class A-1 Certificates would result in a draw under the Class A-1 Certificate
Insurance Policy or any Reimbursement Amounts would remain unpaid to the Class
A-1 Certificate Insurer.
Section 9.02 Final Distribution on the Certificates. If on any
Remittance Date, the Servicer notifies the Trustee that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than the
funds in the Collection Account, the Trustee shall promptly to send a Notice of
Final Distribution to each Certificateholder. 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, at least 20 days prior to the date the
Notice of Final Distribution is to be mailed to the affected Certificateholders,
the Majority Class X Certificateholder shall notify the Servicer and the Trustee
of the date the Depositor intends that the Trust Fund be terminated and of the
applicable repurchase price of the Mortgage Loans and REO Properties. The
Servicer 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, 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 cause all funds in the
Collection Account to be remitted to the Trustee for deposit in the Distribution
Account on the Business Day prior to the applicable Distribution Date in an
amount equal to the final distribution in respect of the Certificates. During
the time such funds are held in such 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 Collection Account, including the applicable
Termination Price for the Mortgage Loans and REO Properties, 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 Servicer 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 the Servicer, the Depositor, the Class A-1
Certificate Insurer and the Trustee hereunder), in each case on the final
Distribution Date and in the order set forth in Section 4.02, in proportion to
their respective Percentage Interests, with respect to Certificateholders of the
same Class, an amount up to an amount equal to (i) as to each Class of Regular
Certificates (except the Class X Certificates), the Certificate Balance thereof
plus for each such Class and the Class X Certificates accrued interest thereon
in the case of an interest-bearing Certificate and all other amounts to which
such Classes are entitled pursuant to Section 4.02, (ii) as to the Residual
Certificates, the amount, if any, which remains on deposit in the Distribution
Account (other than the amounts retained to meet claims) after application
pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for cancellation,
the Class R Certificateholders shall be entitled to all unclaimed funds and
other assets of the Trust Fund which remain subject hereto.
Section 9.03 Additional Termination Requirements. In the event the
Majority Class X Certificateholder directs the Servicer to purchase the Mortgage
Loans as provided in Section 9.01, the Trust Fund shall be terminated in
accordance with the following additional requirements, unless the Trustee has
been supplied with an Opinion of Counsel (a "REMIC Opinion"), at the expense of
the Majority Class X Certificateholder, to the effect that the failure to comply
with the requirements of this Section 9.03 will not (i) result in the imposition
of taxes on "prohibited transactions" on either Trust REMIC as defined in
Section 860F of the Code, or (ii) cause either Trust REMIC to fail to qualify as
a REMIC at any time that any Certificates are outstanding:
(a) The Trustee shall sell all of the assets of the Trust Fund to
the Servicer, or its designee, and, by the next Distribution Date after such
sale, shall distribute to the Certificateholders the proceeds of such sale in
complete liquidation of each of the Trust REMICs; and
(b) The Trustee shall attach a statement to the final federal income
tax return for each of the Trust REMICs stating that pursuant to Treasury
Regulations Section 1.860F-1, the first day of the 90-day liquidation period for
each such Trust REMIC was the date on which the Trustee sold the assets of the
Trust Fund to the Servicer or its designee.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Responsible Party, 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, the Responsible Party 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 either Trust REMIC pursuant to the Code that would
be a claim at any time prior to the final redemption of the Certificates or
(iii) comply with any other requirements of the Code; provided, that the Trustee
has been provided an Opinion of Counsel, which opinion shall be an expense of
the party requesting such opinion but in any case shall not be an expense of the
Trustee or the Trust Fund, to the effect that such action is necessary or
helpful to, as applicable, (i) maintain such qualification, (ii) avoid or
minimize the risk of the imposition of such a tax or (iii) comply with any such
requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Servicer, the Responsible Party 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 either Trust REMIC or the Certificateholders
or cause either Trust REMIC to fail to qualify as a REMIC or the grantor trust
portion of the Trust Fund 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.
The Responsible Party shall be obligated to execute any amendment to
this Agreement, unless such amendment would adversely affect in any material
respect the right or obligation of the Responsible Party.
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.
Notwithstanding the foregoing, no amendment to this Agreement shall
be made without the prior written consent of the Class A-1 Certificate Insurer
until the later of (a) the date on which the Class Certificate Balance of the
Class A-1 Certificates is reduced to zero and (b) the date on which all amounts
owing to the Class A-1 Certificate Insurer under the Class A-1 Certificate
Insurance Policy and the Insurance Agreement have been paid in full.
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:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Event of Default that has not been cured;
(iii) The resignation or termination of the Servicer or the Trustee
and the appointment of any successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant to
Sections 2.03 or 2.07; and
(v) The final payment to Certificateholders.
(b) In addition, the Trustee shall promptly make available on its
internet website to each Rating Agency copies of the following:
(i) Each report to Certificateholders described in Section 4.03; and
(ii) Any notice of a purchase of a Mortgage Loan pursuant to
Sections 2.07 or 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 or GS Mortgage Securities Corp. or Xxxxxxx, Xxxxx & Co., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Principal Finance Group/Xxxxxxxxxxx
X. Xxxxxxx and Asset Management Group/Senior Asset Manager, 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 Responsible Party, to NC Capital
Corporation Capital Corporation, 00000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxxxx 00000 Attention: Attention: Xxxxx Xxxxx, Executive Vice President, or
such other address as may be hereafter furnished to the Depositor and the
Trustee by the Responsible Party in writing, (c) in the case of the Countrywide
Servicing, 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, (d)
in the case of the Trustee to the Corporate Trust Office, Deutsche Bank National
Trust Company, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000,
Attention: Trust Administration-GS0409, or such other address as the Trustee may
hereafter furnish to the Depositor or Servicer, (e) in the case of the Class A-1
Certificate Insurer, to Ambac Assurance Corporation, Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Risk Management, Consumer Asset Backed
Securities, GSAA Home Equity Trust 2004-9, (e) in the case of New Century. to
New Century Mortgage Corporation, 00000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxx XX 00000,
Attention: Xxxxx Xxxxx, Executive Vice President, or such other address as may
be hereafter furnished to the Depositor and the Trustee by New Century in
writing and (g) 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 6.02, this Agreement may not be assigned by the Servicer without the
prior written consent of the Depositor, the Class A-1 Certificate Insurer and
the Trustee. In addition, for so long as a Servicer is acting as a Servicer
hereunder (i) such Servicer is hereby authorized to enter into an advance
facility ("Advance Facility") under which (A) such Servicer sells, assigns or
pledges to an Advancing Person such 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 such Servicer pursuant to this Agreement and (ii) such Servicer is
hereby authorized to assign its rights to the Servicing Fee; it being understood
neither the Trust Fund nor any party hereto shall have a right or claim
(including without limitation any right of offset) to an Advance Reimbursement
Amount so assigned or to the portion of the Servicing Fee so assigned; it being
further understood that upon resignation or termination of such 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 a 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 a Servicer's behalf, such Servicer shall remain obligated
pursuant to this Agreement to make P&I Advances and Servicing Advances pursuant
to and as required by this Agreement, and shall not be relieved of such
obligations by virtue of such Advance Facility.
(b) Advance reimbursement amounts ("Advance Reimbursement Amounts")
shall consist solely of amounts in respect of P&I Advances and/or Servicing
Advances made with respect to the Mortgage Loans for which the Servicer would be
permitted to reimburse itself in accordance with this Agreement, assuming the
Servicer had made the related P&I Advance(s) and/or Servicing Advance(s).
(c) The Servicer shall maintain and provide to any successor
Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced
by, pledged or assigned to, and reimbursed to any Advancing Person. The
successor Servicer shall be entitled to rely on any such information provided by
the predecessor Servicer, and the successor Servicer shall not be liable for any
errors in such information.
(d) An Advancing Person who purchases or receives an assignment or
pledge of the rights to be reimbursed for P&I Advances and/or Servicing
Advances, and/or whose obligations hereunder are limited to the funding of P&I
Advances and/or Servicing Advances shall not be required to meet the criteria
for qualification of a Subservicer set forth in this Agreement.
(e) Advance Reimbursement Amounts distributed with respect to each
Mortgage Loan shall be allocated to outstanding xxxxxxxxxxxx X&X Advances or
Servicing Advances (as the case may be) made with respect to that Mortgage Loan
on a "first-in, first out" (FIFO) basis. Such documentation shall also require
the Servicer to provide to the related Advancing Person or its designee
loan-by-loan information with respect to each such Advance Reimbursement Amount
distributed to such Advancing Person or Advance Facility trustee on each
Distribution Date, to enable the Advancing Person or Advance Facility trustee to
make the FIFO allocation of each such Advance Reimbursement Amount with respect
to each Mortgage Loan. The Servicer shall remain entitled to be reimbursed by
the Advancing Person or Advance Facility trustee for all P&I Advances and
Servicing Advances funded by the Servicer to the extent the related rights to be
reimbursed therefor have not been sold, assigned or pledged to an Advancing
Person.
(f) Any amendment to this Section 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, with the consent
of the Class A-1 Certificate Insurer, 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 and the Class A-1 Certificate
Insurer which opinion shall be an expense of the party requesting such opinion
but in any case shall not be an expense of the Trustee or the Trust Fund;
provided, further, that the amendment shall not be deemed to adversely affect in
any material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency (instead of
obtaining an Opinion of Counsel) stating that the amendment would not result in
the downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such rating letter in and
of itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. Prior to entering into an Advance Facility, the
Servicer shall notify the lender under such facility in writing that: (a) the
Advances financed by and/or pledged to the lender are obligations owed to the
Servicer on a non-recourse basis payable only from the cash flows and proceeds
received under this Agreement for reimbursement of Advances only to the extent
provided herein, and the Trustee and the Trust are not otherwise obligated or
liable to repay any Advances financed by the lender; (b) the Servicer will be
responsible for remitting to the lender the applicable amounts collected by it
as reimbursement for Advances funded by the lender, subject to the restrictions
and priorities created in this Agreement; and (c) the Trustee shall not have any
responsibility to track or monitor the administration of the financing
arrangement between the Servicer and the lender.
