EXHIBIT 4.7
GSR MORTGAGE LOAN TRUST 20[ ]-[ ]
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 20[ ]-[ ]
MASTER SERVICING
and
TRUST AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
as Depositor
[ ],
as Trustee
[ ],
as Master Servicer and Securities Administrator
[ ],
as a Custodian
and
[ ],
as a Custodian
Dated as of
[ ], 20[ ]
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS. .......................................................1
Section 1.01. Standard Terms. .............................................1
Section 1.02. Defined Terms. ..............................................2
ARTICLE II. FORMATION OF TRUST; CONVEYANCE OF MORTGAGE LOANS .................20
Section 2.01. Conveyance to the Trustee. .................................20
Section 2.02. Acceptance by the Trustee and Securities Administrator. ....21
Section 2.03. REMIC Elections and REMIC Interests Designations. ..........22
ARTICLE III. REMITTING TO CERTIFICATEHOLDERS..................................26
Section 3.01. Distributions to Certificateholders. .......................26
Section 3.02. Allocation of Realized Losses and Shortfalls. ..............33
ARTICLE IV. THE SECURITIES....................................................34
Section 4.01. The Certificates. ..........................................34
Section 4.02. Denominations. .............................................35
Section 4.03. Redemption of Certificates. ................................35
Section 4.04. Securities Laws Restrictions. ..............................36
Section 4.05. Exchanges. .................................................36
ARTICLE V. MISCELLANEOUS PROVISIONS...........................................37
Section 5.01. Request for Opinions. ......................................37
Section 5.02. Schedules and Exhibits. ....................................37
Section 5.03 Governing Law. .............................................37
Section 5.04. Counterparts. ..............................................38
Section 5.05. Notices. ...................................................38
SCHEDULES AND EXHIBITS
Schedule I Mortgage Loans
Schedule II Master Loan Purchase Agreements related to the Mortgage Loans
acquired through the Conduit Program
Schedule III PAC Scheduled Amounts
Exhibit A Forms of Certificates
Exhibit B Available Combinations
Master Servicing and Trust Agreement
MASTER SERVICING AND TRUST AGREEMENT
THIS MASTER SERVICING AND TRUST AGREEMENT (this "Trust Agreement"), dated
as of [ ], 20[ ], is hereby executed by and among GS MORTGAGE SECURITIES CORP.,
a Delaware corporation (the "Depositor"), [ ], as trustee (the "Trustee"), [ ],
as a custodian (a "Custodian"), [ ], as a custodian (a "Custodian"), and [ ], as
securities administrator (in such capacity, the "Securities Administrator") and
master servicer (in such capacity, the "Master Servicer"). All of the provisions
of the Standard Terms to Master Servicing and Trust Agreement ([ ] 20[ ]
Edition) (the "Standard Terms"), unless otherwise specified herein, are hereby
incorporated herein by reference and shall be a part of this Trust Agreement as
if set forth herein in full.
PRELIMINARY STATEMENT
The Board of Directors of the Depositor has duly authorized the formation
of GSR Mortgage Loan Trust 20[ ]-[ ] as a trust (the "Trust") to issue a series
of securities with an aggregate initial outstanding principal balance of $[ ] to
be known as the Mortgage Pass-Through Certificates, Series 20[ ]-[ ] (the
"Certificates"). The Trust is formed by this Trust Agreement. The Certificates
in the aggregate evidence the entire beneficial ownership in the Trust. The
Certificates consist of the Classes set forth herein.
Pursuant to Section 12.01 of the Standard Terms, the Securities
Administrator, on behalf of the Trustee, shall make an election to treat all of
the Trust Estate (exclusive of the Separate Interest Trust) as three real estate
mortgage investment conduits (each, a "REMIC" and, individually, "REMIC LT1,"
"REMIC MT" and "REMIC UT") for federal income tax purposes. The "startup day" of
each REMIC for purposes of the REMIC Provisions is the Closing Date.
For purposes of naming the REMIC Interests and the Certificates, the first
character of the Senior Certificates ("1," "2," [ ]), if any, refers to the
Collateral Group, the second character ("A," "M" or "B"), if any, refers to the
status of the interest ("A" for senior, "[M]" or "B" for subordinate) and the
final character or characters ("1," "2," [ ]) refers to the specific Class.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations and warranties hereinafter set forth, the Depositor, the
Trustee, the Securities Administrator, each Custodian and the Master Servicer
agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01. Standard Terms.
The Depositor, the Trustee, the Securities Administrator, each Custodian
and the Master Servicer acknowledge that the Standard Terms prescribe certain
obligations of each such entity with respect to the Certificates. The Depositor,
the Trustee, the Securities Administrator, each Custodian and the Master
Servicer agree to observe and perform such prescribed duties, responsibilities
and obligations, pursuant to the terms and conditions thereof and of this Trust
Agreement, except to the extent inconsistent with the provisions of this Trust
Agreement, the Standard Terms are and shall be a part of this Trust Agreement to
the same extent as if set forth herein in full.
Section 1.02. Defined Terms.
Capitalized terms used but not defined herein shall have the respective
meanings assigned to them in Section 1.01 of the Standard Terms or in the
applicable Sale and Servicing Agreement. In the event of a conflict between the
Standard Terms and the applicable Sale and Servicing Agreement, such Sale and
Servicing Agreement shall govern. In the event of a conflict between the
Standard Terms and this Trust Agreement, this Trust Agreement shall govern. In
addition, the following provisions shall govern the defined terms set forth
below for this Trust Agreement:
"[ ] Group": The Class [ ] Certificates.
"Accrual Certificates": Any Class [ ] Certificates.
"Accrued Certificate Interest": Interest to be distributed to each Class
of Certificates on any Distribution Date consisting of the sum of (i) interest
accrued during the related Interest Accrual Period at the applicable Certificate
Rate for such Class of Certificates on the Certificate Balance (or Notional
Amount) of such Class of Certificates immediately preceding such Distribution
Date and (ii) accrued but unpaid Accrued Certificate Interest from prior
Distribution Dates (on a cumulative basis, but without interest on such unpaid
Accrued Certificate Interest).
"Aggregate Subordinate Percentage": For any Certificate Group at any time,
the sum of the Class Principal Balances of the Subordinate Certificates divided
by the sum of the outstanding principal balances for all the Mortgage Loans in
the related Collateral Groups.
"Applicable Fraction": For each Mortgage Loan and each of REMIC [ ], shall
be calculated as follows:
[ ]
"Apportioned Principal Balance": For any Class of Subordinate Certificates
and any Distribution Date, the Class Principal Balance of such Class immediately
prior to such Distribution Date multiplied by a fraction, the numerator of which
is the related Group Subordinate Amount for such date and the denominator of
which is the sum of the Group Subordinate Amounts for all of the related
Collateral Groups for such date.
"Assignment Agreements": [ ].
"Available Distribution Amount": For any Distribution Date and any
Collateral Group, the sum of the Applicable Fractions for each Mortgage Loan
contributing to such Collateral Group of the following amounts:
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(i) the total amount of all cash received from or on behalf of the
Mortgagors or advanced by the applicable Servicer (or the Master Servicer
in the event the applicable Servicer fails to make such required advances,
or by the Trustee in the event the Master Servicer fails to make any such
required advances, in each case pursuant to Section 3.05 of the Standard
Terms) on the Mortgage Loans contributing to such Collateral Group and not
previously distributed (including Monthly Advances made by such Servicer
(or by the Master Servicer in the event the applicable Servicer fails to
make such required advances, or by the Trustee in the event the Master
Servicer fails to make any such required advances, in each case pursuant to
Section 3.05 of the Standard Terms), Compensating Interest Payments made by
such Servicer (or the Master Servicer or other successor servicer, as the
case may be) and proceeds of Mortgage Loans that are liquidated), except:
(a) all Scheduled Payments collected but due on a Due Date after
such Distribution Date;
(b) all Curtailments received after the previous calendar month;
(c) all Payoffs received after the previous calendar month
(together with each interest payment received with such Payoffs to the
extent that it represents the payment of interest accrued on the
Mortgage Loans contributing to such Collateral Group for the period
after the previous calendar month);
(d) Liquidation Proceeds, Condemnation Proceeds and Insurance
Proceeds received on the Mortgage Loans contributing to such
Collateral Group after the previous calendar month;
(e) all amounts in the Certificate Account from Mortgage Loans
contributing to such Collateral Group that are then due and payable to
the applicable Servicer under the related Sale and Servicing
Agreement;
(f) the Servicing Fee and the Master Servicing Fee for each
Mortgage Loan in such Collateral Group, net of any amounts payable as
compensating interest by the applicable Servicer on that Distribution
Date;
(g) any amounts payable in respect of any primary mortgage
insurance policy;
(h) all related indemnification amounts and other amounts
reimbursable on such Distribution Date to the Securities
Administrator, the Custodians or the Trustee or the Master Servicer;
(i) all expenses of the Trust Estate paid after the immediately
preceding Distribution Date; and
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(j) any Fair Market Value Excess remaining after the optional
termination of the Trust Estate pursuant to Section 4.03; and
(ii) the total amount of any cash received by the Securities
Administrator or the applicable Servicer (or the Master Servicer) from the
repurchase by the applicable Loan Seller of any Mortgage Loans contributing
to such Collateral Group as a result of defective documentation or breach
of representations and warranties (provided that the obligation to
repurchase arose before the related Due Date); provided further that the
Available Distribution Amount for REMIC UT shall be the amounts distributed
by REMIC MT and the Available Distribution Amount for REMIC MT shall be the
amounts distributed by REMIC LT1.
provided that interest with respect to any Mortgage Loan that relates to two
Collateral Groups shall be included in the Available Distribution Amount for
each related Collateral Group as follows: first, to the Collateral Group with
the lower Effective Net Rate, interest to the extent accrued on the Applicable
Fraction of the principal of such Mortgage Loan at the Effective Net Rate for
such Collateral Group; and second, to the other Collateral Group related to such
Mortgage Loan.
"Book-Entry Certificates": The Senior Certificates and the Senior
Subordinate Certificates.
"Certificate Account Property": The Certificate Account, all amounts,
investments and other property held from time to time in the Certificate
Account, and all proceeds of the foregoing.
"Certificate Balance": As to any Class of Certificates (other than any
Interest Only Certificate) or Interests as of the close of business on each
Distribution Date, the initial Certificate Balance thereof (as shown on the
charts in Section 2.03) reduced by (i) all principal payments previously
distributed to such Class and (ii) all Realized Losses previously allocated to
such Class and increased (a) in the case of any Class of Certificates for which
the Certificate Balance thereof has been reduced by any Realized Loss, by the
amount of any Subsequent Recoveries allocated to such Class in accordance with
Section 3.02(e) and (b) in the case of any Accrual Certificates, by any Accrued
Certificate Interest previously added to the Certificate Balance thereof.
"Certificate Group": The Group [ ] Certificates, as applicable.
"Certificate Rate": With respect to each Class of Certificates on any
Distribution Date, the percentage per annum or other entitlement to interest
described in Section 2.03. With respect to each REMIC Interest on any
Distribution Date, the Certificate Rates described in Section 2.03.
"Certificates": The Class [ ] Certificates.
"Class": Each Class of Certificates or REMIC Interests.
"Class [ ] Notional Amount": [ ].
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"Class A Certificates": The Class [ ] Certificates.
"Class B Certificates": The Class [ ] Certificates.
"Closing Date": [ ], 20[ ].
"Collateral Group": Any of Collateral Group 1, Collateral Group 2,
Collateral Group 3, Collateral Group 4, Collateral Group 5, Collateral Group 6
and Collateral Group 7, as applicable.
"Collateral Group [ ]": The Mortgage Loans in Subgroup [ ] or portions
thereof that have been stripped to an Effective Net Rate of [ ]%.
"Collateral Group [ ]": The Mortgage Loans in Subgroup [ ] and Subgroup [
] or portions thereof that have been stripped to an Effective Net Rate of [ ]%.
"Combination Group": Any of the [ ] Group, as applicable.
"Conduit Program": GSMC's mortgage conduit program, through which mortgage
loans are acquired from time to time from various banks, savings and loan
associations, mortgage bankers and other mortgage loan originators and
purchasers of mortgage loans in the secondary market.
"Corresponding Class": For each Class of REMIC Interests or Certificates,
the Class or Classes indicated as such in the tables set forth in Section 2.03.
"Credit Support Depletion Date": With respect to the Subordinate
Certificates, the first Distribution Date (if any) on which the aggregate
Certificate Balance of the Subordinate Certificates has been or shall be reduced
to zero.
"Current Shortfall": Any amount included in the Principal Distribution
Amount for which cash is not available to make distributions as a result of the
Servicer's decision not to Advance a delinquent payment, other than a Realized
Loss.
"Curtailment": Any partial prepayment on any Mortgage Loan.
"Custodian": Each of [ ] and [ ] in their respective capacities as a
custodian under the Custodial Agreement.
"Custodial Agreement": [ ].
"Cut-Off Date": [ ], 20[ ].
"Data Collection Schedule": As defined in the Custodial Agreement.
"DBRS" Dominion Bond Rating Service Limited.
"Depositor": GS Mortgage Securities Corp., in its capacity as depositor
under this Trust Agreement.
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"Designated Rate": With respect to Collateral Group [ ], [ ]% per
annum. With respect to Collateral Group [ ], [ ]% per annum.
"Distribution Date": The 25th day of each month, or if such day is not a
Business Day, the next Business Day following such day. The first Distribution
Date shall be [ ], 20[ ].
"Due Date": For any Mortgage Loan, the first day in each calendar month.
"Due Period": For any Distribution Date, the period beginning on the
second day of the month immediately preceding the month in which such
Distribution Date occurs and ending on the first day of the month in which such
Distribution Date occurs.
"Exchange Certificates": The Class [ ] Certificates.
"Exchangeable Certificates": The Class [ ] Certificates.
"Fair Market Value Excess": An amount equal to the excess, if any, of the
amount in clause (y) of the definition of "Termination Price", over the amount
in clause (x) of the definition of "Termination Price."
"Fitch": Fitch Ratings, or any successor in interest.
"GMAC": GMAC Mortgage Corporation, or any successor in interest.
"Group [ ] Certificate": Any Class [ ], Certificate.
"Group [ ] Mortgage Loan": Any Mortgage Loan in Loan Group [ ].
"Group [ ] NAS Percentage": With respect to any Distribution Date, the
lesser of (i) 100% and (ii) the percentage obtained by dividing (x) the
aggregate Class Principal Balance of the Class [ ] Certificates immediately
prior to such date by (y) the aggregate Class Principal Balance of the Class [ ]
Certificates immediately prior to such date.
"Group [ ] NAS Priority Amount": With respect to any Distribution Date,
the lesser of (i) the sum of (x) the product of the Group [ ] NAS Percentage for
such date, the NAS Scheduled Principal Percentage for such date and [ ]% of the
Scheduled Principal Amount for Collateral Group [ ] and such date and (y) the
product of the Group [ ] NAS Percentage for such date, the NAS Prepayment Shift
Percentage for such date and [ ]% of the Unscheduled Principal Amount for
Collateral Group [ ] and such date and (ii) the aggregate Class Principal
Balance of the Class [ ] Certificates immediately prior to such date.
Notwithstanding the foregoing, (i) on and after the Credit Support Depletion
Date, the Class [ ] Certificates shall be entitled to their aggregate pro rata
share of all scheduled and unscheduled payments of principal related to
Collateral Group [ ] and (ii) on the date on which the aggregate Class Principal
Balance of the Class [ ] Certificates has been reduced to zero, the Class [ ]
Certificates shall be entitled, pro rata, to any remaining Senior Principal
Distribution Amount for Collateral Group [ ] allocable to the Certificates and
thereafter, the Group [ ] NAS Priority Amount shall equal [ ]% of the Senior
Principal Distribution Amount for Collateral Group [ ].
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"Group Subordinate Amount": With respect to each Collateral Group and any
Distribution Date, the excess of the sum of the Applicable Fractions of the
Scheduled Principal Balance of the Mortgage Loans contributing to such
Collateral Group for the immediately preceding Distribution Date for that
Collateral Group over the total Certificate Balance of the Senior Certificates
of the related Certificate Group immediately prior to such Distribution Date.
"GSMC": Xxxxxxx Xxxxx Mortgage Company, or any successor in interest.
"Interest Accrual Period": For any Distribution Date and any regular
interest in any REMIC created hereby or any Class of Certificates (other than
the Class [ ] Certificates) the calendar month immediately preceding the
calendar month in which such Distribution Date occurs. For any Distribution Date
and the Class [ ] Certificates is the period beginning on and including the 25th
day of the month immediately preceding the month in which such Distribution Date
occurs and ending on and including the 24th day of the month in which such
Distribution Date occurs. The Principal Only Certificates shall not be entitled
to any interest.
"Interest Only Certificate": Any Class [ ] Certificate.
"Interests": Each Class of REMIC Interests.
"Junior Subordinate Certificates": The Class [ ] Certificates.
"Liquidation Principal": For any Distribution Date, the principal portion
of Liquidation Proceeds received from each Mortgage Loan that became a
Liquidated Mortgage Loan during the calendar month preceding the month of such
Distribution Date.
"Loan Group [ ]": The Mortgage Loans identified on Schedule I as being in
Loan Group [ ].
"Loan Group [ ]": The Mortgage Loans identified on Schedule I as being in
Loan Group [ ].
"Loan Seller": Each of [ ].
"Master Servicer": [ ], in its capacity as Master Servicer, or any
successor master servicer.
"Master Servicing Fee": With respect to any Distribution Date, all income
and gain realized from the investment of funds in the Master Servicer Account
during the period from and including the Servicer Remittance Date relating to
such Distribution Date, to but excluding the Master Servicer Remittance Date
relating to such Distribution Date.
"Maximum Rate": With respect to any Distribution Date and any Class of
Floating Rate Certificates, the amount set forth in the table in footnote 6 to
the table in Section 2.03(c).
"Mortgage Loans": The mortgage loans identified on Schedule I hereto.
7
"NAS Prepayment Shift Percentage": With respect to any Distribution
Date during the five years beginning on the first Distribution Date, [0]%.
Thereafter, for any Distribution Date occurring on or after the fifth
anniversary of the first Distribution Date, as follows: for any Distribution
Date in the first year thereafter, [30]%; for any Distribution Date in the
second year thereafter, [40]%; for any Distribution Date in the third year
thereafter, [60]%; for any Distribution Date in the fourth year thereafter,
80%; and for any subsequent Distribution Date, [100]%.
"NAS Scheduled Principal Percentage": With respect to any Distribution
Date during the five years beginning on the first Distribution Date, [0]%.
Thereafter, for any Distribution Date occurring on or after the fifth
anniversary of the first Distribution Date, [100]%.
"Net Rate": With respect to each Mortgage Loan, the Note Rate of such
Mortgage Loan less the Servicing Fee Rate and the rate on any primary mortgage
insurance applicable to such Mortgage Loan.
"Note Rate": For each Mortgage Loan, the rate at which the related
promissory note accrues interest. For purposes of calculating the Certificate
Rates on the Interests and Certificates, the Note Rate of a Mortgage Loan shall
be calculated without regard to any modification, waiver or amendment of the
interest rate of the Mortgage Loan, whether agreed to by the Servicer or
resulting from a bankruptcy, insolvency or similar proceeding involving the
related Mortgagor.
"Notional Amount": The [ ] Notional Amount, as applicable. For the
avoidance of doubt, the Notional Amount is used to calculate distributions on
the related Class of Certificates, but is not a principal amount or other amount
to which a Certificateholder is entitled.
"PAC Certificates" The Class [ ] Certificates.
"PAC Scheduled Amount": With respect to any Distribution Date and the PAC
Certificates, the amount set forth on Schedule III attached hereto for such
Distribution Date and such Classes.
"P&I Certificates": All Classes of Certificates other than the Principal
Only Certificates, the Interest Only Certificates and the Residual Certificates.
"Payoffs": Any prepayment in full on any Mortgage Loan.
"Pool Balance": For any Distribution Date and any Collateral Group, the
sum of the products, for each Mortgage Loan contributing to such Collateral
Group, of (i) the Applicable Fraction for such Mortgage Loan in respect of such
Collateral Group and (ii) the outstanding principal balance of such Mortgage
Loan as of the Due Date of the month in which such Distribution Date occurs.
"Premium Loan": Any Group [ ] Mortgage Loan with a Net Rate greater than
or equal to [ ]% per annum.
8
"Prepayment Period": With respect to each Distribution Date, the preceding
calendar month.
"Principal Distribution Amount": For each Collateral Group and any
Distribution Date, the sum of:
(1) the Principal Payment Amount for such Collateral Group;
(2) the Principal Prepayment Amount for such Collateral Group; and
(3) the Applicable Fraction for each Mortgage Loan contributing to
such Collateral Group of the Liquidation Principal derived from such Mortgage
Loan.
"Principal Only Certificate": Any Class [ ] Certificate.
"Principal Payment Amount": For each Collateral Group and any Distribution
Date, the sum of the products, for each Mortgage Loan contributing to such
Collateral Group, of (i) the Applicable Fraction for such Mortgage Loan in
respect of such Collateral Group and (ii) the sum of the following amounts:
(a) the principal portion of Scheduled Payments on such Mortgage Loan
due on the related Due Date and received or advanced during the related Due
Period;
(b) the principal portion of repurchase proceeds received on such
Mortgage Loan if such Mortgage Loan was repurchased as permitted or required by
this Trust Agreement during the calendar month preceding the month of such
Distribution Date; and
(c) any other unscheduled payments of principal which were received on
such Mortgage Loan during the preceding calendar month (or, with respect to
Mortgage Loans serviced by IndyMac, received during the period beginning on and
including the second day of the preceding calendar month and ending on and
including the first day of the current calendar month), other than Payoffs,
Curtailments, or Liquidation Principal.
"Principal Prepayment Amount": For any Distribution Date and any
Collateral Group, the sum of the products, for each Mortgage Loan contributing
to such Collateral Group, of (i) the Applicable Fraction for such Mortgage Loan
in respect of such Collateral Group and (ii) all Payoffs and Curtailments for
such Mortgage Loan that were received during the preceding calendar month or
received during the period beginning on and including the second day of the
preceding calendar month and ending on and including the first day of the
current calendar month (as specified in the related Servicing Agreement).
"Private Certificates": The Junior Subordinate Certificates.
"Qualified Institutional Buyer": Any "qualified institutional buyer" as
defined in clause 7(a) of Rule 144A promulgated under the Securities Act.
"Rating Agency": Each of [Fitch] [Xxxxx'x] [S&P] and [DBRS].
9
"Record Date": For each Class of Certificates, the last Business Day of
the related Interest Accrual Period.
"REMIC": As specified in the preliminary statement.
"REMIC Certificates": Each Class of Certificates issued by REMIC UT
pursuant to Section 2.03 and the Class RC and Class R Certificates.
"REMIC Interests": Each Class of REMIC interests issued pursuant to
Section 2.03.
"REMIC LT1": One of the real estate mortgage investment conduits created
hereunder, which consists of the Mortgage Loans and the REMIC LT1 Distribution
Account.
"REMIC LT1 Regular Interests": The regular interests issued by REMIC LT1
as specified in Section 2.03.
"REMIC MT": One of the real estate mortgage investment conduits created
hereunder, which consists of the REMIC LT1 and REMIC LT2 Regular Interests and
the REMIC MT Distribution Account.
"REMIC MT Regular Interests": The regular interests issued by REMIC MT as
specified in Section 2.03.
"REMIC UT": One of the real estate mortgage investment conduits created
hereunder, which consists of the REMIC MT Regular Interests and the REMIC UT
Distribution Account.
"REMIC UT Regular Interests": The regular interests issued by REMIC UT as
specified in Section 2.03.
"Remittance Date": For each Mortgage Loan and any Distribution Date, as
set forth in the related Servicing Agreement.
"Residual Certificates": The Class [RC and Class R] Certificates.
"Rule 144A Certificates": The [Junior Subordinate Certificates].
"S&P": Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc.
"Sale and Servicing Agreements": [ ].
"Scheduled Final Distribution Date": For each Class of Certificates, the
respective dates specified in Section 2.03(d).
"Scheduled Payments": With respect to any Mortgage Loan, the monthly
payments of principal and interest payable by the related Mortgagor pursuant to
the related amortization schedule.
10
"Scheduled Principal Amount": With respect to each Collateral Group and
any Distribution Date, an amount equal to the amount described in clause (i) of
the definition of Senior Principal Distribution Amount.
"Securities Administrator": [ ] in its capacity as Securities
Administrator under this Trust Agreement, or any successor securities
administrator.
"Senior Certificates": The Class A Certificates.
"Senior Collateral Group Percentage": For Collateral Group [ ] and
Collateral Group [ ] shall equal (i) as of the Closing Date, [ ]% and [ ]%,
respectively, and (ii) for any Distribution Date thereafter shall be a fraction
expressed as a percentage equal to (a) the sum of the Certificate Balances of
the Senior Certificates related to such Collateral Group immediately preceding
such Distribution Date, over (b) the sum of the products, for each Mortgage Loan
contributing to such Collateral Group, of (x) the Applicable Fraction for such
Mortgage Loan in respect of such Collateral Group and (y) the outstanding
principal balance of such Mortgage Loan as of the Due Date of the month in which
such Distribution Date occurs.
"Senior Interests": All of the REMIC M-T Regular Interests except those
corresponding to a Class B Certificate.
"Senior Liquidation Amount": For any Distribution Date and any Collateral
Group, the aggregate, for each Mortgage Loan contributing to such Collateral
Group that became a Liquidated Mortgage Loan during the calendar month preceding
the month of such Distribution Date, of the Applicable Fraction of the lesser of
(i) the related Senior Collateral Group Percentage of the scheduled principal
balance of such Mortgage Loan and (ii) the applicable Senior Prepayment
Percentage of the Liquidation Principal derived from such Mortgage Loan.
"Senior Prepayment Percentage": For each Collateral Group, as follows: (i)
on any Distribution Date occurring before the Distribution Date in the month of
[ ], 100%; (ii) on any other Distribution Date on which the related Senior
Collateral Group Percentage for such Distribution Date exceeds the initial
Senior Collateral Group Percentage as of the Cut-Off Date, 100% (in which case,
the Senior Prepayment Percentage for each other Collateral Group shall also
equal 100% for such Distribution Date); and (iii) on any other Distribution Date
in the month of [ ], and thereafter, 100%, unless:
(a) the mean of the sum of the Applicable Fractions of the Scheduled
Principal Balances of the Mortgage Loans contributing to each related
Collateral Group that are 60 or more days delinquent (including Mortgage
Loans in foreclosure or bankruptcy and property held by the Trust) for each
of the immediately preceding three calendar months is less than or equal to
[50]% of the Group Subordinate Amount for such Collateral Group as of such
Distribution Date, and
(b) the sum of the Applicable Fractions of the cumulative Realized
Losses on the Mortgage Loans contributing to each related Collateral Group
are less than or equal to the following percentage of the aggregate Group
Subordinate Amount for such Collateral Group:
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Percentage of the aggregate Group
Subordination Amount as of
Distribution Date Occurring In the Cut-Off Date
------------------------------ ----------------
[ ] 20[ ] through [ ] 20[ ]............ [30]%
[ ] 20[ ] through [ ] 20[ ]............ [35]%
[ ] 20[ ] through [ ] 20[ ]............ [40]%
[ ] 20[ ] through [ ] 20[ ]............ [45]%
[ ] 20[ ] and thereafter ................. [50]%
in which case, the Senior Prepayment Percentage for each Collateral Group
shall be as follows:
Distribution Date Occurring In or On Senior Prepayment Percentage
------------------------------------ ----------------------------
[ ] 20[ ] through [ ] 20[ ].................... 100%
[ ] 20[ ] through [ ] 20[ ].................... Senior Collateral Group Percentage for such Collateral Group
+ [70]% of the related Subordinate Percentage
[ ] 20[ ] through [ ] 20[ ].................... Senior Collateral Group Percentage for such Collateral Group
+ [60]% of the related Subordinate Percentage
[ ] 20[ ] through [ ] 20[ ].................... Senior Collateral Group Percentage for such Collateral Group
+ [40]% of the related Subordinate Percentage
[ ] 20[ ] through [ ] 20[ ].................... Senior Collateral Group Percentage for such Collateral Group
+ [20]% of the related Subordinate Percentage
[ ] 20[ ] through the Distribution Date immediately
preceding the Final Distribution Date............. Senior Collateral Group Percentage for such Collateral Group
Final Distribution Date .......................... 100%
If on any Distribution Date the allocation to the P&I Certificates of
Principal Prepayments in the percentage required would reduce the sum of the
Certificate Balances of the P&I Certificates below zero, the Senior Prepayment
Percentage for such Distribution Date shall be equal to the percentage necessary
to reduce such sum to zero.
"Senior Principal Distribution Amount": For any Distribution Date and each
Collateral Group shall equal the sum of:
(i) the related Senior Collateral Group Percentage of the related
Principal Payment Amount for such Distribution Date;
(ii) the related Senior Prepayment Percentage of the related Principal
Prepayment Amount for such Distribution Date; and
(iii) the related Senior Liquidation Amount for such Distribution
Date.
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"Senior Subordinate Certificates": The Class [M1, Class B1, Class B2 and
Class B3] Certificates.
"Servicer": Each of [ ] and their respective successors or assigns, in
each case in their respective capacities as servicer under the related Sale and
Servicing Agreement.
"Servicing Advances": Amounts that each servicer is required to advance to
protect the value of each mortgage loan that it services, such as property taxes
and insurance premiums.
"Servicing Fee Rate": For each Mortgage Loan, the per annum fee described
in Schedule I hereto.
"Servicemembers Shortfall": Any shortfall in amounts paid by any
Mortgagors on the related Mortgage Loan that occurs pursuant to the
Servicemembers Civil Relief Act, as amended, or comparable state or local laws
affording relief to members of the armed forces.
"Subgroup [ ]": The Mortgage Loans in Loan Group [ ] with Net Rates
greater than or equal to [ ]% and less than [ ]%.
"Subgroup [ ]": The Mortgage Loans in Loan Group [ ] with Net Rates
greater than or equal to [ ]% and less than [ ]%.
"Subordinate Certificates": The Class B Certificates and Class [ ]
Certificates.
"Subordinate Class Percentage": For each Class of Subordinate Certificates
and each Distribution Date, the percentage obtained by dividing the Class
Principal Balance of such Class immediately prior to such Distribution Date by
the aggregate Certificate Principal Balance of all related Subordinate
Certificates immediately prior to such date.
"Subordinate Interests": The Interest corresponding to the Subordinate
Certificates.
"Subordinate Liquidation Amount": For any Distribution Date and Collateral
Group, the Applicable Fraction of the related Liquidation Principal in respect
of each Mortgage Loan contributing to such Collateral Group which became a
Liquidated Mortgage Loan during the calendar month preceding the month of such
Distribution Date, minus the related Senior Liquidation Amount for such
Distribution Date.
"Subordinate Percentage": For any Collateral Group and any Distribution
Date, 100% minus the Senior Collateral Group Percentage for such Collateral
Group. The Subordinate Percentages as of the Closing Date shall be [ ]% and [ ]%
for Collateral Group [ ] and Collateral Group [ ], respectively.
"Subordinate Prepayment Percentage": For any Distribution Date and any
Collateral Group, the excess of 100% over the Senior Prepayment Percentage for
such Collateral Group. Initially, the Subordinate Prepayment Percentage for each
Collateral Group shall be 0%.
13
"Subordinate Principal Distribution Amount": For any Distribution Date and
any Collateral Group, the sum of:
(i) the related Subordinate Percentage of the related Principal
Payment Amount;
(ii) the related Subordinate Principal Prepayment Amount; and
(iii) the related Subordinate Liquidation Amount.
"Subordinate Principal Prepayment Amount": For each Distribution Date
and each Collateral Group, the Subordinate Prepayment Percentage of the
related Principal Prepayment Amount.
"Subordination Levels": For any Class of Subordinate Certificates and any
specified date, a fraction expressed as a percentage equal to (i) the sum of the
Class Principal Balances of all Classes of Subordinate Certificates that are
subordinate to such Class, over (ii) the sum of the Class Principal Balances of
all related Classes of Certificates as of such date, before giving effect to
distributions on such date, and allocations of Realized Losses on such date.
"Subsequent Recovery": With respect to any Liquidated Mortgage Loan on
which a Realized Loss has occurred, any amount that the related Servicer
ultimately recovers in respect of such Liquidated Mortgage Loan, net of the
reasonable fees of the Servicer associated with such recovery.
"Trust Estate": As defined in Section 2.01 hereof.
"Trust Agreement": This Master Servicing and Trust Agreement, dated as of
[ ], 20[ ], which incorporates by reference the Standard Terms to Master
Servicing and Trust Agreement, [ ] 20[ ] edition; provided that any references
in any documents required to be provided pursuant to the terms of this Trust
Agreement, including references in documents within the Trustee Mortgage Loan
File, to a Trust Agreement dated as of [ ], 20[ ], shall be deemed to refer to
this Trust Agreement.
"Trustee": [ ], not in its individual capacity but solely as Trustee under
this Trust Agreement, or its successor in interest, or any successor trustee
appointed as herein provided.
"UCC": The Uniform Commercial Code as in effect in the State of New York.
"Undercollateralization Distribution": As defined in Section 3.01 hereof.
"Undercollateralized Group": On any Distribution Date, any Collateral
Group for which the total Certificate Balance of the Senior Certificates of the
related Certificate Group is greater than the Pool Balance of such Collateral
Group.
"Unscheduled Principal Amount": With respect to each Collateral Group and
any Distribution Date, an amount equal to the sum of the amounts described in
clauses (ii) and (iii) of the definition of Senior Principal Distribution
Amount.
14
"Verified Information": As defined in the Custodial Agreement.
ARTICLE II.
FORMATION OF TRUST; CONVEYANCE OF MORTGAGE LOANS
Section 2.01. Conveyance to the Trustee.
(a) To provide for the distribution of the principal of and interest
on the Certificates and Interests in accordance with their terms, all of
the sums distributable under this Trust Agreement with respect to the
Certificates and the Interests and the performance of the covenants
contained in this Trust Agreement, the Depositor hereby bargains, sells,
conveys, assigns and transfers to the Trustee, in trust, without recourse
and for the exclusive benefit of the Holders of the Certificates, all of
the Depositor's right, title and interest in and to any and all benefits
accruing to the Depositor from: (i) the Mortgage Loans, the related Trustee
Mortgage Loan Files, and all Monthly Payments due thereon after the Cut-Off
Date and all principal prepayments collected with respect to the Mortgage
Loans and paid by a Borrower on or after the Cut-Off Date, and proceeds of
the conversion, voluntary or involuntary, of the foregoing; (ii) the Sale
and Servicing Agreements; provided that the Depositor hereby reserves its
right to indemnification under the Sale and Servicing Agreements; (iii) the
Custodial Agreement; (iv) the Assignment Agreements; (v) the Distribution
Account, the Master Servicer Account, the Certificate Account and the
Collection Accounts and (vi) proceeds of all of the foregoing (including,
without limitation, all amounts, other than investment earnings, from time
to time held or invested in the Collection Account and the Certificate
Account, whether in the form of cash, instruments, securities or other
property, all proceeds of any mortgage insurance, mortgage guarantees,
hazard insurance, or title insurance policy relating to the Mortgage Loans,
cash proceeds, accounts, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, rights to payment of any and every
kind, and other forms of obligations and receivables, which at any time
constitute all or part or are included in the proceeds of any of the
foregoing) to pay the REMIC Interests and the Certificates as specified
herein (items (i) through (v) above shall be collectively referred to
herein as the "Trust Estate").
(b) It is intended that the conveyance of the Trust Estate by the
Depositor to the Trustee as provided in this Section be, and be construed
as, a sale of the Trust Estate by the Depositor to the Trustee for the
benefit of the Certificateholders. It is, further, not intended that such
conveyance be deemed a pledge of the Trust Estate by the Depositor to the
Trustee to secure a debt or other obligation of the Depositor. However, in
the event that the Trust Estate is held to be the property of the
Depositor, or if for any reason this Agreement is held or deemed to create
a security interest in the Trust Estate, then it is intended that this
Agreement shall also be deemed to be a security agreement within the
meaning of Articles 8 and 9 of the UCC and the corresponding articles of
the Uniform Commercial Code of any other applicable jurisdiction; and the
Depositor hereby grants to the Trustee for the benefit of the
Certificateholders a security interest in all of the Depositor's right,
title and interest, whether now owned or existing or hereafter acquired
15
or arising, in and to the Trust Estate. The Depositor and the Trustee, at
the Depositor's direction and expense, 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 assets
constituting the Trust Estate described above, 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.
(c) The foregoing sale, transfer, assignment, set-over and conveyance
does not and is not intended to result in the creation of an assumption by
the Trustee of any obligation of the Depositor, the Seller or any other
person in connection with the Mortgage Loans, the Sale and Servicing
Agreements, the Assignment Agreements or under any agreement or instrument
relating thereto except as specifically set forth herein.
(d) It is agreed and understood by the Depositor and the Trustee (and
the Depositor so represents and recognizes) that it is not intended that
any Mortgage Loan to be included in the Trust Estate be (i) a "High-Cost
Home Loan" as defined in the New Jersey Home Ownership Act effective
November 27, 2003, (ii) a "High-Cost Home Loan" as defined in the New
Mexico Home Loan Protection Act effective January 1, 2004, (iii) a
"High-Cost Home Mortgage Loan" as defined in the Massachusetts Predatory
Home Loan Practices Act effective November 7, 2004 or (iv) a "High Cost
Home Loan" as defined in the Indiana Home Loan Practices Act effective
February 1, 2005.
Section 2.02. Acceptance by the Trustee and Securities Administrator.
By its execution of this Trust Agreement, the Trustee acknowledges and
declares that it holds and shall hold or has agreed to hold (in each case
through the applicable Custodian) all documents delivered to any such person
from time to time with respect to the Mortgage Loans and all assets included in
the definition of Trust Estate herein in trust for the exclusive use and benefit
of all present and future Holders of the Certificates. The Trustee has not
created and shall not create, and no Officer of the Trustee has any actual
knowledge or has received actual notice of, any interest in the Trust Estate
contrary to the interests created by this Trust Agreement. The Trustee has not
entered, nor intends to enter, into any subordination agreement or intercreditor
agreement with respect to any assets included in the Trust Estate.
Pursuant to Section 2.02(f) of the Standard Terms, the Depositor
acknowledges the appointment of each Custodian and agrees to deliver, or cause
to be delivered, to each Custodian all Mortgage Loan documents that are to be
included in the Trustee Mortgage Loan File for each Mortgage Loan for which each
Custodian shall act as custodian. The Depositor and each Custodian acknowledge
that, pursuant to the Custodial Agreement and in connection with the formation
of the Trust, the Depositor hereby assigns each Custodial Agreement to the
Trustee and agrees to cause a receipt to be issued in the name of the Trustee.
It is understood that each Custodian will charge for its services under this
Agreement as set forth in a separate agreement between such Custodian and the
Securities Administrator, the payment of which fees and expenses (as set forth
in such separate agreement) shall be the sole obligation of the Securities
Administrator. The Securities Administrator will further pay or reimburse the
Custodian upon its request for all reasonable expenses, disbursements and
advances incurred or made by the
16
Custodian in accordance with this Agreement, the Custodial Agreement and any
document executed in connection herewith or therewith.
Pursuant to a separate agreement, the Master Servicer shall pay the
Trustee fee and the Securities Administrator fee from the Master Servicing Fee.
Section 2.03. REMIC Elections and REMIC Interests Designations.
[ ]
[ ]
(d) REMIC UT. REMIC UT shall issue the following Classes of Certificates
(other than the Class RC and Class R Certificates), with the designations,
initial Certificate Balances and Certificate Rates indicated, each of which
(other than the Class RC and Class R Certificates and exclusive of the right to
receive any amounts from the Separate Interest Trust) shall be a Class of REMIC
UT Regular Interests.
Initial Certificate
Balance Certificate
Class or Notional Amount Rate
----------------- ----------------------- ------------------
----------
(1) Notional Amount.
(2) For each Distribution Date (and the related Interest Accrual
Period) each of the Subordinate Certificates shall accrue
interest at a per annum rate equal to the related B Average
Rate.
(3) REMIC UT shall also issue the Class III-R Interest, which
shall represent the sole Class of residual interest in REMIC
UT. The Class R Certificate shall represent beneficial
ownership of the Class II-R and Class III-R Interests.
(4) The annual certificate interest rate for certificates with
floating rates of interest are set forth in the table below:
Class Formula Initial Maximum Minimum
----- ------- ------- ------- -------
(f) REMIC Scheduled Final Distribution. The Scheduled Final Distribution
Date for the Regular Interests in REMIC LT1, REMIC MT and REMIC UT is the
Distribution Date following the third anniversary of the scheduled maturity date
of the Mortgage Loan having the latest scheduled maturity as of the Closing
Date.
17
ARTICLE III.
REMITTING TO CERTIFICATEHOLDERS
Section 3.01. Distributions to Certificateholders.
(a) REMIC UT Distributions. In accordance with Section 3.01(d) of the
Standard Terms and subject to the exceptions set forth below and to Section
3.02, on each Distribution Date, the Securities Administrator shall
withdraw the aggregate Available Distribution Amount for each Collateral
Group from the Certificate Account, and shall distribute it in the
following manner and order of priority:
(1) to each Class of Senior Certificates (other than the Principal Only
Certificates) related to such Collateral Group, Accrued Certificate
Interest thereon, pro rata in proportion to the amount of Accrued
Certificate Interest owing to each such Class; provided that,
[ ];
(2) to the Senior Certificates (other than the Interest Only Certificates)
related to such Collateral Group, to the extent of the remaining
Available Distribution Amount for the related Collateral Group,
concurrently as follows:
[ ];
(3) to the extent of the remaining Available Distribution Amount for
Collateral Group [ ] and Collateral Group [ ], but subject to the
prior distribution of amounts described under "--
Cross-Collateralization" below, to the related classes of Subordinate
Certificates, in their order of seniority the sum of (i) Accrued
Certificate Interest pro rata on the basis of the amount owing to each
such class, and (ii) their pro rata shares, based on their outstanding
Certificate Balances, of the Subordinate Principal Distribution Amount
for each such Collateral Group, as applicable; provided, however, that
on any Distribution Date on which the Subordination Level for any
class of Subordinate Certificates is less than its Subordination Level
as of the Closing Date, the portion of the related Subordinate
Principal Prepayment Amount otherwise allocable to the class or
classes of the Subordinate Certificates junior to such class will be
allocated pro rata to the most senior class of Subordinate
Certificates for which the Subordination Level on such Distribution
Date is less than the Subordination Level as of the Closing Date and
all classes of Subordinate Certificates senior thereto;
(4) to each related class of Certificates, in the order of their
seniority, the amount of any unreimbursed Realized Losses previously
allocated to such Certificates; and
(5) after all of the other classes of Certificates (other than the
Residual Certificates) have been paid in full, the remainder, if any,
which is expected to be zero, of the Available Distribution Amount for
all Collateral Groups to the Class RC
18
Certificates to the extent such remainder is applicable to REMIC LT1
and otherwise to the Class R Certificates;
(b) On each Distribution Date on or after the Credit Support Depletion
Date, to the extent of the Available Distribution Amount allocable to each
Collateral Group on such Distribution Date, distributions shall be made to
the Senior Certificates related to each such Collateral Group, in respect
of interest (pro rata according to Accrued Certificate Interest for such
Distribution Date) and then with respect to principal (pro rata according
to their outstanding principal balances; provided, however, that the
principal otherwise distributable to the Class [ ] Certificates will
instead be distributed to the Class[ ] Certificates, until the Class
Principal Balance of the Class [ ] Certificates has been reduced to zero)
and the remainder (other than any Fair Market Value Excess remaining after
the optional termination of the Trust Fund), if any, which is expected to
be zero, of the Available Distribution Amount for each such Collateral
Group shall be distributed to the holders of the related Class of Residual
Certificates.