Section 10.08 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 10.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 10.09 Inspection and Audit Rights. The Servicer agrees that,
on reasonable prior notice, it will permit any representative of the Depositor,
the Class A-1 Certificate Insurer or the Trustee during such Person's normal
business hours, to examine all the books of account, records, reports and other
papers of such Person relating to the 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, the Class A-1 Certificate
Insurer 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
the 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 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 The Class A-1 Certificate Insurer Default. Any right
conferred to Class A-1 Certificate Insurer shall be suspended during any period
in which a Class A-1 Certificate Insurer Default exists. At such time as the
Class A-1 Certificates are no longer outstanding hereunder, and no amounts owed
to the Class A-1 Certificate Insurer hereunder, under the Class A-1 Certificate
Insurance Policy and under the Insurance Agreement remain unpaid, the Class A-1
Certificate Insurer's rights hereunder shall terminate.
Section 10.12 Third Party Beneficiary. The parties agree that the
Class A-1 Certificate Insurer is intended and shall have all rights of a
third-party beneficiary of this Agreement.
Section 10.13 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE
LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
* * * * * * *
IN WITNESS WHEREOF, the Depositor, the Trustee, Countrywide
Servicing, New Century and the Responsible Party 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/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Vice President
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Associate
COUNTRYWIDE HOME LOANS SERVICING LP,
as Servicer
By: COUNTRYWIDE GP, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
NEW CENTURY MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President
NC CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President
SCHEDULE I
Mortgage Loan Schedule
(Delivered to Trustee on Closing Date)
SCHEDULE II
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,
the Class A-1 Certificate Insurer 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 duly authorized 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 Loan 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,
the Servicer 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;
(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; and
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.
SCHEDULE III
GSAA Home Equity Trust 2004-9
Asset-Backed Certificates
Representations and Warranties of NC Capital Corporation,
as the Responsible Party, as to the Mortgage Loans
The Responsible Party hereby makes the representations and
warranties set forth in this Schedule III as to the Mortgage Loans only to the
Depositor, Countrywide and the Trustee and with respect to the Group I Mortgage
Loans to the Class A-1 Certificate Insurer, as of the Closing Date (or such
other date as may be expressly set forth below):
(1) Mortgage Loans as Described. The Responsible Party has
delivered to the Purchaser the Data Tape Information and that
information set forth on the Data Tape Information as it relates to
the Mortgage Loans is complete, true and correct as of the Cut-off
Date;
(2) Payments Current. All payments required to be made up to
the related Cut-off Date for the Mortgage Loan under the terms of
the Mortgage Note, other than payments not yet 30 days delinquent,
have been made and credited. As of the related Cut-off Date, no
payment required under a Mortgage Loan is 30 days or more delinquent
nor has any payment under a Mortgage Loan been 30 days or more
delinquent at any time since the origination of the Mortgage Loan;
(3) No Outstanding Charges. 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
Responsible Party 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 date which
precedes by one month the Due Date of the first installment of
principal and interest;
(4) 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
Trustee and the terms of which are reflected in the Mortgage Loan
Schedule, the Data Tape Information or included in the Mortgage
File. No Mortgage Loan has been modified so as to restructure the
payment obligations or re-age the Mortgage Loan. 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 Mortgage Loan Schedule. 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 title insurer, to the extent required by the policy,
and which assumption agreement is part of the Mortgage Loan File
delivered to the Trustee and the terms of which are reflected in the
Mortgage Loan Schedule and Data Tape Information;
(5) 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 the time the Mortgage Loan
was originated;
(6) 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 against loss by fire,
hazards of extended coverage and such other hazards as are provided
for in the Xxxxxx Xxx Guides or by Xxxxxxx Mac, as well as the
additional requirements set forth in Section 3.13 of the Pooling and
Servicing Agreement. 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 Xxx and Xxxxxxx Mac, as well as the additional
requirements set forth in Section 3.13 of the Pooling and Servicing
Agreement. All individual insurance policies contain a standard
mortgagee clause naming the Responsible Party and its successors and
assigns as mortgagee, and all premiums thereon have been paid. The
Mortgage obligates the Mortgagor thereunder to maintain 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 Trustee upon the
consummation of the transactions contemplated by this Agreement. The
Responsible Party has not engaged in, and has no knowledge of, 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, without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has
been or will be received, retained or realized by any attorney, firm
or other person or entity, and no such unlawful items have been
received, retained or realized by the Responsible Party;
(7) 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, all
applicable predatory and abusive lending laws or unfair and
deceptive practices laws applicable to the Mortgage Loan, including,
without limitation, any provisions relating to Prepayment Premiums,
have been complied with, the consummation of the transactions
contemplated hereby will not involve the violation of any such laws
or regulations, and the Responsible Party shall maintain in its
possession, available for the Purchaser's or the Trustee's
inspection, and shall deliver to the Purchaser upon demand, evidence
of compliance with all such requirements;
(8) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part,
and the Mortgaged Property has not been released from the lien of
the Mortgage, in whole or in part, nor has any instrument been
executed that would effect any such release, cancellation,
subordination or rescission. The Responsible Party has not waived
the performance by the Mortgagor of any action, if the Mortgagor's
failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Responsible Party waived any default
resulting from any action or inaction by the Mortgagor;
(9) Location and Type of Mortgaged Property. The Mortgaged
Property is located in the state identified in the Mortgage Loan
Schedule and consists of real property with a detached single family
residence erected thereon, or a two- to four-family dwelling, or an
individual condominium unit in a low-rise condominium project, or an
individual unit in a planned unit development or a de minimis
planned unit development which is in each case four stories or less,
provided, however, that any mobile home (double wide only) or
manufactured dwelling shall conform with the applicable Xxxxxx Mae
and Xxxxxxx Mac requirements regarding such dwellings and that no
Mortgage Loan is secured by a single parcel of real property with a
cooperative housing corporation, a log home or a mobile home erected
thereon or by a mixed-use property, a property in excess of 10
acres, or other unique property types. 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 Mortgaged Properties which contain 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. With respect to any Mortgage Loan secured by a
Mortgaged Property improved by manufactured housing, (i) the related
manufactured housing unit is permanently affixed to the land, and
(ii) the related manufactured housing unit and the related land are
subject to a Mortgage properly filed in the appropriate public
recording office and naming the Responsible Party as mortgagee;
(10) Valid First. The Mortgage is a valid, subsisting,
enforceable and perfected, first lien 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:
(i) the lien of current real property taxes and
assessments not yet due and payable;
(ii) 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; and
(iii) other matters to which like properties are
commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the
Mortgage or the use, enjoyment, value or marketability of the
related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, subsisting, enforceable and
perfected first lien and first priority security interest with
respect to each mortgage loan, on the property described therein and
Responsible Party has full right to sell and assign the same to
Purchaser;
(11) 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 (including, without limitation, any provisions
relating to Prepayment Premiums). 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. 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, any builder or developer, or any other party
involved in the origination or servicing of the Mortgage Loan.
The Responsible Party 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;
(12) Full Disbursement of Proceeds. 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;
(13) Ownership. Immediately prior to the Original Sale
Date, the Responsible Party was the sole owner of record and
holder of the Mortgage Loan and the indebtedness evidenced by
each Mortgage Note. The Mortgage Loan had neither been
assigned nor pledged, and the Responsible Party had good,
indefeasible and marketable title thereto, and had full right
to transfer and sell the Mortgage Loan to the Purchaser free
and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest and had 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 the terms of the Purchase
Agreement;
(14) 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 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;
(15) 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%;
(16) 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 Responsible Party, 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 (i), (ii), and (iii) of representation 10
of this Schedule IV, and 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 Scheduled 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 exceptions or to replace the standard survey exception
with a specific survey reading. The Responsible Party, its
successors 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 on the Closing Date. No claims have
been made under such lender's title insurance policy, and no
prior holder of the related Mortgage, including the
Responsible Party, has done, by act or omission, anything
which would impair the coverage of such lender's title
insurance policy, 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 Responsible Party;
(17) No Defaults. 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
Responsible Party nor any of its Affiliates nor any of their
respective predecessors have waived any default, breach,
violation or event which would permit acceleration;
(18) No Mechanics' Liens. There are no mechanics' or
similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under 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;
(19) 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;
(20) Origination; Payment Terms. Either (a) 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, or
(b) the following requirements have been met with respect to
the Mortgage Loan: the Responsible Party meets the
requirements set forth in clause (a), and (i) such Mortgage
Loan was underwritten in accordance with standards established
by the Responsible Party, using application forms and related
credit documents approved by the Responsible Party, (ii) the
Responsible Party approved each application and the related
credit documents before a commitment by the correspondent was
issued, and no such commitment was issued until the
Responsible Party agreed to fund such Mortgage Loan, (iii) the
closing documents for such Mortgage Loan were prepared on
forms approved by the Responsible Party, and (iv) such
Mortgage Loan was actually funded by the Responsible Party and
was purchased by the Responsible Party at closing or soon
thereafter. 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
Mortgage Loan contains terms or provisions which would result
in negative amortization. Except with respect to interest only
Mortgage Loans, 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 adjusts on each Adjustment Date to the sum of the
Six-Month LIBOR Index plus the applicable Gross Margin,
subject to the Lifetime Rate Cap and the Periodic Mortgage
Interest Rate Cap. The Mortgage Interest Rate, Lifetime Rate
Cap and Periodic Mortgage Interest Rate Cap are as set forth
on the Mortgage Loan Schedule hereto (including the interest
rate and payment limitations set forth on Mortgage Loan
Schedule hereto). All Mortgage Loans have Due Dates on the
first day of each month except as specified on the Mortgage
Loan Schedule. Each Mortgage Note is payable in equal monthly
installments of principal and/or interest, which installments
of interest, are subject to change due to the adjustments to
the Mortgage Interest Rate on each Adjustment Date, with
interest calculated and payable in arrears and is not
calculated on a simple interest basis. The monthly principal
payments on each Mortgage Loan is 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. Each 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;
(21) Customary Provisions. The Mortgage contains
customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of
the security provided thereby, 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;
(22) Conformance with Agency and Underwriting
Guidelines. The Mortgage Loan was underwritten in accordance
with the Underwriting Guidelines. The Mortgage Note and
Mortgage are on forms acceptable to Xxxxxxx Mac and Xxxxxx Mae
and the Responsible Party has not made any representations to
a Mortgagor that are inconsistent with the mortgage
instruments used;
(23) Occupancy of the Mortgaged Property. As of the
Closing Date, the Mortgaged Property is lawfully 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 and fire underwriting
certificates, have been made or obtained from the appropriate
authorities;
(24) 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 (10) above;
(25) 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;
(26) Acceptable Investment. 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 that can reasonably be expected to cause
private institutional investors who invest in sub prime
mortgage loans 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 Responsible Party generally;
(27) Delivery of Mortgage Documents. The Mortgage Note,
the Mortgage, the Assignment of Mortgage and any other
documents required to be delivered under this Agreement for
each Mortgage Loan have been delivered to the Purchaser or its
designee;
(28) 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 Mortgage Loan was originated in accordance with, and the
Mortgaged Property meets the Responsible Party's Underwriting
Guidelines;
(29) Transfer of Mortgage Loans. The Assignment of
Mortgage 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 Responsible
Party are not subject to the bulk transfer or similar
statutory provisions in effect in any applicable jurisdiction;
(30) Assumability. The Mortgage Loan Documents provide
that after the related first Interest Rate Adjustment Date, a
related Mortgage Loan may only be assumed if the party
assuming such Mortgage Loan meets certain credit requirements
stated in the Mortgage Loan Documents;
(31) No Buydown Provisions, No Graduated Payments or
Contingent Interests. The Mortgage Loan does not contain
provisions pursuant to which Scheduled Payments are paid or
partially paid with funds deposited in any separate account
established by the Responsible Party, the Mortgagor, or anyone
on behalf of the Mortgagor, or paid by any source other than
the Mortgagor nor does it contain any other similar provisions
which may constitute a "buydown" provision. The Mortgage Loan
is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent
interest feature;
(32) Consolidation of Future Advances. Any future
advances made to the Mortgagor prior to the 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 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;
(33) 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. There have not been any condemnation proceedings with
respect to the Mortgaged Property and the Responsible Party
has no knowledge of any such proceedings in the future;
(34) Collection Practices; Escrow Payments; Interest
Rate Adjustments. The origination, servicing and collection
practices used by the servicer, the Responsible Party and its
affiliates and any prior servicer with respect to the Mortgage
Loan have been in all respects in compliance with Accepted
Servicing Practices, applicable laws and regulations, and have
been in all respects legal and proper and prudent in the
mortgage origination and servicing business. With respect to
escrow deposits and Escrow Payments, all such payments are in
the possession of, or under the control of the servicer or the
Responsible Party 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.
An 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 Responsible Party 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 Adjustment
Date. If, pursuant to the terms of the Mortgage Note, another
index was selected for determining the Mortgage Interest Rate,
the same index was used with respect to each Mortgage Note
which required a new index to be selected, and such selection
did not conflict with the terms of the related Mortgage Note.
The Responsible Party and its Affiliates 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 Scheduled Payment
adjustments. Any interest required to be paid pursuant to
state, federal and local law has been properly paid and
credited;
(35) Conversion to Fixed Interest Rate. The Mortgage
Loan is not a convertible Mortgage Loan;
(36) Other Insurance Policies. No action, inaction or
event has occurred and no state of facts exists or has existed
that has resulted or will result in the exclusion from, denial
of, or defense to coverage under any applicable, special
hazard insurance policy, or bankruptcy bond, irrespective of
the cause of such failure of coverage. In connection with the
placement of any such insurance, no commission, fee, or other
compensation has been or will be received by the Responsible
Party or by any officer, director, or employee of the
Responsible Party or any designee of the Responsible Party or
any corporation in which the Responsible Party or any officer,
director, or employee had a financial interest at the time of
placement of such insurance;
(37) 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
Mortgaged Property; and nothing further remains to be done to
satisfy in full all requirements of each such law, rule or
regulation constituting a prerequisite to use and enjoyment of
said property;
(38) Servicemembers Civil Relief Act. The Mortgagor has
not notified the Responsible Party, and the Responsible Party
has no knowledge of any relief requested or allowed to the
Mortgagor under the Servicemembers Civil Relief Act;
(39) 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;
(40) Disclosure Materials. The Mortgagor has executed a
statement to the effect that the Mortgagor has received all
disclosure materials required by, and the Responsible Party
has complied with all applicable law with respect to the
making of the Mortgage Loans;
(41) Construction or Rehabilitation of Mortgaged
Property. No Mortgage Loan was made in connection with the
construction or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property;
(42) Value of Mortgaged Property. The Responsible Party
has no knowledge of any circumstances existing that could be
reasonably 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 Responsible Party generally secured by properties in
the same geographic area as the related Mortgaged Property;
(43) No Defense to Insurance Coverage. The Responsible
Party has caused or will cause 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 Closing Date (whether or not known to the
Responsible Party on such date) which has resulted or will
result in an exclusion from, denial of, or defense to coverage
under any primary mortgage insurance policy (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 Responsible
Party, 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;
(44) Escrow Analysis. With respect to each Mortgage, the
Responsible Party or its Affiliate 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;
(45) Prior Servicing. Each Mortgage Loan has been
serviced in strict compliance with Accepted Servicing
Practices;
(46) 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 Responsible Party
to the Purchaser, that the Responsible Party 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 Loan. The Responsible
Party has or has caused the related servicer to, for each
Mortgage Loan, fully furnish, in accordance with the Fair
Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and
unfavorable) on its borrower credit files to Equifax, Experian
and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis;
(47) 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 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 an 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;
(48) Prepayment Premium. The Mortgage Loan is subject to
a prepayment penalty as provided in the related Mortgage Note
except as set forth on the Mortgage Loan Schedule. With
respect to each Mortgage Loan that has a prepayment penalty
feature, each such prepayment penalty is enforceable and has
been enforced by the Responsible Party, and each prepayment
penalty is permitted pursuant to federal, state and local law.
Each such prepayment penalty is in an amount equal to the
maximum amount permitted under applicable law and no such
prepayment penalty may be imposed for a term 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
borrower 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 borrower 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 borrower in the loan documents pursuant to
applicable state and federal law, and (iv) notwithstanding any
state 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 borrower's
default in making the loan payments;
(49) Predatory Lending Regulations. No Mortgage Loan is
a High-Cost Loan or Covered Loan, as applicable. No Mortgage
Loan is covered by the Home Ownership and Equity Protection
Act of 1994 and no Mortgage Loan is in violation of any
comparable state or local law. The Mortgaged Property is not
located in a jurisdiction where a breach of this
representation with respect to the related Mortgage Loan may
result in additional assignee liability to the Purchaser, as
determined by the Purchaser in its reasonable discretion;
(50) 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;
(51) 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;
(52) Qualified Mortgage. The Mortgage Loan is a
"qualified mortgage" within the meaning of Section 860G(a)(3)
of the Code;
(53) Regarding the Mortgagor. The Mortgagor is one or
more natural persons and/or trustees for an Illinois land
trust or a trustee under a "living trust" and such "living
trust" is in compliance with the Xxxxxx Mae guidelines for
such trusts;
(54) Recordation. Each original Mortgage was recorded
and 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 Responsible Party, or is in the process of being recorded;
(55) FICO Scores. Each Mortgagor has a non-zero FICO
score. No Mortgage Loan has a Mortgagor with a FICO score of
less than 500;
(56) Compliance with Anti-Money Laundering Laws. The
Responsible Party 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"); the Responsible Party has established an
anti-money laundering compliance program as required by the
Anti-Money Laundering Laws, has conducted the requisite due
diligence in connection with the origination of each Mortgage
Loan for purposes of the Anti-Money Laundering Laws, including
with respect to the legitimacy of the applicable Mortgagor and
the origin of the assets used by the said Mortgagor to
purchase the property in question, and maintains, and will
maintain, sufficient information to identify the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws;
(57) Georgia Mortgage Loans. There is no Mortgage Loan
that was originated on or after October 1, 2002 and on or
prior to March 7, 2003, which is secured by property located
in the State of Georgia. There is no Mortgage Loan that was
originated on or after March 7, 2003 that is a "High-Cost home
loan" as defined under the Georgia Fair Lending Act;
(58) New York State Banking Law. There is no Mortgage
Loan that (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 October 1,
2003, the terms of which Mortgage Loan equal or exceed either
the annual percentage rate or the points and fees threshold
for "high-cost home loans," as defined in Section 6-L of the
New York State Banking Law;
(59) New Jersey Mortgage Loans. All Mortgage Loans
originated in the state of New Jersey are ratable by Standard
& Poor's, Fitch and Xxxxx'x. All Mortgage Loans originated in
New Jersey conform with the Purchaser's New Jersey Loan
Stipulations set forth on Exhibit M to the Purchase Agreement;
(60) Litigation. No Mortgage Loan is subject to any
outstanding litigation for fraud, origination, predatory
lending, servicing or closing practices;
(61) 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;
(62) 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;
(63) Origination. No predatory or deceptive lending
practices, including, without limitation, the extension of
credit without regard to the ability of the Mortgagor to repay
and the extension of credit which has no apparent benefit to
the Mortgagor, were employed in the origination of any
Mortgage Loan;
(64) 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; and
(65) Xxxxxx Mae Representations. With respect to any
Mortgage Loans which are subsequently purchased by Xxxxxx Xxx
or included in a Xxxxxx Mae securitization for which the
related Mortgage Loan Schedule indicated that such Mortgage
Loans meet the 5% points and fees cap and conforming limits
set by Xxxxxx Xxx:
i. Each Mortgage Loan is in compliance with the
anti-predatory lending eligibility for purchase
requirements of Xxxxxx Mae's Selling Guide;
ii. No Mortgage Loan is subject to the requirements of
the Home Ownership and Equity Protection Act of
1994 ;
iii. 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;
iv. No Mortgage Loan is a "High-Cost Home Loan" as
defined in the Georgia Fair Lending Act, as
amended (the "Georgia Act"). No Mortgage Loan
subject to the Georgia Act and secured by owner
occupied real property or an owner occupied
manufactured home located in the State of Georgia
was originated (or modified) on or after October
1, 2002 through and including March 6, 2003.