On each Distribution Date on which the aggregate Certificate Principal
Balance of the Senior Certificates of two or more related Certificate Groups has
been reduced to zero, any amounts distributable pursuant to this Section 3.01(b)
shall be allocated, as to each applicable related Class of Subordinate
Certificates, in proportion to such Class's Subordinate Class Percentage of the
Subordinate Principal Distribution Amount for the Collateral Group relating to
each such retired Certificate Group.
On each Distribution Date on which the Senior Certificates of two or more
related Certificate Groups remain outstanding, any amounts distributable
pursuant to this Section 3.01(b) shall be distributed in proportion to the
aggregate Certificate Principal Balances of such Certificates of each such
Certificate Group.
On any Distribution Date on which any Certificate Group constitutes an
Undercollateralized Group, all amounts with respect to the related Mortgage
Loans otherwise distributable as principal on the related Subordinate
Certificates, in reverse order of priority (or, following the related Credit
Support Depletion Date, such other amounts described in the immediately
following sentence), shall be distributed as principal to the Senior
Certificates (other than any Interest Only Certificates) of such
Undercollateralized Group pursuant to Section 3.01(a)(2), until the aggregate
Certificate Principal Balance of such Senior Certificates equals the Pool
Balance of the related Collateral Group (such distribution, an
"Undercollateralization Distribution"). In the event that any Certificate Group
constitutes an Undercollateralized Group on any Distribution Date following the
related Credit Support Depletion Date, Undercollateralization Distributions
shall be made from any Available Distribution Amount for each related Collateral
Group that does not constitute an Undercollateralized Group remaining after all
required amounts have been distributed to the Senior Certificates of such other
Certificate Groups. In addition, the amount of any unpaid Current Shortfalls
with respect to an Undercollateralized Group on any Distribution Date (including
any Current Shortfalls for such Distribution Date) shall be distributed to the
Senior Certificates of such Undercollateralized Group prior to the payment of
any Undercollateralization Distributions from amounts otherwise
19
distributable as principal on the related Subordinate Certificates, in reverse
order of priority (or, following the Credit Support Depletion Date, as provided
in the preceding sentence).
If on any Distribution Date two or more related Certificate Groups are
Undercollateralized Groups, the distribution described in the immediately
preceding paragraph shall be made in proportion to the amount by which the
aggregate Certificate Principal Balance of the Senior Certificates of each such
Certificate Group, after giving effect to distributions pursuant to Section
3.01(a) on such Distribution Date, exceeds the Pool Balance of the related
Collateral Group for such Distribution Date.
(c) REMIC LT1 Distributions. On each Distribution Date, the Securities
Administrator shall apply amounts in the REMIC LT1 Distribution Account to
the REMIC LT1 Regular Interests in the same manner that amounts are
distributed on any Corresponding Classes of Certificates on such
Distribution Date.
On each Distribution Date, the Securities Administrator shall apply
remaining amounts in the REMIC LT1 Distribution Account in respect of interest
to the Class LT1 Pool, Class LT1-Sub-A and Class LT1-Sub-B Interests in
accordance with their interest rates set forth above. In addition, on each
Distribution Date, the Trustee shall apply amounts in the REMIC LT1 Distribution
Account in respect of principal to the Class LT1-Pool, Class LT1-Sub-A and Class
LT1-Sub-B Interests as follows:
(i) first, to the Class LT1-Sub-A and Class LT1-Sub-B Interests, the
minimum amounts to each such that following that allocation the
weighted average rate of the Class LT1-Sub-A and Class LT1-Sub-B
Interests, weighted on the principal balances thereof and determined
by subjecting the Class LT1-Sub-A Interest to a floor of [ ]% and
subjecting the Class LT1-Sub-B Interest to a cap of [ ]%, equals the
interest rate on the Class 1-B Certificates for the following
Distribution Date;
(ii) second, to the Class LT1-Pool Interest until its principal balance is
reduced to zero; and
(iii) third, pro rata to the Class LT1-Sub-A and Class LT1-Sub-B Interests
in accordance with their principal balances following clause (i)
above.
Realized Losses and Shortfalls shall be allocated in the same manner.
The Securities Administrator shall withdraw all amounts allocated to the
various REMIC LT1 Regular Interests and deposit such amounts in the Certificate
Account for distribution pursuant to Section 3.01(a) above on such Distribution
Date. Any amount remaining in the REMIC LT1 Distribution Account after making
all other payments required under this Section 3.01(c) shall be distributed to
the holder of the Class RC Certificates.
(d) REMIC MT Distributions. On each Distribution Date, the Securities
Administrator shall apply amounts in the REMIC MT Distribution Account to
the REMIC MT Regular Interests in the same manner that amounts are
distributed on the
20
Corresponding Classes of Certificates on such Distribution Date. Realized
Losses and Shortfalls shall be allocated in the same manner. The Securities
Administrator shall withdraw all amounts allocated to the various REMIC MT
Regular Interests and deposit such amounts in the Certificate Account for
distribution pursuant to Section 3.01(a) above on such Distribution Date.
Any amount remaining in the REMIC MT Distribution Account after making all
other payments required under this Section 3.01(d) shall be distributed to
the holder of the Class R Certificates.
(e) On each Distribution Date on which any Fair Market Value Excess is
on deposit in the Certificate Account and such Fair Market Value Excess has
not been previously distributed in accordance with this Section 3.01(e),
the Securities Administrator shall withdraw such Fair Market Value Excess,
from the Certificate Account, and shall distribute it to the Holder of the
Class RC Certificates.
Section 3.02. Allocation of Realized Losses and Shortfalls.
(a) Realized Losses of Principal.
(i) On each Distribution Date, the respective Applicable Fractions of each
Realized Loss on a Mortgage Loan, to the extent allocable to principal,
shall be allocated to the related Collateral Groups for further allocation
to the Class or Classes of REMIC Interests supported by such Collateral
Groups in reduction of the Certificate Balance thereof; provided, however,
that any Realized Loss allocated to a Collateral Group shall be allocated
first to the Subordinate Interests related to such Collateral Group, in
reverse numerical order, until the Certificate Balance thereof is reduced
to zero, and then pro rata to the Senior Interests related to such
Collateral Group; provided further, that (a) Realized Losses otherwise
allocable to the Class 2A-13 Certificates shall instead be allocated to the
Class 2A-14 Certificates, until the Class Principal Balance of the Class
2A-14 Certificates is reduced to zero; (b) Realized Losses otherwise
allocable to the Class 3A-4 Certificates shall instead be allocated to the
Class 3A-5 Certificates, until the Class Principal Balance of the Class
3A-5 Certificates has been reduced to zero; and (c) any Realized Loss
allocated to a Class of REMIC Interests and not reimbursed on the same
Distribution Date shall be allocated to the Corresponding Class or Classes
of Certificates as described below.
(ii) Any Realized Losses allocated to a Class of REMIC MT Interests
pursuant to Section 3.02(a)(i) and not reimbursed on the same Distribution
Date shall be allocated on the same date to the Corresponding Class or
Classes of REMIC UT Certificates.
(b) Realized Losses Allocable to Interest. On each Distribution Date, the
portion of each Realized Loss on a Mortgage Loan that exceeds the outstanding
principal amount of such Mortgage Loan shall be allocated pro rata to the
related Collateral Group or Groups, on the basis of the amount of interest due
to such Collateral Group from such Mortgage Loan. On each Distribution Date, the
interest portion of each Realized Loss allocated to a Collateral Group in
accordance with the preceding sentence shall be further allocated pro rata, on
the basis of Accrued Certificate Interest, on the Class Principal Balance
thereof, in the case of the Senior
21
Certificates, and the related Apportioned Principal Balance, in the case of the
Subordinated Interests, to each Class of related REMIC Interests; provided that
the interest portion of any Realized Losses allocated to the related Subordinate
Interests in a REMIC as provided in this Section 3.02(b) shall be allocated to
such Subordinate Interests in reverse order of seniority.
(c) Interest Shortfall. Notwithstanding anything in the Standard Terms to
the contrary, on each Distribution Date, before any distributions are made on
the REMIC Interests and the Certificates, Month End Interest Shortfall not
covered by compensating interest from Monthly Advances and Servicemembers
Shortfall with respect to any Mortgage Loan shall be allocated pro rata among
the Classes of the related REMIC based on the amount of interest otherwise owing
thereto in reduction of that amount. Such amounts shall be allocated
proportionately based on (1) in the case of the Senior Certificates, the Accrued
Certificate Interest otherwise distributable thereon and (2) in the case of the
Subordinate Certificates, interest accrued on their related Apportioned
Principal Balances without regard to any reduction pursuant to this paragraph,
for that Distribution Date.
(d) Modification Losses. In the event that the Note Rate on a Mortgage
Loan is reduced as a result of a modification of the terms of such Mortgage
Loan, such modification shall be disregarded for purposes of calculating the
Certificate Rate on any Class of Certificates or Class of REMIC Interest. Any
shortfall resulting from any such modifications, however, shall be treated as a
Realized Loss occurring on each Distribution Date and shall be applied to reduce
the Certificate Balances of the Certificates and REMIC Interests in the manner
and order of priority set forth above.
(e) In the event of any Subsequent Recovery, (i) such amount shall be
treated as a Principal Prepayment Amount and shall be included in the related
Available Distribution Amount for the Distribution Date occurring in the month
following the month in which such recovery is received and (ii) the Certificate
Balance of the Class or Classes to which the related Realized Loss had
previously been allocated, whether or not such Class or Classes Classes remain
outstanding, shall be increased in direct order of priority, in each case by an
amount equal to the lesser of (x) the amount of such recovery and (y) the
aggregate amount of Realized Losses previously allocated to such Classes less
amounts previously allocated to such Classes pursuant to this paragraph.
ARTICLE IV.
THE SECURITIES
Section 4.01. The Certificates.
The Certificates shall be designated generally as the Mortgage
Pass-Through Certificates, Series 20[ ]-[ ]. The aggregate principal amount of
Certificates or Interests, as applicable, that may be executed and delivered
under this Trust Agreement is limited to $[ ], except for Certificates executed
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Certificates pursuant to Sections 5.03 or 5.05 of the Standard Terms.
On the Closing Date, the Trustee shall execute, and the Certificate Registrar
shall authenticate and deliver
22
Mortgage Pass-Through Certificates in the names and amounts and to the Persons
as directed by the Depositor. The table in Section 2.03 sets forth the Classes
of Certificates, the initial Certificate Balance and the Certificate Rate for
each Class of the Certificates. The Certificates authorized by this Trust
Agreement shall include Exchangeable Certificates and Exchange Certificates, in
each case having the designations, Initial Certificate Balances or Notional
Amounts and Certificate Rates specified in the table in Section 2.03(d)
Section 4.02. Denominations.
Each of the Class A and Senior Subordinate Certificates shall be issued in
fully registered, book-entry form and shall be Book-Entry Certificates. Each
Class of Residual Certificates and Class [ ] Certificates shall be issued in
fully registered, certificated form. The Class A Certificates (other than the
Class [ ] Certificates) are offered in minimum denominations of $[25,000]
initial Certificate Balance each and multiples of $[1] in excess of $[25,000].
The Class [ ] Certificates are offered in minimum denominations of $[100,000]
initial Certificate Balance each and multiples of $[1] in excess of $[100,000].
The Class [ ] Certificates are offered in minimum denominations of $[1,000,000]
initial Notional Amount each and multiples of $[1] in excess of $[1,000,000].
The Class [ ] Certificates are offered in the form of a single Certificate
representing the entire Certificate Balance thereof. The Subordinate
Certificates are offered in minimum denominations of $[250,000] initial
Certificate Balance each and multiples of $[1] in excess of $[250,000]. In
addition, one Certificate of each Class (other than the Residual Certificates)
may be issued evidencing the sum of an authorized denomination thereof and the
remainder of the initial Certificate Balance (or, in the case of the Interest
Only Certificates, the Notional Amount) of such Class. Each Class of Residual
Certificates shall be issued in percentage interest[s] of [99.99]% [and 0.01%].
Section 4.03. Redemption of Certificates.
(a) There shall be no right to redemption pursuant to Section 10.01 of the
Standard Terms. Moreover, notwithstanding anything to the contrary in Section
10.02 of the Standard Terms, the obligations created by this Trust Agreement
shall terminate upon payment to the Certificateholders of all amounts held in
the Collection Account, the Certificate Account and the Distribution Account
required to be paid to the Certificateholders pursuant to this Trust Agreement,
following the final payment or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Estate or the
disposition of all property acquired upon foreclosure of any such Mortgage Loan.
(b) On or after the date on which the aggregate Scheduled Principal
Balance of the Mortgage Loans is less than or equal to [1]% of the aggregate
Scheduled Principal Balance of such Mortgage Loans as of the Cut-Off Date the
Master Servicer shall have the right to purchase the remaining Mortgage Loans
and any other assets in REMIC LT1 at the Termination Price and thereby cause the
retirement of the related Certificates.
Notwithstanding anything to the contrary contained herein, the obligations
created by the Trust Agreement shall terminate upon payment to the
Certificateholders of all amounts held in the Certificate Account and the REMIC
LT1 Distribution Account and the REMIC MT
23
Distribution Account required to be paid to the Certificateholders pursuant to
the Trust Agreement, following the earlier of: (i) the final payment or other
liquidation (or any Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Estate or the disposition of all property acquired upon
foreclosure of any such Mortgage Loan and (ii) the purchase of all of the assets
of the Trust Estate as provided above. Written notice of termination shall be
given to each Certificateholder, and the final distribution shall be made only
upon surrender and cancellation of the Certificates at an office or agency
appointed by the Securities Administrator, which shall be specified in the
notice of termination. Any repurchase of the assets of the Trust Estate pursuant
to this Section 4.03 shall be made at a price equal to the Termination Price.
Section 4.04. Securities Laws Restrictions.
Each of the Junior Subordinate Certificates is a Private Certificate
subject to the restrictions on transfer contained in Section 5.05(a) of the
Standard Terms. Furthermore, each of the Private Certificates is a Rule 144A
Certificate. The Class R and Class RC Certificates are Residual Certificates
subject to Section 5.05(c) of the Standard Terms.
Section 4.05. Exchanges.
Exchangeable Certificates shall be exchangeable for Exchange Certificates,
as specified in Exhibit B, and Exchange Certificates shall be exchangeable for
Exchangeable Certificates, on and after the Closing Date under the terms and
conditions hereinafter set forth.
In the case of each Certificate Group, Certificates of the Classes of
Exchangeable Certificates in such Certificate Group shall be exchangeable for
Certificates of the Classes of Exchange Certificates in such Certificate Group
in the respective denominations and combinations determined pursuant to Exhibit
B. Upon any such exchange, the portions of the Exchangeable Certificates
designated for exchange shall be deemed cancelled and replaced by the Exchange
Certificate or Certificates issued in exchange therefore. Correspondingly,
Exchange Certificates included in a Certificate Group may be further designated
for exchange for Certificates of the Classes of Exchangeable Certificates in the
same Certificate Group in the respective denominations and combinations set
forth in Exhibit B. There shall be no limitation on any exchanges authorized
pursuant to this Section 4.05, and, except as provided in the following
paragraph, no fee or other charge shall be payable to the Securities
Administrator in connection therewith.
In order to effect an exchange of Certificates, the Certificateholder
shall notify the Securities Administrator in writing or by email at [ ] no later
than two Business Days before the proposed exchange date. The exchange date may
be any Business Day other than the first or last Business Day of the month
subject to the Securities Administrator's approval. The notice must be on the
Certificateholders letterhead, carry a medallion stamp guarantee and set forth
the following information: the CUSIP number of both Certificates to be exchanged
and Certificates to be received; outstanding Certificate Balance or Notional
Amount and the Original Certificate Balance or Notional Amount of the
Certificates to be exchanged; the Certificateholders DTC participant number; and
the proposed exchange date. After receiving the notice, the Securities
Administrator shall e-mail the Certificateholder with wire payment instructions
relating to the
24
exchange fee. A notice becomes irrevocable on the second Business Day before the
proposed exchange date.
Notwithstanding any other provision herein set forth, a fee shall be
payable to the Securities Administrator in connection with each exchange equal
to [1/32 of 1%] of the Certificate Balance (or the notional amount, if no
principal balance) of the Certificates (other than any Interest Only
Certificates) to be exchanged. In no event, however, shall the fee be less than
$[ ] or greater than $[ ].
The Securities Administrator shall make the first distribution on an
Exchange Certificate or an Exchangeable Certificate received in an exchange
transaction on the Distribution Date in the following month to the
Certificateholder of record as of the close of business on the last day of the
month of the exchange.
ARTICLE V.
MISCELLANEOUS PROVISIONS
Section 5.01. Request for Opinions.
(a) The Depositor hereby requests and authorizes XxXxx Xxxxxx LLP, as its
counsel in this transaction, to issue on behalf of the Depositor such legal
opinions to the Trustee, the Securities Administrator and each Rating Agency as
may be (i) required by any and all documents, certificates or agreements
executed in connection with the Trust, or (ii) requested by the Trustee, the
Securities Administrator, any such Rating Agency or their respective counsels.
(b) Each of the Trustee, the Securities Administrator and the Master
Servicer hereby requests and authorizes its counsel to issue on behalf of such
Person such legal opinions to the Depositor, GSMC and Xxxxxxx, Sachs & Co. as
may be required by any and all documents, certificates or agreements executed in
connection with the establishment of the Trust and the issuance of the
Certificates.
Section 5.02. Schedules and Exhibits.
Each of the Schedules and Exhibits attached hereto or referenced herein
are incorporated herein by reference as contemplated hereby and by the Standard
Terms. Each Class of Certificates shall be in substantially the form attached
hereto, as set forth in the Exhibit index.
Section 5.03. Governing Law.
THIS TRUST AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 5.04. Counterparts.
25
This Trust Agreement may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original but all of such
counterparts shall together constitute but one and the same instrument.
Section 5.05. Notices.
All demands and notices hereunder shall be in writing and shall be deemed
to have been duly given if personally delivered at or mailed by first class
mail, postage prepaid, or by express delivery service, to (a) in the case of the
Depositor, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President
(telecopy number (000) 000-0000 and email addresses: [ ]) or such other address,
telecopy number or email address as may hereafter be furnished to each party to
this Trust Agreement in writing by the Depositor; (b) in the case of the
Trustee, [ ], or such other address or telecopy number as may hereafter be
furnished to each party to this Trust Agreement in writing by the Trustee; (c)
in the case of the Master Servicer, [ ], or such other address, telecopy number
or email address as may hereafter be furnished to each party to this Trust
Agreement in writing by the Master Servicer; and (d) in the case of the
Securities Administrator, [ ], or such other address, telecopy number or email
address as may hereafter be furnished to each party to this Trust Agreement in
writing by the Securities Administrator. The addresses of the rating agencies
required to be stated herein pursuant to Section 13.08(d) of the Standard Terms
are [ ].
[Signature page follows]
IN WITNESS WHEREOF, the Depositor, the Trustee, the Master Servicer, the
Securities Administrator and each Custodian have caused this Trust Agreement to
be duly executed by their respective officers thereunto duly authorized and
their respective signatures duly attested all as of the day and year first above
written.
GS MORTGAGE SECURITIES CORP.,
as Depositor
By:
-----------------------------------------
Name:
Title:
[ ],
not in its individual capacity, but
solely in
its capacity as Trustee under this
Trust
Agreement
By:
-----------------------------------------
Name:
Title:
[ ],
not in its individual capacity, but
solely in its capacity as Securities
Administrator and Master Servicer
By:
-----------------------------------------
Name:
Title:
[ ],
not in its individual capacity, but
solely in its capacity as a Custodian
By:
-----------------------------------------
Name:
Title:
[ ],
not in its individual capacity, but
solely in its capacity as a Custodian
By:
-----------------------------------------
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me in the County of New
York, this ____ day of [ ] 20[ ], by _____________________, __________________
for GS Mortgage Securities Corp., a Delaware corporation, on behalf of the
corporation.
-------------------------
Notary Public
My Commission expires:
-----------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me in the County of New
York, this ____ day of [ ] 20[ ], by _____________________, __________________
for Xxxxxxx, Xxxxx & Co., a Delaware corporation, on behalf of the corporation.
-------------------------
Notary Public
My Commission expires:
-----------------------
STATE OF ____________________ )
) ss.:
COUNTY OF __________________ )
The foregoing instrument was acknowledged before me in the County of
_____________________, this ____ day of [ ] 20[ ], by _____________________ of
[ ], on behalf of the company.
-------------------------
Notary Public
My Commission expires:
-----------------------
STATE OF ____________________ )
) ss.:
COUNTY OF __________________ )
The foregoing instrument was acknowledged before me in the County of
_____________________, this ____ day of [ ] 20[ ], by _____________________ of
[ ], on behalf of the company.
-------------------------
Notary Public
My Commission expires:
-----------------------
STATE OF ____________________ )
)
COUNTY OF ___________________ )
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared _____________________, known
to me to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of [ ], a national
banking association, and that such person executed the same as the act of said
corporation for the purpose and consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of [ ] 20[ ].
--------------------------------------------
Notary Public in and for the State of
My commission expires:
----------------------
Master Servicing and Trust Agreement
STATE OF ______________ )
) ss.:
COUNTY OF ____________ )
On the _____ of [ ] 20[ ] before me, a Notary Public in and for
said State, personally appeared __________________ known to me to be a
__________________ of [ ], the national banking association that executed
the within instrument and also known to me to be the person who executed it
on behalf of said National Banking Association, and acknowledged to me that
such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
-------------------------
Notary Public
My Commission expires:
-----------------------
SCHEDULE I
Mortgage Loan Schedule
SCHEDULE II
Master Loan Purchase Agreements Related to the Mortgage Loans Acquired
through the Conduit Program
SCHEDULE III
PAC SCHEDULED AMOUNTS
EXHIBIT A
Form of Certificates
EXHIBIT B
Available Combinations
REMIC Certificates Exchangeable Certificates
Maximum
Original Class Final
Collateral Original CUSIP Exchange Principal Interest Principal Class CUSIP Distribution
Group REMIC Class Balance(1) Number Class Balance Type Type(2) Coupon Number Date
----- ----------- ---------- ------ ----- ------- ---- ------- ------ ------ ----
Combination 1
Combination 2
Combination 3
-------------
(1) REMIC Certificates and Exchangeable Certificates in any recombinations may
be exchanged only in the proportion that the original balances of such
certificates bear to one another as shown above.
(2) [ ].
--------------------------------------------------------------------------------
STANDARD TERMS
TO
MASTER SERVICING
AND
TRUST AGREEMENT
------------------------
GS Mortgage Securities Corp.
Depositor
GSR Mortgage Loan Trust 20[ ]-2F
Mortgage Pass-Through Certificates, Series 20[ ]-2F
[ ] 20[ ] Edition
--------------------------------------------------------------------------------
TABLE OF CONTENTS
-----------------
Page
STANDARD TERMS....................................................................................................1
ARTICLE I DEFINITIONS.............................................................................................1
Section 1.01 Defined Terms............................................................................1
ARTICLE II MORTGAGE LOAN FILES...................................................................................21
Section 2.01 Mortgage Loan Files.....................................................................21
Section 2.02 Acceptance by the Trustee...............................................................22
Section 2.03 Purchase of Mortgage Loans by a Servicer, a Seller, GSMC or the Depositor...............25
Section 2.04 Representations and Warranties of the Depositor.........................................29
ARTICLE III ADMINISTRATION OF THE TRUST..........................................................................31
Section 3.01 The Collection Accounts; the Master Servicer Account; the Distribution Accounts and the
Certificate Account.....................................................................................31
Section 3.02 Filings with the Commission.............................................................34
Section 3.03 Securities Administrator to Cooperate; Release of Mortgage Files........................40
Section 3.04 Amendments to Servicing Agreement.......................................................41
Section 3.05 Monthly Advances by Master Servicer or Securities Administrator.........................42
Section 3.06 Enforcement of Servicing Agreement......................................................43
ARTICLE IV REPORTING/REMITTING TO CERTIFICATEHOLDERS.............................................................44
Section 4.01 Statements to Certificateholders........................................................44
Section 4.02 Remittance Reports and other Reports from the Servicers.................................47
Section 4.03 Compliance with Withholding Requirements................................................47
Section 4.04 Reports of Certificate Balances to The Depository Trust Company.........................48
Section 4.05 Preparation of Regulatory Reports.......................................................48
Section 4.06 Management and Disposition of REO Property..............................................48
ARTICLE V THE INTERESTS AND THE SECURITIES.......................................................................49
Section 5.01 REMIC Interests.........................................................................49
Section 5.02 The Certificates........................................................................49
Section 5.03 Book-Entry Securities...................................................................49
Section 5.04 Registration of Transfer and Exchange of Certificates...................................51
Section 5.05 Restrictions on Transfer................................................................52
Section 5.06 Mutilated, Destroyed, Lost or Stolen Certificates.......................................55
Section 5.07 Persons Deemed Owners...................................................................55
Section 5.08 Appointment of Paying Agent.............................................................55
ARTICLE VI THE DEPOSITOR.........................................................................................56
Section 6.01 Liability of the Depositor..............................................................56
Section 6.02 Merger or Consolidation of the Depositor................................................56
ARTICLE VII TERMINATION OF SERVICING ARRANGEMENTS................................................................56
Section 7.01 Termination and Substitution of Servicer................................................56
Section 7.02 Notification to Certificateholders......................................................58
ARTICLE VIII ADMINISTRATION AND SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER...............................59
Section 8.01 Duties of the Master Servicer; Enforcement of Servicer's and Master Servicer's
Obligations.............................................................................59
Section 8.02 Maintenance of Fidelity Bond and Errors and Omissions Insurance.........................62
Section 8.03 Representations and Warranties of the Master Servicer...................................63
Section 8.04 Master Servicer Events of Default.......................................................65
Section 8.05 Waiver of Default.......................................................................67
Section 8.06 Successor to the Master Servicer........................................................67
Section 8.07 Fees and Other Amounts Payable to the Master Servicer...................................68
Section 8.08 Merger or Consolidation.................................................................68
Section 8.09 Resignation of Master Servicer..........................................................69
Section 8.10 Assignment or Delegation of Duties by the Master Servicer...............................69
Section 8.11 Limitation on Liability of the Master Servicer and Others...............................69
Section 8.12 Indemnification; Third-Party Claims.....................................................70
ARTICLE IX CONCERNING THE TRUSTEE................................................................................71
Section 9.01 Duties of Trustee.......................................................................71
Section 9.02 Certain Matters Affecting the Trustee...................................................72
Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans...................................75
Section 9.04 Trustee May Own Certificates............................................................75
Section 9.05 Trustee's Fees and Expenses.............................................................75
Section 9.06 Eligibility Requirements for Trustee....................................................76
Section 9.07 Resignation and Removal of the Trustee..................................................76
Section 9.08 Successor Trustee.......................................................................77
Section 9.09 Merger or Consolidation of Trustee......................................................77
Section 9.10 Appointment of Co-Trustee or Separate Trustee...........................................78
Section 9.11 Appointment of Custodians...............................................................78
Section 9.12 Appointment of Office or Agent..........................................................79
Section 9.13 Representation and Warranties of the Trustee............................................79
ARTICLE X TERMINATION OF TRUST...................................................................................80
Section 10.01 Qualified Liquidation...................................................................80
Section 10.02 Termination.............................................................................80
Section 10.03 Procedure for Termination...............................................................81
Section 10.04 Additional Termination Requirements.....................................................82
ARTICLE XI CONCERNING THE SECURITIES ADMINISTRATOR...............................................................83
Section 11.01 Certain Matters Affecting the Securities Administrator..................................83
Section 11.02 Securities Administrator Not Liable for Certificates or Mortgage Loans..................88
Section 11.03 Securities Administrator May Own Certificates...........................................88
Section 11.04 Custodian's and Securities Administrator's Fees, Expenses and Indemnification...........88
Section 11.05 Resignation and Removal of the Securities Administrator.................................89
Section 11.06 Successor Securities Administrator......................................................90
Section 11.07 Representations and Warranties of the Securities Administrator..........................90
Section 11.08 Eligibility Requirements for the Securities Administrator...............................91
ARTICLE XII REMIC TAX PROVISIONS.................................................................................92
Section 12.01 REMIC Administration....................................................................92
Section 12.02 Prohibited Activities...................................................................94
ARTICLE XIII MISCELLANEOUS PROVISIONS............................................................................96
Section 13.01 Amendment of Trust Agreement............................................................96
Section 13.02 Recordation of Agreement; Counterparts..................................................97
Section 13.03 Limitation on Rights of Certificateholders..............................................97
Section 13.04 [Reserved]..............................................................................98
Section 13.05 Notices.................................................................................98
Section 13.06 Severability of Provision...............................................................98
ii
Section 13.07 Sale of Mortgage Loans..................................................................98
Section 13.08 Notice to Rating Agencies...............................................................99
Section 13.09 Custodian's Limitation of Liability.....................................................99
Exhibit A Form of Trust Receipt
Exhibit B Form of Final Certification
Exhibit C Form of Rule 144A Agreement - QIB Certification
Exhibit D Form of Transferee Agreement
Exhibit E Form of Benefit Plan Affidavit
Exhibit F Form of Residual Transferee Agreement
Exhibit G-1 Form of Non-U.S. Person Affidavit
Exhibit G-2 Form of U.S. Person Affidavit
Exhibit H Form of Securities Administrator Certification
Exhibit I Form of Master Servicer Certification
Exhibit J Form of Certification Regarding Servicing Criteria to be
Addressed in Report on Assessment of Compliance
Exhibit K Form 8-K Disclosure Information
Exhibit L Additional Form 10-D Disclosure
Exhibit M Additional Form 10-K Disclosure
Schedule I Bond Level Report
Schedule II Loan Level Report
Schedule III Remittance Report
iii
RECITALS
GS Mortgage Securities Corp. (the "Depositor"), a trustee (together with
its successors and assigns, the "Trustee"), a securities administrator (together
with its successors and assigns, the "Securities Administrator"), custodians
(together with their successors and assigns, the "Custodians"), and a master
servicer (together with its successors and assigns, the "Master Servicer")
identified in the Trust Agreement (as defined below) have entered into the Trust
Agreement that provides for the issuance of mortgage pass-through certificates
(the "Certificates") that in the aggregate evidence the entire interest in
Mortgage Loans or certificates or securities evidencing an interest therein and
other property owned by the Trust created by such Trust Agreement. These
Standard Terms are a part of, and are incorporated by reference into, the Trust
Agreement.
STANDARD PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations, and warranties made in the Trust Agreement and as
hereinafter set forth, the Depositor, the Trustee, the Securities
Administrator, the Custodians and the Master Servicer agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Except as otherwise specified herein or in the Trust Agreement or as the
context may otherwise require, whenever used in these Standard Terms, the
following words and phrases shall have the meanings specified in this Article.
Capitalized words and phrases used herein but not defined herein or in the Trust
Agreement shall, when applied to a Trust, have the meanings set forth in the
Servicing Agreement(s) assigned to such Trust as in effect on the date of this
Agreement. In the event of a conflict between the Trust Agreement and these
Standard Terms, the Trust Agreement shall govern. Unless otherwise specified,
all calculations described herein shall be made on the basis of a 360-day year
consisting of twelve 30-day months.
"10-K Filing Deadline": As defined in Section 3.02.
"Accounting Date": With respect to each Distribution Date, the last day of
the month preceding the month in which such Distribution Date occurs.
"Additional Form 10-D Disclosure": As defined in Section 3.02.
"Additional Form 10-K Disclosure": As defined in Section 3.02.
"Additional Servicer": Each affiliate of each Servicer that Services any
of the Mortgage Loans and each Person that is not an affiliate of each such
Servicer, that Services 10% or more of the Mortgage Loans. For clarification
purposes, the Master Servicer and the Securities Administrator are Additional
Servicers.
"Administrative Cost Rate": Not applicable.
"Advance": The aggregate amount of the (i) advances made by a Servicer on
any Servicer Remittance Date in respect of delinquent Monthly Payments pursuant
to the applicable Sale and Servicing Agreement, (ii) any advances made by the
Master Servicer (or by the Trustee pursuant to Section 3.05 in the event the
Master Servicer fails to make such advances as required) in respect of any such
delinquent Monthly Payment pursuant to Section 3.06 and (iii) amounts necessary
to preserve the Trust's interest in the Mortgaged Premises or the Mortgage
Loans, including without limitation, property taxes or insurance premiums not
paid as required by the Mortgagor and advanced by the related Servicer or
successor servicer.
"Affiliate": Any person or entity controlling, controlled by, or under
common Control with the Depositor, the Trustee, the Securities Administrator,
the Custodian, the Master Servicer or any Servicer. "Control" means the power to
direct the management and policies of a person or entity, directly or
indirectly, whether through ownership of voting securities, by contract or
otherwise. "Controlling" and "controlled" shall have meanings correlative to the
foregoing.
"Aggregate Principal Distribution Amount": The amount specified in the
Trust Agreement.
"ARM Loan": An "adjustable rate" Mortgage Loan, the Note Rate of which is
subject to periodic adjustment in accordance with the terms of the Note.
"Assignment Agreement": Any Assignment, Assumption and Recognition
Agreement or Agreements identified in the Trust Agreement to which the Depositor
is a party.
"Available Distribution Amount": Unless otherwise provided in the Trust
Agreement, on each Distribution Date the Available Distribution Amount shall
equal (i) the sum of the following: (A) all amounts credited to the Collection
Account as of the close of business on the related Distribution Date, (B) an
amount equal to Monthly Advances made on or before the previous Distribution
Date, to the extent such Monthly Advance was made from funds on deposit in any
related Collection Account held for future distribution, (C) all Monthly
Advances made with respect to such Distribution Date (to the extent not included
in clause (B) above) and (D) all amounts deposited into the Certificate Account
to effect a Terminating Purchase in accordance with Section 10.02 minus (ii) the
sum of (A) any Principal Prepayments (including Liquidation Proceeds, Insurance
Proceeds and Condemnation Proceeds) or Payoffs received after the related
Principal Prepayment Period, (B) Monthly Payments collected but due on a Due
Date or Dates subsequent to the related Due Period and (C) reinvestment income
on amounts deposited in any Collection Account to the extent included in (i)
above.
"Back-Up Certification": As defined in Section 3.02.
"Bankruptcy Loss": Any reduction in the total amount owed by a Borrower on
a Mortgage Loan occurring as a result of a final order of a court in a
bankruptcy proceeding.
2
"Beneficial Owner": With respect to a Book-Entry Security, the Person who
is registered as owner of that Certificate in the books of the Clearing Agency
for that Certificate or in the books of a Person maintaining an account with
such Clearing Agency.
"Benefit Plan Affidavit": An affidavit substantially in the form of
Exhibit E hereto.
"Benefit Plan Opinion": An opinion of counsel satisfactory to the Trustee
and the Securities Administrator (and upon which the Trustee, the Master
Servicer, the Securities Administrator and the Depositor shall be entitled to
rely) to the effect that the purchase or holding of such Certificate by the
prospective transferee will not result in any non-exempt prohibited transactions
under Section 406 of ERISA or Section 4975 of the Code and will not subject the
Trustee, the Securities Administrator, the Master Servicer or the Depositor to
any obligation in addition to those undertaken by such parties in the Trust
Agreement, which opinion of counsel shall not be an expense of the Trust or any
of the above parties.
"Bond Level Reports": Shall mean the reports prepared by the Securities
Administrator in substantially the form attached as Schedule I hereto.
"Book-Entry Custodian": The custodian appointed pursuant to Section
5.03(d).
"Book-Entry Securities": The Classes of Certificates, if any, specified as
such in the Trust Agreement for a Series.
"Borrower": The individual or individuals obligated to repay a Mortgage
Loan.
"Business Day": Any day that is not (i) a Saturday or Sunday, or (ii) a
legal holiday in the State of New York and the state in which the Corporate
Trust Office or the principal offices of the Securities Administrator, the
Master Servicer or any Servicer are located, or (iii) a day on which the banking
or savings and loan institutions in the State of New York and the state in which
the Corporate Trust Office or the principal office of the Securities
Administrator, the Master Servicer or any Servicer is located are authorized or
obligated by law or executive order to be closed.
"Certificate": Any security issued under the Trust Agreement and
designated as such.
"Certificate Account": The account or accounts created and maintained for
a Trust pursuant to Section 3.01 hereof.
"Certificate Balance": With respect to each Class of Certificates or
Interests, as of the close of business on any Distribution Date, the initial
balance of such Class of Certificates or Interests set forth in the Trust
Agreement reduced by (a) all principal payments previously distributed to such
Class of Certificates or Interests in accordance with the Trust Agreement, and
(b) all Realized Losses, if any, previously allocated to such Class of
Certificates or Interests pursuant to the Trust Agreement.
"Certificate of Title Insurance": A certificate of title insurance issued
pursuant to a master title insurance policy.
3
"Certificate Rate": With respect to the Certificates, as to each
Distribution Date, the rate specified as such in the Trust Agreement.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.04 hereof.
"Certificated Subordinated Certificates": The Classes of Certificates, if
any, specified as such in the Trust Agreement for a Series.
"Certification Parties": As defined in Section 3.02.
"Certifying Person": As defined in Section 3.02.
"Class": Collectively, all of the Certificates bearing the same
designation.
"Class B Interests": As set forth in the Trust Agreement.
"Clearing Agency": The Depository Trust Company, or any successor
organization or any other organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended, and
the regulations of the Commission thereunder.
"Clearing Agency Participant": A broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date": The date on which Certificates are issued by a Trust as
set forth in the related Trust Agreement.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Account": The collection account or accounts identified in or
established in connection with the Servicing Agreement or Agreements identified
in the Trust Agreement.
"Commission": The United States Securities and Exchange Commission.
"Compensating Interest Payment": With respect to the Mortgage Loans and
any Distribution Date, an amount equal to the excess of (x) the aggregate of any
Prepayment Interest Shortfalls with respect to the Mortgage Loans and such
Distribution Date over (y) the aggregate of any amounts required to be paid by
any Servicer in respect of such shortfalls but not paid; provided that the
aggregate Compensating Interest Payment to be paid by the Master Servicer for
any Distribution Date shall not exceed the Master Servicing Fee that would be
payable to the Master Servicer in respect of the Mortgage Loans and Distribution
Date without giving effect to any Compensating Interest Payment.
"Condemnation Proceeds": All awards or settlements in respect of a taking
of an entire Mortgaged Premises or a part thereof by exercise of the power of
eminent domain or condemnation.
4
"Contract of Insurance Holder": Any FHA approved mortgagee identified as
such in the Trust Agreement or any Servicing Agreement.
"Contractually Delinquent": With respect to any Mortgage Loan, having one
or more uncured delinquencies in respect of payment at any time during the term
of such Mortgage Loan.
"Controlling Person": With respect to any Person, any other Person who
"controls" such Person within the meaning of the Securities Act.
"Corporate Trust Office": The respective principal corporate trust office
of the Trustee or the Securities Administrator, as applicable, at which at any
particular time its corporate trust business shall be administered.
"Custody Agreement": The Custody Agreement or Agreements identified in the
Trust Agreement.
"Custodian": The Custodian or Custodians identified in the Trust
Agreement, which shall hold all or a portion of the Trustee Mortgage Loan Files
with respect to a Series.
"Cut-off Date": The date specified as such in the Trust Agreement.
"Defect Discovery Date": With respect to a Mortgage Loan, the date on
which any of the Trustee, the Securities Administrator, the Master Servicer or
the Servicer first discovers a Qualification Defect affecting the Mortgage Loan.
"Depositor": GS Mortgage Securities Corp., a Delaware corporation, and its
successors.
"Disqualified Organization": Either (a) the United States, (b) any state
or political subdivision thereof, (c) any foreign government, (d) any
international organization, (e) any agency or instrumentality of any of the
foregoing, (f) any tax-exempt organization (other than a cooperative described
in Section 521 of the Code) that is exempt from federal income tax unless such
organization is subject to tax under the unrelated business taxable income
provisions of the Code, (g) any organization described in Section 1381(a)(2)(C)
of the Code, or (h) any other entity identified as a disqualified organization
by the REMIC Provisions. A corporation will not be treated as an instrumentality
of the United States or any state or political subdivision thereof if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such governmental unit.
"Disqualified Organization Affidavit": An affidavit substantially in the
form of Exhibit F-2.
"Distribution Account": An Eligible Account maintained by the Securities
Administrator on behalf of the Trustee for the REMIC. Unless otherwise provided
in the Trust Agreement, the Distribution Account shall be considered an asset of
the REMIC.
"Distribution Date": Shall have the meaning set forth in the Trust
Agreement.
"Distribution Statement": As defined in Section 4.01.
5
"Due Date": The first day of a calendar month.
"Due Period": With respect to any Distribution Date, the period commencing
on the second day of the calendar month preceding the calendar month in which
such Distribution Date occurs and continuing through the first day of the month
in which such Distribution Date occurs.
"XXXXX": The Commission's Electronic Data Gathering and Retrieval System.
"Eligible Account": A trust account (i) maintained by a depository
institution, the long-term unsecured debt obligations are rated by the Rating
Agency in one of its two highest rating categories at the time of any deposit
therein, (ii) maintained with the Securities Administrator or the Trustee and
satisfies either clause (i) or (iii) hereof or (iii) an account otherwise
acceptable to the Rating Agency. If the definition of Eligible Account is met,
any Certificate Account may be maintained with the Trustee, the Securities
Administrator or the Master Servicer or any of their respective affiliates.
"ERISA": The Employee Retirement Income Security Act of 1974, as amended.
"Errors and Omissions Insurance Policy": An errors and omissions insurance
policy to be maintained by the Master Servicer pursuant to Section 8.02 or a
Servicer pursuant to the related Servicing Agreement.
"Event of Default": With respect to each Servicer, a Servicer Event of
Default and with respect to the Master Servicer, a Master Servicer Event of
Default.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Fidelity Bond": A fidelity bond to be maintained by the Master Servicer
pursuant to Section 8.02 or a Servicer pursuant to the related Servicing
Agreement.
"Final Certification": A certification as to the completeness of each
Trustee Mortgage Loan File substantially in the form of Exhibit B hereto
provided by the Custodian on or before the first anniversary of the Closing Date
pursuant to Section 2.02 hereof.
"Fiscal Year": Unless otherwise provided in the Trust Agreement, the
fiscal year of the Trust shall run from [ ] 1 (or from the Closing Date, in the
case of the first fiscal year) through the last day of December.
"Form 8-K Disclosure Information": As defined in Section 3.02.
"Fraud Losses": Losses on Mortgage Loans resulting from fraud, dishonesty
or misrepresentation in the origination of such Mortgage Loans.
"GSMC": Xxxxxxx Sachs Mortgage Company, and its successors and assigns.
"Holders" or "Certificateholders": The holders of the Certificates, as
shown on the Certificate Register maintained by the Trustee.
6
"Independent": When used with respect to any specified Person, another
Person who (a) is in fact independent of the Depositor, the Initial Purchaser,
the Trustee, the Securities Administrator, the Master Servicer, each Servicer or
GSMC, any obligor upon the Certificates or any Affiliate of the Depositor, the
Initial Purchaser, the Trustee, the Securities Administrator, the Master
Servicer, each Servicer or GSMC or such obligor, (b) does not have any direct
financial interest or any material indirect financial interest in the Depositor,
the Initial Purchaser, the Trustee, the Securities Administrator, the Master
Servicer, each Servicer or GSMC or in any such obligor or in an Affiliate of the
Depositor, the Trustee, the Securities Administrator, the Master Servicer, each
Servicer or GSMC or such obligor, and (c) is not connected with the Depositor,
the Initial Purchaser, the Trustee, the Securities Administrator, the Master
Servicer, each Servicer or GSMC or any such obligor as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions. Whenever it is provided herein that any Independent Person's opinion
or certificate shall be furnished to the Trustee or the Securities
Administrator, such Person shall be appointed by the Depositor, the Initial
Purchaser, the Trustee, the Securities Administrator, the Master Servicer, any
applicable Servicer or GSMC in the exercise of reasonable care by such Person,
as the case may be, and approved by the Securities Administrator, and such
opinion or certificate shall state that the Person executing the same has read
this definition and that such Person is independent within the meaning thereof.