v. No Mortgage Loan is a "High-Cost Home Loan" as
defined in New York Banking Law 6-1;
vi. No Mortgage Loan is a "High-Cost Home Loan" as
defined in the Arkansas Home Loan Protection Act
effective July 16, 2003 (Act 1340 of 2003);
vii. No Mortgage Loan is a "High-Cost Home Loan" as
defined in the Kentucky high-cost home loan
statute effective June 24, 2003 (Ky. Rev. Stat.
Section 360.100);
viii. No Mortgage Loan is a "High-Cost Home Loan" as
defined in the New Jersey Home Ownership Act
effective November 27, 2003 (N.J.S.A. 46:10B-22 et
seq.);
ix. No Mortgage Loan is a "High-Cost Home Loan" as
defined in the New Mexico Home Loan Protection Act
effective January 1, 2004 (N.M. Stat. Xxx. xx.xx.
58-21A-1 et seq.);
x. No Mortgage Loan is a "High-Risk Home Loan" as
defined in the Illinois High-Risk Home Loan Act
effective January 1, 2004 (815 Ill. Comp. Stat.
137/1 et seq.);
xi. No Mortgage Loan is a "High-Cost Home Mortgage
Loan" as defined in the Massachusetts Predatory
Home Loan Practices Act, effective November 6,
2004 (Mass. Xxx. Laws Ch. 183C);
xii. 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;
xiii. The methodology used in underwriting the extension
of credit for each Mortgage Loan employs 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;
xiv. 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 borrower 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 borrower 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 borrower in the loan documents
pursuant to applicable state and federal law, (iv)
for loans originated on or after September 1,
2004, the duration of the prepayment period shall
not exceed three (3) years from the date of the
note, unless the loan was modified to reduce the
prepayment period to no more than three years from
the date of the note and the borrower was notified
in writing of such reduction in prepayment period,
and (v) notwithstanding any state 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
borrower's default in making the loan payments;
xv. No borrower was required to purchase any credit
life, disability, accident or health insurance
product as a condition of obtaining the extension
of credit. No borrower obtained a prepaid
single-premium credit life, disability, accident
or health insurance policy in connection with the
origination of the Mortgage Loan; No proceeds from
any Mortgage Loan were used to purchase single
premium credit insurance policies as part of the
origination of, or as a condition to closing, such
Mortgage Loan;
xvi. All points and fees related to each Mortgage Loan
were disclosed in writing to the borrower in
accordance with applicable state and federal law
and regulation. Except in the case of a Mortgage
Loan in an original principal amount of less than
$60,000 which would have resulted in an
unprofitable origination, no borrower was charged
"points and fees" (whether or not financed) in an
amount greater than 5% of the principal amount of
such loan, such 5% limitation is calculated in
accordance with Xxxxxx Mae's anti-predatory
lending requirements as set forth in the Xxxxxx
Mae Selling Guide.
xvii. 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 borrower in
accordance with applicable state and federal law
and regulation; and
xviii. The Servicer will transmit full-file credit
reporting data for each Mortgage Loan pursuant to
Xxxxxx Xxx Guide Announcement 95-19 and that for
each Mortgage Loan, Servicer agrees it shall
report one of the following statuses each month as
follows: new origination, current, delinquent
(30-, 60-, 90-days, etc.), foreclosed, or
charged-off.
SCHEDULE IV
Representations and Warranties of NC Capital Corporation,
as Responsible Party
NC Capital Corporation, (the "Responsible Party") hereby makes the
representations and warranties set forth in this Schedule IV to the Depositor,
Countrywide Servicing, the Class A-1 Certificate Insurer and the Trustee, as of
the Closing Date, or if so specified herein, as of the Cut-off Date. Capitalized
terms used but not otherwise defined in this Schedule IV shall have the meanings
ascribed thereto in the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") relating to the above-referenced Series.
1. Due Organization and Authority. The Responsible Party is a
corporation duly organized, validly existing and in good standing
under the laws of the state of California 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 Responsible Party, and in any event the Responsible Party is in
compliance with the laws of any such state to the extent necessary;
the Responsible Party has the full corporate power, authority and
legal right to execute and deliver this Agreement and to perform its
obligations hereunder; the execution, delivery and performance of
this Agreement by the Responsible Party 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 Responsible Party,
regardless of whether such enforcement is sought in a proceeding in
equity or at law; and all requisite corporate action has been taken
by the Responsible Party to make this Agreement and all agreements
contemplated hereby valid and binding upon the Responsible Party in
accordance with their terms;
2. No Conflicts. Neither the execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the
terms, conditions or provisions of the Responsible Party's charter
or by-laws or any legal restriction or any agreement or instrument
to which the Responsible Party is now a party or by which it is
bound, or constitute a default or result in an acceleration under
any of the foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Responsible Party
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;
3. No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Responsible Party,
before any court, administrative agency or other tribunal asserting
the invalidity of this Agreement, seeking to prevent the
consummation of any of the transactions contemplated by this
Agreement or which, either in any one instance or in the aggregate,
may result in any material adverse change in the business,
operations, financial condition, properties or assets of the
Responsible Party, or in any material impairment of the right or
ability of the Responsible Party to carry on its business
substantially as now conducted, or in any material liability on the
part of the Responsible Party, or which would draw into question the
validity of this Agreement or of any action taken or to be taken in
connection with the obligations of the Responsible Party
contemplated herein, or which would be likely to impair materially
the ability of the Responsible Party to perform under the terms of
this Agreement;
4. 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 including HUD, the FHA or the VA is
required for the execution, delivery and performance by the
Responsible Party of or compliance by the Responsible Party with
this Agreement or the consummation of the transactions contemplated
by this Agreement, or if required, such approval has been obtained
prior to the Closing Date.
SCHEDULE V
GSAA Home Equity Trust 2004-9,
Asset-Backed Certificates
Representations and Warranties of New Century Mortgage Corporation
New Century hereby makes the representations and warranties set
forth in this Schedule V to the Depositor, Countrywide Servicing, the Class A-1
Certificate Insurer and the Trustee, as of the Closing Date, or if so specified
herein, as of the Cut-off Date.
(1) New Century is a Delaware limited partnership, validly existing
and in good standing under the laws of Delaware and is duly authorized and
qualified to transact any and all business contemplated by this Pooling
and Servicing Agreement to be conducted by New Century 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) New Century 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
New Century the execution, delivery and performance of this Pooling and
Servicing Agreement; and this Pooling and Servicing Agreement, assuming
the due authorization, execution and delivery thereof by the Depositor,
the Responsible Party, Xxxxxx and the Trustee, constitutes a legal, valid
and binding obligation of New Century, enforceable against New Century 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 New Century, the servicing of the Mortgage Loans by New
Century hereunder, the consummation by New Century 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 New
Century and will not (A) result in a breach of any term or provision of
the organizational documents of New Century 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 New
Century is a party or by which it may be bound, or any statute, order or
regulation applicable to New Century of any court, regulatory body,
administrative agency or governmental body having jurisdiction over New
Century; and New Century 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 New
Century's knowledge, would in the future materially and adversely affect,
(x) the ability of New Century to perform its obligations under this
Pooling and Servicing Agreement or (y) the business, operations, financial
condition, properties or assets of New Century taken as a whole;
(4) New Century is an approved seller/servicer for Xxxxxx Mae and an
approved servicer for Xxxxxxx Mac in good standing;
(5) No litigation is pending against New Century that would
materially and adversely affect the execution, delivery or enforceability
of this Pooling and Servicing Agreement or the ability of New Century 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 New Century of, or compliance by New Century with, this
Pooling and Servicing Agreement or the consummation by New Century 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;
(7) New Century covenants that its computer and other systems used
in servicing the Mortgage Loans operate in a manner such that New Century
can service the Mortgage Loans in accordance with the terms of this
Pooling and Servicing Agreement; and
(8) New Century 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
FORM OF CLASS A, CLASS M AND CLASS B CERTIFICATES
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.
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER
ASSETS.
Certificate No. :
Cut-off Date : October 1, 2004
First Distribution Date : November 26, 2004
Initial Certificate
Balance of this
Certificate
("Denomination") :
Initial Certificate
Balances of all
Certificates of this
Class : Class Principal Amount
Class A-1 $217,272,000
Class A-2 $114,355,000
Class M-1 $ 25,668,000
Class M-2 $ 20,739,000
Class M-3 $ 6,161,000
Class M-4 $ 5,133,000
Class M-5 $ 4,928,000
Class B-1 $ 3,491,000
Class B-2 $ 4,107,000
CUSIP : Class CUSIP No.
Class A-1 36242D JA 2
Class A-2 36242D JB 0
Class M-1 36242D JC 8
Class M-2 36242D JD 6
Class M-3 36242D JE 4
Class M-4 36242D JF 1
Class M-5 36242D JG 9
Class B-1 36242D JK 0
Class B-2 36242D JL 8
Class ISIN No.
ISIN : Class A-1 US36242DJA28
Class A-2 US36242DJBO1
Class M-1 US36242DJC83
Class M-2 US36242DJD66
Class M-3 US36242DJE40
Class M-4 US36242DJF15
Class M-5 US36242DJG97
Class B-1 US36242DJK00
Class B-2 US36242DJL82
GS MORTGAGE SECURITIES CORP.
GSAA HOME EQUITY TRUST 2004-9
Asset-Backed Certificates, Series 2004-9
[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 Responsible Party, the Servicers, the Class A-1 Certificate
Insurer 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 October
1, 2004 (the "Agreement"), among GS Mortgage Securities Corp., as depositor (the
"Depositor"), Countrywide Home Loans Servicing LP, as servicer, New Century
Mortgage Corporation, as servicer (collectively, the "Servicers"), NC Capital
Corporation, as responsible party (the "Responsible Party"), 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.
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.
GSAA HOME EQUITY TRUST 2004-9
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2004-9 Asset-Backed 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 applicable to each
Distribution Date is the close of business on the last day of the Interest
Accrual Period immediately preceding such Distribution Date; provided, however,
that for any Definitive Certificates, the Record Date shall be the last Business
Day of the month 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 Responsible Party, the Servicers and the Trustee with the
consent of the Class A-1 Certificate Insurer while the Class A-1 Certificates
are outstanding and the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Agreement. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes, accompanied by a written instrument of transfer in form satisfactory
to the Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Servicers, the Responsible Party 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:
_______________________________________________________________________________.
_____________________________________
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 R CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN TWO "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS 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 : October 1, 2004
First Distribution Date : November 26, 2004
Percentage Interest of :
this Certificate
("Denomination") : 100%
CUSIP : [36242D JM6]
ISIN : [US362420JM65]
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2004-9
Asset-Backed Certificates, Series 2004-9
Class R
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate is distributable
monthly as set forth herein. This Class R Certificate has no Certificate Balance
and is not entitled to distributions in respect of principal or interest. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicers, the Responsible Party, the Class A-1
Certificate Insurer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that [_____________________] is the registered owner
of the Percentage Interest specified above of any monthly distributions due to
the Class R Certificates pursuant to a Pooling and Servicing Agreement dated as
of October 1, 2004 (the "Agreement") among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Countrywide Home Loans Servicing LP, as servicer,
New Century Mortgage Corporation, as servicer (collectively, the "Servicers"),
NC Capital Corporation, as responsible party (the "Responsible Party"), and
Deutsche Bank National Trust Company, as trustee (the "Trustee"). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class R
Certificate at the offices designated by the Trustee for such purposes or such
other location specified in the notice to Certificateholders.
No transfer of a Class R Certificate shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, a plan or arrangement subject to
Section 4975 of the Code or a plan subject to Similar Law, or a person acting on
behalf of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer, which representation letter shall not be an
expense of the Trustee, the Servicers or the Trust Fund. In the event that such
representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of
the Code or a plan subject to Similar Law, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement,
such attempted transfer or acquisition shall be void and of no effect.
Each Holder of this Class R Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class R Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R Certificate shall be a
Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee, (ii) no Ownership
Interest in this Class R Certificate may be registered on the Closing Date or
thereafter transferred, and the Trustee shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered to
the Trustee under Section 5.02(b) of the Agreement, the Trustee shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of this Class R
Certificate, (C) not to cause income with respect to the Class R Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person and (D) not to Transfer the Ownership Interest in this Class R
Certificate or to cause the Transfer of the Ownership Interest in this Class R
Certificate to any other Person if it has actual knowledge that such Person is
not a Permitted Transferee and (iv) any attempted or purported Transfer of the
Ownership Interest in this Class R Certificate in violation of the provisions
herein shall be absolutely null and void and shall vest no rights in the
purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
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
GSAA Home Equity Trust 2004-9
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2004-9 Asset-Backed 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 applicable to each
Distribution Date is the last Business Day of the month 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 Servicers, the Responsible Party and the Trustee with the
consent of the Class A-1 Certificate Insurer while the Class A-1 Certificates
are outstanding and the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Agreement. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Servicers, the Responsible Party 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:
_______________________________________________________________________________.
_____________________________________
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
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 : October 1, 2004
First Distribution Date : November 26, 2004
Percentage Interest of
this Certificate
("Denomination") : 100%
CUSIP : 36242D JJ 3
ISIN : US36242DJJ37
GS MORTGAGE SECURITIES CORP.,
GSAA Home Equity Trust 2004-9
Asset-Backed Certificates, Series 2004-9
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 Responsible
Party, the Servicers, the Class A-1 Certificate Insurer 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 October
1, 2004 (the "Agreement") among GS Mortgage Securities Corp., as depositor (the
"Depositor"), Countrywide Home Loans Servicing LP, as servicer, New Century
Mortgage Corporation, as servicer (collectively, the "Servicers"), NC Capital
Corporation, as responsible party (the "Responsible Party"), and Deutsche Bank
National Trust Company, as trustee (the "Trustee"). To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Trustee for such purposes, or such other location
specified in the notice to Certificateholders.
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.
GSAA Home Equity Trust 2004-9
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2004-9 Asset-Backed 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 applicable to each
Distribution Date is the last Business Day of the month 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 Servicers, the Responsible Party and the Trustee with the
consent of the Class A-1 Certificate Insurer while the Class A-1 Certificates
are outstanding and the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Agreement. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders in
New York, New York, accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations and evidencing the same aggregate
Percentage Interest in the Trust Fund will be issued to the designated
transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Servicers, the Responsible Party and the Trustee
and any agent of the Depositor or the Trustee may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Trustee, nor any such agent shall be affected by any notice
to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of
assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to ______________________
_______________________________________________________________________________.
Applicable statements should be mailed to ______________________________________
_______________________________________________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT D
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
DIRECT OR INDIRECT INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND
CERTAIN OTHER ASSETS.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I
AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON EXEMPT PROHIBITED TRANSACTION
WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND
WILL NOT SUBJECT THE TRUSTEE OR THE SERVICERS TO ANY OBLIGATION IN ADDITION TO
THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I
OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION
LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. :
Cut-off Date : October 1, 2004
First Distribution Date : November 26, 2004
Percentage Interest of this
Certificate ("Denomination") : 100%
CUSIP : 36242D JH 7
ISIN: : 36242DJH70
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2004-9
Asset-Backed Certificates, Series 2004-9
Class X
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced
Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Servicers the
Responsible Party, the Class A-1 Certificate Insurer 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 October 1, 2004 (the "Agreement") among GS Mortgage
Securities Corp., as depositor (the "Depositor"), NC Capital Corporation, as
responsible party (the "Responsible Party"), Countrywide Home Loans Servicing
LP, as servicer, New Century Mortgage Corporation, as servicer (collectively,
the "Servicers"), 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 will be entitled to distributions only to the
extent set forth in the Agreement. In addition, any distribution of the proceeds
of any remaining assets of the Trust will be made only upon presentment and
surrender of this Certificate at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders.
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 either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code or any materially similar provisions of applicable Federal, state or local
law ("Similar Law") or a person acting on behalf of or investing plan assets of
any such plan, which representation letter shall not be an expense of the
Trustee, or (ii) if the transferee is an insurance company, a representation
letter that it is purchasing such Certificates with the assets of its general
account and that the purchase and holding of such Certificates are covered under
Sections I and III of PTCE 95-60, or (iii) in the case of a Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA, or a plan or arrangement subject to Section 4975 of the Code (or
comparable provisions of any subsequent enactments) or a plan subject to Similar
Law, or a trustee of any such plan or any other person acting on behalf of any
such plan or arrangement or using such plan's or arrangement's assets, an
Opinion of Counsel satisfactory to the Trustee, which Opinion of Counsel shall
not be an expense of the Trustee, the Servicers 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 or the Servicers to any obligation in addition to those
expressly undertaken in this Agreement or to any liability.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
***
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
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.