"Initial Certificate Balance": With respect to any Certificate or Class of
Certificates, the Certificate Balance of such Certificate or Class of
Certificates as of the Closing Date.
"Initial Purchaser": Xxxxxxx, Xxxxx & Co.
"Insurance Proceeds": Proceeds of any Federal Insurance, title policy,
hazard policy or other insurance policy covering a Mortgage Loan, if any, to the
extent such proceeds are not to be applied to the restoration of the related
Mortgaged Property or released to the Mortgagor in accordance with the
procedures that the related Servicer would follow in servicing mortgage loans
held for its own account.
"Insurer": Any issuer of an insurance policy relating to the Mortgage
Loans or Certificates of a Series.
"Interest": The REMIC interests that are established by the Trust for
purposes of the REMIC Provisions. The Interests shall be Regular Interests in,
and assets of, the REMICs specified in the Trust Agreement.
"Interest Rate Cap Counterparty" Shall have the meaning set forth in the
Trust Agreement.
"Liquidated Mortgage Loan": Any Mortgage Loan for which the applicable
Servicer has determined (and reported to the Master Servicer) that it has
received all amounts that it expects to recover from or on account of such
Mortgage Loan, whether from Insurance Proceeds, Liquidation Proceeds or
otherwise.
"Liquidation Loss": With respect to any Liquidated Mortgage Loan, the
excess of (a) the sum of (i) the outstanding principal balance of such Mortgage
Loan, (ii) all accrued and
7
unpaid interest thereon, and (iii) the amount of all Advances and other expenses
incurred with respect to such Mortgage Loan (including expenses of enforcement
and foreclosure) over (b) Liquidation Proceeds realized from such Mortgage Loan.
"Liquidation Proceeds": Amounts, other than Insurance Proceeds and
Condemnation Proceeds, received by the related Servicer in connection with the
liquidation of a defaulted Mortgage Loan through trustee's sale, foreclosure
sale or otherwise, including amounts received following the disposition of an
REO Property pursuant to the applicable Servicing Agreement less costs and
expenses of such foreclosure sale.
"Loan Level Report": Shall mean the report prepared by the Master Servicer
in substantially the form set forth in Schedule II hereto.
"Loan-to-Value Ratio": For purposes of the REMIC Provisions, the ratio
that results when the Unpaid Principal Balance of a Mortgage Loan is divided by
the fair market value of the Mortgaged Premises (or, in the case of a Mortgage
Loan that is secured by a leasehold interest, the fair market value of the
leasehold interest and any improvements thereon). For purposes of determining
that ratio, the fair market value of the Mortgaged Premises (or leasehold
interest, as the case may be) must be reduced by (i) the full amount of any lien
on the Mortgaged Premises (or leasehold interest, as the case may be) that is
senior to the Mortgage Loan and (ii) a pro rata portion of any lien that is in
parity with the Mortgage Loan.
"Lost Document Affidavit": An affidavit, in recordable form, in which the
Seller of a Mortgage Loan represents, warrants and covenants that: (i)
immediately prior to the transfer of such Mortgage Loan under the related Sale
Agreement, such Seller was the lawful owner of the Mortgage Loan and the Seller
has not canceled, altered, assigned or hypothecated the mortgage note or the
related Mortgage, (ii) the missing document was not located after a thorough and
diligent search by the Seller, (iii) in the event that the missing document ever
comes into the Seller's possession, custody or power, the Seller covenants
immediately and without further consideration to surrender such document to the
Securities Administrator, and (iv) that it shall indemnify and hold harmless the
Trust, its successors, and assigns, against any loss, liability, or damage,
including reasonable attorney's fees, resulting from the unavailability of any
originals of any such documents or of a complete chain of intervening
endorsements, as the case may be.
"Master Servicer": Shall have the meaning set forth in the recitals
hereto.
"Master Servicer Account": An Eligible Account established by the Master
Servicer pursuant to Section 3.01 hereof.
"Master Servicer Event of Default": Those events of default described in
Section 8.04 hereof.
"Master Servicer Fee Rate": Not applicable.
"Master Servicer Remittance Date": With respect to each Distribution Date,
shall be a date which occurs two Business Days prior to such Distribution Date,
unless the Securities Administrator and Master Servicer are the same person, and
then the Payment Date.
8
"Master Servicing Fee": Shall have the meaning set forth in the Trust
Agreement.
"Modification Loss": A decrease in the total payments due from a Borrower
as a result of a modification of such Mortgage Loans following a default or
reasonably expected default thereon. If a Modification Loss results in a
decrease in the Note Rate of a Mortgage Loan, such Modification Loss shall be
treated as occurring on each Due Date to the extent of such decrease.
"Month End Interest Shortfall": For any Distribution Date, the aggregate
Prepayment Interest Shortfall Amount for the Mortgage Loans, to the extent not
paid out of the Servicer's Servicing Fee pursuant to the applicable Servicing
Agreement.
"Monthly Advance": The aggregate amount of the (i) advances made by a
Servicer on any Servicer Remittance Date in respect of delinquent Monthly
Payments pursuant to the applicable Servicing Agreement and (ii) any advances
made by the Master Servicer (or the Trustee pursuant to Section 3.05 in the
event the Master Servicer fails to make such advances as required) in respect of
any such delinquent Monthly Payment pursuant to Section 3.05.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal thereof and interest thereon due in any month under
the terms thereof.
"Mortgage Loan": The mortgage loans sold by the Depositor to the Trust as
listed on the Mortgage Loan Schedule to the Trust Agreement. Unless the context
indicates otherwise the term "Mortgage Loan" includes any REO Property held by
the Trust.
"Mortgage Loan Schedule": The list of Mortgage Loans sold by the Depositor
to the Trust, which Schedule is attached to the Trust Agreement and to the
applicable Custody Agreement, and which shall set forth for each Mortgage Loan
the following information:
(a) the Originator's loan number;
(b) the Borrower's name;
(c) the original principal balance;
(d) the Scheduled Principal Balance as of the close of
business on the Cut off Date;
(e) the maturity date of the mortgage loan; and
(f) the mortgage loan interest rate;
together with such additional information as may be reasonably requested by the
Securities Administrator or the Master Servicer.
"Mortgaged Premises": The real property securing repayment of the debt
evidenced by a Note.
"Mortgagor": Borrower.
9
"Net Rate": Unless otherwise provided in the Trust Agreement, with respect
to each Mortgage Loan, the Note Rate of that Mortgage Loan less the
Administrative Cost Rate applicable thereto.
"Non-U.S. Person": A foreign person within the meaning of Treasury
Regulation Section 1.860G-3(a)(1) (i.e., a person other than (i) a citizen or
resident of the United States, (ii) a corporation or partnership that is
organized under the laws of the United States or any jurisdiction thereof or
therein, (iii) an estate that is subject to United States federal income tax
regardless of the source of its income or (iv) a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust and one or more United States Persons have the authority to control
all substantial decisions of the trust) who would be subject to United States
income tax withholding pursuant to Section 1441 or 1442 of the Code on income
derived from the Residual Certificates.
"Non-U.S. Person Affidavit": An affidavit substantially in the form of
Exhibit G-1 hereto.
"Note": A manually executed written instrument evidencing the Borrower's
promise to repay a stated sum of money, plus interest, to the holder of the Note
by a specific date according to a schedule of principal and interest payments.
"Note Rate": The rate of interest borne by each Note according to its
terms.
"Opinion of Counsel": A written opinion of counsel, who may be counsel for
the Depositor or a Servicer, acceptable to the Trustee, the Securities
Administrator, the Master Servicer and the Servicer, as applicable. An Opinion
of Counsel relating to tax matters must be an opinion of Independent counsel.
"Originator": Any other originator contemplated by Item 1110 (ss.
229.1110) of Regulation AB.
"Paying Agent": The paying agent appointed pursuant to Section 5.08
hereof.
"Payoff": Any payment or other recovery of principal on a Mortgage Loan
equal to the Unpaid Principal Balance of such Mortgage Loan, received in advance
of the last scheduled Due Date, including any prepayment penalty or premium
thereon, which is accompanied by an amount of interest representing scheduled
interest from the Due Date interest was last paid by the Mortgagor to the date
of such prepayment.
"PCAOB": The Public Company Accounting Oversight Board.
"Percentage Interest": With respect to any Certificate to which principal
is assigned as of the Closing Date, the portion of the Class evidenced by such
Certificate, expressed as a percentage, the numerator of which is the initial
Certificate Balance of such Certificate and the denominator of which is the
aggregate Certificate Balance of all of the Certificates of such Class as of the
Closing Date. With respect to any Certificate to which a principal balance is
not assigned as of the Closing Date, the portion of the Class evidenced by such
Certificate, expressed as a percentage, as stated on the face of such
Certificate.
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"Permitted Investments": Permitted Investments shall consist of the
following:
(i) direct obligations of, or obligations fully guaranteed as to
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) repurchase obligations (the collateral for which is held by a
third party, the Trustee or the Securities Administrator, or any of their
respective affiliates) with respect to any security described in clause (i)
above, provided that the long-term or short-term unsecured debt obligations
of the party agreeing to repurchase such obligations are at the time rated
by each Rating Agency in its highest long-term unsecured debt rating
categories;
(iii) certificates of deposit, time deposits and bankers' acceptances
of any bank or trust company (including the Trustee or the Securities
Administrator or an affiliate of either) incorporated under the laws of the
United States or any state, provided that the long-term unsecured debt
obligations of such bank or trust company at the date of acquisition
thereof have been rated by each Rating Agency in one of its two highest
long-term unsecured debt rating categories;
(iv) commercial paper (having original maturities of not more than 270
days) of any corporation (including an affiliate of the Trustee or the
Securities Administrator) incorporated under the laws of the United States
or any state thereof which on the date of acquisition has been rated by
each Rating Agency in its highest short-term unsecured debt rating
available (i.e., "P-1" by Xxxxx'x Investors Service, Inc., "A-1+" by
Standard & Poor's Ratings Services and "F1+" by Fitch, if rated by such
rating agency);
(v) money market funds administered by the Trustee or the Securities
Administrator or any of their respective affiliates provided that such
money market funds are rated by each Rating Agency (i) in its highest
short-term unsecured debt rating category available (i.e., "P-1" by Xxxxx'x
Investors Service, Inc. "A-1+" by Standard & Poor's Ratings Services and
"F-1+" by Fitch, Inc.) or (ii) in one of its two highest long-term
unsecured debt rating categories; and
(vi) any other demand, money market or time deposit or obligation, or
interest-bearing or other security or investment as would not affect the
then current rating of the Certificates by any Rating Agency (which shall
include money market funds rated in the highest long-term rating category
with portfolios consisting solely of obligations in clauses (i) through
(iv) above);
provided, however, that no investment described above shall constitute a
Permitted Investment (A) if such investment evidences either the right to
receive (i) only interest with respect to the obligations underlying such
instrument or (ii) both principal and interest payments derived from obligations
underlying such instrument if 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 or (B) if such investment
is not a "permitted investment" for purposes
11
of the REMIC Provisions; and provided further, that no investment described
above shall constitute a Permitted Investment unless such investment matures no
later than the Business Day immediately preceding the Distribution Date or the
Master Servicer Remittance Date, as applicable, on which the funds invested
therein are required to be distributed (or, in the case of an investment that is
an obligation of the institution in which the account is maintained, no later
than such Distribution Date). Neither the Securities Administrator nor the
Master Servicer shall sell or permit the sale of any Permitted Investment unless
they shall have determined that such a sale would not result in a prohibited
transaction in which a gain would be realized under the REMIC Provisions.
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"Plan": Any employee benefit plan or retirement arrangement, including
individual retirement accounts, educational savings accounts and annuities,
Xxxxx plans and collective investment funds in which such plans, accounts,
annuities or arrangements are invested, that are described in or subject to the
Plan Asset Regulations, ERISA or corresponding provisions of the Code.
"Plan Asset Regulations": The Department of Labor regulations set forth in
29 C.F.R. ss. 2510.3-101, as amended from time to time.
"Plan Investor": Any Plan, any Person acting on behalf of a Plan or any
Person using the assets of a Plan.
"Prepayment Period": Unless otherwise specified in the Trust Agreement,
with respect to each Distribution Date, the calendar month preceding the month
in which such Distribution Date occurs.
"Prepayment Interest Shortfall": With respect to any Distribution Date and
(x) any Principal Prepayment Amount, the difference between (i) one full month's
interest at the applicable Note Rate (after giving effect to any applicable
Relief Act Reduction), as reduced by the applicable Servicing Fee Rate on the
outstanding principal balance of such Mortgage Loan immediately prior to such
prepayment and (ii) the amount of interest actually received with respect to
such Mortgage Loan in connection with such Principal Prepayment Amount.
"Prime Rate": With respect to any Distribution Date, the rate published as
the "Prime Rate" in the "Money Rates" section or other comparable section of The
Wall Street Journal on such date. In the event The Wall Street Journal publishes
a prime rate range, the average of that range, as determined by the Securities
Administrator, shall be the Prime Rate. In the event The Wall Street Journal no
longer publishes a "Prime Rate" entry, the Securities Administrator shall
designate a new methodology for determining the Prime Rate based on comparable
data.
"Principal Prepayment Amount": As defined in the Trust Agreement.
12
"Private Residual Certificate": Any Class of Certificates designated as
such in the Trust Agreement.
"Private Certificate": Any Class of Certificates designated as such in the
Trust Agreement.
"Purchase Price": With respect to a Mortgage Loan purchased from the
Trust, an amount equal to the Scheduled Principal Balance of the Mortgage Loan,
plus accrued and unpaid interest thereon at the Note Rate to the last day of the
month in which the purchase occurs, plus the amount of any costs and damages
incurred by the Trust as a result of any violation of any applicable federal,
state, or local predatory or abusive lending law arising from or in connection
with the origination of such Mortgage Loan, and less any amounts received in
respect of such Mortgage Loan and being held in the Collection Account.
"Purchaser": The Person that purchases a Mortgage Loan from the Trust
pursuant to Section 2.03 hereof.
"QIB Certificate": As defined in Section 5.5(a), a Rule 144A Agreement or
a certificate substantially to the same effect.
"Qualification Defect": With respect to a Mortgage Loan, (a) a defective
document in the Trustee Mortgage Loan File, (b) the absence of a document in the
Trustee Mortgage Loan File, or (c) the breach of any representation, warranty or
covenant with respect to the Mortgage Loan made by the applicable Seller or
Servicer or the Depositor but only if the affected Mortgage Loan would cease to
qualify as a "qualified mortgage" for purposes of the REMIC Provisions. With
respect to a REMIC Regular Interest or a mortgage certificate described in
Section 860G(a)(3) of the Code, the failure to qualify as a "qualified mortgage"
for purposes of the REMIC Provisions.
"Qualified Institutional Buyer": Any "qualified institutional buyer" as
defined in clause (a)(1) of Rule 144A.
"Rating Agency": Any nationally recognized statistical rating agency, or
its successor, that on the Closing Date rated one or more Classes of the
Certificates at the request of the Depositor and identified in the Trust
Agreement. If such agency or a successor is no longer in existence, the "Rating
Agency" shall be such nationally recognized statistical rating agency, or other
comparable Person, designated by the Depositor, notice of which designation
shall be given to the Securities Administrator. References herein to any
long-term rating category of a Rating Agency shall mean such rating category
without regard to any plus or minus or numerical designation.
"Realized Loss": A Liquidation Loss, a Modification Loss or a Bankruptcy
Loss, in each case, to the extent not covered by Insurance Proceeds.
"Record Date": Shall have the meaning set forth in the Trust Agreement.
"Regular Interest": An interest in a REMIC that is designated in the Trust
Agreement as a "regular interest" under the REMIC Provisions.
13
"Regular Certificate": Any Certificate other than a Residual Certificate
or Class X Certificate and that represents a Regular Interest in a REMIC or a
combination of Regular Interests in a REMIC.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as have been provided
by the Commission in the adopting release (Asset-Backed Securities, Securities
Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or its staff
from time to time.
"Relevant Servicing Criteria": The Servicing Criteria applicable to each
party, as set forth on Exhibit J attached hereto. Multiple parties can have
responsibility for the same Relevant Servicing Criteria. With respect to a
Servicing Function Participant engaged by the Master Servicer, the Securities
Administrator or each Servicer, the term "Relevant Servicing Criteria" may refer
to a portion of the Relevant Servicing Criteria applicable to such parties.
"REMIC": With respect to each Trust, each real estate mortgage investment
conduit, within the meaning of the REMIC Provisions, for such Trust.
"REMIC Provisions": Provisions of the Code relating to real estate
mortgage investment conduits, which appear at Sections 860A through 860G of the
Code, related Code provisions, and regulations, announcements and rulings
thereunder, as the foregoing may be in effect from time to time.
"Remittance Report": The report (either a data file or hard copy) that is
prepared by each Servicer for the Master Servicer which contains the information
specified in Schedule III hereto.
"REO Disposition": The receipt by the applicable Servicer of Insurance
Proceeds and other payments and recoveries (including Liquidation Proceeds)
which the Servicer recovers from the sale or other disposition of an REO
Property.
"REO Property": Mortgaged Premises acquired by the Trust in foreclosure or
similar actions.
"Reportable Event": As defined in Section 3.02.
"Reporting Servicer": As defined in Section 3.02.
"Request for Release": A request signed by an Officer of the Servicer,
requesting that the Trustee (or applicable Custodian) release the Trustee
Mortgage Loan File to such Servicer for the purpose set forth in such release,
in accordance with the terms of the Servicing Agreement and these Standard
Terms.
"Reserve Fund": Unless otherwise provided in the Trust Agreement, any fund
in the Trust Estate other than (a) the Certificate Account, Distribution
Account, the Master Servicer
14
Account and Termination Account and (b) any other fund that is expressly
excluded from a REMIC.
"Residual Certificate": The Class R1 and Class R2 Certificates designated
as such in the Trust Agreement.
"Residual Interest": An interest in a REMIC that is designated as a
"residual interest" under the REMIC Provisions.
"Residual Transferee Agreement": An agreement substantially in the form of
Exhibit F hereto.
"Responsible Officer": When used with respect to the Trustee or the
Securities Administrator, any senior vice president, any vice president, any
assistant vice president, any assistant treasurer, any trust officer, any
assistant secretary in the Corporate Trust Office of the Trustee or the
Securities Administrator, as the case may be, or any other officer of the
Trustee or the Securities Administrator customarily performing functions similar
to those performed by the persons who at the time shall be such officers and
having direct responsibility for the administration of this Agreement, and also
to whom with respect to a particular corporate trust matter such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject; provided, however, when used with respect to the Master
Servicer, any senior vice president, any assistant vice president, any trust
officer, or any other officer of the Master Servicer customarily performing
functions similar to those performed by any such named officer and having direct
responsibility for the master servicing of the Mortgage Loans under this Trust
Agreement. With respect to any other Person, the chairman of the board, the
president, a vice president (however designated), the treasurer or controller.
"Rule 144A": Rule 144A promulgated by the Commission under the Securities
Act, as the same may be amended from time to time.
"Rule 144A Agreement": An agreement substantially in the form of Exhibit C
hereto.
"Rule 144A Certificates": Any Class of Certificates designated as such in
the Trust Agreement.
"Sale Agreement": The Sale and Servicing Agreement or Sale and Servicing
Agreements, as defined in the Trust Agreement.
"Xxxxxxxx-Xxxxx Act": The Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"Xxxxxxxx-Xxxxx Certification": A written certification covering the
activities of all Servicing Function Participants that complies with (i) the
Xxxxxxxx-Xxxxx Act, as amended from time to time, and (ii) Exchange Act Rules
13a-14(d) and 15d-14(d), as in effect from time to time; provided that if, after
the Closing Date (a) the Xxxxxxxx-Xxxxx Act is amended, (b) the Rules referred
to in clause (ii) are modified or superseded by any subsequent statement, rule
or regulation of the Commission or any statement of a division thereof, or (c)
any future releases,
15
rules and regulations are published by the Commission from time to time pursuant
to the Xxxxxxxx-Xxxxx Act, which in any such case affects the form or substance
of the required certification and results in the required certification being,
in the reasonable judgment of the Master Servicer, materially more onerous than
the form of the required certification as of the Closing Date, the
Xxxxxxxx-Xxxxx Certification shall be as agreed to by the Master Servicer and
the Depositor following a negotiation in good faith to determine how to comply
with any such new requirements.
"Scheduled Principal Balance": For any Mortgage Loan as of any Due Date
subsequent to the Cut-Off Date up to and including the date on which such
Mortgage Loan is finally liquidated or repurchased from the Trustee, the
scheduled principal balance thereof as of the Cut-off Date, increased by the
amount of negative amortization, if any, with respect thereto, and reduced by
(i) the principal portion of all Monthly Payments due on or before such Due
Date, whether or not paid by the Borrower or advanced by a Servicer, the Master
Servicer, the Securities Administrator or an Insurer, net of any portion thereof
that represents principal due on a Due Date occurring on or before the date on
which such proceeds were received, (ii) the principal portion of all
Prepayments, including Liquidation Proceeds, Condemnation Proceeds and Insurance
Proceeds, and Payoffs received on or before the last day of the Prepayment
Period preceding such date of determination, and (iii) without duplication, the
amount of any Realized Loss that has occurred with respect to such Mortgage
Loan.
"Securities Account": As set forth in the Trust Agreement.
"Securities Act": The Securities Act of 1933, as amended.
"Securities Administrator": As set forth in the Trust Agreement.
"Securities Intermediary": As set forth in the Trust Agreement.
"Seller": The Loan Seller or Loan Sellers identified in the Trust
Agreement.
"Senior Collateral Group Percentage": The percentage, if any, calculated
as set forth in the Trust Agreement.
"Senior Prepayment Percentage": The percentage, if any, calculated as set
forth in the Trust Agreement.
"Series": A group of Certificates issued by a separate Trust.
"Servicemembers' Shortfall": Interest losses on a Mortgage Loan resulting
from application of the Servicemembers' Civil Relief Act, as amended.
"Servicer": The Servicer or Servicers identified in the Servicing
Agreement or Agreements.
"Service(s)(ing)" With respect to Regulation AB, the act of servicing and
administering the Mortgage Loans or any other assets of the Trust by an entity
that meets the definition of "servicer' set forth in Item 1101 of Regulation AB
and is subject to the disclosure requirements
16
set forth in 1108 of Regulation AB. Any uncapitalized occurrence of this term
shall have the meaning commonly understood by participants in the residential
mortgage-backed securitization market.
"Servicer Compensation": The Servicing Fee and any additional compensation
as specified in the Servicing Agreement or Agreements.
"Servicer Event of Default": With respect to each Servicer, shall have the
meaning set forth in the applicable Servicing Agreement.
"Servicer Mortgage Loan File": With respect to each Mortgage Loan, the
related Mortgage File, as that term is defined in the related Servicing
Agreement.
"Servicer Remittance Date": Shall mean the 18th day of each month or, if
such day is not a Business Day, the immediately preceding Business Day, or such
other day as set forth in the related Sale and Servicing Agreement.
"Servicing Agreement": The Sale and Servicing Agreement or Sale and
Servicing Agreements, as defined in the Trust Agreement.
"Servicing Criteria": The criteria set forth in paragraph (d) of Item 1122
of Regulation AB, as such may be amended from time to time.
"Servicing Fee": Unless otherwise provided in the Trust Agreement, in any
month, an amount equal to one-twelfth of the Servicing Fee Rate multiplied by
the aggregate Scheduled Principal Balance of the Mortgage Loans as of the Due
Date preceding a Distribution Date without taking into account any payment of
principal due or made on such Due Date.
"Servicing Fee Rate": The rate or rates specified as such in the
applicable Servicing Agreement.
"Servicing Function Participant": Any Subservicer, Subcontractor or any
other Person, other than each Servicer, the Master Servicer and the Securities
Administrator, that is participating in the "servicing function" within the
meaning of Regulation AB, unless such Person's activities relate only to 5% or
less of the Mortgage Loans.
"Shortfall": Month End Interest Shortfall and Servicemembers' Shortfall.
"Special Tax Consent": The written consent of the Holder of a Residual
Certificate to any tax (or risk thereof) arising out of a proposed transaction
or activity that may be imposed upon such Holder or that may affect adversely
the value of such Holder's Residual Certificate.
"Special Tax Opinion": An Opinion of Counsel that a proposed transaction
or activity will not (a) affect adversely the status of any REMIC as a REMIC or
of the Regular Interests as the "regular interests" therein under the REMIC
Provisions, (b) affect the payment of interest or principal on the Regular
Interests, or (c) result in the encumbrance of the Mortgage Loans by a tax lien.
17
"Standard Terms": These Standard Terms, as amended or supplemented,
incorporated by reference in a Trust Agreement.
"Subcontractor": Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) or Regulation
AB with respect to Mortgage Loans under the direction or authority of a Servicer
or related Subservicer.
"Subservicer": Any Person that services Mortgage Loans on behalf of a
Servicer or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions require to be performed by a Servicer under the
applicable Servicing Agreement that are identified in Item 1122(d) of Regulation
AB.
"Supplemental Trust Agreement": Any Supplemental Trust Agreement by and
between the Trustee, the Master Servicer and the Securities Administrator.
"Tax Matters Person": The Securities Administrator which will act as tax
matters person (within the meaning of the REMIC Provisions) of a REMIC.
"Terminating Purchase": The purchase of all Mortgage Loans and each REO
Property owned by a Trust pursuant to Section 10.02 hereof.
"Termination Account": An escrow account maintained by the Securities
Administrator into which any Trust funds not distributed on the Distribution
Date on which the earlier of (a) a Terminating Purchase or (b) the final payment
or other Liquidation of the last Mortgage Loan remaining in the Trust or the
disposition of the last REO Property remaining in the Trust is made are
deposited. The Termination Account shall be an Eligible Account.
"Termination Price": An amount equal to the greater of (a) the sum of (i)
100% of the aggregate outstanding principal balance of each Mortgage Loan (other
than Liquidated Mortgage Loans) remaining in the Trust on the day of such
purchase, plus accrued interest thereon at the Note Rate and the amount of any
outstanding Servicing Advances on such Mortgage Loans to the Due Date in the
month in which the Termination Price is distributed to Certificateholders, less
Bankruptcy Losses that would otherwise have been allocated to the Certificates
and (ii) the lesser of (A) the Scheduled Principal Balance of the Mortgage Loan
for each REO Property or other property remaining in the Trust, plus accrued
interest thereon at the Note Rate (less the related Servicing Fee Rate) to the
Due Date in the month in which the Termination Price is distributed to
Certificateholders, and (B) the sum of the aggregate fair market value of any
such REO Property and all other property of the Trust, and (b) the aggregate
fair market value of all of the Mortgage Loans remaining in the Trust on the
date of such purchase, plus all REO Property and any other property remaining in
the Trust on the date of such purchase. The respective amounts under clause
(a)(ii)(B) and clause (b) above shall be determined by the Securities
Administrator in consultation with the Initial Purchaser (or, if the Initial
Purchaser is unwilling or unable to serve in that capacity, a financial advisor
selected by the Securities Administrator in a commercially reasonable manner,
whose fees will be an expense of the Depositor (or other
18
party causing the Termination Purchase)), based upon the mean of bids from at
least three recognized broker/dealers that deal in similar assets) as of the
close of business on the third Business Day preceding the date upon which notice
of any such termination is furnished to Certificateholders pursuant to Section
9.03; provided, however, that in determining such aggregate fair market value,
the Securities Administrator shall be entitled to conclusively rely on such bids
or the opinion of a nationally recognized investment banker (the fees of which
shall be an expense of the Trust). The fair market value of the REO Property and
other property of the Trust shall be based upon the inclusion of (i) accrued
interest to the last day of the month in which the Termination Price is
distributed to the Certificateholders, at the applicable Note Rate (less the
related Servicing Fee Rate) on the Scheduled Principal Balance of each Mortgage
Loan related to an REO Property and (ii) the amount of any costs and damages
incurred by the Trust as a result of any violation of any applicable federal,
state, or local predatory or abusive lending law arising from or in connection
with the origination of any Mortgage Loans remaining in the Trust.
"Transferee Agreement": An agreement substantially in the form of Exhibit
D hereto.
"Trust": The trust formed pursuant to the Trust Agreement.
"Trust Agreement" or this "Agreement": The Master Servicing and Trust
Agreement, dated as of [ ], 20[ ], among the Depositor, the Custodians, the
Master Servicer, the Securities Administrator and the Trustee relating to the
issuance of Certificates, and into which these Standard Terms are incorporated
by reference.
"Trust Estate": The segregated pool of assets sold and assigned to the
Trustee for the benefit of the Certificateholders by the Depositor pursuant to
the conveyance clause of the Trust Agreement.
"Trust Receipt": A certification as to the completeness of each Trustee
Mortgage Loan File substantially in the form of Exhibit A hereto provided by the
Custodian pursuant to Section 2.02 hereof.
"Trustee": The bank or trust company identified as the Trustee in the
Trust Agreement, and its successors and assigns.
"Trustee Advance": Not applicable.
"Trustee Fee": Not applicable.
"Trustee Fee Rate": Not applicable.
"Trustee Mortgage Loan File": With respect to each Mortgage Loan, unless
otherwise provided in the Trust Agreement, collectively, the following
documents, together with any other Mortgage Loan documents held by the Trustee
or the related Custodian with respect to such Mortgage Loan:
(a) The original executed mortgage note endorsed, "Pay to the
order of ________________ or in the name of the Trustee, U.S. Bank
National Association, as trustee under a Master Servicing and Trust
Agreement, dated as of
19
[ ], 20[ ], without recourse", and signed in the name of the Seller
(or an affiliate of such Seller, if applicable) by an officer of such
Seller (or an affiliate of such Seller, if applicable), or a Lost
Document Affidavit with a copy of the original mortgage note attached;
provided that unless otherwise provided in the related Sale and
Servicing Agreement or if the mortgage note has been left blank, the
words "U.S. Bank National Association, as trustee under a Master
Servicing and Trust Agreement, dated as of [ ], 20[ ]" shall be
inserted into the blank; and provided that the mortgage note shall
include all intervening original endorsements showing a complete chain
of title from the originator to such Seller (or an affiliate of such
Seller, if applicable);
(b) The original executed Mortgage, or a certified copy thereof,
in either case with evidence of recording noted thereon;
(c) Except for Mortgage Loans registered on MERS, The original
assignment of each Mortgage from the related Seller (or its affiliate,
if applicable) delivered in blank in recordable form;
(d) The original or copy of a policy of title insurance, a
certificate of title, or attorney's opinion of title (accompanied by
an abstract of title), as the case may be, with respect to each
Mortgage Loan;
(e) Except for Mortgage Loans originated through MERS, originals
of any intervening assignments of the mortgage necessary to show a
complete chain of title from the original mortgagee to the Seller, or
certified copies thereof, in either case with evidence of recording
noted thereon; provided, that such intervening assignments may be in
the form of blanket assignments, a copy of which, with evidence of
recording noted thereon, shall be acceptable;
(f) Originals of all modification agreements, or certified copies
thereof, in either case with evidence of recording noted thereon if
recordation is required to maintain the lien of the mortgage or is
otherwise required, or, if recordation is not so required, an original
or copy of any such modification agreement;
(g) To the extent applicable, an original power of attorney, or a
certified copy thereof, in either case with evidence of recordation
thereon if necessary to maintain the lien on the Mortgage or if the
document to which such power of attorney relates is required to be
recorded, or, if recordation is not so required, an original or copy
of such power of attorney; and
(h) An original or copy of any surety agreement or guaranty
agreement.
Notwithstanding the foregoing, with respect to any power of attorney,
mortgage, assignment, intervening assignment, assumption agreement, modification
agreement or deed of sale for which a certified copy is delivered in accordance
with the foregoing, the copy must be certified as true and complete by the
appropriate public recording office, or, if the original has been submitted for
recording but has not yet been returned from the applicable recording office,
20
an officer of the Seller (or a predecessor owner, a title company,
closing/settlement/escrow agent or company or closing attorney) must certify the
copy as a true copy of the original submitted for recordation. Copies of blanket
intervening assignments, however, need not be certified.
"UCC": The Uniform Commercial Code as in effect in the jurisdiction that
governs the interpretation of the substantive provisions of the Trust Agreement,
as such Uniform Commercial Code may be amended from time to time.
"Underlying MBS": As set forth in the Trust Agreement.
"Unpaid Principal Balance": With respect to any Mortgage Loan, the
outstanding principal balance payable by the related Borrower under the terms of
the Note.
"U.S. Bank": U.S. Bank National Association and its successors.
"U.S. Person": A Person other than a Non-U.S. Person.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. Unless otherwise provided in
the Trust Agreement, (a) if any Class of Certificates does not have a
Certificate Balance or has an initial Certificate Balance that is less than or
equal to 1% of the aggregate Certificate Balance of all of the Certificates,
then 1% of Voting Rights shall be allocated to each Class of such Certificates
having no Certificate Balance or a Certificate Balance equal to or less than 1%
of the aggregate Certificate Balance of all Certificates; provided, however,
that each class of Residual Interest Certificateholders in a multiple REMIC
Series shall be treated as a separate Class of Certificateholders, and the
balance of Voting Rights shall be allocated among the remaining Classes of
Certificates in proportion to their respective Certificate Balances following
the most recent Distribution Date, and (b) if no Class of Certificates has an
initial Certificate Balance less than 1% of the aggregate Certificate Balance,
then all of the Voting Rights shall be allocated among all the Classes of
Certificates in proportion to their respective Certificate Balances following
the most recent Distribution Date. Voting Rights allocated to each Class of
Certificates shall be allocated in proportion to the respective Percentage
Interests of the Holders thereof.
"Withholding Agent": The Securities Administrator or its designated Paying
Agent or other person who is liable to withhold federal income tax from a
distribution on a Residual Certificate under Sections 1441 and 1442 of the Code
and the Treasury regulations thereunder.
ARTICLE II
MORTGAGE LOAN FILES
Section 2.01 Mortgage Loan Files.
Pursuant to the Trust Agreement, the Depositor has sold to the Trustee
without recourse all the right, title and interest of the Depositor in and to
the Mortgage Loans, any and all rights, privileges and benefits accruing to the
Depositor under each Assignment Agreement, each Sale Agreement, and each
Servicing Agreement with respect to the Mortgage Loans, including the rights and
remedies with respect to the enforcement of any and all representations,
warranties
21
and covenants under such agreements and all other agreements and assets included
or to be included in the Trust for the benefit of the Certificateholders as set
forth in the conveyance clause of the Trust Agreement. Such assignment includes
all of the Depositor's rights to Monthly Payments on the Mortgage Loans due
after the Cut-off Date, and all other payments of principal (and interest) made
on or after the Cut-off Date that are reflected in the initial aggregate
Certificate Balance for a Trust.
In connection with such transfer and assignment, the Depositor shall
deliver, or has caused to be delivered, to the Trustee or the Custodian on or
before the Closing Date, with respect to each Mortgage Loan, the Trustee
Mortgage Loan File that was delivered to such Custodian by the Servicer. If any
Mortgage or an assignment of a Mortgage to the Trustee or any prior assignment
is in the process of being recorded on the Closing Date, the Depositor shall
cause each such original recorded document or certified copy thereof, to be
delivered to the Trustee or the related Custodian promptly following its
recordation and return to the Depositor.
The Depositor hereby directs the Trustee and the Securities Administrator,
not in their individual capacities but solely in such capacities, to enter into
the Supplemental Trust Agreement, to make any representations and warranties of
such party set forth therein and to perform their respective obligations
thereunder.
Section 2.02 Acceptance by the Trustee.
(a) By its execution of the Trust Agreement, the Trustee
acknowledges and declares that it or the Custodian holds and will hold
or has agreed to hold (in each case through the applicable Custodian)
all documents delivered to it or any such Custodian from time to time
with respect to a Mortgage Loan and all assets included in the
definition of "Trust Estate" in the Trust Agreement in trust for the
exclusive use and benefit of all present and future
Certificateholders. The Trustee represents and warrants that (i) it
acquired the Mortgage Loans on behalf of the Trust from the Depositor
in good faith, for value, and without actual notice or actual
knowledge of any adverse claim, lien, charge, encumbrance or security
interest (including, without limitation, federal tax liens or liens
arising under ERISA) (it being understood that the Trustee has not
undertaken searches (lien records or otherwise) of any public
records), (ii) except as permitted in the Trust Agreement, it has not
and will not, in any capacity, assert any claim or interest in the
Mortgage Loans and will hold (or its agent will hold) such Mortgage
Loans and the proceeds thereof in trust pursuant to the terms of the
Trust Agreement, and (iii) it has not encumbered or transferred its
right, title or interest in the Mortgage Loans.
(b) The Custodian has reviewed, for the benefit of the
Certificateholders and the parties hereto, each Trustee Mortgage Loan
File and has delivered to the Trustee (with a copy to the Depositor)
on the Closing Date a Trust Receipt, in the form annexed hereto as
Exhibit A (the "Trust Receipt") with respect to each Mortgage Loan to
the effect that, except as specifically noted on a schedule of
exceptions thereto (the "Exceptions List"):
22
(i) all documents required to be delivered to it pursuant to
clause (a) through (e) and (g) of the definition of Trustee Mortgage
Loan File are in the Trustee's or Custodian's possession, provided
that,
(A) the Custodian shall have no obligation to verify the
receipt of any such documents the existence of which was not made
known to the Custodian by the Trustee Mortgage Loan File, and
(B) the Custodian shall have no obligation to determine
whether recordation of any such modification is necessary;
(ii) all documents have been examined by the Custodian and appear
regular on their face and to relate to the Mortgage Loans;
(iii) based only on such Custodian's examination of the foregoing
documents, the information set forth on the Mortgage Loan Schedule
representing each Mortgage Loan accurately reflects the Originator
loan number, the borrower's name, the original principal balance, the
maturity date of the mortgage loan and the mortgage loan interest
rate; and
(iv) that each mortgage note has been endorsed and each
assignment of mortgage has been assigned as described in the
definition of Trustee Mortgage Loan File, provided that the Custodian
shall have no obligation to confirm that the assignments are in
recordable form.
In making the verification required by this Section 2.02(b), the Custodian
has conclusively relied on the Mortgage Loan Schedule attached hereto, and the
Custodian shall have no obligation to independently verify the correctness of
such Mortgage Loan Schedule.
(c) It is understood that before delivering the Trust Receipt,
the Custodian, on behalf of the Trustee, has examined the Mortgage
Loan Documents to confirm the following (and shall report any
exceptions to these confirmations in the Exceptions Report attached to
the Trust Receipt):
(i) each mortgage note, mortgage, guaranty and deed of sale bears
a signature or signatures that appear on their face to be original and
that purport to be that of the Person or Persons named as the maker
and mortgagor/trustor or, if photocopies are permitted, that such
copies bear a reproduction of such signature or signatures;
(ii) the mortgage and the assignment include the endorsement
required pursuant to clause (a) of the definition of Trustee Mortgage
Loan File;
(iii) the principal amount of the indebtedness secured by the
mortgage is identical to the original principal amount of the mortgage
note;
(iv) the interest rate shown on the Mortgage Loan Schedule is
identical to the interest rate shown on the mortgage note;
23
(v) the assignment of the mortgage from the related Seller (or
its affiliate, if applicable) to the Trustee is in the form required
pursuant to clause (c) of the definition of Trustee Mortgage Loan
File, and bears the signature of the related Seller (or its affiliate,
if applicable) that appears to be an original or, if photocopies are
permitted, such copies bear a reproduction of such signature or
signatures; and
(vi) if intervening assignments are included in the Trustee
Mortgage Loan File, each such intervening assignment bears the
signature of the mortgagee and/or the Purchaser (and any subsequent
assignors) that appears to be an original or, if photocopies are
permitted, that such copies bear a reproduction of such signature or
signatures.
(d) On or before [ ] 20[ ], each Custodian shall deliver to the
Trustee (or any assignee of the Trustee) a Final Certification in the
form of Exhibit B evidencing the completeness of such Trustee Mortgage
Loan File for each related Mortgage Loan (provided, however, that such
Custodian shall not be required nor does it intend to re-examine the
contents of the Trustee Mortgage Loan File for any of the Mortgage
Loans in connection with entering into this Agreement). An updated
exceptions report for the Mortgage Loans is attached to such
Custodian's Final Certification to be delivered under this Section
2.02.
(e) Upon the written request of a Servicer, the Depositor or the
Trustee, no later than the fifth Business Day of each month,
commencing in March 20[ ], each Custodian shall deliver to each
related Servicer (or such other party responsible for recordation of
any mortgages and/or assignments as specified in the related Sale and
Servicing Agreement), GS Mortgage Securities Corp., as depositor, and
the Trustee in hard copy format (and if requested, in electronic
format), the exceptions list required by this Section 2.02, updated to
remove exceptions cured since the date on which the applicable
Custodial Receipt was issued. In addition, such monthly reports shall
list any document with respect to which the applicable Seller
delivered a copy certifying that the original had been sent for
recording, until such time as the applicable Seller delivers to the
applicable Custodian the original of such document or a copy thereof
certified by the appropriate public recording office. The Data
Collection Schedule shall not be included unless specifically
requested in advance by the Purchaser or the Trustee. Neither
Custodian shall be under a duty to review, inspect or examine such
documents to determine that any of them are genuine, recordable,
enforceable or appropriate for their prescribed purpose. During the
term of this Agreement, in the event a Custodian discovers any
nonconformity with the review set forth in this Section 2.02 with
respect to such Trustee Mortgage Loan Files, such Custodian shall give
written notice of such defect to the Purchaser.
(f) In lieu of taking possession of the Trustee Mortgage Loan
Files and reviewing such files itself, the Trustee shall, in
accordance with Section 8.11 hereof, appoint one or more Custodians to
hold the Trustee Mortgage Loan Files on its behalf and to review them
as provided in this Section 2.02. The Depositor shall, upon notice of
the appointment of a Custodian, deliver or cause to be
24
delivered all documents to the Custodian that would otherwise be
deliverable to the Trustee. In such event, the Trustee shall obtain
from each such Custodian, within the specified times, the Trust
Receipt and the Final Certifications with respect to those Mortgage
Loans held and reviewed by such Custodian and may deliver (or cause
the Custodian to deliver) such Certifications and electronically
deliver Reports to the Depositor in satisfaction of the Trustee's
obligation to prepare such Certifications and Reports (it being
understood that absent actual knowledge to the contrary, the Trustee
may conclusively rely on the certifications provided by such
Custodian). The Trustee shall notify the Custodian of any notices
delivered to the Trustee with respect to those Trustee Mortgage Loan
Files.
Section 2.03 Purchase of Mortgage Loans by a Servicer, a Seller, GSMC or the
Depositor.
(a) Servicer Breach. In addition to taking any action required
pursuant to Section 7.01 hereof, upon discovery by a Responsible
Officer of the Master Servicer, the Securities Administrator or the
Trustee of any breach by any Servicer of any representation, warranty
or covenant under the related Servicing Agreement, which breach
materially and adversely affects the value of any Mortgage Loan or the
interest of the Trust therein (it being understood that any such
breach shall be deemed to have materially and adversely affected the
value of the related Mortgage Loan or the interest of the Trust
therein if the Trust incurs or may incur a loss as a result of such
breach), the party discovering such breach shall give prompt written
notice thereof to the other party. Upon discovery of such breach or
receipt of notice thereof, the Trustee shall promptly request that
such Servicer of such Mortgage Loan cure such breach, and if such
Servicer does not cure such breach in all material respects by the end
of the cure period set forth in the related Servicing Agreement, shall
enforce such Servicer's obligation under such Servicing Agreement to
purchase such Mortgage Loan from the Trustee. Notwithstanding the
foregoing, however, if such breach results in or is a Qualification
Defect, such cure, purchase or substitution must take place within 75
days of the Defect Discovery Date.