GSAA Home Equity Trust 2004-9
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2004-9 Asset-Backed 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 applicable to each
Distribution Date is the last Business Day of the month 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 Servicers, the Responsible Party and the Trustee with the
consent of the Class A-1 Certificate Insurer while the Class A-1 Certificates
are outstanding and the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Agreement. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Depositor, the Servicers, the Responsible Party 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
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Class A-1 Certificate Insurer]
_____________________
Re: Pooling and Servicing Agreement among GS Mortgage Securities Corp.,
as Depositor, Countrywide Home Loans Servicing LP, as servicer, New
Century Mortgage Corporation, as servicer, NC Capital Corporation,
as responsible party, and Deutsche Bank National Trust Company, as
Trustee, GSAA Trust, 2004-9
Gentlemen:
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]
[Responsible Party]
[Class A-1 Certificate Insurer]
_________________________
Re: Pooling and Servicing Agreement among GS Mortgage Securities
Corp., as Depositor, Countrywide Home Loans Servicing LP, as
servicer, New Century Mortgage Corporation, as servicer, NC
Capital Corporation, as responsible party, and Deutsche Bank
National Trust Company, as Trustee
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on the
attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in
Section 2.01 of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator
to the last endorsee.
(ii) The original recorded Mortgage.
(iii) A duly executed Assignment of Mortgage in the form provided in
Section 2.01 of the Pooling and Servicing Agreement; or, if the
Responsible Party has certified or the Trustee otherwise knows that the
related Mortgage has not been returned from the applicable recording
office, a copy of the Assignment of Mortgage (excluding information to be
provided by the recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from
the originator to the last endorsee.
(v) The original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy
thereof certified by the title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (1), (2), (3), (6)
(solely with respect to original months to maturity), (8) (solely as of
origination, not as of the Cut-off Date) 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
RESIDUAL TRANSFER AFFIDAVIT
GSAA Home Equity Trust 2004-9
Asset-Backed 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 Class R Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement dated as
of October 1, 2004 (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Countrywide Home Loans Servicing, as servicer, New
Century Mortgage Corporation, as servicer, NC Capital Corporation, as
responsible party (the "Responsible Party"), 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.
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: GSAA Home Equity Trust 2004-9, Asset-Backed Certificates,
Class [____]
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (iii) 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: GSAA Home Equity Trust 2004-9, Asset-Backed Certificates,
Class [ ]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either we are not an employee benefit plan that
is subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code"), or a plan subject to
any Federal, state or local law materially similar to the foregoing provisions
of ERISA or the Code, nor are we acting on behalf of any such plan or
arrangement nor using the assets of any such plan or arrangement to effect such
acquisition, or, with respect to a Class X Certificate, the purchaser is an
insurance company that is purchasing this certificate with funds contained in an
"insurance company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificates are covered under Sections I and III
of PTCE 95-60, (e) we have not, nor has anyone acting on our behalf offered,
transferred, pledged, sold or otherwise disposed of the Certificates, any
interest in the Certificates or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute a
distribution of the Certificates under the Securities Act or that would render
the disposition of the Certificates a violation of Section 5 of the Securities
Act or require registration pursuant thereto, nor will act, nor has authorized
or will authorize any person to act, in such manner with respect to the
Certificates, and (f) we are a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act and have completed either of the
forms of certification to that effect attached hereto as Annex 1 or Annex 2. We
are aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Securities Act.
ANNEX 1 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties listed
in the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $ _____[1] in securities (except for
the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts
or similar business trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986,
as amended.
____ Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to banking
and is supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, a copy of which is
attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead
association or similar institution, which is supervised and examined
by a State or Federal authority having supervision over any such
institutions or is a foreign savings and loan association or
equivalent institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934.
____ Insurance Company. The Buyer is an insurance company whose primary
and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar
official or agency of a State, territory or the District of
Columbia.
____ State or Local Plan. The Buyer is a plan established and maintained
by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor registered
under the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
____ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisors
Act of 1940.
___________________________
[1] Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
______________________________________
Print Name of Transferee
By: _____________________________________
Name:
Title:
Date: ___________________________________
ANNEX 2 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties listed
in the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
____ The Buyer owned $ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
______________________________________
Print Name of Transferee
By: _____________________________________
Name:
Title:
IF AN ADVISER:
______________________________________
Print Name of Buyer
Date: ____________________________________
EXHIBIT J
FORM OF REQUEST FOR RELEASE
(for Trustee)
To: [Address]
Re:
In connection with the administration of the Mortgage Loans held by
you as the Trustee on behalf of the Certificateholders, we request the release,
and acknowledge receipt, of the (Custodial File/[specify documents]) for the
Mortgage Loan described below, for the reason indicated.
Mortgagor's Name, Address & Zip Code:
Mortgage Loan Number:
Send Custodial File to:
Reason for Requesting Documents (check one)
____1. Mortgage Loan Paid in Full. (The Company hereby certifies that all
amounts received in connection therewith have been credited to the
Collection Account as provided in the Pooling and Servicing
Agreement.)
____2. Mortgage Loan Repurchase or Substitution. Pursuant to Section 2.03
of the Pooling and Servicing Agreement. (The Company hereby
certifies that the repurchase price or substitution adjustment
amount (if any) has been credited to the Collection Account as
provided in the Pooling and Servicing Agreement and, with respect to
substitutions, that any Mortgage Loan delivered to the Trustee meets
the requirements of the definition of "Substitute Mortgage Loan" set
forth 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 should
Deliver the Trustee's Mortgage File: _________________________
_________________________
_________________________
COUNTRYWIDE HOME LOANS SERVICING LP,
as Servicer
By: COUNTRYWIDE GP, INC.
By: _____________________________________
Name:
Title:
ACKNOWLEDGED AND AGREED:
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee
By:____________________________________
Name:
Title:
Date:
EXHIBIT K
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include each
of the following items, which shall be available for inspection by the Purchaser
and which shall be retained by the Servicer or delivered to and retained by the
Trustee, as applicable:
1. the original Mortgage Note 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 the Mortgage Notes for endorsements, the endorsement may be contained
on an allonge unless the Trustee is advised by the Responsible Party that
state law does not so allow for the use of allonge. 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]"
2. The original of any guaranty executed in connection with the Mortgage
Note.
3. 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 (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Responsible Party (or
certified by the title company, escrow agent, or closing attorney) stating
that such 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
(ii) in the case of a Mortgage where a public recording office retains the
original recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such Mortgage
certified by such public recording office to be a true and complete copy
of the original recorded Mortgage.
4. The originals of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon or a certified true copy of
such agreement submitted for recording.
5. The original Assignment of Mortgage for each Mortgage Loan endorsed in
blank and in recordable form.
6. Originals of all intervening Assignments of Mortgage (if any) evidencing a
complete chain of assignment from the applicable originator to the last
endorsee with evidence of recording thereon or a certified true copy of
such intervening Assignments 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 (i) in the case of a delay
caused by the public recording office, an Officer's Certificate of the
Responsible Party or a certificate from an escrow company, a title company
or a 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
(ii) in the case of an intervening assignment where a public recording
office retains the original recorded intervening assignment or in the case
where an intervening assignment is lost after recordation in a public
recording office, a copy of such intervening assignment certified by such
public recording office to be a true and complete copy of the original
recorded intervening assignment.
7. The original mortgagee title insurance policy or attorney's opinion of
title and abstract of title or, in the event such original title policy is
unavailable, a certified true copy of the related policy binder or
commitment for title certified to be true and complete by the title
insurance company.
8. The original of any security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage (if provided).
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 L
[COUNTRYWIDE 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 Legend
FIELDS
Loan Number A Loan Number currently being used to Text
service this loan.
Prior Loan Number A Prior Loan Number (if any). If Text
servicing has transferred this should
contain the Loan Number used by the
previous servicer.
Trustee File Number T Trustee ID used to file documents. Text
This can be the Trustee's only id or a
category used to arrange documents into
proper pools.
Trustee Loan Number T Trustee secondary ID used to file Text
documents. Often this is used in conjunction
with Trustee File Number to uniquely identify
loans.
Origination Date A Origination Date shown on loan documents. Date
Original Balance A Original amount of loan granted to Numeric
borrower. In the case of construction
loans this should be the full amount
extended on which the monthly payments
are based.
First Payment Date A This is the contractual date when
the first payment was to be made. If the loan has
been modified this should be the first scheduled
payment date following the modification.
Original Maturity A This is the contractual date when the Date
Date last payment on the loan is scheduled
to be made. For balloons it should be
the balloon date. For modified loans
it should not be the modified maturity
date.
Original Term A The number of months from First Payment Number
Date to Maturity Date inclusive.
Balloon Flag A Code/literal to identify balloon Text
loans. Example: Y, N.
Loan Type A Code/literal to identify the loan Text
type. See Enumerations worksheet.
Amortization Type A Generic category to describe loan Text
type. See Enumerations worksheet.
Original A Original Amortization Term of the loan Number
Amortization Term in number of months. For fully amortizing
loans would be the same as Original
Term. For balloon loans this would exceed Original
Term. For IO loans this would have no value.
Interest Calculation A The basis on which interest is
Method calculated. See Enumerations worksheet.
Daily Simple T Flag to identify loans where interest is due is
Interest Flag calculated based on the date that each payment is
actually received.
Original Principal A Original contractual principal and Number
and Interest interest payment amount.
Original Interest A Original contractual interest rate for
Rate loan.
Negative A Code/literal to identify loans where Text
Amortization Flag negative amortization is allowed.
Example: Y=neg am allowed, N=no neg am
allowed.
Negam Percent Cap A Maximum percentage of original balance Number
that a loan may negatively amortize
by. Example: 1.25, 1,10.
Servicing Fee A Servicing Fee rate due servicer. Number
Example: 0.25%.
Property Type A Code/literal that identifies the type Text
of property securing the loan. See
Enumerations worksheet.
Property Address A Property address, not billing address. Text
Property City A Property city. Text
Property State A Property state. Text
Property Zip A Property zip. Number
Borrower Name A Name of borrower. Preferably in a Text
fixed format.