(b) Sellers' Breach. Upon discovery by a Responsible Officer of
the Master Servicer, the Securities Administrator or the Trustee or
notice to the Master Servicer, the Securities Administrator or the
Trustee of any defective or missing document (as described in the
related Sale Agreement) in a Trustee Mortgage Loan File, or of any
breach by any Seller of any representation, warranty or covenant under
the related Sale Agreement, which defect or breach materially and
adversely affects the value of any Mortgage Loan or the interest of
the Trust therein (it being understood that any such defect or breach
shall be deemed to have materially and adversely affected the value of
the related Mortgage Loan or the interest of the Trust therein if the
Trust incurs a loss as a result of such defect or breach),the parties
discovering or receiving notice of such defect or breach shall notify
the Trustee. Upon discovering or receipt of notice of such breach, the
Trustee shall promptly request that such Seller cure such breach and,
if such Seller does not cure such defect or breach in all material
respects by
25
the end of the cure period specified in such Sale Agreement and any
extension of the cure period granted as permitted by such Sale
Agreement, shall enforce such Seller's obligation under such Sale
Agreement to purchase such Mortgage Loan from the Trustee.
In the event any Servicer has breached a representation or
warranty under the related Servicing Agreement that is substantially
identical to a representation or warranty breached by a Seller, the
Trustee shall first proceed against such Servicer. If such Servicer
does not within 60 days (or such other period provided in the related
Servicing Agreement) after notification of the breach, either take
steps to cure such breach (which may be evidenced by a certificate
asking for an extension of time in which to effectuate a cure) or
complete the purchase of the Mortgage Loan, then (i) the Trustee,
shall enforce the obligations of the Seller under the related Sale
Agreement to cure such breach or to purchase the Mortgage Loan from
the Trust, and (ii) such Seller shall succeed to the rights of the
Trustee to enforce the obligations of the Servicer to cure such breach
or repurchase such Mortgage Loan under the Servicing Agreement with
respect to such Mortgage Loan.
Notwithstanding the foregoing, however, if any breach of a
representation or warranty by the Servicer or of a Seller is a
Qualification Defect, a cure or purchase must take place within 75
days of the Defect Discovery Date.
(c) GSMC Breach. Upon its discovery or notice to it of any breach
by GSMC of any representation, warranty or covenant under any
Assignment Agreement which materially and adversely affects the value
of any Mortgage Loan or the interest of the Trust therein (it being
understood that any such defect or breach shall be deemed to have
materially and adversely affected the value of the related Mortgage
Loan or the interest of the Trust therein if the Trust incurs a loss
as a result of such defect or breach), the Securities Administrator,
shall promptly request that GSMC cure such breach and, if GSMC does
not cure such breach in all material respects within 90 days from the
date on which it is notified of the breach, shall enforce GSMC's
obligation under such Assignment Agreement to purchase such Mortgage
Loan from the Trustee.
(d) Depositor Breach. Within 90 days of the earlier of its
discovery or receipt of notice by the Depositor of the breach of any
of its representations or warranties set forth in Section 2.04 hereof
with respect to any Mortgage Loan, which breach materially and
adversely affects the value of the related Mortgage Loan or the
interest of the Trust therein (it being understood that any such
defect or breach shall be deemed to have materially and adversely
affected the value of the related Mortgage Loan or the interest of the
Trust therein if the Trust incurs a loss as a result of such defect or
breach), the Depositor shall (i) cure such breach in all material
respects, or (ii) purchase the Mortgage Loan from the Trustee.
In the event the Depositor has breached a representation or
warranty under Section 2.04 hereof that is substantially identical to
a representation or
26
warranty breached by a Servicer or Seller, the Securities
Administrator shall first proceed against the applicable Servicer or
Seller, as appropriate. If such Servicer or Seller, as appropriate,
does not within the cure period set forth in the related Sale
Agreement or Servicing Agreement, as applicable, either take steps to
cure such breach (which may be evidenced by a certificate asking for
an extension of time in which to effectuate a cure) or complete the
purchase of or substitution for the Mortgage Loan, then (i) the
Securities Administrator shall enforce the obligations of the
Depositor to cure such breach or to purchase the Mortgage Loan from
the Trust, and (ii) the Depositor shall succeed to the rights of the
Securities Administrator to enforce the obligations of such Servicer
or Seller to cure such breach or repurchase such Mortgage Loan under
the related Servicing Agreement or Sale Agreement, as applicable, with
respect to such Mortgage Loan.
Notwithstanding the foregoing, however, if any breach of a
representation or warranty by the Depositor is a Qualification Defect,
a cure or purchase must take place within 75 days of the Defect
Discovery Date.
(e) Purchase Price. The purchase of any Mortgage Loan from the
Trust pursuant to this Section 2.03 shall be effected for its Purchase
Price. If the Purchaser is the related Servicer, the Purchase Price
shall be deposited in the Collection Account. If the Purchaser is
other than such Servicer, an amount equal to the Purchase Price shall
be deposited into the Certificate Account. Within five Business Days
of its receipt of such funds or certification by the appropriate
Servicer that such funds have been deposited in the related Collection
Account, the Trustee shall release or cause the related Servicer to
cause the applicable Custodian to release to the Purchaser or its
designee the related Trustee Mortgage Loan File and, at the request of
the Purchaser, the Trustee shall execute and deliver such instruments
of transfer or assignment, in each case without recourse, in form as
presented by the Purchaser and satisfactory to the Trustee, as shall
be necessary to vest in the Purchaser title to any Mortgage Loan
released pursuant hereto and the Trustee shall have no further
responsibility with regard to such Trustee Mortgage Loan File.
(f) Determination of Purchase Price. The Securities Administrator
will be responsible for determining the Purchase Price for any
Mortgage Loan that is sold by the Trust or with respect to which
provision is made for the escrow of funds pursuant to this Section
2.03 and shall at the time of any purchase or escrow certify such
amounts to the Depositor; provided that the Securities Administrator
may consult with the Servicer to determine the Purchase Price unless
the Servicer is the Purchaser of such Mortgage Loan. If, for whatever
reason, the Securities Administrator shall determine that there is a
miscalculation of the amount to be paid to the Trust, the Securities
Administrator shall from monies in a Distribution Account return any
overpayment that the Trust received as a result of such miscalculation
to the applicable Purchaser upon the discovery of such overpayment,
and the Securities Administrator shall collect from the applicable
Purchaser for deposit to the Securities Account any underpayment that
resulted
27
from such miscalculation upon the discovery of such underpayment.
Recovery may be made either directly or by set-off of all or any part
of such underpayment against amounts owed by the Trust to such
Purchaser.
(g) Qualification Defect. If (A) any person required to cure or
purchase under subsections 2.03(a), 2.03(b), 2.03(c) or 2.03(d) of
these Standard Terms or under a separate agreement for a Mortgage Loan
affected by a Qualification Defect fails to perform within the earlier
of (1) 75 days of the Defect Discovery Date or (2) the time limit set
forth in those subsections or that separate agreement or (B) no person
is obligated to cure or purchase a Mortgage Loan affected by a
Qualification Defect, the Trustee shall dispose of such Mortgage Loan
in such manner and for such price as the Trustee determines are
appropriate, provided that the removal of such Mortgage Loan occurs no
later than the 90th day from the Defect Discovery Date. If the
Servicer is not the person required to cure or repurchase the Mortgage
Loan, the Trustee may consult with such Servicer to determine an
appropriate manner of disposition for and price for such Mortgage
Loan. It is the express intent of the parties that a Mortgage Loan
affected by a Qualification Defect be removed from the Trust by the
90th day from the Defect Discovery Date so that the related REMIC(s)
will continue to qualify as a REMIC. Accordingly, the Trustee is not
required to sell an affected Mortgage Loan for its fair market value
nor shall the Trustee be required to make up any shortfall resulting
from the sale of such Mortgage Loan. The person failing to perform
under subsections 2.03(a), 2.03(b), 2.03(c) or 2.03(d) of these
Standard Terms shall be liable to the Trust for (i) any difference
between (A) the Unpaid Principal Balance of the Mortgage Loan plus
accrued and unpaid interest thereon at the Note Rate to the date of
disposition and (B) the net amount received by the Trustee from the
disposition (after the payment of related expenses), (ii) interest on
such difference at the Note Rate (less the Administrative Cost Rate)
from the date of disposition to the date of payment and (iii) any
legal and other expenses incurred by or on behalf of the Trust in
seeking such payments. The Trustee shall pursue the legal remedies of
the Trust on the Trust's behalf and the Trust shall reimburse the
Trustee for any legal or other expenses of the Trustee related to such
pursuit not recovered from such person.
(h) Unless otherwise provided in the applicable Sale Agreement,
and notwithstanding Section 2.03(b) hereof, if a Seller concludes at
the end of any applicable cure period (and any extension thereof) that
a document required to be included in the Trustee Mortgage Loan File
cannot be found or replaced, the Seller may, in lieu of immediately
repurchasing the related Mortgage Loan, provide (a) a Lost Document
Affidavit and (b) Opinion of Counsel that the missing document does
not constitute a Qualification Defect. In that event, the Trustee
shall not require such Seller immediately to repurchase the Mortgage
Loan, but, if at any time there is any loss, liability, or damage,
including reasonable attorney's fees, resulting from the
unavailability of any originals of any such documents or of a complete
chain of intervening endorsements, as the case may be (collectively,
"Losses"), the Trustee shall enforce the Seller's
28
obligation to indemnify the Trust for such Losses. Expenses of the
Trustee related to such enforcement not recovered from the Seller
shall be reimbursed by the Trust.
(i) Notices. Any Person required under this Section 2.03 to give
notice or to make a request of another Person to give notice shall
give such notice or make such request promptly.
(j) No Other Enforcement Obligation. Except as specifically set
forth herein, none of the Master Servicer, the Securities
Administrator or the Trustee shall have any responsibility to enforce
any provision of a Sale Agreement, Servicing Agreement or Assignment
Agreement assigned to it hereunder, to oversee compliance thereof, or
to take notice of any breach or default thereof. No successor servicer
shall have any obligation to repurchase a Mortgage Loan except to the
extent specifically set forth in the Servicing Agreement signed by
such substitute servicer.
Section 2.04 Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the Trustee that as of the
Closing Date or as of such other date specifically provided herein:
(a) The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with full power and authority (corporate and other) to
enter into and perform its obligations under the Trust Agreement;
(b) The Trust Agreement has been duly executed and delivered by
the Depositor, and, assuming due authorization, execution and delivery
by the Trustee, the Securities Administrator and the Master Servicer,
constitutes a legal, valid and binding agreement of the Depositor,
enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and to general principles
of equity regardless of whether enforcement is sought in a proceeding
in equity or at law;
(c) The execution, delivery and performance by the Depositor of
the Trust Agreement and the consummation of the transactions
contemplated thereby do not require the consent or approval of, the
giving of notice to, the registration with, or the taking of any other
action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected
or taken prior to the date thereof;
(d) The execution and delivery of this Trust Agreement have been
duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery by the Depositor of the
Trust Agreement, nor the consummation by the Depositor of the
transactions therein contemplated, nor
29
consummation of the transactions therein contemplated, nor compliance
by the Depositor with the provisions thereof, will conflict with or
result in a breach of, or constitute a default under, any of the
provisions of the articles of incorporation or by-laws of the
Depositor or any law, governmental rule or regulation or any judgment,
decree or order binding on the Depositor or any of its properties, or
any of the provisions of any indenture, mortgage, deed of trust,
contract or other instrument to which the Depositor is a party or by
which it is bound;
(e) There are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened against the Depositor, before
or by any court, administrative agency, arbitrator or governmental
body (A) with respect to any of the transactions contemplated by the
Trust Agreement or (B) with respect to any other matter which in the
judgment of the Depositor will be determined adversely to the
Depositor and will if determined adversely to the Depositor materially
adversely affect its ability to perform its obligations under the
Trust Agreement;
(f) Except for the sale to the Trustee, the Depositor has not
assigned or pledged any mortgage note or the related mortgage or any
interest or participation therein;
(g) The Depositor has acquired its ownership in the Mortgage
Loans in good faith and without notice of any adverse claim;
(h) The Depositor has not canceled, satisfied or subordinated in
whole or in part, or rescinded any Mortgage, and the Depositor has not
released any Mortgaged Premises from the lien of the related mortgage,
in whole or in part, nor has the Depositor executed an instrument that
would effect any such release, cancellation, subordination or
rescission (except in connection with an assumption agreement or other
agreement offered by the related federal insurer, to the extent such
approval was required); and
(i) The Securities Account constitutes a "securities account" (as
defined in Section 8-501(a) of the UCC). The Underlying MBS has been
credited to the Securities Account. The Securities Intermediary has
agreed to treat all assets credited to the Securities Account as "
financial assets" (as defined in Section 8-102(a)(9) of the UCC).
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the respective Trustee
Mortgage Loan Files to the Trustee (or the Custodian) and shall inure to the
benefit of the Trustee notwithstanding any restrictive or qualified endorsement
or assignment. Upon the discovery by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee of a breach of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other parties to the Trust Agreement, and in no
event later than two Business Days from the date of such discovery. It is
understood and agreed that the obligations of the Depositor set forth in Section
2.03(d) to cure or repurchase a Mortgage Loan constitute the sole remedies
available to
30
the Certificateholders or to the Trustee on their behalf respecting a breach of
the representations and warranties contained in this Section 2.04. It is further
understood and agreed that the Depositor shall be deemed not to have made the
representations and warranties in this Section 2.04 with respect to, and to the
extent of, representations and warranties made, as to the matters covered in
this Section 2.04, by the Servicer in any Servicing Agreement or the Seller in
any Sale Agreement assigned to the Trustee.
It is understood and agreed that the Depositor has made no representations
or warranties to the Trust other than those contained in this Section 2.04 and
any Assignment Agreement. GSMC has made no representations or warranties to the
Trust other than those in any Assignment Agreement, or in any Sale Agreement
under which GSMC is acting as Seller, and no other Affiliate of the Depositor
has made any representations or warranty of any kind to the Trustee. Neither the
Depositor, GSMC, nor any of the directors, officers, employees or agents of
either such entity shall be under any liability to the Trust or the
Certificateholders and all such Persons shall be indemnified and held harmless
by the Trust for any claims, losses, penalties, forfeitures, legal fees and
related costs, judgments, and any other costs, fees and expenses that such
Persons may sustain as a result of or arising out of or based upon any breach of
a representation, warranty or covenant made by any Servicer or Seller or any
failure by any Servicer or Seller to perform its obligations in strict
compliance with the terms of the related Servicing or Sale Agreement or the
failure of the Securities Administrator or the Trustee to perform its duties
hereunder; provided, however, that this provision shall not protect the
Depositor against any breach of warranties or representations made in Section
2.04 herein, or the Depositor against any breach of representations or
warranties made in any Assignment Agreement or Sale Agreement.
ARTICLE III
ADMINISTRATION OF THE TRUST
Section 3.01 The Collection Accounts; the Master Servicer Account; the
Distribution Accounts and the Certificate Account.
(a) Servicer and Master Servicer Remittances.
(i) On or prior to the Closing Date, the Servicers shall
have established one or more separate Collection Accounts as
provided in the related Servicing Agreement, each of which shall
be an Eligible Account. All Monthly Payments and other amounts
collected by each Servicer on the Mortgage Loans, shall, to the
extent provided in the related Servicing Agreement, be deposited
by such Servicer within one Business Day of receipt (or within 2
Business Days in the case of Liquidation Proceeds, Insurance
Proceeds and Condemnation Proceeds) into the related Collection
Account.
(ii) On each Servicer Remittance Date, each Servicer is
required to remit to the Master Servicer all payments received
during the related Due Period or Prepayment Period in respect of
the Mortgage Loans serviced by it, less certain deductions as
described herein and in each Servicing Agreement. The Master
31
Servicer will establish and maintain a separate account for the
benefit of the Trustee (the "Master Servicer Account") which
account shall be an Eligible Account for so long as [ ] is both
the Master Servicer and the Securities Administrator. The amounts
remitted by the Servicers to the Master Servicer on each Servicer
Remittance Date shall be credited to the Master Servicer Account.
(iii) On each Master Servicer Remittance Date, the Master
Servicer shall remit to the Securities Administrator the amounts
received from the Servicers on the related Servicer Remittance
Date, net of any fees, expenses and other amounts payable to the
Master Servicer hereunder. The amounts remitted by the Master
Servicer to the Securities Administrator will be credited to the
REMIC I Distribution Account which will be established and
maintained by the Securities Administrator.
(iv) On each Distribution Date, amounts on deposit in the
REMIC I Distribution Account (net of any expenses payable to the
Securities Administrator under Section 11.04 hereof or to the
Trustee under Section 9.05 hereof) will be allocated by the
Securities Administrator to pay amounts due on the REMIC I
Interests, in accordance with Section 3.01 of the Trust
Agreement. Such amounts will then be passed through the REMIC II
Distribution Account and to the Certificate Account for
distribution to the Certificateholders in accordance with Section
3.01 of the Trust Agreement.
(b) Accounts. The Securities Administrator shall establish
and maintain one or more Eligible Accounts in its own name in
trust for the benefit of the Certificateholders. The account held
by the REMIC that directly owns the Mortgage Loans shall be the
"REMIC I Distribution Account" which account may be a sub-account
of the Certificate Account and the account held by the REMIC that
owns all interests in REMIC I shall be the "REMIC II Distribution
Account" which account may be a sub-account of the Certificate
Account. In addition, the Securities Administrator shall
establish and maintain an account for the benefit of the
Certificateholders into which it shall deposit all amounts to be
distributed on each Distribution Date (the "Certificate
Account"). Each account shall be an Eligible Account. On each
Distribution Date, the Securities Administrator shall deposit
into the REMIC I Distribution Account the following amounts, to
the extent not previously deposited therein:
(i) all amounts remitted by the Master Servicer to the
Securities Administrator pursuant to Section 3.01(a)(iii);
(ii) all Monthly Advances made pursuant to Section 3.05; and
(iii) the amount (if any) required to effect a redemption in
accordance with the terms of the Trust Agreement and received
from the Master Servicer or the Depositor.
32
(c) Deposits. In the event a Servicer or the Securities
Administrator has remitted to the Master Servicer Account or to
the REMIC I Distribution Account, respectively, in error, any
amount not required to be remitted in accordance with the
definition of Available Distribution Amount, either may at any
time direct the Master Servicer or the Securities Administrator,
as applicable, to withdraw such amount from such account for
repayment to the Servicer or Master Servicer, as applicable, by
delivery of an Officer's Certificate to the Master Servicer or
the Securities Administrator which describes the amount deposited
in error and the Master Servicer or the Securities Administrator,
as applicable, shall withdraw such amount from the Master
Servicer Account or the REMIC I Distribution Account, as
applicable, and pay such amount as directed, but only to the
extent it agrees that the amount so described was deposited in
error.
(d) Withdrawal. On each Distribution Date, the Securities
Administrator shall transfer the Available Distribution Amount on
deposit in the REMIC I Distribution Account to the REMIC II
Distribution Account and then to the Certificate Account in
accordance with the amounts set forth in the statement prepared
pursuant to Section 4.01 and shall distribute such amounts to
holders of the Regular Interests and Residual Interest of the
applicable REMICs, in accordance with Article III of the Trust
Agreement, in the order of priority set forth therein.
(e) Accounting. The Master Servicer shall keep and maintain
separate accounting (to the extent provided to it by each
Servicer), on a Mortgage Loan by Mortgage Loan basis, for the
purpose of justifying any payment to and from the Master Servicer
Account. No later than 21 days after each Distribution Date, the
Master Servicer shall, upon written request, forward to the
Depositor and the Securities Administrator, a statement setting
forth the balance of the Master Servicer Account as of the close
of business on the last day of the month of the Distribution Date
and showing, for the one calendar month covered by the statement,
any deposits and or withdrawals from the Master Servicer Account.
(f) Investments by the Master Servicer or the Securities
Administrator. Any investment by the Master Servicer or the
Securities Administrator of amounts received hereunder shall be
in Permitted Investments only. All income and gain realized from
any such investment of amounts in the Master Servicer Account
shall be for the benefit of the Master Servicer and shall be
subject to its withdrawal on order from time to time, and shall
not be part of the Trust Estate. All income and gain realized
from any such investment of amounts in the Certificate Account
shall be for the benefit of the Securities Administrator and
shall be subject to its withdrawal on order from time to time. In
the event of a loss or reduction in the amount to be remitted by
the Master Servicer to the Securities Administrator on the Master
Servicer Remittance Date or the amount to be remitted by the
Securities Administrator on the Distribution Date because of a
loss on a Permitted Investment, the Master Servicer or the
Securities Administrator, as applicable, shall be required to
deposit the amount of such loss into the Master Servicer Account
or the Certificate Account, as applicable, within
33
one Business Day of realization of such loss from its own funds
without reimbursement.
(g) Compensating Interest. The amount of the Master
Servicing Fee payable to the Master Servicer in respect of any
Distribution Date shall be reduced by the amount of any
Compensating Interest Payment for such Distribution Date, but
only to the extent such Compensating Interest Payment is not
actually made by a Servicer on the applicable Servicer Remittance
Date. Such amount shall not be treated as an Advance and shall
not be reimbursable to the Master Servicer.
Section 3.02 Filings with the Commission.
(a) The Master Servicer and the Securities Administrator
shall deliver (and the Master Servicer and Securities
Administrator shall cause any Additional Servicer engaged by it
to deliver) to the Depositor and the Securities Administrator on
or before March 15 of each year, commencing in March 2007, an
officer's certificate stating, as to the signer thereof, that (i)
a review of such party's activities during the preceding calendar
year or portion thereof and of such party's performance under
this Agreement, or such other applicable agreement in the case of
an Additional Servicer, has been made under such officer's
supervision and (ii) to the best of such officer's knowledge,
based on such review, such party has fulfilled all its
obligations under this Agreement, or such other applicable
agreement in the case of an Additional Servicer, in all material
respects throughout such year or portion thereof, or, if there
has been a failure to fulfill any such obligation in any material
respect, specifying each such failure known to such officer and
the nature and status thereof. Promptly after receipt of each
such officer's certificate, the Depositor shall review such
officer's certificate and consult with each such party, as
applicable, as to the nature of any failures by such party, in
the fulfillment of any of such party's obligations hereunder or,
in the case of an Additional Servicer, under such other
applicable agreement.
The Master Servicer shall enforce any obligation of the
Servicers, to the extent set forth in the related Servicing
Agreement, to deliver to the Master Servicer an annual statement
of compliance within the time frame set forth in, and in such
form and substance as may be required pursuant to, the related
Servicing Agreement The Master Servicer shall include such annual
statements of compliance with its own annual statement of
compliance to be submitted to the Securities Administrator
pursuant to this Section.
(b) The Depositor shall prepare or cause to be prepared the
initial current report on Form 8-K. Thereafter within four
Business Days after the occurrence of an event requiring
disclosure in a current report on Form 8-K (each such event, a
"Reportable Event"), and if requested by the Depositor, the
Master Servicer shall sign on behalf of the Depositor and the
Securities Administrator shall prepare and file with the
Commission any Form 8-K, as required by the Exchange Act. Any
disclosure or information related to a Reportable Event or that
is otherwise
34
required to be included on Form 8-K ("Form 8-K Disclosure
Information") shall be determined and prepared by and at the
direction of the Depositor pursuant to this Section 3.02 and the
Securities Administrator shall have no duty or liability for any
failure hereunder to determine or prepare any Form 8-K Disclosure
Information or any Form 8-K, except as set forth in this Section
3.02.
As set forth on Exhibit K hereto, for so long as the Trust
is subject to the Exchange Act reporting requirements, no later
than the end of business on the second Business Day after the
occurrence of a Reportable Event (i) certain parties to the GSR
Mortgage Loan Trust 20[ ]-2F Mortgage Pass-Through Certificates,
Series 20[ ]-2F transaction shall be required to provide to the
Securities Administrator and Depositor, to the extent known, in
form compatible with the Commission's Electronic Data Gathering
and Retrieval System ("XXXXX"), or in such other form as
otherwise agreed upon by the Securities Administrator and such
party, the form and substance of any Form 8-K Disclosure
Information, if applicable, (ii) the Securities Administrator
shall forward to the Depositor the form and substance of the Form
8-K Disclosure Information, and (iii) the Depositor shall
approve, as to form and substance, or disapprove, as the case may
be, the inclusion of the Form 8-K Disclosure Information. The
Depositor shall be responsible for any reasonable fees and
expenses assessed or incurred by the Securities Administrator in
connection with including any Form 8-K Disclosure Information on
Form 8- K pursuant to this paragraph.
After preparing the Form 8-K, the Securities Administrator
shall forward electronically a draft copy of the Form 8-K to the
Master Servicer for review. No later than 12:00 noon New York
City time on the fourth Business Day after the Reportable Event,
a duly authorized representative of the Master Servicer in charge
of the master servicing function shall sign the Form 8-K and
return an electronic or fax copy of such signed Form 8-K (with an
original executed hard copy to follow by overnight mail) to the
Securities Administrator, and no later than 5:00 p.m. New York
City time on such Business Day the Securities Administrator shall
file such Form 8-K with the Commission. If a Form 8-K cannot be
filed on time or if a previously filed Form 8-K needs to be
amended, the Securities Administrator will follow the procedures
set forth in Section 3.02(e). Promptly (but no later than one
Business Day) after filing with the Commission, the Securities
Administrator will, make available on its internet website
(located at xxx.xxxxxxx.xxx) a final executed copy of each Form
8-K. The signing party at the Master Servicer can be contacted at
0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trust, GSR 20[ ]-2F. The parties to this
Agreement acknowledge that the performance by the Securities
Administrator of its duties under this Section 3.02(b) related to
the timely preparation and filing of Form 8-K is contingent upon
such parties strictly observing all applicable deadlines in the
performance of their duties under this Section 3.02. The
Securities Administrator shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any
failure to properly prepare and/or timely file such Form 8-K,
where such failure results from the
35
Securities Administrator's inability or failure to receive on a
timely basis, any information from any other party hereto needed
to prepare, arrange for execution or file such Form 8-K, not
resulting from its own negligence, bad faith or willful
misconduct.
(c) Within fifteen days after each Distribution Date
(subject to permitted extensions under the Exchange Act), the
Securities Administrator shall prepare and file, and the Master
Servicer shall sign on behalf of the Depositor and file with the
Commission any distribution report on Form 10-D required by the
Exchange Act, in form and substance as required by the Exchange
Act. The Securities Administrator shall file each Form 10-D with
a copy of the related Monthly Statement attached thereto. Any
disclosure in addition to the monthly statement that is required
to be included on Form 10-D ("Additional Form 10-D Disclosure")
shall be determined and prepared by and at the direction of the
Depositor pursuant to the following paragraph and the Securities
Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D
Disclosure, except as set forth in this Section 3.02.
As set forth on Exhibit L hereto, within five calendar days
after the related Distribution Date, (i) certain parties to the
GSR Mortgage Loan Trust 20[ ]-2F Mortgage Pass-Through
Certificates, Series 20[ ]-2F transaction shall be required to
provide to the Securities Administrator and the Depositor, to the
extent known, in XXXXX-compatible form, or in such other form as
otherwise agreed upon by the Securities Administrator and such
party, the form and substance of any Additional Form 10-D
Disclosure, if applicable, (ii) the Securities Administrator
shall forward to the Depositor, the form and substance of the
Additional Form 10-D Disclosure, and (iii) the Depositor will
approve, as to form and substance, or disapprove, as the case may
be, the inclusion of the Additional Form 10-D Disclosure on Form
10-D. The Depositor shall be responsible for any reasonable fees
and expenses assessed or incurred by the Securities Administrator
in connection with any Additional Form 10-D Disclosure on Form
10-D pursuant to this Section 3.02(c).
After preparing the Form 10-D, the Securities Administrator
shall forward electronically a draft copy of the Form 10-D to the
Depositor and the Master Servicer for review. No later than two
Business Days prior to the fifteenth calendar day after the
related Distribution Date, a duly authorized representative of
the Master Servicer in charge of the master servicing function
shall sign the Form 10-D and return an electronic or fax copy of
such signed Form 10-D (with an original executed hard copy to
follow by overnight mail) to the Securities Administrator and
Depositor. If a Form 10-D cannot be filed on time or if a
previously filed Form 10-D needs to be amended, the Securities
Administrator will follow the procedures set forth in Section
3.02(e). Promptly (but no later than one Business Day) after
filing with the Commission, the Securities Administrator will
make available on its internet website (located at
xxx.xxxxxxx.xxx) a final executed copy of each Form 10-D. The
signing party at the Master Servicer can be contacted at 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx,
00
Xxxxxxxx 00000-0000, Attention: Corporate Trust, GSR 20[ ]-2F.
Each party to this Agreement acknowledges that the performance by
the Securities Administrator of its duties under this Section
3.02(c) related to the timely preparation and filing of Form 10-D
is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under this Section
3.02. The Securities Administrator shall have no liability for
any loss, expense, damage or claim arising out of or with respect
to any failure to properly prepare and/or timely file such Form
10-D, where such failure results from the Securities
Administrator's inability or failure to receive on a timely
basis, any information from any other party hereto needed to
prepare, arrange for execution or file such Form 10-D, not
resulting from its own negligence, bad faith or willful
misconduct.
(d) Within 90 days after the end of each fiscal year of the
Trust or such earlier date as may be required by the Exchange Act
(the "10-K Filing Deadline") (it being understood that the fiscal
year for the Trust ends on December 31 of each year), commencing
in March 2007, the Securities Administrator shall prepare and
file on behalf of the Depositor an annual report on Form 10-K, in
form and substance as required by the Exchange Act. Each such
Form 10-K shall include the following items, in each case to the
extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement and
the related Servicing Agreement: (i) an annual compliance
statement for each Servicer, each Additional Servicer, the Master
Servicer and the Securities Administrator (each, a "Reporting
Servicer") as described under Section 3.02(a), (ii)(A) the annual
reports on assessment of compliance with servicing criteria for
each Reporting Servicer, as described under Section 8.01(e) and
Section 11.01(c), and (B) if each Reporting Servicer's report on
assessment of compliance with servicing criteria described under
Section 8.01(e) and Section 11.01(c) identifies any material
instance of noncompliance, disclosure identifying such instance
of noncompliance, or if each Reporting Servicer's report on
assessment of compliance with servicing criteria described under
Section 8.01(e) and Section 11.01(c) is not included as an
exhibit to such Form 10-K, disclosure that such report is not
included and an explanation why such report is not included,
(iii)(A) the registered public accounting firm attestation report
for each Reporting Servicer, as described under Section 8.01(f)
and Section 11.01(d), and (B) if any registered public accounting
firm attestation report described under Section 8.01(f) and
Section 11.01(d) identifies any material instance of
noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form
10-K, disclosure that such report is not included and an
explanation why such report is not included, and (iv) a
Xxxxxxxx-Xxxxx Certification as described in Section 3.02(f). Any
disclosure or information in addition to the disclosure or
information specified in items (i) through (iv) above that is
required to be included on Form 10-K ("Additional Form 10-K
Disclosure") shall be determined and prepared by and at the
direction of the Depositor pursuant to the following paragraph
and the Securities Administrator
37
shall have no duty or liability for any failure hereunder to
determine or prepare any Additional Form 10-K Disclosure, except
as set forth in this Section 3.02(d).
As set forth on Exhibit M hereto, no later than March 15 of
each year that the Trust is subject to the Exchange Act reporting
requirements, commencing in 2007, (i) certain parties to the GSR
Mortgage Loan Trust 20[ ]-2F Mortgage Pass-Through Certificates,
Series 20[ ]-2F transaction shall be required to provide to the
Securities Administrator and the Depositor, to the extent known,
in XXXXX-compatible form, or in such other form as otherwise
agreed upon by the Securities Administrator and such party, the
form and substance of any Additional Form 10-K Disclosure, if
applicable, (ii) the Securities Administrator shall forward to
the Depositor, the form and substance of the Additional Form 10-K
Disclosure, and (iii) the Depositor shall approve, as to form and
substance, or disapprove, as the case may be, the inclusion of
the Additional Form 10-K Disclosure on Form 10-K. The Depositor
shall be responsible for any reasonable fees and expenses
assessed or incurred by the Securities Administrator in
connection with including any Additional Form 10-K Disclosure on
Form 10-K pursuant to this Section 3.02(d).
After preparing the Form 10-K, the Securities Administrator
shall forward electronically a draft copy of the Form 10-K to the
Depositor for review. No later than 12:00 noon New York City time
on the fourth Business Day prior to the 10-K Filing Deadline, a
senior officer of the Depositor shall sign the Form 10-K and
return an electronic or fax copy of such signed Form 10-K (with
an original executed hard copy to follow by overnight mail) to
the Securities Administrator. If a Form 10-K cannot be filed on
time or if a previously filed Form 10-K needs to be amended, the
Securities Administrator will follow the procedures set forth in
3.02(e). Promptly (but no later than one Business Day) after
filing with the Commission, the Securities Administrator will
make available on its internet website located at (located at
xxx.xxxxxxx.xxx) a final executed copy of each Form 10-K. The
parties to this Agreement acknowledge that the performance by the
Securities Administrator of its duties under this Section 3.02(d)
related to the timely preparation and filing of Form 10-K is
contingent upon such parties (and any Additional Servicer or
Servicing Function Participant) strictly observing all applicable
deadlines in the performance of their duties under this Section
3.02(d), Section 3.02(f), Section 3.02(a), Sections 8.01(e) and
(f) and Sections 11.01(c) and (d). The Securities Administrator
shall have no liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare
and/or timely file such Form 10-K, where such failure results
from the Securities Administrator's inability or failure to
receive on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form
10-K, not resulting from its own negligence, bad faith or willful
misconduct.
(e) Prior to February 26 of the first year in which the
Securities Administrator is able to do so under applicable law,
the Securities Administrator
38
shall file a Form 15 relating to the automatic suspension of
reporting in respect of the Trust under the Exchange Act.
In the event that the Securities Administrator becomes aware
that it will be unable to timely file with the Commission all or
any required portion of any Form 8-K, 10-D or 10-K required to be
filed by this Agreement because required disclosure information
was either not delivered to it or delivered to it after the
delivery deadlines set forth in this Agreement or for any other
reason, the Securities Administrator will immediately notify the
Depositor. In the case of Form 10-D and 10-K, the parties to this
Agreement will cooperate and cause such other Servicers or
Servicing Function Participants, as applicable, to cooperate, to
prepare and file a Form 12b-25 and a 10-DA and 10-KA as
applicable, pursuant to Rule 12b-25 of the Exchange Act. In the
case of Form 8-K, the Securities Administrator will, upon receipt
of all required Form 8-K Disclosure Information and upon the
approval and direction of the Depositor, include such disclosure
information on the next Form 10-D. In the event that any
previously filed Form 10-D or 10-K needs to be amended, the
Securities Administrator shall notify the Depositor and prepare
any necessary 10-DA or 10-KA. Any Form 15, Form 12b-25 or any
amendment to Form 8-K or 10-D shall be signed by a duly
authorized representative of the Master Servicer in charge of the
master servicing function. Any amendment to Form 10-K shall be
signed by the Depositor. The parties to this Agreement
acknowledge that the performance by the Securities Administrator
of its duties under this Section 3.02(e) related to the timely
preparation and filing of Form 15, a Form 12b-25 or any amendment
to Form 8-K, 10-D or 10-K is contingent upon each such party
performing its duties under this Section. The Securities
Administrator shall have no liability for any loss, expense,
damage or claim arising out of or with respect to any failure to
properly prepare and/or timely file any such Form 15, Form 12b-25
or any amendments to Forms 8-K, 10-D or 10-K, where such failure
results from the Securities Administrator's inability or failure
to receive on a timely basis, any information from or on behalf
of any other party hereto needed to prepare, arrange for
execution or file such Form 15, Form 12b-25 or any amendments to
Forms 8-K, 10-D or 10-K, not resulting from its own negligence,
bad faith or willful misconduct.
(f) Each Form 10-K shall include a Xxxxxxxx-Xxxxx
Certification, required to be included therewith pursuant to the
Xxxxxxxx-Xxxxx Act. Each Servicer, the Securities Administrator
and the Master Servicer shall cause any Servicing Function
Participant engaged by it to provide to the Person who signs the
Xxxxxxxx-Xxxxx Certification (the "Certifying Person"), by March
15 of each year in which the Trust is subject to the reporting
requirements of the Exchange Act and otherwise within a
reasonable period of time upon request, a certification (each, a
"Back-Up Certification"), in the form attached hereto as Exhibit
I, upon which the Certifying Person, the entity for which the
Certifying Person acts as an officer, and such entity's officers,
directors and Affiliates (collectively with the Certifying
Person, "Certification Parties") can reasonably rely. The senior
officer of the Depositor shall serve as the Certifying Person on
behalf of the Trust. In the
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event the Master Servicer, the Securities Administrator, the
Trustee or any Servicing Function Participant engaged by parties
is terminated or resigns pursuant to the terms of this Agreement,
or any applicable sub-servicing agreement, as the case may be,
such party shall provide a Back-Up Certification to the
Certifying Person pursuant to this Section 3.02(f) with respect
to the period of time it was subject to this Agreement or any
applicable sub-servicing agreement, as the case may be.
The Master Servicer shall enforce any obligation of the
Servicers, to the extent set forth in the related Servicing
Agreement, to deliver to the Master Servicer a certification
similar to the Back-Up Certification within the time frame set
forth in, and in such form and substance as may be required
pursuant to, the related Servicing Agreement.
(g) The Securities Administrator shall promptly file, and
exercise its reasonable best efforts to obtain a favorable
response to, no-action requests, or other appropriate exemptive
relief with the Commission seeking the usual and customary
exemption from such reporting requirements granted to issuers of
securities similar to the Certificates if and to the extent the
Depositor shall deem any such relief to be necessary or
appropriate. Unless otherwise advised by the Depositor, the
Securities Administrator shall assume that the Depositor is in
compliance with the preceding sentence. In no event shall the
Securities Administrator have any liability for the execution or
content of any document required to be filed by the 1934 Act. The
Depositor agrees to promptly furnish to the Securities
Administrator, from time to time upon request, such further
information, reports, and financial statements within its control
related to the Trust Agreement and the Mortgage Loans as the
Depositor reasonably deems appropriate to prepare and file all
necessary reports with the Commission.
Section 3.03 Securities Administrator to Cooperate; Release of Mortgage Files.
The Trustee, shall, if requested by any Servicer, execute a power of
attorney pursuant to which the Servicer, on behalf of the Trustee, shall
authorize, make, constitute and appoint designated officers of such Servicer
with full power to execute in the name of the Trustee (without recourse,
representation or warranty) any deed of reconveyance, any substitution of
trustee documents or any other document to release, satisfy, cancel or discharge
any Mortgage or Mortgage Loan serviced by such Servicer upon its payment in full
or other liquidation; provided, however, that such power of appointment shall be
limited to the powers limited above; and provided, further, that such Servicer
shall promptly forward to the Trustee for its files copies of all documents
executed pursuant to such power of appointment.
Pursuant to the Custodial Agreement, the Servicer may submit a Request for
Release to have delivered to it the related Trustee Mortgage Loan File and a
release of the Mortgaged Premises from the lien of the Mortgage. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to a Collection Account, the Master Servicer
Account or the Certificate Account.
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Upon receipt of any other Request for Release for purposes of servicing a
Mortgage Loan, including but not limited to, collection under any Insurance
Policy, title insurance policy, primary mortgage insurance policy, flood
insurance policy or hazard insurance policy or to effect a partial release of
any Mortgaged Premises from the lien of the Mortgage, the Securities
Administrator, on behalf of the Trustee, within five Business Days of receipt of
such Request for Release, shall release, or shall cause the related Servicer to
cause the applicable Custodian to release, the related Trustee Mortgage Loan
File to the Servicer. Upon receipt of an Officer's Certificate of the Servicer
stating that such Mortgage Loan was liquidated and that all amounts received or
to be received in connection with such liquidation which are required to be
deposited into the Collection Account or the Certificate Account have been so
deposited, or that such Mortgage Loan has become an REO Property, the related
Trustee Mortgage Loan File shall be released by the Trustee (or the Custodian)
to such Servicer.
Any Servicer may execute a written certification to have delivered to it,
pursuant to the Custodial Agreement, court pleadings, requests for trustee's
sale or other documents necessary to the foreclosure or trustee's sale in
respect of a Mortgaged Premises or to any legal action brought to obtain
judgment against any Borrower on the Note or Mortgage or to obtain a deficiency
judgment, or to enforce any other remedies or rights provided by the Note or
Mortgage or otherwise available at law or in equity.
Section 3.04 Amendments to Servicing Agreement.
Each Servicing Agreement may be amended or supplemented from time to time
by the related Servicer, the Master Servicer, the Securities Administrator and
the Trustee without the consent of any of the Certificateholders to (a) cure any
ambiguity, (b) correct or supplement any provisions therein which may be
inconsistent with any other provisions therein, (c) modify, eliminate or add to
any of its provisions to such extent as shall be necessary or appropriate to
maintain the qualification of the Trust (or certain assets thereof) as one or
more REMICs, at all times that any Certificates are outstanding or (d) make any
other provisions with respect to matters or questions arising under such
Servicing Agreement or matters arising with respect to the servicing of the
Mortgage Loans which are not covered by such Servicing Agreement which shall not
be inconsistent with the provisions of such Servicing Agreement, provided that
such action shall not adversely affect in any material respect the interests of
any Certificateholder. Any such amendment or supplement shall be deemed not to
adversely affect in any material respect any Certificateholder if there is
delivered to the Trustee and the Securities Administrator written notification
from each Rating Agency that rated the applicable Certificates to the effect
that such amendment or supplement will not cause that Rating Agency to reduce or
qualify the then current rating assigned to such Certificates, as well as an
Opinion of Counsel (at the expense of the applicable Servicer) that such
amendment or supplement will not result in the loss by the Trust or the assets
thereof of REMIC status or result in the imposition of any taxes on the Trust or
any REMIC.
Each Servicing Agreement may also be amended from time to time by the
related Servicer, the Master Servicer, the Securities Administrator and the
Trustee with the consent of the Holders of Certificates entitled to at least
[66]% of the Voting Rights for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of such Servicing
Agreement or of modifying in any manner the rights of the Holders of
Certificates;
41
provided, however, that no such amendment shall (A) reduce in
any manner the amount of, or delay the timing of, payments received on Mortgage
Loans which are required to be distributed on any Certificate without the
consent of the Holder of such Certificate, (B) adversely affect in any material
respect the interests of the Holders of any Class of Certificates, or (C) reduce
the aforesaid percentage of Certificates the Holders of which are required to
consent to any such amendment, unless each Holder of a Certificate affected by
such amendment consents. For purposes of the giving or withholding of consents
pursuant to this Section 3.04, Certificates registered in the name of the
Depositor or an Affiliate thereof shall be entitled to Voting Rights with
respect to matters affecting such Certificates.
Upon delivery of a written request to the Trustee, the Securities
Administrator and/or the Master Servicer together with a certification from the
Servicer that any such amendment or supplement is permitted hereby, the
Securities Administrator shall join in any such amendment or supplement.
Promptly after the execution of any such amendment the Securities
Administrator shall notify each Certificateholder and the Master Servicer of
such amendment and, upon written request, shall furnish a copy of such amendment
to each Certificateholder.
It shall not be necessary for the consent of Certificateholders under this
Section 3.04 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Securities Administrator may prescribe. Prior to consenting
to any amendment pursuant to this Section 3.04, the Trustee, the Securities
Administrator and the Master Servicer shall be entitled to receive an Opinion of
Counsel (at the expense of the applicable Servicer) that such amendment is
authorized and permitted pursuant to the terms of this Trust Agreement and the
applicable Servicing Agreement.
Section 3.05 Monthly Advances by Master Servicer or Trustee.
(a) Under the terms of each Servicing Agreement, on the Business
Day prior to each Servicer Remittance Date, the related Servicer is
obligated to make a Monthly Advance with respect to any delinquencies
as of the related Distribution Date, unless such Servicer furnishes to
the Master Servicer, an Officer's Certificate evidencing the
determination by such Servicer, in its reasonable judgment, that such
Monthly Advance would be non-recoverable from Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds or otherwise with respect to
such Mortgage Loan (a "Non-Recoverability Certificate"). If (i) a
Servicer reports a delinquency on a Remittance Report, and (ii) such
Servicer, by 11:00 a.m. (New York Time) on the related Distribution
Date, neither makes a Monthly Advance nor provides the Securities
Administrator and the Master Servicer or Trustee, as applicable, with
a Non-Recoverability Certificate with respect to such delinquency,
then subject to paragraph (b) below, the Master Servicer shall
deposit, from its own funds, on the Master Servicer Remittance Date,
the amount of such Monthly Advance not made by the Servicer into the
Certificate Account for distribution to Certificateholders as provided
in the Trust
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Agreement. If the Master Servicer fails to make a Monthly Advance as
required by the preceding sentence, then the Securities Administrator
shall notify the Trustee of such failure, and the Trustee shall
deposit, from its own funds, on the Distribution Date, the amount of
such Monthly Advance into the Certificate Account. Notwithstanding the
foregoing, if either the Master Servicer or the Trustee, in their
reasonable judgment, determine that such Monthly Advance would be
non-recoverable from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds or otherwise with respect to such Mortgage Loan,
then neither the Master Servicer nor the Trustee, as applicable, shall
be obligated to make such Monthly Advance.
(b) Each Servicer is obligated under the applicable Servicing
Agreement to remit to the Master Servicer the required remittance on
each Servicer Remittance Date. If (i) a Servicer fails to remit such
remittance on any Servicer Remittance Date and (ii) such failure is
not cured by 11 a.m. (New York Time) on the related Master Servicer
Remittance Date, then, to the extent permitted by the related
Servicing Agreement, the Master Servicer shall withdraw the amount of
such required remittance from such Collection Account, to the extent
that such amount is on deposit in such Collection Account, and shall
deposit such amount in the Certificate Account.
(c) All Monthly Advances (together with, in the case of the
Master Servicer and the Trustee, interest thereon at a rate equal to
the prevailing Prime Rate plus [2.0]%) shall be reimbursable to the
related Servicer, the Master Servicer or the Trustee, as the case may
be, on a first priority basis from deposits to the Collection Account
of late collections, Insurance Proceeds, Liquidation Proceeds and
Condemnation Proceeds from the related Mortgage Loan as to which a
Monthly Advance has been made. The Master Servicer or the Trustee's
right to reimbursement as provided in this paragraph (c) shall not
negate its obligation to continue to make Monthly Advances as provided
in paragraph (a) of this Section 3.05. To the extent Monthly Advances
are not recoverable as set forth in the first sentence of this
paragraph (c), the Master Servicer or the Trustee, as the case may be,
shall be entitled to recover such Monthly Advances as provided in
Section 3.01(b).
(d) To the extent that the Servicer is required to pay penalty
interest pursuant to the Servicing Agreement, and the Master Servicer
or the Trustee makes any Monthly Advance, the Master Servicer or the
Trustee, as applicable, in its individual capacity shall be entitled
to retain such penalty interest.
Section 3.06 Enforcement of Servicing Agreement.
Subject to Article VIII hereof, the Master Servicer agrees to comply with
the terms of each Servicing Agreement and to enforce the terms and provisions
thereof against the related Servicer for the benefit of the Certificateholders.
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ARTICLE IV
REPORTING/REMITTING TO CERTIFICATEHOLDERS
Section 4.01 Statements to Certificateholders.
(a) Distribution Date Statement. On each Distribution Date, the
Securities Administrator shall prepare a statement as to such
distribution (the "Distribution Statement"), based solely on
information provided by the Servicers in the related Remittance
Reports, and on each Distribution Date, such statement will be made
available at a website located at xxx.xxxxxxx.xxx to the Depositor,
any Interest Rate Cap Counterparty and each Certificateholder, setting
forth:
(i) the class factor for each Class of Certificates;
(ii) the aggregate Scheduled Principal Balance of each Pool
and/or Group of Mortgage Loans;
(iii) the Available Distribution Amount, the Aggregate Principal
Distribution Amount and the Principal Prepayment Amount for such
Distribution Date;
(iv) a statement as to whether any exchanges of Exchangeable
Certificates have taken place since the preceding Distribution Date,
and, if applicable, the names, certificate balances, including
notional balances, pass-through rates, and any interest and principal
paid, including any shortfalls allocated, of any classes of
Certificates that were received by the Certificateholder as a result
of such exchange;
(v) the amount of such distribution to the Holders of
Certificates of such Class to be applied to reduce the Certificate
Balance thereof, separately identifying the amounts, if any, of any
Payoffs, Principal Prepayments made by the Mortgagor, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds;
(vi) the amount of such distribution to the Holders of
Certificates of such Class allocable to interest, and the Certificate
Rate applicable to each Class (separately identifying (A) the amount
of such interest accrued during the calendar month preceding the month
of such Distribution Date, and (B) the amount of interest from
previous calendar months;
(vii) the aggregate amount of the Servicing Fees and the Master
Servicing Fee paid as required under the Servicing Agreements and the
Trust Agreement and any other fees or expenses paid out of the
Available Distribution Amount for such Distribution Date as permitted
hereunder;
(viii) if applicable, the aggregate amount of outstanding Monthly
Advances and Servicing Advances included in such distribution, the
aggregate amount of Monthly Advances reimbursed during the calendar
month preceding the
44
Distribution Date and the aggregate amount of unreimbursed Monthly
Advances and Servicing Advances at the close of business on such
Distribution Date;
(ix) if applicable, the aggregate amount of outstanding Monthly
Advances included in such distribution, and the aggregate amount of
Monthly Advances reimbursed to the Master Servicer or Trustee during
the calendar month preceding the Distribution Date;
(x) [Reserved];
(xi) the number and aggregate Scheduled Principal Balance of the
Mortgage Loans outstanding as of the last Business Day of the calendar
month preceding such Distribution Date;
(xii) the number and aggregate Scheduled Principal Balance of
Mortgage Loans as reported to the Securities Administrator by the
Servicer, (A) that are current, 30 days contractually delinquent, 60
days contractually delinquent, 90 days contractually delinquent or 120
days or more contractually delinquent (each to be calculated using the
Mortgage Bankers Association (MBA) method), (B) as to which
foreclosure proceedings have been commenced, (C) as to which the
Mortgagor is subject to a bankruptcy proceeding and (D) secured by REO
Properties;
(xiii) with respect to any mortgaged property acquired on behalf
of Certificateholders through foreclosure or deed in lieu of
foreclosure during the preceding calendar month, the Scheduled
Principal Balance of the related Mortgage Loan as of the last Business
Day of the calendar month preceding the Distribution Date;
(xiv) the aggregate Certificate Balance of each Class of
Certificates (and, in the case of any Certificate with no Certificate
Balance, the notional amount of such Class) after giving effect to the
distribution to be made on such Distribution Date, and separately
identifying any reduction thereof on account of Realized Losses;
(xv) the aggregate amount of (A) Payoffs and Principal
Prepayments made by Mortgagors, (B) Liquidation Proceeds, Condemnation
Proceeds and Insurance Proceeds, and (C) Realized Losses incurred
during the related Prepayment Period;
(xvi) the aggregate amount of any Mortgage Loan that has been
repurchased from the Trust;
(xvii) the aggregate Shortfall, if any, allocated to each Class
of Certificates at the close of business on such Distribution Date;
(xviii) the Certificate Rate for each Class of Certificates
applicable to such Distribution Date; and
45
(xix) the Senior Collateral Group Percentages, the Senior
Prepayment Percentages, the Subordinate Percentages and the
Subordinate Prepayment Percentages, if any, for such Distribution
Date.
In the case of information furnished pursuant to clauses (i) through (iii)
above, the amounts shall be expressed, with respect to any Certificate, as a
dollar amount per $[1,000] denomination; provided, however, that if any Class of
Certificates does not have a Certificate Balance, then the amounts shall be
expressed as a dollar amount per [10]% Percentage Interest.
In addition to the Distribution Statement that includes the information
listed above, the Securities Administrator shall prepare and file a statement
including such other information as is required by Form 10-D, including, but not
limited to, the information required by Item 1121 (ss. 229.1121) of Regulation
AB.
In addition to the Distribution Statement specified above, the Securities
Administrator shall prepare and make available to each Certificateholder (with
respect to clauses (i) and (ii) below) and each Holder of a Residual Certificate
(with respect to clauses (iii) and (iv) below), if any, on each Distribution
Date a statement setting forth: (i) in the case of a Trust with respect to which
one or more REMIC elections have been or will be made, any reports required to
be provided to Holders by the REMIC Provisions; (ii) such other customary
information as the Securities Administrator deems necessary or desirable, or
which a Certificateholder reasonably requests, to enable Certificateholders to
prepare their tax returns; (iii) the amounts actually distributed with respect
to the Residual Certificates of such Class on such Distribution Date; and (iv)
the aggregate Certificate Balance, if any, of the Residual Certificates of such
Class after giving effect to any distribution made on such Distribution Date,
separately identifying the amount of Realized Losses allocated to such Residual
Certificates of such Class on such Distribution Date.
Within a reasonable period of time after the end of each calendar year,
the Securities Administrator shall prepare and furnish a statement, containing
the information set forth in clauses (i) through (iv) above (based on
information provided by the Master Servicer), to each Person who at any time
during the calendar year was a Holder that requests such statement, aggregated
for such calendar year or portion thereof during which such Person was a
Certificateholder. Such obligation of the Securities Administrator shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Master Servicer or the Securities
Administrator pursuant to any requirements of the Code as from time to time are
in force.
Within a reasonable period of time after the end of each calendar year,
the Securities Administrator shall prepare and shall furnish to each Person who
at any time during the calendar year was a Holder of a Residual Certificate a
statement, upon request, containing the information provided pursuant to the
second preceding paragraph aggregated for such calendar year thereof during
which such Person was a Certificateholder. Such obligation of the Securities
Administrator shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code as from time to time are
in force.
46
Section 4.02 Remittance Reports and other Reports from the Servicers.
To the extent received from the Servicers and the Master Servicer, the
Securities Administrator shall make the information in each Remittance Report
available to the Depositor, the Trustee, or any Certificateholder upon written
request therefor. In addition, upon written request from the Depositor, the
Trustee, the Securities Administrator or any Certificateholder (such party, the
"Requesting Party"), the Securities Administrator shall use commercially
reasonable efforts to obtain from the Servicers and subsequently provide to the
Requesting Party any other reports or information that may be obtained by the
Securities Administrator from any Servicer pursuant to the related Servicing
Agreement; provided, however, that if the Securities Administrator incurs costs
pursuant to the Servicing Agreement with respect to any particular request, the
Securities Administrator shall be entitled to reimbursement from the Requesting
Party for such costs, together with any other reasonable costs incurred by it
for obtaining or delivering the reports or information specified by such
request. Upon the request of the Depositor, if permitted pursuant to a Sale and
Servicing Agreement, the Master Servicer shall request, on an annual basis
beginning one year after the Closing Date, copies of the Servicer's internal
quality control reports (it being understood that the Master Servicer shall have
no responsibility for, or be deemed to have, constructive notice of any
information contained therein or determinable therefrom). Neither the Master
Servicer, the Securities Administrator nor any agent of the Securities
Administrator shall be under any duty to recalculate, verify or recompute the
information provided to it under any Servicing Agreement by the applicable
Servicer.
Section 4.03 Compliance with Withholding Requirements.
Notwithstanding any other provisions of the Trust Agreement, the
Securities Administrator shall comply with all federal withholding requirements
respecting payments of interest or principal to the extent of accrued original
issue discount on Certificates to each Holder of such Certificates who (a) is
not a "United States person," within the meaning of Code Section 7701(a)(30),
(b) fails to furnish its TIN to the Securities Administrator, (c) furnishes the
Securities Administrator an incorrect TIN, (d) fails to report properly interest
and dividends, (e) under certain circumstances, fails to provide the Securities
Administrator or the Certificateholder's securities broker with a certified
statement, signed under penalties of perjury, that the TIN provided by such
Certificateholder to the Securities Administrator or such broker is correct and
that the Certificateholder is not subject to backup withholding or (f) otherwise
fails to satisfy any applicable certification requirements relating to the
withholding tax. The consent of such a Certificateholder shall not be required
for such withholding. In the event the Securities Administrator, on behalf of
the Trustee, does withhold the amount of any otherwise required distribution
from interest payments on the Mortgage Loans (including principal payments to
the extent of accrued original issue discount) or Monthly Advances thereof to
any Certificateholder pursuant to federal withholding requirements, the
Securities Administrator shall indicate with any payments to such
Certificateholders the amount withheld. In addition, if any United States
federal income tax is due at the time a Non-U.S. Person transfers a Residual
Certificate, the Securities Administrator, on behalf of the Trustee, or other
Withholding Agent may (1) withhold an amount equal to the taxes due upon
disposition of such Residual Certificate from future distributions made with
respect to such Residual Certificate to the transferee thereof (after giving
effect to the withholding of taxes imposed on such transferee), and (2) pay the
withheld amount to the Internal Revenue Service unless satisfactory written
evidence of payment by the transferor
47
of the taxes due has been provided to the Securities Administrator or such
Withholding Agent. Moreover, Securities Administrator, on behalf of the Trustee,
or other Withholding Agent may (1) hold distributions on a Residual Certificate,
without interest, pending determination of amounts to be withheld, (2) withhold
other amounts, if any, required to be withheld pursuant to United States federal
income tax law from distributions that otherwise would be made to such
transferee on each Residual Certificate that it holds, and (3) pay to the
Internal Revenue Service all such amounts withheld.
Section 4.04 Reports of Certificate Balances to The Depository Trust Company.
If and for so long as any Certificate is held by The Depository Trust
Company, on each Distribution Date, the Securities Administrator shall give
notice to The Depository Trust Company (and shall promptly thereafter confirm in
writing) the following: (a) the amount to be reported pursuant to clause (c) and
(d) of each statement provided to Holders of Certificates pursuant to Section
4.01 in respect of the next succeeding distribution, (b) the Record Date for
such distribution, (c) the Distribution Date for such distribution and (d) the
aggregate Certificate Balance of each Class of Certificates to be reported
pursuant to clause (i) of the first paragraph of Section 4.01 in such month.
Section 4.05 Preparation of Regulatory Reports.
Notwithstanding any other provision of this Agreement, the Securities
Administrator has not assumed, and shall not by its performance hereunder be
deemed to have assumed, any of the duties or obligations of the Depositor or any
other Person with respect to (a) the registration of the Certificates pursuant
to the Securities Act, (b) the issuance or sale of the Certificates, or (iii)
compliance with the provisions of the Securities Act, the Exchange Act, or any
offering circular, applicable federal or state securities or other laws
including, without limitation, any requirement to update the registration
statement or prospectus relating to the Certificates in order to render the same
not materially misleading to investors.
Section 4.06 Management and Disposition of REO Property.
The Master Servicer shall enforce the obligation of each Servicer under
any Servicing Agreement to dispose of any REO Property acquired by such Servicer
on behalf of the Trust before the end of the third calendar year following the
calendar year in which the related REO Property was acquired; provided that the
Master Servicer shall waive such requirement if the Master Servicer, the Trustee
and the Securities Administrator (a) receive an Opinion of Counsel (obtained at
the expense of the party requesting such Opinion of Counsel) indicating that,
under then-current law, the REMIC may hold such REO Property for a period longer
than three years without threatening the REMIC status of any related REMIC or
causing the imposition of a tax upon any such REMIC or (b) the Servicer applies
for and is granted an extension of such three year period pursuant to Code
Sections 860G(a)(8) and 856(e)(3) (the applicable period provided pursuant to
such Opinion of Counsel or such Code Section being referred to herein as an
"Extended Holding Period"). In that event, the Master Servicer shall direct the
Servicer to sell any REO Property remaining after such date in an auction before
the end of the Extended Holding Period.
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ARTICLE V
THE INTERESTS AND THE SECURITIES
Section 5.01 REMIC Interests.
The Trust Agreement will set forth the terms of the Regular Interests and
Residual Interest of each REMIC. Unless otherwise specified in the Trust
Agreement, (a) the Regular Interests in each REMIC will be "regular interests"
for purposes of the REMIC Provisions; (b) the Trustee will be the owner of the
Regular Interests in any REMIC held by another REMIC formed pursuant to the
terms of the Trust Agreement, and such Regular Interests may not be transferred
to any person other than a successor trustee appointed pursuant to Section 8.07
hereof unless the party desiring the transfer obtains a Special Tax Opinion; and
(c) such Regular Interests will be represented by the respective Interests.
Section 5.02 The Certificates.
The Certificates shall be designated in the Trust Agreement. The
Certificates in the aggregate will represent the entire beneficial ownership
interest in the Trust Estate. On the Closing Date, the aggregate Certificate
Balance of the Certificates will equal the aggregate Scheduled Principal Balance
of the Mortgage Loans as of the Cut-off Date. The Certificates will be
substantially in the forms annexed to the Trust Agreement. Unless otherwise
provided in the Trust Agreement, the Certificates of each Class will be issuable
in registered form, in denominations of authorized Percentage Interests as
described in the definition thereof. Each Certificate will share ratably in all
rights of the related Class.
Upon original issue, the Certificates shall be executed by the Trustee and
delivered by the Securities Administrator and the Securities Administrator shall
cause the Certificates to be authenticated by the Certificate Registrar to or
upon the order of the Depositor upon receipt by the Trustee of the documents
specified in Section 2.01. The Certificates shall be executed and attested by
manual or facsimile signature on behalf of the Trustee by an authorized Officer
under its seal imprinted thereon. Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper Officers of the
Trustee shall bind the Trustee, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided in the Trust
Agreement executed by the Certificate Registrar by manual signature, and such
certificate of authentication shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their execution.
Section 5.03 Book-Entry Securities.
(a) The Book-Entry Securities will be represented initially
by one or more certificates registered in the name designated by
the Clearing Agency. The Depositor and the Securities
Administrator may for all intents and purposes
49
(including the making of payments on the Book-Entry Securities)
deal with the Clearing Agency as the authorized representative of
the Beneficial Owners of the Book-Entry Securities for as long as
those Certificates are registered in the name of the Clearing
Agency. The rights of Beneficial Owners of the Book-Entry
Securities shall be limited by law to those established by law
and agreements between such Beneficial Owners and the Clearing
Agency and Clearing Agency Participants. The Beneficial Owners of
the Book-Entry Securities shall not be entitled to certificates
for the Book-Entry Securities as to which they are the Beneficial
Owners, except as provided in subsection (c) below. Requests and
directions from, and votes of, the Clearing Agency, as Holder,
shall not be deemed to be inconsistent if they are made with
respect to different Beneficial Owners. Without the consent of
the Depositor and the Securities Administrator, a Book-Entry
Security may not be transferred by the Clearing Agency except to
another Clearing Agency that agrees to hold the Book-Entry
Security for the account of the respective Clearing Agency
Participants and Beneficial Owners.
(b) Neither the Depositor nor the Securities Administrator
will have any liability for any aspect of the records relating to
or payment made on account of Beneficial Owners of the Book-Entry
Securities held by the Clearing Agency, for monitoring or
restricting any transfer of beneficial ownership in a Book-Entry
Security or for maintaining, supervising or reviewing any records
relating to such Beneficial Owners.
(c) A Book-Entry Security will be registered in fully
registered, certificated form to Beneficial Owners of Book-Entry
Securities or their nominees, rather than to the Clearing Agency
or its nominee, if (a) the Depositor advises the Securities
Administrator in writing that the Clearing Agency is no longer
willing or able to discharge properly its responsibilities as
depository with respect to the Book-Entry Securities, and the
Depositor is unable to locate a qualified successor within 30
days, (b) the Depositor, at its option, elects to terminate the
book-entry system operating through the Clearing Agency or (c)
after the occurrence of an Event of Default, Beneficial Owners
representing at least a majority of the aggregate outstanding
Certificate Balance of the Book-Entry Securities advise the
Clearing Agency in writing that the continuation of a book-entry
system through the Clearing Agency is no longer in the best
interests of the Beneficial Owners. Upon the occurrence of any
such event, the Securities Administrator shall notify the
Clearing Agency, which in turn will notify all Beneficial Owners
of Book-Entry Securities through Clearing Agency Participants, of
the availability of certificated Certificates. Upon surrender by
the Clearing Agency or the Book-Entry Custodian of the
certificates representing the Book-Entry Securities and receipt
of instructions for re-registration, the Securities Administrator
will reissue the Book-Entry Securities as certificated
Certificates to the Beneficial Owners identified in writing by
the Clearing Agency. Neither the Depositor nor the Securities
Administrator shall be liable for any delay in the delivery of
such instructions and may rely conclusively on, and shall be
protected in relying on, such instructions. Such certificated
Certificates shall not constitute
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Book-Entry Securities. All reasonable costs associated with the
preparation and delivery of certificated Certificates shall be
borne by the Trust.
(d) The Securities Administrator is hereby initially
appointed as Book-Entry Custodian with respect to the Book-Entry
Securities, and hereby agrees to act as such in accordance
herewith and in accordance with the agreement that it has with
the Clearing Agency authorizing it to act as such (it being
understood that should any conflict arise between the provisions
hereof and the provisions of the agreement between the Securities
Administrator and the Clearing Agency, the agreement with the
Clearing Agency will control). The Book-Entry Custodian may, and,
if it is no longer qualified to act as such, the Book-Entry
Custodian shall, appoint, by a written instrument delivered to
the Depositor and, if the Securities Administrator is not the
Book-Entry Custodian, the Securities Administrator, any other
transfer agent (including the Clearing Agency or any successor
Clearing Agency) to act as Book-Entry Custodian under such
conditions as the predecessor Book-Entry Custodian and the
Clearing Agency or any successor Clearing Agency may prescribe;
provided that the predecessor Book-Entry Custodian shall not be
relieved of any of its duties or responsibilities by reason of
such appointment of other than the Clearing Agency. If the
Securities Administrator resigns or is removed in accordance with
the terms hereof, the successor securities administrator, or, if
it so elects, the Clearing Agency shall immediately succeed to
its predecessor's duties as Book-Entry Custodian. The Depositor
shall have the right to inspect, and to obtain copies of, any
Certificates held as Book-Entry Securities by the Book-Entry
Custodian.
Section 5.04 Registration of Transfer and Exchange of Certificates.
The Securities Administrator shall cause to be kept at its Corporate Trust
Office a Certificate Register in which, subject to such reasonable regulations
as it may prescribe, the Securities Administrator shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. The Securities Administrator will initially serve as
Certificate Registrar for the purpose of registering Certificates and transfers
and exchanges of Certificates as herein provided. The Securities Administrator
may appoint any other Person to act as Certificate Registrar hereunder.
Subject to Section 5.05, upon surrender for registration of transfer of
any Certificate at the Corporate Trust Office of the Securities Administrator or
at any other office or agency of the Securities Administrator maintained for
such purpose, the Securities Administrator shall execute and the Certificate
Registrar shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class of a
like aggregate Percentage Interest.
At the option of the Certificateholders, each Certificate may be exchanged
for other Certificates of the same Class with the same and authorized
denominations and a like aggregate Percentage Interest, upon surrender of such
Certificate to be exchanged at any such office or agency. Whenever any
Certificates are so surrendered for exchange, the Securities Administrator shall
execute and cause the Certificate Registrar to authenticate and deliver the
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Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for transfer or exchange
shall (if so required by the Securities Administrator) be duly endorsed by, or
be accompanied by a written instrument of transfer in the form satisfactory to
the Securities Administrator duly executed by, the Holder thereof or his
attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for any transfer
or exchange of Certificates, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
All Certificates surrendered for transfer and exchange shall be destroyed
by the Certificate Registrar.
The Securities Administrator will cause the Certificate Registrar (unless
the Securities Administrator is acting as Certificate Registrar) to provide
notice to the Securities Administrator of each transfer of a Certificate, and
the Certificate Registrar will provide the Securities Administrator with an
updated copy of the Certificate Register on January 1 and July 1 of each year.
Section 5.05 Restrictions on Transfer.
(a) Securities Law Compliance. No transfer of any Private
Certificate shall be made unless that transfer is made pursuant
to an effective registration statement under the Securities Act
and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not
require such registration or qualification. Any Holder of a
Private Certificate shall, and, by acceptance of such Private
Certificate, does agree to, indemnify the Depositor ,the
Certificate Registrar and the Securities Administrator against
any liability that may result if any transfer of such
Certificates by such Holder is not exempt from registration under
the Securities Act and all applicable state securities laws or is
not made in accordance with such federal and state laws. Neither
the Depositor, the Certificate Registrar nor the Securities
Administrator is obligated to register or qualify any Private
Certificate under the Securities Act or any other securities law
or to take any action not otherwise required under this Agreement
to permit the transfer of such Certificates without such
registration or qualification. Neither the Certificate Registrar
nor the Securities Administrator shall register any transfer of a
Private Certificate (other than a Residual Certificate) unless
and until the prospective transferee provides the Securities
Administrator with an agreement certifying to facts which, if
true, would mean that the proposed transferee is a Qualified
Institutional Buyer (a "QIB Certificate"), or, if the Private
Certificate to be transferred is not a Rule 144A Security, a
Transferee Agreement, and in any case unless and until the
transfer otherwise complies with the provisions of this Section
5.05. If so provided in the Trust Agreement, the prospective
transferee will be deemed to have provided a QIB Certificate upon
acceptance of the Certificate. If a proposed transfer does not
involve a Rule 144A Security, the Securities Administrator or the
Certificate Registrar shall require that the
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transferor and transferee certify as to the factual basis for the
registration exemption(s) relied upon, and if the transfer is
made within two years of the acquisition thereof by a
non-Affiliate of the Depositor from the Depositor or an Affiliate
of the Depositor, or the Securities Administrator or the
Certificate Registrar also may require an Opinion of Counsel that
such transfer may be made without registration or qualification
under the Securities Act and applicable state securities laws,
which Opinion of Counsel shall not be obtained at the expense of
the Depositor, the Certificate Registrar or the Securities
Administrator. Notwithstanding the foregoing, no QIB Certificate,
Transferee Agreement or Opinion of Counsel shall be required in
connection with the initial transfer of the Private Certificates
and no Opinion of Counsel shall be required in connection with
the transfer of the Private Certificates by a broker or dealer,
if such broker or dealer was the initial transferee.
The Depositor (or, upon direction of the Depositor, the
Securities Administrator, which directions shall specify the
information to be provided, and at the expense of the Depositor
or the Securities Administrator) shall provide to any Holder of a
Rule 144A Security and any prospective transferee designated by
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 Rule 144A Security
without registration thereof under the Securities Act pursuant to
the registration exemption provided by Rule 144A.
(b) ERISA Restrictions. No Private Certificate (a
"Certificated Subordinated Security"), Residual Certificate or
Class X Certificate shall be transferred unless the prospective
transferee provides the Trustee with a properly completed Benefit
Plan Affidavit.
(c) Residual Certificates. No Residual Certificate
(including any beneficial interest therein) may be transferred to
a Disqualified Organization. In addition, no Residual Certificate
(including any beneficial interest therein) may be transferred
unless (i) the proposed transferee provides the Securities
Administrator or the Certificate Registrar with (A) a Residual
Transferee Agreement, (B) if the proposed transferee is a U.S.
Person, a U.S. Person and Affidavit Pursuant to Sections
860D(a)(6)(A) and 860E(e)(4) of the Code, and (C) if the proposed
transferee is a Non-U.S. Person, a Non-U.S. Person Affidavit and
Affidavit Pursuant to Sections 860D(a)(6)(A) and 860E(e)(4) of
the Code, and (ii) the interest transferred involves the entire
interest in a Residual Certificate or an undivided interest
therein (unless the transferor or the transferee provides the
Securities Administrator or the Certificate Registrar with an
Opinion of Counsel (which shall not be an expense of the
Securities Administrator or the Certificate Registrar, as
applicable) that the transfer will not jeopardize the REMIC
status of any related REMIC). Furthermore, if a proposed transfer
involves a Rule 144A Security, the Securities Administrator or
the Certificate Registrar shall require the transferee to certify
as to facts that, if true, would mean that the proposed
transferee is a Qualified Institutional Buyer; and, if a proposed
53
transfer involves a Private Certificate that is not a Rule 144A
Security, (1) the Securities Administrator or the Certificate
Registrar shall require that the transferee certify as to the
factual basis for the registration exemption(s) relied upon, and
(2) if the transfer is made within two years from the acquisition
of the Certificate by a non-Affiliate of the Depositor from the
Depositor or an Affiliate of the Depositor, the Securities
Administrator or the Certificate Registrar also may require an
Opinion of Counsel that such transfer may be made without
registration or qualification under the Securities Act and
applicable state securities laws, which Opinion of Counsel shall
not be obtained at the expense of the Securities Administrator or
the Certificate Registrar, as applicable. In any event, neither
the Securities Administrator nor the Certificate Registrar shall
effect any transfer of a Residual Certificate except upon
notification of such transfer to the Securities Administrator or
the Certificate Registrar, as applicable. Notwithstanding the
foregoing, no Opinion of Counsel shall be required in connection
with the initial transfer of the Residual Certificates or their
transfer by a broker or dealer, if such broker or dealer was the
initial transferee. Notwithstanding the fulfillment of the
prerequisites described above, the Securities Administrator or
the Certificate Registrar may refuse to recognize any transfer to
the extent necessary to avoid a risk of disqualification of any
related REMIC as a REMIC or the imposition of a tax upon any such
REMIC.
Upon notice to the Securities Administrator that any legal or beneficial
interest in any portion of the Residual Certificates has been transferred,
directly or indirectly, to a Disqualified Organization or agent thereof
(including a broker, nominee, or middleman) in contravention of the foregoing
restrictions, such transferee shall be deemed to hold the Residual Certificate
in constructive trust for the last transferor who was not a Disqualified
Organization or agent thereof, and such transferor shall be restored as the
owner of such Residual Certificate as completely as if such transfer had never
occurred, provided that the Securities Administrator may, but is not required
to, recover any distributions made to such transferee with respect to the
Residual Certificate and return such recovery to the transferor. The Securities
Administrator, on behalf of the Trustee, agrees to furnish to the Internal
Revenue Service and to any transferor of the Residual Certificate or such agent
(within 60 days of the request therefor by the transferor or agent) such
information necessary for the computation of the tax imposed under Section
860E(e) of the Code and as otherwise may be required by the Code, including but
not limited to the present value of the total anticipated excess inclusions with
respect to the Residual Certificate (or portion thereof) for periods after such
transfer. At the election of the Securities Administrator, the cost to the
Securities Administrator of computing and furnishing such information may be
charged to the transferor or such agent referred to above; however, the
Securities Administrator shall not be excused from furnishing such information.
If a tax or a reporting cost is borne by any REMIC as a result of the
transfer of a Residual Certificate or any beneficial interest therein in
violation of the restrictions set forth in this Section, the transferor shall
pay such tax or cost and, if such tax or cost is not so paid, the Securities
Administrator, on behalf of the Trustee, shall pay such tax or cost with amounts
that otherwise would have been paid to the transferee of the Residual
Certificate (or beneficial interest therein). In that event, neither the
transferee nor the transferor shall have any right to
54
seek repayment of such amounts from the Depositor, the Securities Administrator,
any REMIC, or the other Holders of any of the Certificates, and none of such
parties shall have any liability for payment of any such tax or reporting cost.
Section 5.06 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Securities
Administrator or the Certificate Registrar, or the Securities Administrator and
the Certificate Registrar receive evidence to their satisfaction of the
destruction, loss or theft of any Certificate, and (b) there is delivered to the
Securities Administrator and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of actual knowledge by the Securities Administrator or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser, the
Securities Administrator shall execute and cause the Certificate Registrar to
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
of like tenor and Percentage Interest. Upon the issuance of any new Certificate
pursuant to this Section, the Securities Administrator may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the Trust, as if originally issued,
whether or not the destroyed, lost or stolen Certificate shall be found at any
time.
Section 5.07 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of transfer,
the Securities Administrator, the Certificate Registrar and any agent of any of
them may treat the person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions and for all
other purposes whatsoever, and neither the Securities Administrator, the
Certificate Registrar nor any agent of any of them shall be affected by notice
to the contrary.
Section 5.08 Appointment of Paying Agent.
The Securities Administrator may appoint a Paying Agent for the purpose of
making distributions to Certificateholders. The Securities Administrator shall
cause such Paying Agent (if other than the Securities Administrator) to execute
and deliver to the Securities Administrator an instrument in which such Paying
Agent shall agree with the Securities Administrator that such Paying Agent will
hold all sums held by it for the payment to Certificateholders in an Eligible
Account in trust for the benefit of the Certificateholders entitled thereto
until such sums shall be paid to the Certificateholders. All funds remitted by
the Securities Administrator to any such Paying Agent for the purpose of making
distributions shall be paid to Certificateholders on each Distribution Date and
any amounts not so paid shall be returned on such Distribution Date to the
Securities Administrator. The initial Paying Agent shall be [ ].
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ARTICLE VI
THE DEPOSITOR
Section 6.01 Liability of the Depositor.
The Depositor shall be liable in accordance herewith only to the extent of
the obligations specifically imposed by the Trust Agreement and undertaken by
the Depositor under the Trust Agreement.
Section 6.02 Merger or Consolidation of the Depositor.
Subject to the following paragraph, the Depositor will keep in full effect
its corporate existence, rights and franchises under the laws of the
jurisdiction of its organization, and will obtain and preserve its qualification
to do business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Trust Agreement, the
Certificates or any of the Mortgage Loans and to perform its duties under the
Trust Agreement.
The Depositor may be merged or consolidated with or into any Person, or
transfer all or substantially all of their respective assets to any Person, in
which case any Person resulting from any merger or consolidation to which the
Depositor shall be a party, or any Person succeeding to the business of the
Depositor, shall be the successor of the Depositor without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
ARTICLE VII
TERMINATION OF SERVICING ARRANGEMENTS
Section 7.01 Termination and Substitution of Servicer.
Upon the occurrence of any Servicer Event of Default for which any
Servicer may be terminated pursuant to the related Servicing Agreement, the
Master Servicer, in accordance with Section 8.01(a) hereof, may, and shall, at
the direction of the Certificateholders holding [66]% of the Voting Rights,
terminate such Servicing Agreement. The Holders of Certificates evidencing at
least [66]% of the Voting Rights of Certificates affected by a Servicer Event of
Default may waive such Servicer Event of Default; provided, however, that (a) a
Servicer Event of Default with respect to any Servicer's obligation to make
Monthly Advances may be waived only by all of the holders of the Certificates
affected by such Servicer Event of Default and (b) no such waiver is permitted
that would materially adversely affect any non-consenting Certificateholder.
Subject to the conditions set forth below in this Section 7.01, the Master
Servicer, at the direction of the Certificateholders holding [66]% of the Voting
Rights, shall, concurrently with such termination, either assume the duties of
the terminated Servicer under the applicable Servicing Agreement or appoint
another servicer to enter into such Servicing Agreement.
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Notwithstanding the foregoing, the Master Servicer may not terminate a
Servicer without cause unless the Master Servicer or a successor servicer is
appointed concurrently with such termination. There may be a transition period
of not longer than ninety (90) days prior to the effective date of the servicing
transfer to the successor Servicer or Master Servicer, as applicable, provided,
however, that during such transition period, the Master Servicer or successor
Servicer shall use commercially reasonable efforts to perform the duties of the
Servicer in its capacity as successor Servicer.
If the Master Servicer terminates a Servicer, the Master Servicer may name
another mortgage loan service company and such mortgage loan service company
shall be acceptable to each Rating Agency and such mortgage loan service company
shall assume, satisfy, perform and carry out all liabilities, duties,
responsibilities and obligations that are to be, or otherwise were to have been,
satisfied, performed and carried out by such Servicer under such Servicing
Agreement. Such successor Servicer shall be a mortgage loan servicing
institution, with a net worth of at least $[25,000,000]. In the event that the
Master Servicer cannot appoint a substitute Servicer, it shall petition a court
of competent jurisdiction for the appointment of a substitute Servicer meeting
the foregoing requirements.
In the event any Servicer resigns or is terminated as provided above and
the Master Servicer has not appointed a successor servicer (or no successor
servicer has accepted such appointment) prior to the effective date of such
resignation or termination, then the Master Servicer shall serve as successor
Servicer and shall succeed to, satisfy, perform and carry out all obligations
which otherwise were to have been satisfied, performed and carried out by such
Servicer under the terminated Servicing Agreement until another successor
Servicer has been appointed and has accepted its appointment. In no event shall
the Master Servicer be deemed to have assumed the obligations of a Servicer to
purchase any Mortgage Loan from the Trust pursuant to any Servicing Agreement or
any obligations of the Servicer which were incurred thereunder prior to the date
the Master Servicer assumes the obligations of the Servicer under such Servicing
Agreement. As compensation to the Master Servicer for any servicing obligations
fulfilled or assumed by the Master Servicer, the Master Servicer shall be
entitled to any servicing compensation to which such Servicer would have been
entitled if the Servicing Agreement with such Servicer had not been terminated;
provided, however, that the Master Servicer shall not be (a) liable for any acts
or omissions of the Servicer, (b) obligated to make Advances if it is prohibited
from doing so under applicable law, (c) responsible for expenses of the Servicer
pursuant to the terms of the Servicing Agreement or (d) obligated to deposit
losses on any Permitted Investments directed by the Servicer.
In no event shall the Master Servicer be deemed to have assumed the
obligations of a Servicer to purchase any Mortgage Loan from the Trust.
Notwithstanding the foregoing, if a Servicer Event of Default shall occur, the
Master Servicer shall, by notice in writing to the applicable Servicer, which
may be delivered by telecopy, immediately terminate all of the rights and
obligations of the Servicer thereafter arising under the applicable Servicing
Agreement, but without prejudice to any rights it may have as a
Certificateholder or to reimbursement of Advances and other advances of its own
funds, and the Master Servicer shall act as provided in this Section 7.01 to
carry out the duties of the Servicer, including the obligation to make any
Advance the nonpayment of which was a Servicer Event of Default. Any such action
taken by the Master Servicer must be prior to the distribution of the relevant
Distribution Date.
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The Servicer being terminated as a result of an Event of Default shall
bear all costs of a servicing transfer as set forth in the applicable Servicing
Agreement.
As set forth in the applicable Servicing Agreement, the Master Servicer
shall be entitled to be reimbursed from the Servicer (or by the Trust Estate, if
the Servicer is unable to fulfill its obligations hereunder) for all costs
associated with the transfer of servicing from the predecessor Servicer,
including, without limitation, any 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 succeeding
servicer to correct any errors or insufficiencies in the servicing data or
otherwise to enable the succeeding servicer to service the Mortgage Loans
properly and effectively. If the terminated Servicer does not pay such
reimbursement within thirty (30) days of its receipt of an invoice therefore,
such reimbursement shall be an expense of the Trust and the Master Servicer
shall be entitled to withdraw such reimbursement from amounts on deposit in the
Certificate Account pursuant to the terms hereof; provided that, in accordance
with the applicable Servicing Agreement, the terminated Servicer shall reimburse
the Trust for any such expense incurred by the Trust; and provided, further,
that the Master Servicer shall decide whether and to what extent it is in the
best interest of the Certificateholders to pursue any remedy against any party
obligated to make such reimbursement.
No Certificateholder, solely by virtue of such holder's status as a
Certificateholder, will have any right under the Trust Agreement to institute
any proceeding with respect to the Trust Agreement or any Servicing Agreement,
Custodial Agreement or any Assignment Agreement, unless such holder previously
has given to the Trustee written notice of default and unless the
Certificateholders evidencing at least [25]% of Voting Rights have made written
request upon the Trustee to institute such proceeding in its own name and have
offered to the Trustee reasonable indemnity, and the Trustee for [60] days has
neglected or refused to institute any such proceeding.
Section 7.02 Notification to Certificateholders.
(a) Upon any termination pursuant to Section 7.01 above or
appointment of a successor to any Servicer or the Master
Servicer, the Securities Administrator shall give prompt written
notice thereof to the Certificateholders at their respective
addresses appearing in the Certificate Register, and to each
Rating Agency.
(b) Within sixty (60) days after the occurrence of any
Servicer Event of Default involving any Servicer, the Securities
Administrator shall transmit by mail to all Holders of
Certificates and each Rating Agency, the Trustee and the Master
Servicer notice of each such Servicer Event of Default or
occurrence known to a Responsible Officer of the Trustee unless
such default shall have been cured or waived.
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ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
BY THE MASTER SERVICER
Section 8.01 Duties of the Master Servicer; Enforcement of Servicer's
and Master Servicer's Obligations.
(a) The Master Servicer, on behalf of the Trustee, the
Securities Administrator, the Depositor and the
Certificateholders, shall monitor the performance of the
Servicers under the Servicing Agreements, and (except as set
forth below) shall use its reasonable good faith efforts to cause
the Servicers to duly and punctually to perform their duties and
obligations thereunder. Upon the occurrence of a Servicer Event
of Default of which a Responsible Officer of the Master Servicer
has actual knowledge under a Servicing Agreement, the Master
Servicer shall promptly notify the Securities Administrator and
shall specify in such notice the action, if any, the Master
Servicer plans to take in respect of such default. So long as any
such default shall be continuing, the Master Servicer may (i)
terminate all of the rights and powers of such Servicer pursuant
to the applicable provisions of the Servicing Agreement; (ii)
exercise any rights it may have to enforce the Servicing
Agreement against such Servicer; (iii) waive any such default
under the Servicing Agreement in accordance with Section 7.01
hereof or (iv) take any other action with respect to such default
as is permitted thereunder. Except as set forth in Section 4.06
hereof, the Master Servicer shall have no duty to supervise any
Servicer's activities related to the servicing or administration
of defaulted or delinquent Mortgage Loans or the management and
disposition of any REO Properties.
(b) The Master Servicer shall pay the costs of monitoring
the Servicers as required hereunder (including costs associated
with (i) termination of any Servicer or (ii) the appointment of a
successor servicer and shall, to the extent permitted by the
related Servicing Agreement, seek reimbursement therefor
initially from the terminated Servicer. In the event the full
costs associated with the transition of servicing
responsibilities to the Master Servicer are not paid for by the
predecessor or successor Servicer (provided such successor
Servicer is not the Master Servicer), the Master Servicer may be
reimbursed therefor by the Trust for out of pocket costs incurred
by the Master Servicer associated with any such transfer of
servicing duties from a Servicer to any other successor servicer.
(c) None of the Depositor, the Securities Administrator nor
the Trustee shall consent to the assignment by any Servicer of
such Servicer's rights and obligations under any Servicing
Agreement without the prior written consent of the Master
Servicer, which consent shall not be unreasonably withheld.
(d) The Master Servicer shall not assume liability for any
Servicer's representations and warranties if it becomes a
successor servicer.