Example: XXXXX XXXX W.
CoBorrower Name A Name of Co borrower. Preferably in a Text
fixed format.
Example: XXXXX XXXX W.
Borrower Social A Eleven character ID. Example: Number
Security Number/TIN 000-00-0000.
CoBorrower Social A Eleven character ID. Example: Number
Security Number/TIN 000-00-0000.
Original FICO score A Credit bureau score obtained at Number
application.
Original Credit Grade A Internal credit grade assigned at Text
origination.
Original Loan To A Ratio representing the Original Loan Balance to
Value Ratio the lower of the Original Appraised Value or
Original Purchase Price. Example: 80.00.
Original Appraised A Appraised value at time of application. Number
Value
Original Appraisal A Date of the original Appraisal Date
Date
Original Appraisal A Name of the Appraisal firm Text
Firm
Original Purchase A Price paid for home. Number
Price
Purchase BPO A BPO at the time of Purchase by GS. Number
Purchase BPO Date A Date of the Purchase BPO Date
Lien Position A Number used to identify the lien Number
position in effect at the time of
application. Example: 1, 2, 3
PMI Provider A Name or code for company providing
private mortgage insurance.
PMI Coverage A Percentage of insurance provided by PMI
Percentage agreement.
PMI Certificate ID A Unique ID to identify PMI
insurance certificate.
Occupancy Type A Occupancy status at time of Text
application. See Enumerations worksheet.
Purpose of Loan A Code/literal used to identify the Text
original purpose of the loan. See
Enumerations worksheet.
Prepayment Flag A Code/Flag to determine if loan was Text
originated with a prepayment penalty.
Prepayment Penalty T Code/literal to identify Text
Type characteristics of penalty. Example:
6 MO INT ON 80% XXXX, 5/4/3/2/1, 3%.
Prepayment Term A Original number of months that penalty Number
was imposed.
Front Ratio T Front End Ratio at time of application. Number
Mortgage debt to borrower income.
Back Ratio T Back End Ratio at time of application. Number
Total debt to borrower income.
MONTHLY LOAN DATA
UPDATES
As Of Date A As Of Date for data sent. Date
Loan Number A Loan Number currently being used to Number
service this loan.
Investor Number A This is the servicer assigned number Number
for reporting purposes.
Investor Category A This is the servicer assigned category
for reporting purposes.
Current Maturity Date A This is the actual date when the last Date
payment on the loan is scheduled to be
made. For balloons it should be the balloon date.
For modified loans it should be the modified
maturity date.
Remaining Term A The Remaining Term of the loan Number
Current Principal & A Principal & Interest in effect for Number
Interest Payment currently outstanding payment.
Current Interest Rate A Interest Rate in effect for Number
currently outstanding payment.
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 T The net present value of the current Number
Present Value balance
Days Past Due A Number of days loan is past due.
Delinquency Indicates if ABS or MBS method for
Convention reporting delinquencies is used.
Delinquency Status A Indicates delinquency reported. Number
Example: 30, 60, 90.
Status of Loan A Code/literal used to identify loan Text
status. See Enumerations worksheet.
12 Month Pay String T 12 character string representing the
timing of payments received on a
rolling 12 month basis. String should
begin with January and end with December.
Time 30 Days A Indicates the number of times a loan payment
Delinquent in Past has been made 30 or more days delinquent
12 Months in the past 12 months.
Time 60 Days A Indicates the number of times a loan payment has
Delinquent in Past been made 60 or more days delinquent in the
12 Months past 12 months.
Time 90 Days A Indicates the number of times a loan payment has
Delinquent in Past been made 90 or more days
delinquent in the past 12 Months 12 months.
Last Modification B Date that loan was last modified.
Date
Last Extension Date B Date loan term was last extended.
Total Extension B Number of months loan has been extended in
Months 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 Number
amount.
Recent Property A Most recent appraised value or BPO Number
Valuation value.
Recent Property A Date of most recent valuation. Date
Valuation Date
Valuation Method A Identify method used to obtain new Text
valuation. See Enumerations worksheet.
Valuation Firm T Name of the Firm who appraised the Text
property
Current FICO T Current FICO score. Number
FICO Date T FICO Date. Date
MONTHLY SERVICING
UPDATES
Borrower Payments
Total Monthly Payment A Total cash received from borrower. Number
Total Monthly A Cash applied to principal. Number
Payment Principal
Total Monthly A Cash applied to interest. Number
Payment Interest
Total Monthly A Cash applied to fees. Text
Payment
Penalties / Fee
Total Monthly Escrow A Cash applied to escrow account. Number
Payment
Total Monthly T Total amount borrower prepaid Number
Prepayment Amount
Payment Date A Date the payment was made. Date
Scheduled P&I A Borrower Scheduled P&I payment for the Number
month
REO Rent Collection A Collection of rent on an REO Property
Servicer Payments
Monthly Escrow A Net escrow advances made or recovered Number
Advances by servicer. Positive value denotes
payments made by servicer.
Monthly Corporate A Net corporate advances made or Number
Advances recovered by servicer. Positive value
denotes payments made by servicer.
Monthly Non A Net Non Recoverable Corporate Advances Number
Recoverable made or recovered by Servicer.
Corporate Advances Positive value denotes payments made by
Servicer.
Principal Advances A Total outstanding principal advances Number
made by servicer.
Interest Advances A Total outstanding interest advances Number
made by servicer.
LPMI Flag A Code/Flag to determine if PMI is paid Text
by owner of loan
LPMI Rate A Rate per annum of LPMI premiums Number
Account Balances
Beginning Scheduled A Beginning scheduled loan balance. If Number
Balance the loan is serviced on a scheduled
balance basis
Ending Scheduled A Ending scheduled loan balance. If the
Balance loan is serviced on a scheduled balance
basis
Escrow Balance A Current balance of escrow account Number
(borrower's positive funds).
Escrow Advance A Total outstanding escrow advance Number
Balance balance.
Recoverable A Total outstanding Recoverable corporate Number
Corporate Advance advance balance amount.
Balance
Non Recoverable A Total outstanding Non Recoverable Number
Corporate Advance corporate advance balance amount.
Balance
Suspense Account A Total suspense account balance Number
Balance
Accrued Interest A Total Accrued Interest on loan. Number
Account Management
Statistics
Forced Placed T Code indicating loan is on forced Insurance
insurance. Flag placed
Annual Forced Placed T Amount of forced placed policy.
Insurance
Stop Advance Flag B Code indicating loan has been placed in Text
a stop advance status. Example:
Y=Stop Advance.
Stop Advance B Amount of principal and interest advances
Recovered recovered at stop date.
Stop Advance Start B Date loan was initially placed on a stop Date
Date advance status.
Stop Advance B Date stop advance status was reversed. Date
Reversal Date
Stop Advance B Amount of advances reversed. Number
Reversal Amount
Last Contact Date A Date of Servicer's last contact Date
with the borrower.
Last Attempt Date A Date of the Servicer's last attempt Date
to contact the borrower.
Bankruptcy Flag A Flag indicating loan is in bankruptcy. Text
Bankruptcy Chapter A Chapter of bankruptcy (7, 11, 12, 13). Text
Bankruptcy Start Date A Bankruptcy filing date. Date
Bankruptcy End Date A Dismissal/Discharge date. Date
Bankruptcy Post A Payment due date of Bankruptcy payment Date
Petition Due Date plan. In essence the new due date.
Motion for Relief A Motion for Relief Request Date. Date
Request Date
Motion for Relief A Date
Filing Date
Motion for Relief A Motion for Relief Hearing Date. Date
Hearing Date
Motion for Relief A Motion for Relief Granted Date. Date
Granted Date
Motion for Relief N Date the motion was Denied (if Date
Denied Date applicable)
In Demand Flag T Code indicating demand Text
letter has been sent.
In Demand Start Date T Date demand letter was sent. Date
In Demand End Date T Expiration of demand letter. Date
Foreclosure Start A Date foreclosure flag placed on loan. Date
Date
Due Date At Referral T The revised due date on any Date
payment modification.
Foreclosure Estimated T On loans that are in Foreclosure the Servicers
End Date 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 Date
foreclosure.
Foreclosure B Indicates if the loan has moved out of Number
Resolution Flag foreclosure (i.e. Did not go to REO).
Foreclosure Resolution B Method used by the servicer to prevent the
Type foreclosed loan from moving into REO (i.e.
Reinstated, Paid Off, Worked out Repayment
plan....).
Foreclosure On Hold B Flag indicating that the loan is in
foreclosure but on hold.
Foreclosure Hold B Date indicating when the loan's Date
Start Date foreclosure proceedings were put on
hold.
Bankruptcy Cash B Number of days an active foreclosure has been in
Delays BK subsequent to its initial foreclosure start
date.
Forbearance Cash B Number of days an active foreclosure has been in
Delays forbearance subsequent to its initial foreclosure
start date.
Non - Cash Delays B Number of allowable days that a loan's
foreclosure proceedings have been on hold due to
a non cash delay (i.e. Title problem...) [again as
per Fannie time line]
Forbearance Start A Date forbearance plan was initiated. Date
Date
Forbearance Payment A Amount of payment under Forbearance Number
plan.
Forbearance End Date A Date forbearance plan scheduled to be Date
complete.
Eviction Start Date A Date eviction flag placed on loan. Date
Eviction End Date A Date property is vacated. Date
REO Start Date A Date REO flag placed on loan
(including Date any redemption periods).
REO End Date A Date property is sold. Date
REO Sub Status A Status while within REO. See
Enumerations worksheet.