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(e) On or prior to the Closing Date, the Master Servicer
shall deliver to the Depositor a certification in the form of
Exhibit J attached hereto specifying the items it will address in
its assessment of compliance with the servicing criteria under
this Section 8.01. On or before March 15 of each year, commencing
in March 2007, the Master Servicer at its own expense, shall
furnish, and each such party shall cause any Servicing Function
Participant engaged by it to furnish, each at its own expense, to
the Securities Administrator and the Depositor, a report on an
assessment of compliance with the Relevant Servicing Criteria
that contains (i) a statement by such party of its responsibility
for assessing compliance with the Servicing Criteria, (ii) a
statement that such party used the Servicing Criteria to assess
compliance with the Relevant Servicing Criteria, (iii) such
party's assessment of compliance with the Relevant Servicing
Criteria as of and for the fiscal year covered by the Form 10-K
required to be filed pursuant to Section 3.02(e), including, if
there has been any material instance of noncompliance with the
Relevant Servicing Criteria, a discussion of each such failure
and the nature and status thereof, and (iv) a statement that a
registered public accounting firm has issued an attestation
report on such party's assessment of compliance with the Relevant
Servicing Criteria as of and for such period.
No later than the end of each fiscal year for the Trust for
which a 10-K is required to be filed, the Master Servicer shall
forward to the Securities Administrator the name of each
Servicing Function Participant engaged by it and what Relevant
Servicing Criteria will be addressed in the report on assessment
of compliance prepared by such Servicing Function Participant.
When the Master Servicer and the Trustee (or any Servicing
Function Participant engaged by them) submits its assessment to
the Securities Administrator, such parties will also at such time
include the assessment (and attestation pursuant to Section
8.01(f) and 11.01(d) of each Servicing Function Participant
engaged by it.
Promptly after receipt of each such report on assessment of
compliance, (i) the Depositor shall review each such report and,
if applicable, consult with the Master Servicer, the Securities
Administrator and any Servicing Function Participant engaged by
such parties as to the nature of any material instance of
noncompliance with the Relevant Servicing Criteria by each such
party, and (ii) the Securities Administrator shall confirm that
the assessments, taken as a whole, address all of the Servicing
Criteria and taken individually address the Relevant Servicing
Criteria for each party as set forth on Exhibit J and on any
similar exhibit set forth in each Servicing Agreement in respect
of the applicable Servicer and notify the Depositor of any
exceptions. None of such parties shall be required to deliver any
such assessments until April 15 in any given year so long as such
party has received written confirmation from the Depositor that a
Form 10-K is not required to be filed in respect of the Trust for
the preceding calendar year.
The Master Servicer shall enforce any obligation of a
Servicer (and the applicable Servicing Agreement will provide
that each Servicer shall enforce any obligations of an Additional
Servicer engaged by such Servicer), to the extent set
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forth in the related Servicing Agreement (or, in the case of an
Additional Servicer, such applicable agreement), to deliver to
the Master Servicer an annual report on assessment of compliance
within the time frame set forth in, and in such form and
substance as may be required pursuant to, the related Servicing
Agreement (or, in the case of an Additional Servicer, such
applicable agreement). The Master Servicer shall include such
annual report on assessment of compliance with its own assessment
of compliance to be submitted to the Securities Administrator
pursuant to this Section 8.01.
(f) On or before March 15 of each calendar year, commencing
in March 2007, the Master Servicer, at its own expense, shall
cause, and shall cause any Servicing Function Participant engaged
by it to cause, each at its own expense, a registered public
accounting firm (which may also render other services to the
Master Servicer or such other Servicing Function Participants, as
the case may be) that is a member of the American Institute of
Certified Public Accountants to furnish a report to the
Securities Administrator and the Depositor (and, in the case of
any other Servicing Function Participant, the Master Servicer) to
the effect that (i) it has obtained a representation regarding
certain matters from the management of such party, which includes
an assertion that such party has complied with the Relevant
Servicing Criteria, and (ii) on the basis of an examination
conducted by such firm in accordance with standards for
attestation engagements issued or adopted by the PCAOB, it is
expressing an opinion as to whether such party's compliance with
the Relevant Servicing Criteria was fairly stated in all material
respects, or it cannot express an overall opinion regarding such
party's assessment of compliance with the Relevant Servicing
Criteria. In the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in
such report why it was unable to express such an opinion. Such
report must be available for general use and not contain
restricted use language.
Promptly after receipt of such report from the Master
Servicer or any Servicing Function Participant engaged by the
Master Servicer parties, (i) the Depositor shall review the
report and, if applicable, consult with such parties as to the
nature of any defaults by such parties, in the fulfillment of any
of each such party's obligations hereunder or under any other
applicable agreement, and (ii) the Securities Administrator shall
confirm that each assessment submitted pursuant to Section
8.01(e) and Section 11.01(c) is coupled with an attestation
meeting the requirements of this Section and shall notify the
Depositor of any exceptions. Neither the Master Servicer nor any
Servicing Function Participant engaged by the Master Servicer
shall be required to deliver or cause the delivery of such
reports until April 15 in any given year so long as it has
received written confirmation from the Depositor that a 10-K is
not required to be filed in respect of the Trust for the
preceding fiscal year.
The Master Servicer shall enforce any obligation of a
Servicer (and the applicable Servicing Agreement will provide
that each Servicer shall enforce any obligations of an Additional
Servicer engaged by such Servicer), to the extent set forth in
the related Servicing Agreement (or, in the case of an Additional
Servicer,
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such applicable agreement), to deliver to the Master Servicer an
attestation within the time frame set forth in, and in such form
and substance as may be required pursuant to, the related
Servicing Agreement (or, in the case of an Additional Servicer,
such applicable agreement). The Master Servicer shall include
such annual report on assessment of compliance with its own
assessment of compliance to be submitted to the Securities
Administrator pursuant to this Section 8.01.
(g) The Master Servicer shall give prior written notice to
the Depositor of the appointment of any Subcontractor by it and a
written description (in form and substance satisfactory to the
Depositor) of the role and function of each Subcontractor
utilized by the Master Servicer, specifying (i) the identity of
each such Subcontractor and (ii) which elements of the servicing
criteria set forth under Item 1122(d) of Regulation AB will be
addressed in assessments of compliance provided by each such
Subcontractor.
(h) The Master Servicer shall notify the Depositor and the
Sponsor within five days of its gaining knowledge thereof (i) of
any legal proceedings pending against the Master Servicer of the
type described in Item 1117 (ss. 229.1117) of Regulation AB, (ii)
of any merger, consolidation or sale of substantially all of the
assets of the Master Servicer and (iii) if the Master Servicer
shall become (but only to the extent not previously disclosed) at
any time an affiliate of any of the Depositor, any Servicer, any
Originator contemplated by Item 1110 (ss. 229.1110) of Regulation
AB, any significant obligor contemplated by Item 1112 (ss.
229.1112) of Regulation AB, any enhancement or support provider
contemplated by Items 1114 or 1115 (xx.xx. 229.1114-1115) of
Regulation AB or any successor thereto or any other material
party to the Trust Fund contemplated by Item 1100(d)(1) (ss.
229.1100(d)(1)) of Regulation AB, as applicable.
Section 8.02 Maintenance of Fidelity Bond and Errors and Omissions Insurance.
(a) The Master Servicer shall maintain with responsible
companies, at its own expense, a blanket Fidelity Bond and an
Errors and Omissions Insurance Policy, with broad coverage on all
directors, officers, employees or other persons acting in any
capacity requiring such persons to handle funds, money, documents
or papers relating to the related Mortgage Loans ("Master
Servicing Employees"). Any such Fidelity Bond and Errors and
Omissions Insurance Policy shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Master
Servicer against losses, including forgery, theft, embezzlement,
fraud, errors and omissions and negligent acts of the Master
Servicer Employees. Such Fidelity Bond and Errors and Omissions
Insurance Policy also shall protect and insure the Master
Servicer against losses in connection with the release or
satisfaction of a related Mortgage Loan without having obtained
payment in full of the indebtedness secured thereby. No provision
of this Section 8.02 requiring such Fidelity Bond and Errors and
Omissions Insurance Policy shall diminish or relieve the Master
Servicer from its duties and obligations as set forth in this
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Agreement. The minimum coverage under any such bond and insurance
policy shall be at least equal to the corresponding amounts
required by Xxxxxx Xxx or Xxxxxxx Mac. Upon the request of the
Securities Administrator, the Master Servicer shall cause to be
delivered to the Securities Administrator a certificate of
insurance of the insurer and the surety including a statement
from the surety and the insurer that such fidelity bond and
insurance policy shall in no event be terminated or materially
modified without thirty (30) days' prior written notice to the
Securities Administrator. The Master Servicer shall (i) require
each Servicer to maintain an Errors and Omissions Insurance
Policy and a Fidelity Bond in accordance with the provisions of
the applicable Servicing Agreement, (ii) cause each Servicer to
provide to the Master Servicer certificates evidencing that such
policy and bond is in effect and to furnish to the Master
Servicer any notice of cancellation, non-renewal or modification
of the policy or bond received by it, as and to the extent
provided in the applicable Servicing Agreement, and (iii) furnish
copies of the certificates and notices referred to in clause (ii)
to the Securities Administrator upon its request.
(b) The Master Servicer shall promptly report to the
Securities Administrator any material changes that may occur in
the Master Servicer Fidelity Bond or the Master Servicer Errors
and Omissions Insurance Policy and shall furnish to the
Securities Administrator, on request, certificates evidencing
that such bond and insurance policy are in full force and effect.
The Master Servicer shall promptly report to the Securities
Administrator, to the best of its knowledge, all cases of
forgery, theft, embezzlement, fraud, errors or omissions, if such
events involve funds relating to the Mortgage Loans. The total
losses, regardless of whether claims are filed with the
applicable insurer or surety, shall be disclosed in such reports
together with the amount of such losses covered by insurance. If
a bond or insurance claim report is filed with any of such
bonding companies or insurers, the Master Servicer shall promptly
furnish a copy of such report to the Securities Administrator.
Any amounts relating to the Mortgage Loans collected by the
Master Servicer under any such bond or policy shall be promptly
remitted by the Master Servicer to the Securities Administrator
for deposit into the Certificate Account. Any amounts relating to
the Mortgage Loans collected by any Servicer under any such bond
or policy shall be remitted to the Master Servicer to the extent
provided in the applicable Servicing Agreement.
Section 8.03 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to
the Depositor, the Securities Administrator and the Trustee, for
the benefit of the Certificateholders, as of the Closing Date
that:
(i) it is a national banking association validly existing
and in good standing under the laws of the United States, and as
Master Servicer has full power and authority to transact any and
all business contemplated by this Trust Agreement and to execute,
deliver and comply with its obligations under the terms of this
Trust
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Agreement, the execution, delivery and performance of which have
been duly authorized by all necessary corporate action on the
part of the Master Servicer;
(ii) the execution and delivery of this Trust Agreement by
the Master Servicer and its performance and compliance with the
terms of this Trust Agreement will not (A) violate the Master
Servicer's charter or bylaws, (B) violate any law or regulation
or any administrative decree or order to which it is subject or
(C) constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in
the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it
is bound or to which any of its assets are subject, which
violation, default or breach would materially and adversely
affect the Master Servicer's ability to perform its obligations
under this Trust Agreement;
(iii) this Trust Agreement constitutes, assuming due
authorization, execution and delivery hereof by the other
respective parties hereto, a legal, valid and binding obligation
of the Master Servicer, enforceable against it in accordance with
the terms hereof, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights in general, and by
general equity principles (regardless of whether such enforcement
is considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to
any order or decree of any court or any order or regulation of
any federal, state, municipal or governmental agency to the
extent that any such default would materially and adversely
affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any
agreement or instrument or subject to any charter provision,
bylaw or any other corporate restriction or any judgment, order,
writ, injunction, decree, law or regulation that may materially
and adversely affect its ability as Master Servicer to perform
its obligations under this Trust Agreement or that requires the
consent of any third person to the execution of this Trust
Agreement or the performance by the Master Servicer of its
obligations under this Trust Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer that
would prohibit its entering into this Trust Agreement or
performing its obligations under this Trust Agreement;
(vii) the Master Servicer, or an affiliate thereof the
primary business of which is the servicing of conventional
residential mortgage loans, is a FNMA and FHLMC approved
seller/servicer;
(viii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by the Master Servicer of or
compliance by the Master Servicer with this Trust Agreement or
the consummation of the transactions contemplated by this
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Trust Agreement, except for such consents, approvals,
authorizations and orders (if any) as have been obtained; and
(ix) the consummation of the transactions contemplated by
this Trust Agreement are in the ordinary course of business of
the Master Servicer.
(b) It is understood and agreed that the representations and
warranties set forth in this Section shall survive the execution
and delivery of this Trust Agreement. The Master Servicer shall
indemnify the Depositor, the Securities Administrator and the
Trustee and hold them harmless against any loss, damages,
penalties, fines, forfeitures, reasonable legal fees and related
costs, judgments, and other reasonable costs and expenses
resulting from any claim, demand, defense or assertion based on
or grounded upon, or resulting from, a material breach of the
Master Servicer's representations and warranties contained in
Section 8.03(a) above. It is understood and agreed that the
enforcement of the obligation of the Master Servicer set forth in
this Section to indemnify the Depositor, the Securities
Administrator and the Trustee constitutes the sole remedy of the
Depositor and the Trustee, respecting a breach of the foregoing
representations and warranties. Such indemnification shall
survive any termination of the Master Servicer as Master Servicer
hereunder and any termination of this Trust Agreement.
Any cause of action against the Master Servicer relating to or arising out
of the breach of any representations and warranties made in this Section shall
accrue upon discovery of such breach by either the Depositor, the Master
Servicer, the Securities Administrator or the Trustee or notice thereof by any
one of such parties to the other parties.
Section 8.04 Master Servicer Events of Default.
Each of the following shall constitute a Master Servicer Event of Default:
(a) any failure by the Master Servicer to remit to the
Securities Administrator any payment required to be made under
the terms of this Trust Agreement which continues unremedied for
a period of two (2) Business Days after the date upon which
written notice of such failure, requiring the same to be
remedied, shall have been given to the Master Servicer by the
Securities Administrator;
(b) failure by the Master Servicer to duly observe or
perform, in any material respect, any other covenants,
obligations or agreements of the Master Servicer as set forth in
this Trust Agreement which failure continues unremedied for a
period of thirty (30) days after the date on which written notice
of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by the Securities
Administrator;
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(c) failure by the Master Servicer to maintain its license
to do business in any jurisdiction where the Mortgaged Premises
are located if such license is required;
(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, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the
Master Servicer and such decree or order shall have remained in
force, undischarged or unstayed for a period of sixty (60) days;
(e) the Master Servicer shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Master
Servicer or relating to all or substantially all of its property;
(f) the Master Servicer shall admit in writing its inability
to pay its debts as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations for three (3)
Business Days;
(g) an affiliate of the Master Servicer that performs any
back-up servicer duties of the Master Servicer or any servicing
duties assumed by the Master Servicer as successor servicer under
any Servicing Agreement ceases to meet the qualifications of a
FNMA or FHLMC servicer;
(h) the Master Servicer attempts to assign this Trust
Agreement or its responsibilities hereunder or to delegate its
duties hereunder (or any portion thereof) without the consent of
the Trustee and the Depositor; or
(i) the indictment of the Master Servicer for the taking of
any action by the Master Servicer, any employee thereof, any
Affiliate or any director or employee thereof that constitutes
fraud or criminal activity in the performance of its obligations
under the Trust Agreement, in each case, where such indictment
materially and adversely affects the ability of the Master
Servicer to perform its obligations under the Trust Agreement
(subject to the condition that such indictment is not dismissed
within ninety (90) days).
In each and every such case, so long as a Master Servicer Event of Default
shall not have been remedied, in addition to whatever rights the Trustee may
have at law or equity to damages, including injunctive relief and specific
performance, the Trustee, by notice in writing to the Master Servicer, may
terminate with cause all the rights and obligations of the Master Servicer under
this Trust Agreement.
Upon receipt by the Master Servicer of such written notice, all authority
and power of the Master Servicer under this Trust Agreement, shall pass to and
be vested in any successor master servicer appointed hereunder that accepts such
appointments. Upon written
66
request from the Trustee, the Master Servicer shall prepare, execute and deliver
to the successor entity designated by the Trustee any and all documents and
other instruments related to the performance of its duties hereunder as the
Master Servicer and, place in such successor's possession all such documents,
together with any Mortgage Files related to any pool of Mortgage Loans with
respect to which it acts as a successor servicer, and do or cause to be done all
other acts or things necessary or appropriate to effect the purposes of such
notice of termination, at the Master Servicer's sole expense. The Master
Servicer shall cooperate with the Trustee and such successor master servicer in
effecting the termination of the Master Servicer's responsibilities and rights
hereunder, including without limitation, the transfer to such successor master
servicer for administration by it of all cash amounts that shall at the time be
credited to the Master Servicer Account or are thereafter received with respect
to the Mortgage Loans.
Section 8.05 Waiver of Default.
By a written notice, the Trustee may waive any default by the Master
Servicer in the performance of its obligations hereunder and its consequences.
Upon any waiver of a past default, such default shall cease to exist, and any
Master Servicer Event of Default arising therefrom shall be deemed to have been
remedied for every purpose of this Trust Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon except
to the extent expressly so waived.
Section 8.06 Successor to the Master Servicer.
Upon termination of the Master Servicer's responsibilities and duties
under this Trust Agreement, the Trustee shall appoint a successor, which shall
succeed to all rights and assume all of the responsibilities, duties and
liabilities of the Master Servicer under this Trust Agreement prior to the
termination of the Master Servicer. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that in no event shall the Master Servicing Fee paid
to such successor master servicer exceed that paid to the Master Servicer
hereunder. In the event that the Master Servicer's duties, responsibilities and
liabilities under this Trust Agreement are terminated, the Master Servicer shall
continue to discharge its duties and responsibilities hereunder until the
effective date of such termination with the same degree of diligence and
prudence that it is obligated to exercise under this Trust Agreement and shall
take no action whatsoever that might impair or prejudice the rights of its
successor. The termination of the Master Servicer shall not become effective
until a successor shall be appointed pursuant hereto and shall in no event (a)
relieve the Master Servicer of responsibility for the representations and
warranties made pursuant to Section 8.03(a) hereof and the remedies available to
the Trustee under Section 8.03(b) hereof, it being understood and agreed that
the provisions of Section 8.03 hereof shall be applicable to the Master Servicer
notwithstanding any such sale, assignment, resignation or termination of the
Master Servicer or the termination of this Trust Agreement; or (b) affect the
right of the Master Servicer to receive payment and/or reimbursement of any
amounts accruing to it hereunder prior to the date of termination (or during any
transition period in which the Master Servicer continues to perform its duties
hereunder prior to the date the successor master servicer fully assumes its
duties).
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If no successor Master Servicer has accepted its appointment within ninety
(90) days of the time the Trustee receives the resignation of the Master
Servicer, the Trustee shall be the successor Master Servicer in all respects
under the Trust Agreement and shall have all the rights and powers and be
subject to all the responsibilities, duties and liabilities relating thereto,
including the obligation to make Monthly Advances; provided, however, that any
failure to perform any duties or responsibilities caused by the Master
Servicer's failure to provide information required by these Standard Terms shall
not be considered a default by the Trustee hereunder. In the Trustee's capacity
as such successor, the Trustee shall have the same limitations on liability
herein granted to the Master Servicer. As compensation therefor, the Trustee
shall be entitled to receive the compensation, reimbursement and indemnities
otherwise payable to the Master Servicer under these Standard Terms, including
the fees and other amounts payable pursuant to Section 8.07 hereof.
Any successor master servicer appointed as provided herein, shall execute,
acknowledge and deliver to the Master Servicer and to the Trustee (a) an
instrument accepting such appointment hereunder, wherein the successor shall
make the representations and warranties set forth in Section 8.03 hereof and (b)
the certification required pursuant to the first sentence of Section 8.01(e)
hereof, and whereupon such successor shall become fully vested with all of the
rights, powers, duties, responsibilities, obligations and liabilities of the
Master Servicer, with like effect as if originally named as a party to this
Trust Agreement. Any termination or resignation of the Master Servicer or
termination of this Trust Agreement shall not affect any claims that the Trustee
may have against the Master Servicer arising out of the Master Servicer's
actions or failure to act prior to any such termination or resignation.
Upon a successor's acceptance of appointment as such, the Master Servicer
shall notify by mail the Trustee of such appointment.
Section 8.07 Fees and Other Amounts Payable to the Master Servicer.
The Master Servicer shall be entitled to either retain or withdraw from
the Master Servicer Account, (a) the Master Servicing Fee, (b) amounts necessary
to reimburse itself for any previously unreimbursed Advances and any Advances
the Master Servicer deems to be non-recoverable from the related Mortgage Loan
proceeds, (c) an aggregate annual amount to indemnify the Master Servicer for
amounts due in accordance with Section 8.01(b), 8.11 and 8.12 hereof, and (d)
any other amounts that it is entitled to receive hereunder for reimbursement,
indemnification or otherwise. The Master Servicer shall be required to pay all
expenses incurred by it in connection with its activities hereunder and shall
not be entitled to reimbursement therefor except as provided in this Trust
Agreement.
Section 8.08 Merger or Consolidation.
Any Person into which the Master Servicer may be merged or consolidated,
or any Person resulting from any merger, conversion, other change in form or
consolidation to which the Master Servicer shall be a party, or any Person
succeeding to the business of the Master Servicer, shall be the successor to the
Master Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or resulting
Person to the Master
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Servicer shall (a) be a Person (or have an Affiliate) that is qualified and
approved to service mortgage loans for Xxxxxx Xxx and FHLMC (provided that a
successor Master Servicer that satisfies subclause (a) through an Affiliate
agrees to service the Mortgage Loans in accordance with all applicable Xxxxxx
Mae and FHLMC guidelines) and (b) have a net worth of not less than
$[25,000,000].
Section 8.09 Resignation of Master Servicer.
Except as otherwise provided in Sections 8.08 and 8.10 hereof, the Master
Servicer shall not resign from the obligations and duties hereby imposed on it
unless the Master Servicer's duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it and cannot be cured. Any such determination
permitting the resignation of the Master Servicer shall be evidenced by an
Opinion of Counsel that shall be Independent to such effect delivered to the
Trustee. No such resignation shall become effective until the Trustee shall have
assumed, or a successor master servicer shall have been appointed by the Trustee
and until such successor shall have assumed, the Master Servicer's
responsibilities and obligations under this Trust Agreement. Notice of such
resignation shall be given promptly by the Master Servicer and the Depositor to
the Trustee.
Section 8.10 Assignment or Delegation of Duties by the Master Servicer.
Except as expressly provided herein, the Master Servicer shall not assign
or transfer any of its rights, benefits or privileges hereunder to any other
Person, or delegate to or subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed by
the Master Servicer without the prior written consent of Xxxxxxx Mac; provided,
however, that the Master Servicer shall have the right with the prior written
consent of the Trustee and the Depositor (which shall not be unreasonably
withheld) and upon delivery to the Trustee and the Depositor of a letter from
each Rating Agency to the effect that such action shall not result in a
downgrade of the ratings assigned to any of the Certificates, to delegate or
assign to or subcontract with or authorize or appoint any qualified Person to
perform and carry out any duties, covenants or obligations to be performed and
carried out by the Master Servicer hereunder. Notice of such permitted
assignment shall be given promptly by the Master Servicer to the Depositor and
the Trustee. If, pursuant to any provision hereof, the duties of the Master
Servicer are transferred to a successor master servicer, the entire amount of
the Master Servicing Fee and other compensation payable to the Master Servicer
pursuant hereto shall thereafter be payable to such successor master servicer
but in no event shall the Master Servicing Fee payable to the successor master
servicer exceed that payable to the predecessor master servicer.
Section 8.11 Limitation on Liability of the Master Servicer and Others.
Neither the Master Servicer nor any of the directors, officers, employees
or agents of the Master Servicer shall be under any liability to the Trustee,
the Depositor, the Securities Administrator or the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Trust Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Master Servicer or any such person
against any liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or
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negligence in the performance of its duties or by reason of reckless disregard
for its obligations and duties under this Trust Agreement. The Master Servicer
and any director, officer, employee or agent of the Master Servicer may rely in
good faith on any document prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Master Servicer shall be
under no obligation to appear in, prosecute or defend any legal action that is
not incidental to its duties as Master Servicer with respect to the Mortgage
Loans under this Trust Agreement and that in its opinion may involve it in any
expenses or liability; provided, however, that the Master Servicer may in its
sole discretion undertake any such action that it may deem necessary or
desirable in respect to this Trust Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom, shall be liabilities of the Trust, and the Master Servicer shall be
entitled to be reimbursed therefor out of the Master Servicer Account in
accordance with the provisions of Section 8.07 and Section 8.12.
The Master Servicer shall not be liable for any acts or omissions of any
Servicer except to the extent that damages or expenses are incurred as a result
of such act or omissions and such damages and expenses would not have been
incurred but for the negligence, willful malfeasance, bad faith or recklessness
of the Master Servicer in supervising, monitoring and overseeing the obligations
of the Servicers in this Trust Agreement.
Section 8.12 Indemnification; Third-Party Claims.
The Master Servicer agrees to indemnify the Depositor, the Securities
Administrator and the Trustee, and hold them harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the Depositor,
the Securities Administrator or the Trustee may sustain as a result of the
Master Servicer's willful malfeasance, bad faith or negligence in the
performance of its duties hereunder or by reason of its reckless disregard for
its obligations and duties under this Trust Agreement. Each of the Depositor,
the Securities Administrator and the Trustee shall, immediately upon notice to
it, notify the Master Servicer if a claim is made by a third party with respect
to this Trust Agreement or the Mortgage Loans which would entitle the Depositor,
the Securities Administrator or the Trustee, as the case may be, to
indemnification under this Section 8.12, whereupon the Master Servicer shall
assume the defense of any such claim and pay all expenses in connection
therewith, including counsel fees and expenses, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim.
The Trust will indemnify the Master Servicer and hold it harmless against
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments, and any other costs, liabilities, fees and expenses
that the Master Servicer may incur or sustain in connection with, arising out of
or related to this Trust Agreement, the Servicing Agreements, any Assignment
Agreement, the Custodial Agreement or the Certificates, except to the extent
that any such loss, liability or expense (a) is related to (i) a material breach
of the Master Servicer's representations and warranties in the Trust Agreement
or (ii) the Master Servicer's willful malfeasance, bad faith or negligence or by
reason of its reckless disregard of its duties and obligations under any such
agreement or (b) does not constitute an "unanticipated expense" within the
meaning of Treasury Regulation Section 1.860G-1(b)(3)(ii). The Master Servicer
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shall be entitled to reimburse itself for any such indemnified amount from funds
on deposit in the Master Servicer Account.
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01 Duties of Trustee.
The Trustee, prior to the occurrence of a Master Servicer Event of Default
and after the curing of any such Master Servicer Event of Default, undertakes to
perform such duties and only such duties as are specifically set forth in the
Trust Agreement. Notwithstanding anything to the contrary herein, the
appointment by the Trustee of [ ] as Securities Administrator to perform the
duties and obligations specifically set forth in Sections 2.03, 3.01, 3.02,
3.03, 3.05, 4.01, 4.03, 4.04, 5.02, 5.03, 5.04, 5.08, 7.01, 7.02 and 10.03
hereof, and any other duties and obligations as may be set forth in a letter
agreement between [ ] and the Trustee, shall not release the Trustee from its
duty to perform such duties and obligations hereunder. During a Master Servicer
Event of Default relating to the Trustee of which a Responsible Officer of the
Trustee has notice, the Trustee shall exercise such of the rights and powers
vested in it by the Trust 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,
reports, documents, orders or other instruments created by any Person other than
itself and furnished to it which are specifically required to be furnished
pursuant to any provision of the Trust Agreement, Custody Agreement, Servicing
Agreement, Sale Agreement or Assignment Agreement shall examine them to
determine whether they conform to the requirements of such agreement; provided,
however, that the Trustee shall not be under any duty to recalculate, verify or
recompute the information provided to it hereunder by the Servicer or the
Depositor. If any such instrument is found not to conform to the requirements of
such agreement in a material manner, the Trustee shall take action as it deems
appropriate to have the instrument corrected, and if the instrument is not
corrected to its satisfaction, then it will provide notice thereof to the other
and to the Certificateholders.
No provision of the Trust Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(a) Prior to the occurrence of any Master Servicer Event of
Default and after the curing of all of such Events of Default,
the respective duties and obligations of the Trustee shall be
determined solely by the express provisions of the Trust
Agreement (including the obligation of the Trustee to enforce
each Servicing Agreement against the related Servicer, each
Custody Agreement against the related Custodian, each Sale
Agreement against the related Seller, each Assignment Agreement
against GSMC and otherwise to act as owner under such agreements
for the benefit of the Certificateholders), the Trustee shall not
be liable except for the performance of the respective duties and
obligations as are
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specifically set forth in the Trust Agreement, no implied
covenants or obligations shall be read into the Trust Agreement
against the Trustee and, in the absence of bad faith on the part
of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Trustee that conform to the requirements of the Trust
Agreement;
(b) The Trustee shall not be personally liable for an error
of judgment made in good faith by an Officer of the Trustee
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(c) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Holders of
Certificates entitled to at least [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 the Trust
Agreement;
(d) Any determination of negligence, bad faith, willful
misconduct or breach of conduct of the Trustee shall be made only
upon a finding that there is clear and convincing evidence (and
not upon the mere preponderance of evidence) thereof in a
proceeding before a court of competent jurisdiction in which the
Trustee has had an opportunity to defend; and
(e) In no event shall the Trustee be held liable for the
actions or omissions of any Servicer or Custodian (excepting the
Trustee's own actions as Servicer or Custodian). Prior to the
occurrence of any Event of Default and after the curing of all
such Events of Default, other than those obligations assumed by
the Trustee as successor Servicer under Article VII, no provision
of the Trust Agreement shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it unless such risk or liability relates to
duties set forth herein.
Section 9.02 Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 9.01 hereof:
(i) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, 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.
Further, the Trustee may accept a copy of the vote of the Board
of Directors of any party certified by its clerk or assistant
clerk or secretary or assistant secretary as conclusive evidence
of the authority of
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any person to act in accordance with such vote, and such vote may
be considered as in full force and effect until receipt by the
Trustee of written notice to the contrary;
(ii) The Trustee may, in the absence of bad faith on its
part, rely upon a certificate of an Officer of the appropriate
Person whenever in the administration of the Trust Agreement the
Trustee shall deem it desirable that a matter be proved or
established (unless other evidence be herein specifically
prescribed) prior to taking, suffering or omitting any action
hereunder;
(iii) The Trustee may consult with counsel and the written
advice of such counsel or 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 written advice or Opinion of Counsel;
(iv) The Trustee shall not be under any obligation to
exercise any of the trusts or powers vested in it by the Trust
Agreement or to institute, conduct or defend any litigation
thereunder or in relation thereto at the request, order or
direction of any of the Certificateholders, pursuant to the
provisions of the Trust Agreement, unless such Certificateholders
shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby;
(v) The Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by the Trust Agreement;
(vi) 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 entitled to at least [25]% of the Voting Rights;
provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee not assured to the Trustee by the security
afforded to it by the terms of the Trust Agreement, the Trustee
may require indemnity against such expense or liability as a
condition to taking any such action;
(vii) The Trustee may execute any of the trusts or powers
under the Trust Agreement or perform any duties hereunder either
directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it under
the Trust Agreement, provided that any agent appointed by the
Trustee hereunder shall be entitled to all of the protections of
the Trustee under this Agreement including, without limitation,
the indemnification provided for under Section 8.05 hereof;
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(viii) Whenever the Trustee is authorized herein to require
acts or documents in addition to those required to be provided it
in any matter, it shall be under no obligation to make any
determination whether or not such additional acts or documents
should be required unless obligated to do so under Section 9.01;
(ix) The permissive right or authority of the Trustee to
take any action enumerated in this Agreement shall not be
construed as a duty or obligation;
(x) The Trustee shall not be deemed to have notice of any
matter, including without limitation any Event of Default, unless
one of its Responsible Officers has actual knowledge thereof or
unless written notice thereof is received by the Trustee at its
Corporate Trust Office and such notice references the applicable
Certificates generally, the applicable Servicer or Seller, the
Trust or this Agreement;
(xi) The Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability for the
performance of any of its duties hereunder or the exercise of any
of its rights or powers (except with respect to its obligation to
make Monthly Advances pursuant hereto) if there is reasonable
ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not assured to it,
and none of the provisions contained in this Agreement shall in
any event require the Trustee to perform, or be responsible for
the manner of performance of, any of the obligations of any
Servicer or the Master Servicer under this Agreement except with
respect to the Trustee's obligation to make Monthly Advances
pursuant hereto or as successor servicer under any Servicing
Agreement or any successor master servicer under this Agreement
and during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and
privileges of, any Servicer or the Master Servicer in accordance
with the terms of this Agreement;
(xii) Subject to the other provisions of this Agreement and
without limiting the generality of this Section 9.02, the Trustee
shall not have any duty (A) to see to any recording, filing or
depositing of this Agreement or any agreement referred to herein
or any financing statement or continuation statement evidencing a
security interest, or to see the maintenance of any such
recording of filing or depositing or to any rerecording, refiling
or redepositing any thereof, (B) to see to any insurance, (C) to
see to the payment or discharge of any tax, assessment or other
governmental charge or any lien or encumbrance of any kind owing
with respect to, assessed or levied against, any part of the
Trust Estate other than from funds available in the Certificate
Account, or (D) to confirm or verify the contents of any reports
or certificates of any Servicer delivered to the Trustee pursuant
to this Agreement believed by the Trustee to be genuine and to
have been signed or presented by the proper party or parties;
(xiii) The Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust Estate created
hereby or the powers granted hereunder; and
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(xiv) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Trustee be liable for
special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if
the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
(b) All rights of action under the Trust Agreement or under
any of the Certificates, enforceable by the Trustee may be
enforced by it without the possession of any of the Certificates,
or the production thereof at the trial or other proceeding
relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the
benefit of all the Holders of such Certificates, subject to the
provisions of the Trust Agreement. Any recovery of judgment
shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of
the Holders in respect of which such judgment has been recovered.
Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained in the Trust Agreement and in the Certificates
(other than the signature of the Trustee, the acknowledgments by the Trustee in
Section 2.02 hereof and the representations and warranties made in Section 9.13
hereof) shall be taken as the statements of the Depositor, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations or warranties as to the validity or sufficiency of the Trust
Agreement or of the Certificates (other than the signature of the Trustee on the
Certificates) or of any Mortgage Loan or related document. The Trustee shall not
be accountable for the use or application by the Depositor of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor in respect of the Mortgage Loans
or deposited in or withdrawn from any Collection Account, the Master Servicer
Account or the Certificate Account or Collection Account other than any funds
held by or on behalf of the Trustee in accordance with Sections 3.01 and 3.02 or
as owner of the Regular Interests of any REMIC.
Section 9.04 Trustee May Own Certificates.
The Trustee in its individual capacity or any other capacity may become
the owner or pledgee of Certificates with the same rights it would have if it
were not Trustee.
Section 9.05 Trustee's Fees and Expenses.
Pursuant to the Trust Agreement, the Trustee shall be paid by the
Securities Administrator. The Trustee shall be entitled to reimbursement for all
reasonable expenses and disbursements incurred or made by the Trustee in
accordance with any of the provisions of the Trust Agreement (including but not
limited to the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence, bad faith, willful
misconduct or breach of contract by the Trustee. The Trustee and any director,
officer, employee or agent of the Trustee shall be indemnified and held harmless
by the Trust against any loss, liability or
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expense thereof, including reasonable attorney's fees, incurred, arising out of
or in connection with the Trust Agreement, any custody agreement or the
Certificates, including, but not limited to, any such loss, liability, or
expense incurred in connection with any legal action against the Trust or the
Trustee or any director, officer, employee or agent thereof, or the performance
of any of the Trustee's duties under the Trust Agreement other than any loss,
liability or expense incurred by reason of willful misfeasance, bad faith,
negligence, willful misconduct or breach of contract in the performance of
duties under the Trust Agreement or by reason of reckless disregard of
obligations and duties under the Trust Agreement or that do not constitute
"unanticipated expenses" within the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii). The provisions of this Section 9.05 shall survive the
resignation or removal of the Trustee.
Section 9.06 Eligibility Requirements for Trustee.
The Trustee shall at all times be a corporation or national banking
association that is not an Affiliate of the Depositor organized and doing
business under the laws of any 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] and subject to supervision or examination
by federal or state authority. If such corporation publishes reports of its
conditions at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
conditions so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 9.07.
Section 9.07 Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts
created pursuant to the Trust Agreement by giving written notice thereof to the
Depositor, the Master Servicer and to all Certificateholders. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor
trustee by written instrument, in triplicate, which instrument shall be
delivered to the resigning Trustee and to the successor trustee. A copy of such
instrument shall be delivered to the Depositor, the Certificateholders and each
Servicer by the Depositor. If no successor trustee shall have been so appointed
and have accepted appointment within 60 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
The Depositor may at any time remove the Trustee and appoint a successor
trustee by written instrument, in duplicate, which instrument shall be delivered
to the Trustee so removed and to the successor trustee. If the Depositor
executes such an instrument, then the Depositor shall deliver a copy of such
instrument to the Certificateholders, the Trustee and each Servicer.
The Holders of Certificates entitled to at least [51]% 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 instruments
shall be delivered to each of the Depositor, the Trustee so removed and the
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successor trustee so appointed. A copy of such instrument shall be delivered to
the Certificateholders and each Servicer and Seller by the Depositor.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor trustee as provided
in Section 9.08 hereof.
Section 9.08 Successor Trustee.
Any successor trustee appointed as provided in Section 9.07 shall execute,
acknowledge and deliver to the Depositor and to the predecessor trustee an
instrument accepting such appointment under the Trust Agreement 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 thereunder, with the like effect as if originally named as trustee
therein. The predecessor trustee shall deliver to the successor trustee, all
Trustee Mortgage Loan Files and related documents and statements held by it
under the Trust Agreement and the Depositor 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
unless at the time of such acceptance such successor trustee shall be eligible
under the provisions of Section 9.06 hereof.
Upon acceptance of appointment by a successor trustee as provided in this
Section, the Depositor shall mail notice of the succession of such trustee under
the Trust Agreement to all Holders of Certificates at their addresses as shown
in the Certificate Register. If the Depositor fails to mail such notice within
ten (10) days after acceptance of appointment by the successor trustee, the
Trustee shall cause such notice to be mailed at the expense of the Depositor.
Notwithstanding anything to the contrary contained herein, the appointment
of any successor Trustee pursuant to any provisions of this Agreement will be
subject to the prior written consent of the Trustee, which consent will not be
unreasonably withheld.
Section 9.09 Merger or Consolidation of 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 corporate trust business of the Trustee shall be
the successor of the Trustee under the Trust Agreement, provided such
corporation shall be eligible under the provisions of Section 9.06, 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.
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Section 9.10 Appointment of Co-Trustee or Separate Trustee.
For the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Trust or property securing the same may at the time
be located, the Depositor and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or trustees, of all or any part of the Trust,
and to vest in such Person or Persons, in such capacity, such title to the
Trust, or any part thereof, and, subject to the other provisions of this
Section 9.10, such powers, duties, obligations, rights and trusts as the
Depositor and the Trustee may consider necessary or desirable. If the
Depositor shall not have joined in such appointment within fifteen (15) days
after the receipt by it of a request so to do, the Trustee alone shall have
the power to make such appointment. No co-trustee or separate trustee(s)
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 9.06 hereof and no notice to Holders of Certificates of
the appointment of co-trustee(s) or separate trustee(s) shall be required
under Section 9.08 hereof.
In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 9.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to the Trust Agreement and the
conditions of this Article IX. 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 the
Trust Agreement, specifically including every provision of the Trust 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. No
trustee (including the Trustee) shall be responsible for the actions of any
co-trustee.
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 the
Trust 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 9.11 Appointment of Custodians.
The Trustee may appoint one or more Custodians to hold all or a portion of
the Trustee Mortgage Loan Files as agent for the Trustee, by entering into a
custody agreement. The
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appointment of any Custodian may at any time be terminated and a substitute
custodian appointed therefor by the Trustee. Subject to Article IX, the Trustee
agrees to comply with the terms of each custody agreement and to enforce the
terms and provisions thereof against the Custodian for the benefit of the
Certificateholders. Each Custodian shall be a depository institution or trust
company subject to supervision by federal or state authority, shall have
combined capital and surplus of at least $[10,000,000] and shall be qualified to
do business in the jurisdiction in which it holds any Trustee Mortgage Loan
File. Any such Custodian may not be an affiliate of the Depositor or any Seller
or Servicer. The Trustee shall not be responsible or liable for the acts or
omissions of any Custodian appointed by it hereunder (except for a Custodian
which is an affiliate of the Trustee). Any indemnification due a Custodian under
a Custody Agreement shall be an obligation of the Purchaser as stated in such
Custody Agreement.
Section 9.12 Appointment of Office or Agent.
The Trustee shall appoint an office or agent in The City of New York where
notices and demands to or upon the Trustee in respect of the Certificates and
the Trust Agreement may be served. The parties hereto and the Certificateholders
hereby acknowledge that the Trustee may delegate or assign to or subcontract
with or authorize or appoint any qualified Person to perform and carry out
certain non-fiduciary duties or obligations relating to the administration of
the Trust, including the duties and obligations of the Certificate Registrar and
Paying Agent; provided, however, in no event shall any such delegation,
assignment, authorization or appointment relieve the Trustee of its liability
with regard to such duties or obligations. Any such agent shall nevertheless be
entitled to all the rights, benefits and protections afforded to the Trustee
under Article IX, to the extent assigned to any such agent by the Trustee.
Section 9.13 Representation and Warranties of the Trustee.
The Trustee hereby represents and warrants to the Depositor that as of the
Closing Date or as of such other date specifically provided herein:
(a) It is a national banking association and has been duly
organized, and is validly existing in good standing under the
laws of the United States of America with full power and
authority (corporate and other) to enter into and perform its
obligations under the Trust Agreement;
(b) The Trust Agreement has been duly executed and delivered
by it, and, assuming due authorization, execution and delivery by
the Depositor, constitutes a legal, valid and binding agreement
of such entity, enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at
law;
(c) The execution, delivery and performance by it of the
Trust Agreement and the consummation of the transactions
contemplated thereby do not require the consent or approval of,
the giving of notice to, the registration with, or the taking of
any other action in respect of, any state, federal or other
governmental
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authority or agency, except such as has been obtained, given,
effected or taken prior to the date thereof;
(d) The execution and delivery of this Trust Agreement by it
have been duly authorized by all necessary corporate action on
its part; none of the execution and delivery by it of the Trust
Agreement, consummation of the transactions therein contemplated,
or compliance by it with the provisions thereof, will conflict
with or result in a breach of, or constitute a default under, any
of the provisions of its articles of organization or by-laws or
any law, governmental rule or regulation or any judgment, decree
or order binding on it to its knowledge or any of its properties,
or any of the provisions of any indenture, mortgage, deed of
trust, contract or other instrument to which it is a party or by
which it is bound;
(e) There are no actions, suits or proceedings pending or,
to its knowledge, threatened or asserted against it, before or by
any court, administrative agency, arbitrator or governmental body
(i) with respect to any of the transactions contemplated by the
Trust Agreement or (ii) with respect to any other matter which in
its judgment will be determined adversely to it and will if
determined adversely to it materially adversely affect its
ability to perform its obligations under the Trust Agreement; and
(f) It meets all of the eligibility requirements set forth
in Section 8.06 thereof.
ARTICLE X
TERMINATION OF TRUST
Section 10.01 Qualified Liquidation.
The Provisions of this Article X are subject to the requirement that any
termination shall be a "qualified liquidation" of each associated REMIC unless
[100]% of the affected holders of interests in each such REMIC have consented to
waive such requirements. For this purpose "affected holders" shall mean each
holder of a regular or residual interest which would likely receive a smaller
amount in final distributions if the termination were not a "qualified
liquidation" and REMIC owed taxes as a result hereof.
Section 10.02 Termination.
The party designated in Section 4.03 of the Trust Agreement may, at its
option, make or cause a Person to make a Terminating Purchase for the
Termination Price at the time and on the terms and conditions specified in the
Trust Agreement. Upon such Terminating Purchase or the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust or the disposition of the last REO Property remaining in
the Trust, the respective obligations and responsibilities under the Trust
Agreement of the Depositor, the Master Servicer, the Trustee and the Securities
Administrator shall terminate upon payment to the Certificateholders of all
amounts held by or on behalf of the Securities Administrator and
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required hereunder to be so paid and upon deposit of unclaimed funds otherwise
distributable to Certificateholders in the Termination Account. Notwithstanding
the foregoing, in no event shall the Trust created hereby continue beyond the
expiration of twenty-one (21) years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
The Trust also may be terminated and the Certificates retired if the
Securities Administrator determines, based upon an Opinion of Counsel, that the
REMIC status of any related REMIC has been lost or that a substantial risk
exists that such REMIC status will be lost for the then-current taxable year.
Section 10.03 Procedure for Termination.
The party designated in Section 4.03 of the Trust Agreement shall advise
the Securities Administrator in writing of its election to cause a Terminating
Purchase, no later than the Distribution Date in the month preceding the
Distribution Date on which the Terminating Purchase will occur.
Notice of the Distribution Date on which any such termination shall occur
(or the Distribution Date on which final payment or other Liquidation of the
last Mortgage Loan remaining in the Trust or the disposition of the last REO
Property remaining in the Trust will be distributed to Certificateholders, as
reflected in the Remittance Report for such month (the "Final Distribution
Date") shall be given promptly by the Securities Administrator by letter to
Certificateholders mailed (a) in the event such notice is given in connection
with a Terminating Purchase, not earlier than the 15th day of the month
preceding such final distribution and not later than the 5th day of the month of
such final distribution or (b) otherwise during the month of such final
distribution on or before the Servicer Remittance Date in such month, in each
case specifying (i) the Final Distribution Date and that final payment of the
Certificates will be made upon presentation and surrender of Certificates at the
office of the Securities Administrator therein designated on that date, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Final Distribution Date is not applicable, payments being
made only upon presentation and surrender of the Certificates at the office of
the Securities Administrator. The Securities Administrator shall give such
notice to the Certificate Registrar at the time such notice is given to
Certificateholders. In the event such notice is given in connection with a
Terminating Purchase, the purchaser shall deliver to the Securities
Administrator for deposit in the Certificate Account on the Business Day
immediately preceding the Final Distribution Date an amount in next day funds
equal to the Termination Price, as the case may be.
Upon presentation and surrender of the Certificates on a Distribution Date
by Certificateholders, the Securities Administrator shall distribute to
Certificateholders (a) the amount otherwise distributable on such Distribution
Date, if not in connection with Terminating Purchase, or (b) if in connection
with a Terminating Purchase, an amount determined as follows: with respect to
each Certificate with an outstanding Certificate Balance, the outstanding
Certificate Balance thereof, plus interest thereon through the Accounting Date
preceding the Distribution Date fixed for termination and any previously unpaid
interest, net of unrealized losses, Realized Interest Shortfall and Shortfall
with respect thereto; and in addition, with respect
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to each Residual Certificate, the Percentage Interest evidenced thereby
multiplied by the difference between the Termination Price and the aggregate
amount to be distributed as provided in the first clause of this sentence and
the next succeeding sentence.
Upon the receipt of a request for release from the Master Servicer, the
Custodian, on behalf of the Trustee, shall promptly release to the purchaser the
Trustee Mortgage Loan Files for the remaining Mortgage Loans, and the Securities
Administrator, on behalf of the Trustee, shall execute all assignments,
endorsements and other instruments without recourse necessary to effectuate such
transfer. The Trust shall terminate immediately following the deposit of funds
in the Termination Account as provided below.
In the event that all of the Certificateholders shall not surrender their
Certificates within six months after the Final Distribution Date specified in
the above-mentioned written notice, the Securities Administrator shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates and receive the final distribution with respect thereto, net of the
cost of such second notice. If within one year after the second notice all the
Certificates shall not have been surrendered for cancellation, the Securities
Administrator may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
amounts otherwise payable on such Certificates. Any funds payable to
Certificateholders that are not distributed on the Final Distribution Date shall
be deposited in a Termination Account, which shall be an Eligible Account, to be
held for the benefit of Certificateholders not presenting and surrendering their
Certificates in the aforesaid manner, and shall be disposed of in accordance
with this Section. The Securities Administrator shall establish the Termination
Accounts, which shall be Eligible Accounts, on or about the Closing Date.
Section 10.04 Additional Termination Requirements.
(a) In the event of a Terminating Purchase as provided in Section
10.02, the Trust shall be terminated in accordance with the following
additional requirements, unless the Securities Administrator receives
(i) a Special Tax Opinion and (ii) a Special Tax Consent from each of
the Holders of the Residual Certificates (unless the Special Tax
Opinion specially provides that no REMIC-level tax will result from
the Terminating Purchase):
(i) Within ninety (90) days prior to the Final Distribution
Date, the Depositor and the Trustee on behalf of the related
REMIC shall adopt a plan of complete liquidation meeting the
requirements of a qualified liquidation under the REMIC
Provisions (which plan may be adopted by the Securities
Administrator's attachment of a statement specifying the first
day of the 90-day liquidation period to the REMIC's final federal
income tax return) and the REMIC will sell all of its assets
(other than cash);
(ii) Upon making final payment on the Regular Certificates
or the deposit of any unclaimed funds otherwise distributable to
the holders of the Regular Certificates in the Termination
Account on the Final
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Distribution Date, the Securities Administrator shall distribute
or credit, or cause to be distributed or credited, pro rata, to
the Holders of the Residual Certificates representing ownership
of the residual interest in such REMIC all cash on hand relating
to such REMIC after such final payment (other than cash retained
to meet claims), and such REMIC shall terminate at that time; and
(iii) In no event may the final payment on the Certificates
be made after the 90th day from the date on which the plan of
complete liquidation is adopted. A payment into the Termination
Account with respect to any Certificate pursuant to Section 10.03
shall be deemed a final payment on, or final distribution with
respect to, such Certificate for the purposes of this clause.
(b) By its acceptance of a Residual Certificate, the Holder
thereof hereby (i) authorizes such action as may be necessary to adopt
a plan of complete liquidation of any related REMIC and (ii) agrees to
take such action as may be necessary to adopt a plan of complete
liquidation of any related REMIC upon the written request of the
Trustee, which authorization shall be binding upon all successor
Holders of Residual Certificates.
ARTICLE XI
CONCERNING THE SECURITIES ADMINISTRATOR
Section 11.01 Certain Matters Affecting the Securities Administrator.
(a) Except as otherwise provided herein:
(i) The Securities Administrator may rely and shall be
protected in acting or refraining from acting upon any
resolution, 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. Further,
the Securities Administrator may accept a copy of the vote
of the board of directors of any party certified by its
clerk or assistant clerk or secretary or assistant secretary
as conclusive evidence of the authority of any person to act
in accordance with such vote, and such vote may be
considered as in full force and effect until receipt by the
Securities Administrator of written notice to the contrary;
(ii) The Securities Administrator may, in the absence of bad
faith on its part, rely upon a certificate of an Officer of
the appropriate Person whenever in the administration of the
Trust Agreement the Securities Administrator shall deem it
desirable that a matter be proved or established (unless
other evidence be herein specifically prescribed) prior to
taking, suffering or omitting any action hereunder;
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(iii) The Securities Administrator may consult with counsel
and the written advice of such counsel or 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 written advice or Opinion of Counsel;
(iv) The Securities Administrator shall not be under any
obligation to exercise any of the trusts or powers vested in
it by the Trust Agreement or to institute, conduct or defend
any litigation thereunder or in relation thereto at the
request, order or direction of any of the
Certificateholders, pursuant to the provisions of the Trust
Agreement, unless such Certificateholders shall have offered
to the Securities Administrator reasonable security or
indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby;
(v) The Securities Administrator shall not be personally
liable for any action taken, suffered or omitted by it in
good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by the
Trust Agreement;
(vi) The Securities Administrator shall not be bound to make
any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do
so by Holders of Certificates entitled to at least [25]% of
the Voting Rights; provided, however, that if the payment
within a reasonable time to the Securities Administrator of
the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of
the Securities Administrator not assured to the Securities
Administrator by the security afforded to it by the terms of
the Trust Agreement, the Securities Administrator may
require indemnity against such expense or liability as a
condition to taking any such action;
(vii) The Securities Administrator may execute any of the
trusts or powers under the Trust Agreement or perform any
duties hereunder either directly or by or through agents or
attorneys and the Securities Administrator shall not be
responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it under
the Trust Agreement, provided that any agent appointed by
the Securities Administrator hereunder shall be entitled to
all of the protections of the Securities Administrator under
this Agreement;
(viii) Whenever the Securities Administrator is authorized
herein to require acts or documents in addition to those
required to be provided it in any matter, it shall be under
no obligation to make any determination whether or not such
additional acts or documents should be required
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unless obligated to do so hereunder;
(ix) The permissive right or authority of the Securities
Administrator to take any action enumerated in this
Agreement shall not be construed as a duty or obligation;
(x) The Securities Administrator shall not be deemed to have
notice of any matter, including without limitation any Event
of Default, unless one of its Responsible Officers has
actual knowledge thereof or unless written notice thereof is
received by the Securities Administrator at its Corporate
Trust Office and such notice references the applicable
Certificates generally, the applicable Servicer or Seller,
the Trust or this Agreement;
(xi) The Securities Administrator shall not be required to
expend or risk its own funds or otherwise incur financial
liability for the performance of any of its duties hereunder
or the exercise of any of its rights or powers if there is
reasonable ground for believing that the repayment of such
funds or adequate indemnity against such risk or liability
is not assured to it, and none of the provisions contained
in this Agreement shall in any event require the Securities
Administrator to perform, or be responsible for the manner
of performance of, any of the obligations of any Servicer or
the Master Servicer under this Agreement;
(xii) Subject to the other provisions of this Agreement and
without limiting the generality of this Section 11.01, the
Securities Administrator shall not have any duty (A) to see
to any recording, filing or depositing of this Agreement or
any agreement referred to herein or any financing statement
or continuation statement evidencing a security interest, or
to see the maintenance of any such recording of filing or
depositing or to any rerecording, refiling or redepositing
any thereof, (B) to see to any insurance, (C) to see to the
payment or discharge of any tax, assessment or other
governmental charge or any lien or encumbrance of any kind
owing with respect to, assessed or levied against, any part
of the Trust Estate other than from funds available in the
Certificate Account, or (D) to confirm or verify the
contents of any reports or certificates of any Servicer
delivered to the Securities Administrator pursuant to this
Agreement believed by the Securities Administrator to be
genuine and to have been signed or presented by the proper
party or parties;
(xiii) The Securities Administrator shall not be required to
give any bond or surety in respect of the execution of the
Trust Estate created hereby or the powers granted hereunder;
and
(xiv) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Securities
Administrator be liable for special, indirect or
consequential loss or damage of any kind whatsoever
(including but not
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limited to lost profits), even if the Securities
Administrator has been advised of the likelihood of such
loss or damage and regardless of the form of action.
(b) All rights of action under the Trust Agreement or under
any of the Certificates, enforceable by the Securities
Administrator may be enforced by it without the possession of any
of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or
proceeding instituted by the Securities Administrator shall be
brought in name of the Trustee for the benefit of all the Holders
of such Certificates, subject to the provisions of the Trust
Agreement. Any recovery of judgment shall, after provision for
the payment of the reasonable compensation, expenses,
disbursements and advances of the Securities Administrator, its
agents and counsel, be for the ratable benefit of the Holders in
respect of which such judgment has been recovered.
(c) On or prior to the Closing Date, the Securities
Administrator shall deliver to the Depositor a certification in
the form of Exhibit J attached hereto specifying the items it
will address in its assessment of compliance with the servicing
criteria under this Section 11.01. On or before March 15 of each
year, commencing in March 2007, the Securities Administrator at
its own expense, shall furnish, and each such party shall cause
any Servicing Function Participant engaged by it to furnish, each
at its own expense, to the Securities Administrator and the
Depositor, a report on an assessment of compliance with the
Relevant Servicing Criteria that contains (i) a statement by such
party of its responsibility for assessing compliance with the
Servicing Criteria, (ii) a statement that such party used the
Servicing Criteria to assess compliance with the Relevant
Servicing Criteria, (iii) such party's assessment of compliance
with the Relevant Servicing Criteria as of and for the fiscal
year covered by the Form 10-K required to be filed pursuant to
Section 3.02(e), including, if there has been any material
instance of noncompliance with the Relevant Servicing Criteria, a
discussion of each such failure and the nature and status
thereof, and (iv) a statement that a registered public accounting
firm has issued an attestation report on such party's assessment
of compliance with the Relevant Servicing Criteria as of and for
such period.
Promptly after receipt of each such report on assessment of
compliance, (i) the Depositor shall review each such report and,
if applicable, consult with the Master Servicer, the Securities
Administrator and any Servicing Function Participant engaged by
such parties as to the nature of any material instance of
noncompliance with the Relevant Servicing Criteria by each such
party, and (ii) the Securities Administrator shall confirm that
the assessments, taken as a whole, address all of the Servicing
Criteria and taken individually address the Relevant Servicing
Criteria for each party as set forth on Exhibit J and on any
similar exhibit set forth in each Servicing Agreement in respect
of the applicable Servcier and notify the Depositor of any
exceptions. None of such parties shall be required to deliver any
such assessments until April 15 in any given year so long as such
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party has received written confirmation from the Depositor that a
Form 10-K is not required to be filed in respect of the Trust for
the preceding calendar year.
(d) On or before March 15 of each year, commencing in March
2007, the Securities Administrator, at its own expense, shall
cause, and shall cause any Servicing Function Participant engaged
by it to cause, each at its own expense, a registered public
accounting firm (which may also render other services to the
Securities Administrator, or such other Servicing Function
Participants, as the case may be) that is a member of the
American Institute of Certified Public Accountants to furnish a
report to the Depositor (and, in the case of any other Servicing
Function Participant, the Master Servicer) to the effect that (i)
it has obtained a representation regarding certain matters from
the management of such party, which includes an assertion that
such party has complied with the Relevant Servicing Criteria, and
(ii) on the basis of an examination conducted by such firm in
accordance with standards for attestation engagements issued or
adopted by the PCAOB, it is expressing an opinion as to whether
such party's compliance with the Relevant Servicing Criteria was
fairly stated in all material respects, or it cannot express an
overall opinion regarding such party's assessment of compliance
with the Relevant Servicing Criteria. In the event that an
overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to
express such an opinion. Such report must be available for
general use and not contain restricted use language.
Promptly after receipt of such report from the Securities
Administrator or any Servicing Function Participant engaged by
such parties, (i) the Depositor shall review the report and, if
applicable, consult with or cause the Master Servicer to consult
with such parties as to the nature of any defaults by such
parties, in the fulfillment of any of each such party's
obligations hereunder or under any other applicable agreement and
(ii) the Securities Administrator shall confirm that each
assessment submitted pursuant to Section 8.01(e) or Section
11.01(c) is coupled with an attestation meeting the requirements
of this Section and shall notify the Depositor of any exceptions.
Neither the Securities Administrator nor any Servicing Function
Participant engaged by the Securities Administrator shall be
required to deliver or cause the delivery of such reports until
April 15 in any given year so long as such party has received
written confirmation from the Master Servicer that a 10-K is not
required to be filed in respect of the Trust for the preceding
fiscal year.
(e) The Securities Administrator shall give prior written
notice to the Depositor of the appointment of any Subcontractor
by it and a written description (in form and substance
satisfactory to the Depositor) of the role and function of each
Subcontractor utilized by the Securities Administrator,
specifying (i) the identity of each such Subcontractor and (ii)
which elements of the servicing criteria set forth under Item
1122(d) of Regulation AB will be addressed in assessments of
compliance provided by each such Subcontractor.
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(f) The Securities Administrator shall notify the Depositor
and the Sponsor within five (5) days of its gaining knowledge
thereof (i) of any legal proceedings pending against the Master
Servicer of the type described in Item 1117 (ss. 229.1117) of
Regulation AB, (ii) of any merger, consolidation or sale of
substantially all of the assets of the Securities Administrator
and (iii) if the Securities Administrator shall become (but only
to the extent not previously disclosed) at any time an affiliate
of any of the Depositor, any Servicer, any Originator
contemplated by Item 1110 (ss. 229.1110) of Regulation AB, any
significant obligor contemplated by Item 1112 (ss. 229.1112) of
Regulation AB, any enhancement or support provider contemplated
by Items 1114 or 1115 (xx.xx. 229.1114-1115) of Regulation AB or
any successor thereto or any other material party to the Trust
Fund contemplated by Item 1100(d)(1) (ss. 229.1100(d)(1)) of
Regulation AB, as applicable.
Section 11.02 Securities Administrator Not Liable for Certificates or Mortgage
Loans.
The recitals contained in the Trust Agreement and in the Certificates
(other than the signature of the Securities Administrator and the
representations and warranties made in Section 11.07 hereof) shall be taken as
the statements of the Depositor, and the Securities Administrator assumes no
responsibility for their correctness. The Securities Administrator makes no
representations or warranties as to the validity or sufficiency of the Trust
Agreement, any Supplemental Trust Agreement or of the Certificates (other than
the signature of the Securities Administrator on the Certificates) or of any
Mortgage Loan or related document. The Securities Administrator shall not be
accountable for the use or application by the Depositor of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor in respect of the Mortgage Loans
or deposited in or withdrawn from any Collection Account, the Master Servicer
Account or the Certificate Account other than any funds held by or on behalf of
the Securities Administrator in accordance with Sections 3.01 and 3.02.
Section 11.03 Securities Administrator May Own Certificates.
The Securities Administrator in its individual capacity or any other
capacity may become the owner or pledgee of Certificates with the same rights it
would have if it were not Securities Administrator.
Section 11.04 Custodian's and Securities Administrator's Fees, Expenses and
Indemnification.
The Securities Administrator shall be entitled to reimbursement for all
reasonable expenses and disbursements incurred or made by the Securities
Administrator in accordance with any of the provisions of the Trust Agreement
(including but not limited to the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence, bad faith, willful misconduct or breach of contract by the
Securities Administrator or any expense that does not constitute an
"unanticipated expense" with the meaning of Treasury Regulation Section
1.860G-1(b)(3)(ii). On each Distribution Date, the Securities Administrator
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may withdraw from the amount on deposit in the REMIC I Distribution Account, its
expenses (subject to the limits set forth therein). The Securities
Administrator, the Custodian and any director, officer, employee or agent of the
Securities Administrator and the Custodian shall be indemnified and held
harmless by the Trust against any loss, liability or expense thereof, including
reasonable attorney's fees and expenses, incurred, arising out of or in
connection with the Trust Agreement, any custody agreement, any Supplemental
Trust Agreement or the Certificates, including, but not limited to, any such
loss, liability, or expense incurred in connection with any legal action against
the Trust, the Custodian or the Securities Administrator or any director,
officer, employee or agent thereof, or the performance of any of the Securities
Administrator's or Custodian's duties under the Trust Agreement, any custody
agreement or any Supplemental Trust Agreement other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith, negligence,
willful misconduct or breach of contract (except with respect to the Custodian)
in the performance of its respective duties under the Trust Agreement, any
custody agreement or any Supplemental Trust Agreement or by reason of reckless
disregard of obligations and duties under the Trust Agreement, any custody
agreement or any Supplemental Trust Agreement or any expense that does not
constitute an "unanticipated expense" with the meaning of Treasury Regulation
Section 1.860G-1(b)(3)(ii). The Securities Administrator hereby agrees to pay
the fees and expenses of the Custodian pursuant to the terms of a separate
agreement between the Custodian and the Securities Administrator and the payment
of such fees and expenses (as set forth in such separate agreement) shall be the
sole obligation of the Securities Administrator; provided, however, that the
Depositor shall pay any indemnified amounts to the Custodian. The provisions of
this Section 11.04 shall survive (a) the termination of the Trust Agreement, any
custody agreement or any Supplemental Trust Agreement and (b) the resignation or
removal of the Securities Administrator or the Custodian, as the case may be.
Section 11.05 Resignation and Removal of the Securities Administrator.
The Securities Administrator may at any time resign and be discharged from
the trusts created pursuant to the Trust Agreement and any Supplemental Trust
Agreement by giving written notice thereof to the Depositor, the Master
Servicer, the Trustee and to all Certificateholders. Upon receiving such notice
of resignation, the Trustee shall promptly appoint a successor securities
administrator by written instrument, in triplicate, which instrument shall be
delivered to the resigning Securities Administrator and to the successor
securities administrator. A copy of such instrument shall be delivered to the
Depositor, the Certificateholders and each Servicer by the Trustee. If no
successor securities administrator shall have been so appointed and have
accepted appointment within sixty (60) days after the giving of such notice of
resignation, the resigning Securities Administrator may petition any court of
competent jurisdiction for the appointment of a successor securities
administrator.
The Trustee may at any time remove the Securities Administrator and
appoint a successor securities administrator by written instrument, in
duplicate, which instrument shall be delivered to the Securities Administrator
so removed and to the successor securities administrator. If the Trustee
executes such an instrument, then the Trustee shall deliver a copy of such
instrument to the Certificateholders, the Depositor and each Servicer.
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The Holders of Certificates entitled to at least [51]% of the Voting
Rights may at any time remove the Securities Administrator and appoint a
successor securities administrator by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to each of the
Depositor, the Trustee, the Securities Administrator so removed and the
successor securities administrator so appointed. A copy of such instrument shall
be delivered to the Certificateholders and each Servicer and Seller by the
Securities Administrator.
Any resignation or removal of the Securities Administrator and appointment
of a successor securities administrator pursuant to any of the provisions of
this Section shall not become effective until acceptance of appointment by the
successor securities administrator as provided in Section 11.06 hereof.
Section 11.06 Successor Securities Administrator.
Any successor securities administrator appointed as provided in Section
11.05 shall execute, acknowledge and deliver to the Trustee and to the
predecessor securities administrator an instrument accepting such appointment
under the Trust Agreement and any Supplemental Trust Agreement and thereupon the
resignation or removal of the predecessor securities administrator shall become
effective and such successor securities administrator without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor thereunder, with the like effect as if
originally named as securities administrator therein. The predecessor securities
administrator shall deliver to the successor securities administrator, all
Trustee Mortgage Loan Files and related documents and statements held by it
under the Trust Agreement and the Trustee and the predecessor securities
administrator shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in the successor securities administrator, all such rights, powers,
duties and obligations.
Upon acceptance of appointment by a successor securities administrator as
provided in this Section, the Trustee shall mail notice of the succession of
such securities administrator under the Trust Agreement to all Holders of
Certificates at their addresses as shown in the Certificate Register.
Notwithstanding anything to the contrary contained herein, the appointment
of any successor securities administrator pursuant to any provisions of this
Agreement will be subject to the prior written consent of the Trustee, which
consent will not be unreasonably withheld.
Section 11.07 Representations and Warranties of the Securities Administrator.
The Securities Administrator hereby represents and warrants to the
Depositor, the Master Servicer and the Trustee that as of the Closing Date or as
of such other date specifically provided herein:
(a) It is a national banking association and has been duly
organized, and is validly existing in good standing under the laws of
the United States with
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full power and authority (corporate and other) to enter into and
perform its obligations under the Trust Agreement;
(b) The Trust Agreement has been duly executed and delivered by
it, and, assuming due authorization, execution and delivery by the
Depositor, constitutes a legal, valid and binding agreement of such
entity, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and to general principles
of equity regardless of whether enforcement is sought in a proceeding
in equity or at law;
(c) The execution, delivery and performance by it of the Trust
Agreement and the consummation of the transactions contemplated
thereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in
respect of, any state, federal or other governmental authority or
agency, except such as has been obtained, given, effected or taken
prior to the date thereof,
(d) The execution and delivery of this Trust Agreement by it have
been duly authorized by all necessary corporate action on its part;
none of the execution and delivery by it of the Trust Agreement,
consummation of the transactions therein contemplated, or compliance
by it with the provisions thereof, will conflict with or result in a
breach of, or constitute a default under, any of the provisions of its
articles of organization or by-laws or any law, governmental rule or
regulation or any judgment, decree or order binding on it to its
knowledge or any of its properties, or any of the provisions of any
indenture, mortgage, deed of trust, contract or other instrument to
which it is a party or by which it is bound; and
(e) There are no actions, suits or proceedings pending or, to its
knowledge, threatened or asserted against it, before or by any court,
administrative agency, arbitrator or government body (A) with respect
to any of the transactions contemplated by the Trust Agreement or (B)
with respect to any other matter which in its judgment will be
determined adversely to it and will if determined adversely to it
materially adversely affect its ability to perform its obligations
under the Trust Agreement.
Section 11.08 Eligibility Requirements for the Securities Administrator.
The Securities Administrator shall at all times be a corporation or
national banking association that is not an Affiliate of the Depositor organized
and doing business under the laws of any 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] and subject to supervision or
examination by federal or state authority. If such corporation publishes reports
of its conditions at least annually, pursuant to law or to the requirements of
the aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital
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and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of conditions so published. In
case at any time the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section, the Securities Administrator
shall resign immediately in the manner and with the effect specified in Section
11.05. In addition, the Securities Administrator (a) may not be an originator of
Mortgage Loans, the Master Servicer, a Servicer, the Depositor or an affiliate
of the Depositor unless the Securities Administrator is in an institutional
trust department of the Securities Administrator and (b) must be rated at least
"A/F1" by Fitch, if Fitch is a Rating Agency that has rated the Securities
Administrator, or the equivalent rating by S&P or Moody's.
ARTICLE XII
REMIC TAX PROVISIONS
Section 12.01 REMIC Administration.
(a) (i)Unless otherwise specified in the Trust Agreement, the
Securities Administrator, on behalf of the Trustee, shall elect (on
behalf of each REMIC to be created) to have the Trust (or designated
assets thereof) treated as one or more REMICs on Form 1066 or other
appropriate federal tax or information return for the taxable year
ending on the last day of the calendar year in which the Certificates
are issued as well as on any corresponding state tax or information
return necessary to have the Trust (or such assets) treated as a REMIC
under state law.
(ii) In order to enable the Securities Administrator, on behalf
of the Trustee, to perform its duties as set forth herein, the
Depositor shall provide or cause to be provided to the Securities
Administrator, within ten (10) days after the Closing Date, all
information or data that the Securities Administrator reasonably
determines to be relevant for tax purposes to the valuations and
offering prices of the Certificates (security instruments), including,
without limitation, the price, yield, prepayment assumption and
projected cash flows of the Certificates and the Mortgage Loans.
Thereafter, the Depositor shall provide to the Securities
Administrator, promptly upon request therefor, any additional
information or data that the Securities Administrator may from time to
time reasonably request in order to enable the Securities
Administrator to perform its duties as set forth herein.
(b) The Securities Administrator, on behalf of the Trustee, shall
pay any and all tax related expenses (not including taxes) of each
REMIC, including but not limited to any professional fees or expenses
related to audits or any administrative or judicial proceedings with
respect to such REMIC that involve the Internal Revenue Service or
state tax authorities, but only to the extent that (i) such expenses
are ordinary or routine expenses, including expenses of a routine
audit but not expenses of litigation (except as described in (ii)); or
(ii) such expenses or liabilities (including taxes and penalties) are
attributable to the negligence or willful misconduct of the Securities
Administrator in fulfilling its duties hereunder (including its duties
as tax return preparer). The Securities
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Administrator shall be entitled to reimbursement of the expenses to
the extent provided in clause (i) above from the Certificate Account,
but only to the extent such expenses are "unanticipated expenses" for
purposes of Treasury Regulation Section 1.860G-1(b)(3)(ii).
(c) The Securities Administrator, on behalf of the Trustee, shall
prepare any necessary forms for election as well as all of the Trust's
and each REMIC's federal and any appropriate state tax and information
returns. The Trustee shall sign and the Securities Administrator, on
behalf of the Trustee, shall file such returns on behalf of each
REMIC. The expenses of preparing and filing such returns shall be
borne by the Securities Administrator.
(d) The Securities Administrator, on behalf of the Trustee, shall
perform all reporting and other tax compliance duties that are the
responsibility of the Trust and each REMIC under the REMIC Provisions
or New York tax law. Among its other duties, if required by the REMIC
Provisions, the Securities Administrator, on behalf of the Trustee,
acting as agent of each REMIC, shall provide (i) to the Treasury or
other governmental authority such information as is necessary for the
application of any tax relating to the transfer of a Residual
Certificate to any Disqualified Organization and (ii) to the
Securities Administrator such information as is necessary for the
Securities Administrator, on behalf of the Trustee, to discharge its
obligations under the REMIC Provisions to report tax information to
the Certificateholders.
(e) The Depositor, the Securities Administrator, the Trustee and
the Holders of the Residual Certificates shall take any action or
cause any REMIC to take any action necessary to create or maintain the
status of such REMIC as a REMIC under the REMIC Provisions and shall
assist each other as necessary to create or maintain such status.
(f) The Depositor, the Securities Administrator, the Trustee and
the Holders of the Residual Certificates shall not take any action, or
fail to take any action, or cause any REMIC to take any action or fail
to take any action that, if taken or not taken, as the case may be,
could endanger the status of any such REMIC as a REMIC unless the
Securities Administrator has received an Opinion of Counsel (at the
expense of the party seeking to take or to fail to take such action)
to the effect that the contemplated action or failure to act will not
endanger such status.
(g) Any taxes that are imposed upon the Trust or any REMIC by
federal or state (including local) governmental authorities (other
than taxes paid by a party pursuant to Section 10.02 hereof or as
provided in the following sentence) shall be allocated in the same
manner as Realized Losses are allocated. Any state (or local) taxes
imposed upon the Trust or any REMIC that would not have been imposed
on the Trust or such REMIC in the absence of any legal or business
connection between the Trustee and the state (or locality) imposing
such taxes shall be paid by the Trustee, and, notwithstanding anything
to the contrary in
93
these Standard Terms, such taxes shall be deemed to be part of the
Trustee's cost of doing business and shall not be reimbursable to the
Trustee.
(h) [ ] shall acquire a Residual Certificate in each REMIC and
[ ] will act as the Tax Matters Person of each REMIC and perform
various tax administration functions of each REMIC as its agent, as
set forth in this Section. If [ ] or an Affiliate is unable for any
reason to fulfill its duties as Tax Matters Person for a REMIC, the
holder of the largest Percentage Interest of the Residual Certificates
in such REMIC shall become the successor Tax Matters Person of such
REMIC.
(i) The Tax Matters Person shall apply for an employer
identification number with the Internal Revenue Service via a Form
SS-4 or other comparable method for each REMIC. In connection with the
foregoing, the Tax Matters Person shall provide the name and address
of the person who can be contacted to obtain information required to
be reported to the holders of Regular Interests in each REMIC as
required by IRS Form 8811.
(j) For purposes of compliance with the REMIC Provisions, the
amount of any expenses payable from the Trust Fund or the Termination
Price, in each case pursuant to Section 4.03 of the Trust Agreement,
that reduces amounts otherwise distributable to the Certificates
(other than the Residual Certificates) and that do not constitute
"unanticipated expenses" of a REMIC within the meaning of Treasury
Regulation Section 1.860G-1(b)(3)(ii) shall be treated, first, as
having been distributed on the Certificates that suffered such
reduction to the extent of such reduction and, next, as having been
paid by the beneficial holders of such Certificates to the parties to
whom such expenses were payable.
Section 12.02 Prohibited Activities.
Except as otherwise provided in the Trust Agreement, none of the
Depositor, the Trustee, the Securities Administrator, the Servicers, the Master
Servicer nor the Holders of the Residual Certificates, nor the Trustee shall
engage in, nor shall the Master Servicer permit, any of the following
transactions or activities unless it has received (a) a Special Tax Opinion and
(b) a Special Tax Consent from each of the Holders of the Residual Certificates
(unless the Special Tax Opinion specially provides that no REMIC-level tax will
result from the transaction or activity in question):
(i) the sale or other disposition of, or substitution for, any of
the Mortgage Loans except pursuant to (A) a foreclosure or default
with respect to such Mortgage Loans, (B) the bankruptcy or insolvency
of any REMIC, (C) the termination of any REMIC pursuant to Section
10.02, or (D) a purchase (but not a substitution) in accordance with
Section 2.03;
(ii) the acquisition of any Mortgage Loans for the Trust after
the Closing Date except during the three-month period beginning on the
Closing Date pursuant
94
to a fixed price contract in effect on the Closing Date that has been
reviewed and approved by tax counsel acceptable to the Securities
Administrator;
(iii) the sale or other disposition of any investment in the
Certificate Account or the Distribution Account at a gain;
(iv) the sale or other disposition of any asset held in a Reserve
Fund for a period of less than three months (a "Short-Term Reserve
Fund Investment") if such sale or disposition would cause [30]% or
more of a REMIC's income from such Reserve Fund for the taxable year
to consist of a gain from the sale or disposition of Short-Term
Reserve Fund Investments;
(v) the withdrawal of any amounts from any Reserve Fund except
(A) for the distribution pro rata to the Holders of the Residual
Certificates representing ownership of the residual interest in the
related REMIC or (B) to provide for the payment of Trust expenses or
amounts payable on the Certificates in the event of defaults or late
payments on the Mortgage Loans or lower than expected returns on funds
held in the Certificate Account or the Distribution Account, as
provided under Section 860G(a)(7) of the Code;
(vi) the acceptance of any contribution to the Trust except the
following cash contributions: (A) a contribution received during the
three month period beginning on the Closing Date, (B) a contribution
to a Reserve Fund owned by a REMIC that is made pro rata by the
Holders of the Residual Certificates representing ownership of the
residual interest in the related REMIC, (C) a contribution to
facilitate a Terminating Purchase that is made within the 90-day
period beginning on the date on which a plan of complete liquidation
is adopted pursuant to Section 10.04(a)(A), or (D) any other
contribution approved by the Securities Administrator after
consultation with tax counsel;
(vii) except in the case of a Mortgage Loan that is a default, or
as to which, in the reasonable judgment of any Servicer, default is
reasonably foreseeable, the Master Servicer shall not permit any
modification of any material term of a Mortgage Loan (including, but
not limited to, the interest rate, the principal balance, the
amortization schedule, the remaining term to maturity, or any other
term affecting the amount or timing of payments on the Mortgage Loan)
unless the Master Servicer has received an Opinion of Counsel (at the
expense of the party seeking to modify the Mortgage Loan) to the
effect that such modification would not be treated as giving rise to a
new debt instrument for REMIC purposes; or
(viii) any other transaction or activity that is not contemplated
by the Trust Agreement.
Any party causing the Trust to engage in any of the activities prohibited
in this Section shall be liable for the payment of any tax and any associated
cost imposed on the Trust pursuant to Code Section 860F(a)(1) or 860G(d) as a
result of the Trust engaging in such activities and indemnify the Trust and the
Master Servicer for such amounts.
95
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment of Trust Agreement.
The Trust Agreement may be amended or supplemented from time to time by
the Master Servicer, the Depositor, the Securities Administrator and the Trustee
without the consent of any of the Certificateholders to (a) cure any ambiguity,
(b) correct or supplement any provisions herein which may be inconsistent with
any other provisions herein, (c) modify, eliminate or add to any of its
provisions to such extent as shall be necessary or appropriate to maintain the
qualification of the Trust (or any assets thereof) either as a REMIC, as
applicable under the Code at all times that any Certificates are outstanding,
(d) conform to the terms of this Agreement to the terms described in the
Prospectus dated November 17, 2005, together with the Prospectus Supplement
thereto dated [ ], 20[ ], or (e) make any other provisions with respect to
matters or questions arising under the Trust Agreement or matters arising with
respect to the Trust which are not covered by the Trust Agreement which shall
not be inconsistent with the provisions of the Trust Agreement, provided that
such action shall not adversely affect in any material respect the interests of
any Certificateholder. Any such amendment or supplement shall be deemed not to
adversely affect in any material respect any Certificateholder if there is
delivered to the Securities Administrator written notification from each Rating
Agency that rated the applicable Certificates to the effect that such amendment
or supplement will not cause that Rating Agency to reduce the then current
rating assigned to such Certificates, as well as an Opinion of Counsel that such
amendment or supplement will not result in the loss by the Trust or the assets
thereof of REMIC status.
The Trust Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
with the consent of the Holders of Certificates entitled to at least [66]% of
the Voting Rights for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Trust Agreement or of
modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (a) reduce in any manner the amount of, or
delay the timing of, payments received on Mortgage Loans which are required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (b) adversely affect in any material respect the interests of the
Holders of any Class of Certificates, or (c) reduce the aforesaid percentage of
Certificates the Holders of which are required to consent to any such amendment,
unless each Holder of a Certificate affected by such amendment consents. For
purposes of the giving or withholding of consents pursuant to this Section
13.01, Certificates registered in the name of the Depositor or an Affiliate
shall be entitled to Voting Rights with respect to matters affecting such
Certificates.
Prior to consenting to any amendment, each of the Securities
Administrator, the Trustee and the Master Servicer shall be entitled to receive
an Opinion of Counsel from the Depositor stating that the proposed amendment is
authorized and permitted pursuant to this Trust Agreement. No amendment
affecting the rights, duties and indemnities of the Custodian shall be entered
into without the Custodian's consent.
96
Promptly after the execution of any such amendment, the Securities
Administrator shall notify Certificateholders of such amendment and, upon
written request, furnish a copy of such amendment to any Certificateholder.
It shall not be necessary for the consent of Certificateholders under this
Section 13.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Securities Administrator may prescribe.
Section 13.02 Recordation of Agreement; Counterparts.
To the extent required by applicable law, the Trust 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
Custodian (except with respect to [ ]), on behalf of the Trustee, at the expense
of the Trust, but only if such recordation is requested by the Depositor and
accompanied by an Opinion of Counsel (which shall not be an expense of the
Depositor or the Custodian) to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of the Trust Agreement as
herein provided and for any other purpose the Trust 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 13.03 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate the Trust Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, nor
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 expressly
provided for herein) or in any manner otherwise control the operation and
management of the Trust, 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 person by reason of any action taken by the parties
to the Trust Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue of any provision of
the Trust Agreement to institute any suit, action or proceeding in equity or at
law upon or under or with respect to the Trust Agreement or any Sale Agreement,
Servicing Agreement, Custody Agreement or Assignment Agreement, unless such
Holder previously shall have given to the Securities Administrator a written
notice of default and of the continuance thereof, as
97
hereinbefore provided, and unless also the Holders of Certificates entitled to
at least [25]% of the Voting Rights shall have made written request upon the
Securities Administrator to institute such action, suit or proceeding in its own
name as Securities Administrator under the Trust Agreement and shall have
offered to the Securities Administrator such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Securities Administrator, for [fifteen (15)] 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 is understood and
intended, and expressly covenanted by each Certificateholder with every other
Certificateholder and the Securities Administrator, that no one or more Holders
of Certificates shall have any right in any manner whatever by virtue of any
provision of the Trust Agreement to affect, disturb or prejudice the rights of
the Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under the Trust Agreement, except in the manner therein provided and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section, each and every
Certificateholder, the Master Servicer, the Securities Administrator and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 13.04 [Reserved].
Section 13.05 Notices.
All demands and notices under the Trust Agreement shall be in writing and
shall be deemed to have been duly given if personally delivered at or mailed by
first class mail, postage prepaid, or by express delivery service, to addresses,
telecopy numbers or email addresses set forth in the Trust Agreement. Any notice
required or permitted to be mailed to a Certificateholder shall be given by
first-class mail, postage prepaid, or by express delivery service, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in the Trust Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice. A copy of any notice required to be telecopied hereunder also shall
be mailed to the appropriate party in the manner set forth above. A copy of any
notice given hereunder to any other party shall be delivered to the Securities
Administrator.
Section 13.06 Severability of Provision.
If any one or more of the covenants, agreements, provisions or terms of
the Trust 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 the Trust Agreement and
shall in no way affect the validity or enforceability of the other provisions of
the Trust Agreement or of the Certificates or the rights of the Holders thereof.
Section 13.07 Sale of Mortgage Loans.
It is the express intent of the Depositor and the Trustee that the
conveyance of the Mortgage Loans by the Depositor to the Trustee pursuant to the
Trust Agreement be construed as
98
a sale of the Mortgage Loans by the Depositor to the Trustee. It is, further,
not the intention of the Depositor and the Trustee that such conveyance be
deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure
a debt or other obligation of the Depositor. However, in the event that,
notwithstanding the intent of the parties, the Mortgage Loans are held to
continue to be property of the Depositor then (a) the Trust Agreement also shall
be deemed to be a security agreement within the meaning of Article 9 of the UCC;
(b) the conveyance by the Depositor provided for in the Trust Agreement shall be
deemed to be a grant by the Depositor to the Trustee of a security interest in
all of the Depositor's right, title and interest in and to the Mortgage Loans
and all amounts payable to the holders of the Mortgage Loans in accordance with
the terms thereof and all proceeds of the conversion, voluntary or involuntary,
of the foregoing into cash, instruments, securities or other property, including
without limitation all amounts, other than investment earnings, from time to
time held or invested in any Collection Account or the Certificate Account,
whether in the form of cash, instruments, securities or other property; (c) the
possession by the Trustee or its agent of Notes and such other items of property
as constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-313 of the UCC; and (d) notifications to
persons holding such property, and acknowledgments, receipts or confirmations
from persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. The Depositor and the Trustee
shall, to the extent consistent with the Trust Agreement, take such actions as
may be necessary to ensure that, if the Trust Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of the Trust Agreement.
Section 13.08 Notice to Rating Agencies
(a) The Securities Administrator, on behalf of the Trustee, shall
use its best efforts promptly to provide notice to the Rating Agency
with respect to each of the following of which an Officer of the
Securities Administrator has actual knowledge:
(i) any material change or amendment to the Trust Agreement or
any agreement assigned to the Trust;
(ii) the occurrence of any Event of Default under a Servicing
Agreement;
(iii) the resignation, termination or merger of the Depositor,
the Securities Administrator, the Trustee or any Servicer or
Custodian;
(iv) the purchase of Mortgage Loans pursuant to Section 2.03;
(v) the final payment to Certificateholders;
(vi) any change in the location of any Collection Account,
Reserve Fund or Certificate Account; and
99
(vii) any event that would result in the inability of any
Servicer to make Advances regarding delinquent Mortgage Loans.
(b) The Securities Administrator shall promptly make available,
through a website located at xxx.xxxxxxx.xxx, if practicable, to each
Rating Agency copies of the following:
(i) each report to Certificateholders described in Section 4.01;
and
(ii) upon written request of any such Person, a hard copy of each
Annual Compliance Statement and other reports provided by the Servicer
under each Servicing Agreement.
(c) Any notice pursuant to this Section 13.08 shall be in writing
and shall be deemed to have been duly given if personally delivered or
mailed by first class mail, postage prepaid or by express delivery
service to each Rating Agency at the address specified in the Trust
Agreement.
Section 13.09 Custodian's Limitation of Liability.
The Custodian shall be entitled to the same rights, protections,
immunities and indemnities hereunder as afforded to it under the Master
Custodial Agreement dated as of [ ], 20[ ], by and among GSMC, [ ], as a
custodian, [ ], as a custodian, and [ ].