Not Acquired Date T Date that the REO enters "Not Acquired" Date
sub status
Eviction Date A Date that the REO enters "Eviction" sub Date
status
Possession Date T Date that the REO enters "Possession" Date
sub status
Listed Date A Date that the REO enters "Listed" sub Date
status
Under Contract Date T Date that the REO enters "Under Date
Contract" sub status
Estimated Sale Date A Servicer estimated closing date on loan Date
Days In REO A Number of Days from the REO becomes Number
marketable to the As of Date
Estimated Sales 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 Date
property
Current List Price A Most recent listing price of property. Number
Current List Date A Date of the most recent listing price Date
of property.
Reason For Default A Servicer Code representing the Reason for
Default. See Enumerations worksheet.
LIQUIDATED LOANS (Liquidated and Paid Off loans)
Termination Type A Type of liquidation. See Enumerations Text
worksheet.
Balance at A Actual Principal balance at time of Number
Termination termination.
Scheduled Sale Date A Dates of planned sales for properties in Date
Foreclosure
Property Sales Price A Sales price if liquidation was short Number
sale or REO sale.
Liquidation Date A Date property liquidated. Date
Gross Total Proceeds A Gross Total Proceeds. Number
Net Total Proceeds A Gross total proceeds less expenses.
Principal Advanced A Total of principal advanced at time of Number
liquidation.
Interest Advanced A Total of interest advanced at time of Number
liquidation.
Deferred Interest T Amount of deferred interest on the loan @ Number
liquidation
Accrued Servicing T Servicing fee recovered at time of Number
Fee Recovered liquidation.
Corporate Advances A The amount of the Total Corporate Advance Number
Recovered at balance recovered at termination
Termination
Escrow Advances A The amount of the Total Escrow Advance Number
Recovered at balance recovered at termination
Termination
Commission A The broker commission amount on Number
liquidation
Seller Concession A The dollar amt of seller concessions upon Number
liquidation.
Taxes A Taxes paid on liquidation Number
Repairs A Cost of Repairs to property Number
Water and Sewer A Water & Sewer costs Number
Expenses Recovered A The amount of the Total Expenses recovered Number
at Termination at termination
Corporate Advances A Corporate advance balance at time of Number
at Termination liquidation.
Escrow Advances at T Escrow advance balance at time of Number
Termination liquidation.
Days from A Days from Acquisition to Close Number
Acquisition to Close
Days from Possession A Days from Possession to Close Number
to Close
Charge-off amount A Loss amount. Number
Severity A Severity percentage.
Severity Formula A Formula for calculating Severity percentage. Text
Potential Deficiency N Flag indicating loan is referred for Text
Judgment Flag deficiency collections.
Potential Deficiency N Deficiency balance reported to Number
Amount borrower/IRS.
Deficiency Proceeds N Deficiency proceeds collected in current Number
(this period month.
Deficiency Proceeds N Deficiency proceeds collected to date. Number
Total (to date)
Deficiency Vendor N Deficiency vendor out of pocket expenses. Number
Expense
Deficiency Servicer N Deficiency vendor collection fee Number
Expense
Hazard Insurance B Date hazard claim filed. Date
Claim Date
Hazard Insurance B Date hazard claim due. Number
Claim Due Date
Hazard Insurance B Amount of hazard claim. Date
Claim Amount
Hazard Insurance B Amount of hazard claim paid to investor. Number
Claim Paid Amount
MI Insurance Claim A Date MI claim filed.
Date
MI Insurance Claim A Date MI claim is due to be paid.
Due Date
MI Insurance Claim A Expected MI proceeds.
Amount
MI Insurance Claim A Actual MI proceeds received.
Paid Amount
Servicer Hold Back B Amount servicer withholds for future Amount
trailing expenses.
Interest
Calculation Method
3360 30/360
A360 Actual/360
A365 Actual/365
AA Actual/Actual
Loan Type
COMI Conventional, with mi.
Collecting a premium from the
borrower for mortgage insurance
and is FHA and is VA
CONV Conventional, no mi
FHA FHA Mortgage
HEL Home Equity Line of credit
CC Credit Card
A Auto
B Boats
RV RV's
MFG Manufactured Housing
ATV ATV
VA VA Mortgage
OTH Other
Occupancy Type
2ND 2nd Home
NOO Non Owner Occupied
OO Owner Occupied
VA Vacant
Property Type
2F 2 Family
3F 3 Family
4F 4 Family
2-4F 2-4 Family
AUTO Automobile
BOAT Boat
COND Condominium
COOP Cooperative
HR-CONDO High Rise Condo
HVAC HVAC
MF Multi Family
MH Manufactured Housing
MX Mixed Use
OF Office
OTH Other
PUDA PUD - Attached
PUDD PUD - Detached
PWR PowerSports
RT Retail
RV Recreational Vehicle
SF Single Family
TH TownHouse
Purpose of Loan
PUR Purchase
RELO Relocation
REFI Rate/Term Refinance
CASH Cash Out Refinance
DEBT Cash Out Debt Consolidation
IMPR Cash Out Home Improvement
EDUC Cash Out Medical or Educational
Expense
TIT1 Title One Home Improvement
CONST New Construction
REO Facilitate REO
Status of Loan
BU Bankrupt - Unknown Status
C Current
DISP Dispute
F Foreclosure
NE Non Equity (NPV of current
balance < $7,500)
FB Forbearance
ID In Demand
LIT Litigation
NLS No Longer Serviced
PO Paid Off- Borrower paid down
entire balance
REO Real Estate Owned - MUST Include
a REO sub status
RSLD Resolved
LIQ Liquidated - MUST include a
Termination Type
U Unknown
Termination Type
CO Charge Off
COC Charge Off with cash possible
NLPO Negotiated Loan Payoff
NS Negotiated Sale
PO Paid Off
PPOC PPO with More Cash Possible
REOS REO Sale
TPPO Third Party Paid Off
Valuation Method
DB Drive By
WT Walk Through
OTH Other
APPR Appraisal
DISTRIBUTION DATE Due Diligence
PRFC Pre Foreclosure
SUPP Supplemental
RR Re-review
REO Sub Status
Class A*1A, Acquired
Class A*1B,
Class A*2A,
Class A*2B,
Class A-2C, and
Class A-2D
PROSPECTUS Possession
SUPPLEMENT
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
Midland Loan Marital Difficulties
Servicer, Inc.
Master Servicer Military Service
MI Mortgagor Incarcerated
N No Reason
PD Payment Dispute
PRINCIPAL Property Problem
[____], 2004 Servicing Problems
TOP Transfer Of Ownership Pen
UC Unable To Contact
UEMP Unemployment
EXHIBIT M
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM 10-K
Re: GSAA Home Equity Trust 2004-9 (the "Trust") Asset-Backed
Certificates, Series 2004-9, issued pursuant to the Pooling and
Servicing Agreement, dated as of October 1, 2004 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., Deutsche
Bank National Trust Company, as trustee (the "Trustee"), NC Capital
Corporation, as responsible party, New Century Mortgage Corporation
("New Century") and Countrywide Home Loans Servicing LP, as servicer
(collectively with New Century, the "Servicers")
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K (the "Annual Report"), and
all reports on Form 8-K containing distribution reports (collectively with
this Annual Report, the "Reports") filed in respect of periods included in
the year covered by this Annual Report, of the Trust;
2. Based on my knowledge, the information in the Reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this Annual Report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to the Trustee by the Servicers 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 Servicers has fulfilled its
obligations under the Pooling and Servicing Agreement; and
5. The Reports disclose all significant deficiencies relating to the
Servicers' 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 Servicers.
Dated: _____________________
_________________________________
[Signature]
[Title]
EXHIBIT N
FORM OF TRUSTEE CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAA Home Equity Trust 2004-9 (the "Trust") Asset-Backed
Certificates, Series 2004-9, issued pursuant to the Pooling and
Servicing Agreement, dated as of October 1, 2004 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp. (the
"Depositor"), Deutsche Bank National Trust Company, as trustee (the
"Trustee"), NC Capital Corporation, as responsible party, New
Century Mortgage Corporation ("New Century") and Countrywide Home
Loans Servicing LP, as servicer (collectively with New Century, the
"Servicers")
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 Servicers under the Pooling and
Servicing Agreement for inclusion in the Reports is included in the
Reports.
Date: _________________________
[Signature]
[Title]
EXHIBIT O
FORM OF SERVICER CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAA Home Equity Trust 2004-9 (the "Trust") Asset-Backed
Certificates Series 2004-9, issued pursuant to the Pooling and
Servicing Agreement, dated as of October 1, 2004 (the "Pooling
and Servicing Agreement"), among GS Mortgage Securities Corp.
(the "Depositor"), Deutsche Bank National Trust Company, as
trustee (the "Trustee"), NC Capital Corporation, as
responsible party, New Century Mortgage Corporation ("New
Century") and Countrywide Home Loans Servicing LP, as servicer
("Countrywide")
I, [identify the certifying individual], certify to the Depositor, 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][New
Century] and relating to the mortgage loans serviced by the
[Countrywide][New Century] pursuant to the Pooling And Servicing Agreement
and provided by [Countrywide][New Century] 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][New Century] 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][New Century] as of the last day of the period covered by
such compliance statement has fulfilled its obligations under the Pooling
and Servicing Agreement; and
4. [Countrywide][New Century] has disclosed to its independent auditor, who
issues the independent auditor's report on the Uniform Single Attestation
Program for Mortgage Bankers for it, any significant deficiencies relating
to [Countrywide's][New Century's] compliance with the minimum servicing
standards.
Date: _________________________
[Signature]
[Title]