100
Exhibit A
FORM OF TRUST RECEIPT
[DATE]
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
RE: The Master Servicing and Trust Agreement dated [ ], 20[ ] (the
"Trust Agreement"), among GS Mortgage Securities Corp., as Depositor,
U.S. Bank National Association, as Trustee, [ ], as Master
Servicer and Securities Administrator, [ ], as a Custodian and
[ ], as a Custodian and the Standard Terms to Master Servicing
and Trust Agreement ([ ] 20[ ] Edition) incorporated by reference
thereto (the "Standard Terms")
Ladies and Gentlemen:
In accordance with the provision of Section 2.02 of the above-referenced
Standard Terms, the undersigned, as the Custodian, hereby certifies that as to
each Mortgage Loan listed on the Mortgage Loan Schedule of the Trust Agreement,
it has reviewed the Trustee Mortgage Loan File as of the date of such Trust
Agreement and has determined that (a) all documents required to be delivered to
it pursuant to clauses (a) through (e) and (g) of the definition of Trustee
Mortgage Loan File are in its possession; provided, that the Custodian has no
obligation to verify the receipt of any documents the existence of which was not
made known to the Custodian by the Trustee Mortgage Loan File, and provided,
further, that the Custodian has no obligation to determine whether recordation
of any such modification is necessary; (b) such documents have been reviewed by
it and appear regular on their face and to relate to such Mortgage Loans, except
as set forth in the attached exception report; provided, however, that the
Custodian makes no representation and has no responsibilities as to the
authenticity of such documents, their compliance with applicable law, or the
collectability of any of the Mortgage Loans relating thereto; (c) based upon its
examination, and only as to the foregoing documents, the information set forth
on the Mortgage Loan Schedule accurately reflects, the Verified Information with
respect to each Mortgage Loan; and (d) each Mortgage Note has been endorsed and
each assignment has been assigned as required under Section 2.02 of the Standard
Terms. Moreover, the attached Data Collection Schedule accurately and completely
sets forth the information required to be set forth therein pursuant to Section
2.02 of the Standard Terms.
[ ], as Custodian
By: _________________________________
Name:
Title:
Exhibit A-1
Exhibit B
FORM OF FINAL CERTIFICATION
[Date]
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: [ ]
RE: The Master Servicing and Trust Agreement dated [ ], 20[ ] (the
"Trust Agreement"), among GS Mortgage Securities Corp., as Depositor,
U.S. Bank National Association, as Trustee, [ ], as Master
Servicer and Securities Administrator, [ ], as a Custodian and
[ ], as a Custodian and the Standard Terms to Master Servicing
and Trust Agreement ([ ] 20[ ] Edition) incorporated by reference
thereto (the "Standard Terms")
Ladies and Gentlemen:
In accordance with the provision of Section 2.02 of the above-referenced
Standard Terms, the undersigned, as the Custodian, hereby certifies that as to
each Mortgage Loan listed on the attached Mortgage Loan Schedule, it has
reviewed the Trustee Mortgage Loan File and has determined that (a) (i) all
documents required to be delivered to it pursuant to clauses (a) through (e) and
(g) of the definition of Trustee Mortgage Loan File are in its possession;
provided that the Custodian has no obligation to verify the receipt of any such
documents the existence of which was not made known to the Custodian by the
Trustee Mortgage Loan File, and provided, further, that the Custodian has no
obligation to determine whether recordation of any such modification is
necessary; (b) such documents have been reviewed by it and appear regular on
their face and to relate to such Mortgage Loans, except as set forth in the
attached exception report; provided, however, that the Custodian makes no
representation and has no responsibilities as to the authenticity of such
documents, their compliance with applicable law, or the collectability of any of
the Mortgage Loans relating thereto; and (c) each Mortgage Note has been
endorsed and each assignment has been assigned as required under Section 2.02 of
the Standard Terms.
[ ], as Custodian
By: _____________________________
Name:
Title:
Exhibit B-1
Exhibit C
FORM OF RULE 144A AGREEMENT -- QIB CERTIFICATION
______________, 20__
U.S. Bank National Association
Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx Xxxxxxxxxxxxx 00000
Attn: Corporate Trust Services/GSR Mortgage 20[ ]-2F
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: GS Mortgage Securities Corp., Depositor
GSR Mortgage Loan Trust 20[ ]-2F,
Pass-Through Certificates Series 20[ ]-2F
having an original principal amount of $
Ladies and Gentlemen:
In connection with our proposed purchase of the Certificates referred to
above (the "Certificates"), we confirm that:
(A) We have received a copy of the Offering Supplement dated _________ __,
20__ (the "Offering Circular"), relating to the Certificates and such other
information and documents as we deem necessary in order to make our investment
decision. We acknowledge that we have read and agree to the restrictions on
duplication and circulation of the Offering Circular and the matters stated in
the section entitled "Notice to Investors."
(B) We are a "qualified institutional buyer" (as that term is defined in
Rule 144A under the Securities Act). We area aware that the sale of the
Certificates to us is being made in reliance on Rule 144A under the Securities
Act. We are acquiring the Certificates for our own account or for the account of
a qualified institutional buyer.
(C) We understand that the offer and sale of the Certificates has not been
registered under the Securities Act and that the Certificates may not be
offered, sold, or otherwise transferred in the absence of such registration or
an applicable exemption therefrom. We agree, on our own behalf and on behalf of
any accounts for which we are acting as hereinafter stated, that we will not
offer, sell, pledge or otherwise transfer any Certificate, or any interest
therein, except (1) (A) in accordance with Rule 144A under the Securities Act to
a "qualified institutional buyer" (as defined therein), or (B) pursuant to an
effective registration statement under the Securities Act, and (2) in accordance
with all applicable securities laws of the states of the United States or any
other applicable jurisdiction.
Exhibit C-1
(D) We understand that, on any proposed resale of any Certificates, we
will be required to furnish to the Depositor and to the Trustee such
certificates, legal opinions and other information as the Depositor, or the
Trustee may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Certificates
purchased by us will bear a legend to the foregoing effect.
(E) We acknowledge that none of the Depositor, Xxxxxxx, Xxxxx & Co. (the
"Initial Purchaser"), the Trustee, or any person acting on behalf of the
Depositor, the Initial Purchaser, or the Trustee has made any representations
concerning the Trust or the offer and sale of the Certificates, except as set
forth in the Offering Circular.
(F) We acknowledge that the Depositor, the Initial Purchaser, the Trustee
and others will rely on the truth and accuracy of the foregoing acknowledgments,
representations and agreements, and agree that if any of the foregoing
acknowledgments, representations and agreements are no longer accurate we shall
promptly notify the Depositor, the Initial Purchaser, and the Trustee.
The Transferee hereby agrees to indemnify and hold harmless the Depositor,
the Trustee and the Initial Purchaser from and against any and all loss, damage
or liability (including attorney's fees) due to or arising out of a breach of
any representation or warranty, confirmation or statement contained in this
letter.
The Depositor, the Trustee and the Initial Purchaser are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Master Servicing and Trust Agreement,
dated as of [ ], 20[ ], which incorporates by reference the Standard Terms
thereto ([ ] 20[ ] Edition) among GS Mortgage Securities Corp., [ ], the
Custodians and the Trustee.
Sincerely,
[Name of Transferee]
By:
--------------------------------
Name:
---------------------------
Title:
-------------------------
Exhibit C-2
Exhibit D
FORM OF TRANSFEREE AGREEMENT
, 20___
U.S. Bank National Association
Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx Xxxxxxxxxxxxx 00000
Attn: Corporate Trust Services/GSR Mortgage 20[ ]-2F
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: GS Mortgage Securities Corp., Depositor
GSR Mortgage Loan Trust 20[ ]-2F,
Pass-Through Certificates Series 20[ ]-2F
having an original principal amount of $
Ladies and Gentlemen:
In connection with our proposed purchase of the Certificates referred to
above (the "Certificates"), we confirm that:
(A) We have received a copy of the Offering Supplement, dated __________
___, 20 (the "Offering Circular"), relating to the Certificates and such other
information and documents as we deem necessary in order to make our investment
decision. We acknowledge that we have read and agree to the matters stated in
the Section entitled "Notice to Investors," and the restrictions on duplication
and circulation of the Offering Circular.
(B) We understand that any subsequent transfer of the Certificates is
subject to certain restrictions and conditions set forth in the Trust Agreement
dated as of [ ], 20[ ], which incorporates by reference the Standard Terms
thereto ([ ] 20[ ] Edition) among GS Mortgage Securities Corp., [ ], [ ], [ ]
and the Trustee (the "Trust Agreement") and we agree to be bound by, and not to
resell, pledge or otherwise transfer the Certificates except in compliance with
such restrictions and conditions and the Securities Act of 1933, as amended (the
"Securities Act") and our failure to comply with the foregoing agreement shall
render any purported transfer to be null and void.
(C) We understand that the offer and sale of the Certificates has not been
registered under the Securities Act and that the Certificates may not be
offered, sold, or otherwise transferred in the absence of such registration or
an applicable exemption thereof. We agree, on our own behalf and on behalf of
any accounts for which we are acting as hereinafter stated, that we will not
offer, sell, pledge or otherwise transfer any Certificate or any interest
therein, except (A) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer"
Exhibit D-1
(as defined therein), (B) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
to the Trustee a signed letter contained certain representations and agreements
relating to the restrictions on transfer of the Certificates (the form of which
letter can be obtained from the Trustee), or (C) pursuant to an effective
registration statement under the Securities Act, and we further agree to provide
to any person purchasing any of the Certificates from us a notice advising such
person that resale of the Certificates are restricted as stated herein.
(D) We understand that, on any proposed resale of any Certificates, we
will be required to furnish to the Depositor and to the Trustee of such
certificates, legal opinions and other information as the Depositor or the
Trustee may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Certificates
purchased by us will bear a legend to the foregoing effect.
(E) We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Certificates, and we
and any accounts for which we are acting are each able to bear the economic
risks of our or their investment.
(F) We are acquiring the Certificates purchased by us for our own account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
(G) We are acquiring at least the required minimum principal amount of the
Certificates for each account for which we are purchasing such Certificates and
will not offer, sell, pledge or otherwise transfer any such Certificates or any
interest therein at any time except in the Required Minimum denomination.
(H) We have been furnished all information regarding the Certificates that
we have requested from the Depositor and the Trustee.
(I) We acknowledge that neither the Trust, the Depositor, Xxxxxxx, Xxxxx &
Co. (the "Initial Purchaser") nor the Trustee nor any person acting on behalf of
the Trust, the Depositor, the Initial Purchaser or the Trustee has made any
representations concerning the Trust or the offer and sale of the Certificates,
except as set forth in the Offering Circular.
(J) We have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of purchasing the
Certificates.
(K) If we are acquiring any of the Certificates as fiduciary or agent for
one or more accounts, we represent that we have sole investment discretion with
respect to each such amount and that we have full power to make the forgoing
acknowledgments, representations and agreements with respect to each such
account as set forth.
(L) We acknowledge that the Depositor, the Initial Purchaser, the Trustee,
and others will rely on the truth and accuracy of the foregoing acknowledgments,
representations and agreements, and agree that if any of the foregoing
acknowledgments, representations and
Exhibit D-2
agreements are no longer accurate we shall promptly notify the Depositor, the
Initial Purchaser and the Trustee.
The Transferee hereby agrees to indemnify and hold harmless the Trust, the
Depositor, the Trustee, and the Initial Purchaser from and against any and all
loss, damage or liability (including attorney's fees) due to or arising out of a
breach of any representation or warranty, confirmation or statement contained in
this letter.
The Depositor, the Trustee, and the Initial Purchaser are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Trust Agreement.
Sincerely,
[Name of Transferee]
By:
--------------------------------
Name:
---------------------------
Title:
-------------------------
Exhibit D-3
Exhibit E
FORM OF BENEFIT PLAN AFFIDAVIT
Re: GS Mortgage Securities Corp.,
as Depositor
GSR Mortgage Loan Trust
20[ ]-2F (the "Trust")
STATE OF )
---------------------
) ss:
COUNTY OF )
---------------------
Under penalties of perjury, I, the undersigned, declare that, to the best
of my knowledge and belief, the following representations are true, correct, and
complete.
1. I am a duly authorized signatory of _______________, a ____________
(the "Transferee"), whose taxpayer identification number is _______________, and
on behalf of which I have the authority to make this affidavit.
2. The Transferee is acquiring the _________ and __________ Certificates
(the "Certificates"), each representing an interest in the Trust, for certain
assets of which one or more real estate mortgage investment conduit ("REMIC")
elections are to be made under Section 860D of the Internal Revenue Code of
1986, as amended (the "Code").
3. The Transferee understands that the Certificates will bear the
following legend:
NO TRANSFER OF THIS CERTIFICATE SHALL BE REGISTERED UNLESS THE
PROSPECTIVE TRANSFEREE PROVIDES THE TRUSTEE WITH (A) A CERTIFICATION
TO THE EFFECT THAT SUCH TRANSFEREE (1) IS NEITHER AN EMPLOYEE BENEFIT
PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT TO SECTION 406 OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), (COLLECTIVELY, A "PLAN") NOR A PERSON ACTING ON BEHALF OF, OR
USING THE ASSETS OF, ANY SUCH PLAN OR (2) IF THE CERTIFICATE (OTHER
THAN A RESIDUAL CERTIFICATE OR CLASS X CERTIFICATE) HAS BEEN SUBJECT
TO AN ERISA-QUALIFYING UNDERWRITING, IS AN INSURANCE COMPANY
PURCHASING SUCH CERTIFICATES WITH FUNDS CONTAINED IN AN "INSURANCE
COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF
THE PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTCE 95-60")) AND
THE PURCHASE AND HOLDING OF SUCH CERTIFICATE ARE COVERED UNDER
SECTIONS I AND III OF PTCE 95-60; OR (B) AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AND THE SECURITIES ADMINISTRATOR,
Exhibit E-1
UPON WHICH THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE MASTER
SERVICER AND THE DEPOSITOR SHALL BE ENTITLED TO RELY TO THE EFFECT
THAT THE PURCHASE OR HOLDING OF SUCH CERTIFICATE BY THE PROSPECTIVE
TRANSFEREE WILL NOT RESULT IN ANY NON-EXEMPT PROHIBITED TRANSACTIONS
UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE AND WILL NOT
SUBJECT THE TRUSTEE, THE SECURITIES ADMINISTRATOR, THE MASTER SERVICER
OR THE DEPOSITOR TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN BY
SUCH PARTIES IN THE TRUST AGREEMENT, WHICH OPINION OF COUNSEL SHALL
NOT BE AN EXPENSE OF THE TRUST FUND OR ANY OF THE ABOVE PARTIES. A
TRANSFEREE OF A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO HAVE MADE A
REPRESENTATION AS REQUIRED IN THE TRUST AGREEMENT.
4. The Transferee either:
(a) is neither an employee benefit plan or other retirement
arrangement subject to section 406 of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), nor a person acting on behalf of, or
using the assets of, any such plan or arrangement; or
(b) if the Certificates (other than a Residual Certificate or
Class X Certificate) have been subject to an ERISA-Qualifying Underwriting,
is an insurance company purchasing such Certificates with funds contained in
an "insurance company general account" (as such term is defined in Section
V(e) of the Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and
the purchase and holding of such Certificate are covered under Sections I and
III of PTCE 95-60; or
(c) a Benefit Plan Opinion satisfactory to the Trustee, upon
which the Trustee, the Securities Administrator, the Master Servicer and the
Depositor shall be entitled to rely to the effect that the purchase or
holding of such Certificate by the prospective transferee will not result in
any non-exempt prohibited transactions under Section 406 of ERISA or Section
4975 of the Code and will not subject the Trustee, the Securities
Administrator, the Master Servicer or the Depositor to any obligation in
addition to those undertaken by such parties in the Trust Agreement, which
Benefit Plan Opinion shall not be an expense of the Trust or any of the above
parties.
Exhibit E-2
IN WITNESS WHEREOF, the Transferee has caused this instrument to be duly
executed on its behalf, by its duly authorized officer on this ____day of
________, 20 .
[Name of Transferee]
By:
--------------------------------
Name:
Title:
Personally appeared before me ________________, known or proved to me to
be the same person who executed the foregoing instrument and to be a
_________________________ of the Transferee, and acknowledged to me that he
executed the same as his or her free act and deed and as the free act and deed
of the Transferee.
Subscribed and sworn to before me this
______ day of ________________, 20 .
--------------------------------------
Notary Public
My commission expires:
----------------
Exhibit E-3
Exhibit F
FORM OF RESIDUAL TRANSFEREE AGREEMENT
-----------------
(DATE)
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S. Bank National Association
Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx Xxxxxxxxxxxxx 00000
Attn: Corporate Trust Services/GSR Mortgage 20[ ]-2F
Re: Master Servicing and Trust Agreement, dated as of [ ], 20[
], among GS Mortgage Securities Corp., as Depositor, [ ],
as Master Servicer and as Securities Administrator, [ ],
as a Custodian, [ ], as a Custodian, and [ ], as
Trustee of GSR Mortgage Loan Trust 20[ ]-2F
Ladies and Gentlemen:
In connection with the purchase on the date hereof of the captioned
securities (the "Residual Certificate"), to be issued pursuant to the Master
Servicing and Trust Agreement, dated as of [ ], 20[ ], among GS Mortgage
Securities Corp., [ ], as Master Servicer and as Securities Administrator, [ ],
as a Custodian, [ ], as a Custodian, and [ ], as Trustee (the "Trustee") which
incorporates by reference the Standard Terms to Trust Agreement, [ ] 20[ ]
Edition (the "Standard Terms to Trust Agreement") (collectively, the "Trust
Agreement"), the undersigned hereby certifies and covenants to the transferor,
the Depositor, the Trustee and the Trust as follows:
1. We certify that on the date hereof we have simultaneously herewith
delivered to you an affidavit certifying, among other things, that (A) we are
not a Disqualified Organization and (B) we are not purchasing such Residual
Certificate on behalf of a Disqualified Organization. We understand that any
breach by us of this certification may cause us to be liable for a tax imposed
upon transfers to Disqualified Organizations.
2. We acknowledge that we will be the beneficial owner of the Residual
Certificate and that the Residual Certificate will be registered in our name and
not in the name of a nominee.
3. We certify that no purpose of our purchase of the Residual Certificate
is to avoid or impede the assessment or collection of tax.
Exhibit F-1
4. (A) We understand that the Residual Certificate represents for federal
income tax purposes a "residual interest" in a real estate mortgage investment
conduit and (B) we understand that as the holder of the Residual Certificate we
will be required to take into account, in determining our taxable income, our
pro rata percentage interest of the taxable income of each REMIC formed pursuant
to the Trust Agreement in accordance with all applicable provisions of the
Internal Revenue Code of 1986, as amended (the "Code").
5. We understand that if, notwithstanding the transfer restrictions, any
of the Residual Certificates is in fact transferred to a Disqualified
Organization, a tax may be imposed on the transferor of such Residual
Certificate. We agree that any breach by us of these representations shall
render such transfer of such Residual Certificate by us absolutely null and void
and shall cause no rights in the Residual Certificate to vest in the transferee.
6. The sale to us and our purchase of the Residual Certificates
constitutes a sale for tax and all other purposes and each party thereto has
received due and adequate consideration. In our view, the transaction represents
fair value, representing the results of arms length negotiations and taking into
account our analysis of the tax and other consequences of investment in the
Residual Certificates.
7. Unless this provision is explicitly waived by the transferor to us of
the Residual Certificates, we expect that the purchase of the Residual
Certificates, together with the receipt of the price, if any, therefor will be
economically neutral or profitable to us overall, after all related expenses
(including taxes) have been paid and based on conservative assumptions with
respect to discount rates, prepayments and other factors necessary to evaluate
profitability.
8. We are a "U.S. Person" within the meaning of Section 7701(a)(30) of the
Code. We are duly organized and validly existing under the laws of the
jurisdiction of our organization. We are neither bankrupt nor insolvent nor do
we have reason to believe that we will become bankrupt or insolvent. We have
conducted and are conducting our business so as to comply in all material
respects with all applicable statutes and regulations. The person executing and
delivering this letter on our behalf is duly authorized to do so, the execution
and delivery by us of this letter and the consummation of the transaction on the
terms set forth herein are within our corporate power, and upon such execution
and delivery, this letter will constitute our legal, valid and binding
obligation, enforceable against us in accordance with its terms, subject, as to
the enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting the right of creditors generally
and to general principles of equity and the discretion of the court (regardless
of whether enforcement of such remedies is considered in a proceeding in equity
or at law).
9. Neither the execution and delivery by us of this letter, nor the
compliance by us with the provisions hereof, nor the consummation by us of the
transactions as set forth herein, will (A) conflict with or result in a breach
of, or constitute a default or result in the acceleration of any obligation
under, our certificate of incorporation or by-laws or, after giving effect to
the consents or the taking of the actions contemplated by clause (B) of this
subparagraph, any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on us or our properties, or any of the
provisions of any indenture or mortgage or any other contract or instrument to
which we are a party or by which we or any of our properties is bound, or
Exhibit F-2
(B) require the consent of or notice to or any filing with, any person, entity
or governmental body, which has not been obtained or made by us.
10. We anticipate being a profit-making entity on an ongoing basis.
11. We have filed all required federal and state income tax returns and
have paid all federal and state income taxes due; we intend to file and pay all
such returns and taxes in the future. We acknowledge that as the holder of the
Residual Certificates, to the extent the Residual Certificates would be treated
as a noneconomic residual interest within the meaning of U.S. Treasury
Regulation Section 1.860E-1(c)(2), we may incur tax liabilities in excess of
cash flows generated by the Residual Certificates and that we intend to pay
taxes associated with holding the Residual Certificates as they become due.
12. We agree that in the event that at some future time we wish to
transfer any interest in the Residual Certificates, we will transfer such
interest in the Residual Certificates only to a transferee that:
(a) is not a Disqualified Organization and is not purchasing
such interest in the Residual Certificates on behalf of a Disqualified
Organization, and
(b) has delivered to the Trustee a transferee agreement in the
form of Exhibit D to the Standard Terms to Trust Agreement and an affidavit
in the form of Exhibit G-1 or Exhibit G-2, as applicable, to the Standard
Terms to Trust Agreement and, if requested by the Trustee, an opinion of
counsel, in form acceptable to the Trustee, that the proposed transfer will
not cause the Residual Certificates to be held by a Disqualified Organization.
13. We are knowledgeable and experienced in financial, business and tax
matters generally and in particular, the investment risks and tax consequences
of REMIC residuals that provide little or no cash flow, and are capable of
evaluating the merits and risks of an investment in the Residual Certificates;
we are able to bear the economic risks of an investment in the Residual
Certificates.
14. In addition, we acknowledge that the Trustee will not register the
transfer of a Residual Certificate to a transferee that is not a "U.S. Person"
within the meaning of Section 7701(a)(30) of the Code.
15. Capitalized terms used herein but not defined herein shall have the
meanings ascribed to such terms in the Standard Terms to Trust Agreement.
16. We hereby designate the Trustee as our fiduciary to perform the duties
of the tax matters person for each REMIC formed pursuant to the Trust Agreement.
(signature page follows)
Exhibit F-3
IN WITNESS WHEREOF, the undersigned has caused this Agreement be validly
executed by its duly authorized representative as of the day and year first
above written.
-------------------------------------------
[Name of Transferee]
By:
-----------------------------------------
Its:
----------------------------------------
Taxpayer ID #
--------------------------------
Personally appeared before me ________________, known or proved to me to be the
same person who executed the foregoing instrument and to be a
_________________________ of the Transferee, and acknowledged to me that he
executed the same as his or her free act and deed and as the free act and deed
of the Transferee.
Subscribed and sworn to before me this
______ day of ________________, 20 .
------------------------------------------
Notary Public
My commission expires:
---------------------
Exhibit F-4
Exhibit G-1
FORM OF NON-U.S. PERSON AFFIDAVIT
AND AFFIDAVIT PURSUANT TO SECTIONS
860D(a)(6)(A) and 860E(e)(4)
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
Re: GS Mortgage Securities Corp., Depositor
GSR Mortgage Loan Trust
20[ ]-2F (the "Trust")
STATE OF ____________________ )
) ss.:
CITY OF ______________________ )
Under penalties of perjury, I, the undersigned, declare that to the best
of my knowledge and belief, the following representations are true, correct and
complete:
1. I am a duly authorized officer of ___________________ (the
"Transferee"), and on behalf of which I have the authority to make this
affidavit.
2. The Transferee is acquiring all or a portion of the securities (the
"Residual Certificates"), which represent a residual interest in one or more
real estate mortgage investment conduits (each, a "REMIC") for which elections
are to be made under Section 860D of the Internal Revenue Code of 1986, as
amended (the "Code").
3. The Transferee is a foreign person within the meaning of Treasury
Regulation Section 1.860G-3(a)(1) (i.e., a person other than (i) a citizen or
resident of the United States, (ii) a corporation or partnership that is
organized under the laws of the United States or any jurisdiction thereof or
therein, (iii) an estate that is subject to United States federal income tax
regardless of the source of its income or (iv) a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust and one or more United States Persons have the authority to control
all substantial decisions of the trust) who would be subject to United States
income tax withholding pursuant to Section 1441 or 1442 of the Code on income
derived from the Residual Certificates (a "Non-U.S. Person").
4. The Transferee agrees that it will not hold the Residual Certificates
in connection with a trade or business in the United States, and the Transferee
understands that it will be subject to United States federal income tax under
Sections 871 and 881 of the Code in accordance with Section 860G of the Code and
any Treasury regulations issued thereunder on
Exhibit G-1-1
"excess inclusions" that accrue with respect to the Residual Certificates during
the period the Transferee holds the Residual Certificates.
5. The Transferee understands that the federal income tax on excess
inclusions with respect to the Residual Certificates may be withheld in
accordance with Section 860G(b) of the Code from distributions that otherwise
would be made to the Transferee on the Residual Certificates and, to the extent
that such tax has not been imposed previously, that such tax may be imposed at
the time of disposition of any such Residual Certificate pursuant to Section
860G(b) of the Code.
6. The Transferee agrees (i) to file a timely United States federal income
tax return for the year in which disposition of a Residual Certificate it holds
occurs (or earlier if required by law) and will pay any United States federal
income tax due at that time and (ii) if any tax is due at that time, to provide
satisfactory written evidence of payment of such tax to the Trustee or its
designated paying agent or other person who is liable to withhold federal income
tax from a distribution on the Residual Certificates under Sections 1441 and
1442 of the Code and the regulations thereunder (the "Withholding Agent").
7. The Transferee understands that until it provides written evidence of
the payment of tax due upon the disposition of a Residual Certificate to the
Withholding Agent pursuant to paragraph 6 above, the Withholding Agent may (i)
withhold an amount equal to such tax from future distributions made with respect
to the Residual Certificate to subsequent transferees (after giving effect to
the withholding of taxes imposed on such subsequent transferees), and (ii) pay
the withheld amount to the Internal Revenue Service.
8. The Transferee understands that (i) the Withholding Agent may withhold
other amounts required to be withheld pursuant to United States federal income
tax law, if any, from distributions that otherwise would be made to such
transferee on each Residual Certificate it holds and (ii) the Withholding Agent
may pay to the Internal Revenue Service amounts withheld on behalf of any and
all former holders of each Residual Certificate held by the Transferee.
9. The Transferee understands that if it transfers a Residual Certificate
(or any interest therein) to a United States Person (including a foreign person
who is subject to net United States federal income taxation with respect to such
Residual Certificate), the Withholding Agent may disregard the transfer for
federal income tax purposes if the transfer would have the effect of allowing
the Transferee to avoid tax on accrued excess inclusions and may continue to
withhold tax from future distributions as though the Residual Certificate were
still held by the Transferee.
10. The Transferee understands that a transfer of a Residual Certificate
(or any interest therein) to a Non-U.S. Person (i.e., a foreign person who is
not subject to net United States federal income tax with respect to such
Residual Certificate) will not be recognized unless the Withholding Agent has
received from the transferee an affidavit in substantially the same form as this
affidavit containing these same agreements and representations.
11. The Transferee understands that distributions on a Residual
Certificate may be delayed, without interest, pending determination of amounts
to be withheld.
Exhibit G-1-2
12. The Transferee is not a "Disqualified Organization" (as defined
below), and the Transferee is not acquiring a Residual Certificate for the
account of, or as agent or nominee of, or with a view to the transfer of direct
or indirect record or beneficial ownership to, a Disqualified Organization. For
the purposes hereof, a Disqualified Organization is any of the following: (i)
the United States, any State or political subdivision thereof, any foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing; (ii) any organization (other than a xxxxxx'x cooperative
as defined in Section 521 of the Code) that is exempt from federal income
taxation (including taxation under the unrelated business taxable income
provisions of the Code); (iii) any rural telephone or electrical service
cooperative described in Section 1381(a)(2)(C) of the Code; or (iv) any other
entity treated as a "disqualified organization" within the meaning of Section
860E(e)(5) of the Code. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax and, with the exception of
the Federal Home Loan Mortgage Corporation, a majority of its board of directors
is not selected by such governmental unit.
13. The Transferee agrees to consent to any amendment of the Trust
Agreement that shall be deemed necessary by the Depositor (upon the advice of
counsel to the Depositor) to constitute a reasonable arrangement to ensure that
no interest in a Residual Certificate will be owned directly or indirectly by a
Disqualified Organization.
14. The Transferee acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the Transferee, with respect to any transfer of any interest in any
Residual Certificate to a Disqualified Organization.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to them in the Master Servicing and Trust Agreement, dated as
of [ ], 20[ ], which incorporates by reference the Standard Terms thereto, among
GS Mortgage Securities Corp., [ ], [ ], [ ] and the Trustee.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be duly
executed on its behalf, by its duly authorized officer as of the _______ day of
_____________, 20__.
--------------------------------------------
[Name of Transferee]
By:
-----------------------------------------
Its:
----------------------------------------
Personally appeared before me ___________________________, known or proved
to me to be the same person who executed the foregoing instrument and to be a
______________________ of the Transferee, and acknowledged to me that he or she
executed the same as his or her free act and deed and as the free act and deed
of the Transferee.
Exhibit G-1-3
Subscribed and sworn before me this ______ day of __________, 20__.
-------------------------------------------
Notary Public
My commission expires the _____ day of ________________, 20__.
Exhibit G-1-4
Exhibit G-2
FORM OF U.S. PERSON AFFIDAVIT
AND AFFIDAVIT PURSUANT TO SECTIONS
860D(a)(6)(A) and 860E(e)(4)
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
Re: GS Mortgage Securities Corp., Depositor
GSR Mortgage Loan Trust
20[ ]-2F (the "Trust")
STATE OF __________________ )
) ss.:
CITY OF ___________________ )
Under penalties of perjury, I, the undersigned declare that, to the best
of my knowledge and belief, the following representations are true, correct and
complete:
1. I am a duly authorized officer of ______________________ (the
"Transferee"), on behalf of which I have the authority to make this affidavit.
2. The Transferee is acquiring all or a portion of the securities (the
"Residual Certificates"), which represent a residual interest in one or more
real estate mortgage investment conduits (each, a "REMIC") for which elections
are to be made under Section 860D of the Internal Revenue Code of 1986, as
amended (the "Code").
3. The Transferee either is (i) a citizen or resident of the United
States, (ii) a domestic partnership or corporation, (iii) an estate that is
subject to United States federal income tax regardless of the source of its
income, (iv) a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust and one or more United
States Persons have the authority to control all substantial decisions of the
trust, or (v) a foreign person who would be subject to United States income
taxation on a net basis on income derived from the Residual Certificates (a
"U.S. Person").
4. The Transferee is a not a "Disqualified Organization" (as defined
below), and the Transferee is not acquiring a Residual Certificate for the
account of, or as agent or nominee of, or with a view to the transfer of direct
or indirect record or beneficial ownership to, a Disqualified Organization. For
the purposes hereof, a Disqualified Organization is any of the following: (i)
the United States, any state or political subdivision thereof, any foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing; (ii) any organization (other than a xxxxxx'x cooperative
as defined in Section 521 of the Code) that is exempt from federal income
taxation (including taxation under the unrelated business taxable income
provisions of the Code); (iii) any rural telephone or electrical service
cooperative described in ss. 1381(a)(2)(C) of the Code; or (iv) any other entity
treated as a
Exhibit G-2-1
"disqualified organization" within the meaning of Section 860E(e)(5) of the
Code. In addition, a corporation will not be treated as an instrumentality of
the United States or of any state or political subdivision thereof if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such governmental unit.
5. The Transferee agrees to consent to any amendment of the Trust
Agreement that shall be deemed necessary by the Depositor (upon the advice of
counsel to the Depositor) to constitute a reasonable arrangement to ensure that
no interest in a Residual Certificate will be owned directly or indirectly by a
Disqualified Organization.
6. The Transferee acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the Transferee, with respect to any transfer of any interest in any
Residual Certificate to a Disqualified Organization.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to them in the Master Servicing and Trust Agreement, dated as
of [ ], 20[ ], which incorporates by reference the Standard Terms thereto, among
GS Mortgage Securities Corp., [ ], [ ], [ ] and the Trustee.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be duly
executed on its behalf, by its duly authorized officer this ____ day of ______,
20__.
--------------------------------------------
[Name of Transferee]
By:
-----------------------------------------
Its:
----------------------------------------
Personally appeared before me ___________________________, known or proved
to me to be the same person who executed the foregoing instrument and to be a
______________________ of the Transferee, and acknowledged to me that he or she
executed the same as his or her free act and deed and as 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 G-2-2
Exhibit H
FORM OF CERTIFICATION TO BE PROVIDED TO THE DEPOSITOR BY THE SECURITIES
ADMINISTRATOR
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: GS Mortgage Securities Corp., Depositor
GSR Mortgage Loan Trust 20[ ]-2F (the "Trust")
Reference is made to the Trust Agreement, dated as of [ ], 20[ ] (the
"Trust Agreement"), by and among U.S. Bank National Association (the "Trustee"),
[ ], as Master Servicer (the "Master Servicer"), and as Securities Administrator
(the "Securities Administrator"), [ ], as a Custodian, [ ], as a Custodian, and
GS Mortgage Securities Corp., as Depositor (the "Depositor"). The Securities
Administrator hereby certifies to the Depositor, and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
(i) The Securities Administrator has reviewed the annual report on
Form 10-K for the fiscal year [ ], and all reports on Form 8-K
containing distribution reports filed in respect of periods
included in the year covered by that annual report, relating to
the above-referenced trust;
(ii) Subject to paragraph (iv), the distribution information in the
distribution reports contained in all Monthly Form 8-K's included
in the year covered by the annual report on Form 10-K for the
calendar year [___], taken as a whole, does not contain any
untrue statement of a material fact or omit to state a material
fact required by the Trust Agreement to be included therein and
necessary to make the statements made, in light of the
circumstances under which such statements were made, not
misleading as of the last day of the period covered by that
annual report;
(iii) The distribution information required to be provided by the
Securities Administrator under the Trust Agreement is included in
these reports.
(iv) In compiling the distribution information and making the
foregoing certifications, the Securities Administrator has relied
upon information furnished to it by the Master Servicer under the
Trust Agreement. The Securities Administrator shall have no
responsibility or liability for any inaccuracy in such reports
resulting from information so provided by the Master Servicer.
(signature page follows)
Exhibit H-1
Date:
[ ],
as Securities Administrator
By:
--------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Exhibit H-2
Exhibit I
FORM OF CERTIFICATION TO BE PROVIDED TO THE DEPOSITOR BY THE MASTER SERVICER
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: GS Mortgage Securities Corp., Depositor
GSR Mortgage Loan Trust 20[ ]-2F (the "Trust")
Reference is made to the Trust Agreement, dated as of [ ], 20[ ] (the
"Trust Agreement"), by and among U.S. Bank National Association (the "Trustee"),
[ ], as Master Servicer (the "Master Servicer"), and as Securities Administrator
(the "Securities Administrator"), [ ], as a Custodian, [ ], as a Custodian, and
GS Mortgage Securities Corp., as Depositor (the "Depositor"). The Master
Servicer hereby certifies to the Depositor, the Securities Administrator and the
Trustee, and their respective officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
(i) Based on our knowledge, the information prepared by the Master
Servicer and relating to the mortgage loans master serviced by
the Master Servicer and provided by the Master Servicer to the
Securities Administrator and the Trustee and in its reports to
the Securities Administrator and the Trustee is accurate and
complete in all material respects as of the last day of the
period covered by such report;
(ii) Based on our knowledge, the servicing information required to be
provided to the Securities Administrator and the Trustee by the
Master Servicer pursuant to the Trust Agreement has been provided
to the Securities Administrator and the Trustee;
(iii) Based upon the review required under the Trust Agreement, and
except as disclosed in its reports, the Master Servicer as of the
last day of the period covered by such reports has fulfilled its
obligations under the Trust Agreement; and
(iv) In compiling the distribution information and making the
foregoing certifications, the Master Servicer has relied upon
information furnished to it by the servicers under the respective
servicing agreements. The Master Servicer shall have no
responsibility or liability for any inaccuracy in such reports
resulting from information so provided by such servicers.
(signature page follows)
Exhibit I-1
Date:
[ ],
as Master Servicer
By:
--------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Exhibit I-2
EXHIBIT J
FORM OF CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED IN
REPORT ON ASSESSMENT OF COMPLIANCE
To:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Reference is made to that certain Standard Terms to Master Servicing and
Trust Agreement ([ ] 20[ ] Edition) (the "Agreement"), which is incorporated by
reference in the Master Servicing and Trust Agreement dated as of [ ], 20[ ], by
and among U.S. Bank National Association (the "Trustee"), [ ], as master
servicer (in such capacity, the "Master Servicer") and as securities
administrator (in such capacity, the "Securities Administrator"), GS Mortgage
Securities Corp., as depositor (the "Depositor"), [ ], as a custodian, and [ ],
as a custodian, with respect to GSR Mortgage Loan Trust Mortgage Pass-Through
Certificates, Series 20[ ]-2F. This certification is delivered pursuant to
Section [8.01] [11.01] of the Agreement. Capitalized terms used herein but not
otherwise defined shall have the meanings set forth in the Agreement.
_________________________, the undersigned, a duly authorized
_______________ of the [[Securities Administrator]] [[Master Servicer]], does
hereby certify that the assessment of compliance to be delivered by the
[[Securities Administrator]] [[Master Servicer]] shall address, at a minimum,
the criteria identified below as "Applicable Servicing Criteria" as identified
by a xxxx in the column titled "Applicable Servicing Criteria."
------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------
General Servicing Considerations
-------------- ----------------
1122(d)(1)(i) Policies and procedures are instituted to
monitor any performance or other triggers and
events of default in accordance with the
transaction agreements.
-------------- ----------------
1122(d)(1)(ii) If any material servicing activities are
outsourced to third parties, policies and
procedures are instituted to monitor the third
party's performance and compliance with such
servicing activities.
-------------- ----------------
1122(d)(1)(iii)Any requirements in the transaction agreements
to maintain a back-up servicer for the
mortgage loans are maintained.
-------------- ----------------
1122(d)(1)(iv) A fidelity bond and errors and omissions
policy is in effect on the party participating
in the servicing function throughout the
reporting period in the amount of coverage
required by and otherwise in accordance with
the terms of the transaction agreements.
-------------- ----------------
Exhibit J-1
------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------
Cash Collection and Administration
-------------- ----------------
1122(d)(2)(i) Payments on mortgage loans are deposited into
the appropriate custodial bank accounts and
related bank clearing accounts no more than
two business days following receipt, or such
other number of days specified in the
transaction agreements.
-------------- ----------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf
of an obligor or to an investor are made only
by authorized personnel.
-------------- ----------------
1122(d)(2)(iii)Advances of funds or guarantees regarding
collections, cash flows or distributions, and
any interest or other fees charged for such
advances, are made, reviewed and approved as
specified in the transaction agreements.
-------------- ----------------
1122(d)(2)(iv) The related accounts for the transaction, such
as cash reserve accounts or accounts
established as a form of
overcollateralization, are separately
maintained (e.g., with respect to commingling
of cash) as set forth in the transaction
agreements.
-------------- ----------------
1122(d)(2)(v) Each custodial account is maintained at a
federally insured depository institution as
set forth in the transaction agreements. For
purposes of this criterion, "federally insured
depository institution" with respect to a
foreign financial institution means a foreign
financial institution that meets the
requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
-------------- ----------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to
prevent unauthorized access.
-------------- ----------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly
basis for all asset-backed securities related
bank accounts, including custodial accounts
and related bank clearing accounts. These
reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days
after the bank statement cutoff date, or such
other number of days specified in the
transaction agreements; (C) reviewed and
approved by someone other than the person who
prepared the reconciliation; and (D) contain
explanations for reconciling items. These
reconciling items are resolved within 90
calendar days of their original
identification, or such other number of days
specified in the transaction agreements.
-------------- ----------------
Investor Remittances and Reporting
-------------- ----------------
1122(d)(3)(i) Reports to investors, including those to be
filed with the Commission, are maintained in
accordance with the transaction agreements and
applicable Commission requirements.
Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set
forth in the transaction agreements; (B)
provide information calculated in accordance
with the terms specified in the transaction
agreements; (C) are filed with the Commission
as required by its rules and regulations; and
(D) agree with investors' or the trustee's
records as to the total unpaid principal
balance and number of mortgage loans serviced
by the Servicer.
-------------- ----------------
1122(d)(3)(ii) Amounts due to investors are allocated and
remitted in accordance with timeframes,
distribution priority and other terms set
forth in the transaction agreements.
-------------- ----------------
Disbursements made to an investor are posted
within two business days to the Servicer's
investor records, or such other number of days
1122(d)(3)(iii)specified in the transaction agreements.
-------------- ----------------
Amounts remitted to investors per the investor
reports agree with cancelled checks, or other
1122(d)(3)(iv) form of payment, or custodial bank statements.
-------------- ----------------
Pool Asset Administration
-------------- ----------------
1122(d)(4)(i) Collateral or security on mortgage loans is
maintained as required by the transaction
agreements or related mortgage loan documents.
-------------- ----------------
Mortgage loan and related documents are
safeguarded as required by the transaction
1122(d)(4)(ii) agreements
-------------- ----------------
1122(d)(4)(iii)Any additions, removals or substitutions to
the asset pool are made, reviewed and approved
in accordance with any conditions or
requirements in the transaction agreements.
-------------- ----------------
Exhibit J-2
------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------
-------------- ----------------
1122(d)(4)(iv) Payments on mortgage loans, including any
payoffs, made in accordance with the related
mortgage loan documents are posted to the
Servicer's obligor records maintained no more
than two business days after receipt, or such
other number of days specified in the
transaction agreements, and allocated to
principal, interest or other items (e.g.,
escrow) in accordance with the related
mortgage loan documents.
-------------- ----------------
1122(d)(4)(v) The Servicer's records regarding the mortgage
loans agree with the Servicer's records with
respect to an obligor's unpaid principal
balance.
-------------- ----------------
1122(d)(4)(vi) Changes with respect to the terms or status of
an obligor's mortgage loans (e.g., loan
modifications or re-agings) are made, reviewed
and approved by authorized personnel in
accordance with the transaction agreements and
related pool asset documents.
-------------- ----------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g.,
forbearance plans, modifications and deeds in
lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated,
conducted and concluded in accordance with the
timeframes or other requirements established
by the transaction agreements.
-------------- ----------------
1122(d)(4)(viii) Records documenting collection efforts are
maintained during the period a mortgage loan
is delinquent in accordance with the
transaction agreements. Such records are
maintained on at least a monthly basis, or
such other period specified in the transaction
agreements, and describe the entity's
activities in monitoring delinquent mortgage
loans including, for example, phone calls,
letters and payment rescheduling plans in
cases where delinquency is deemed temporary
(e.g., illness or unemployment).
-------------- ----------------
1122(d)(4)(ix) Adjustments to interest rates or rates of
return for mortgage loans with variable rates
are computed based on the related mortgage
loan documents.
-------------- ----------------
1122(d)(4)(x) Regarding any funds held in trust for an
obligor (such as escrow accounts): (A) such
funds are analyzed, in accordance with the
obligor's mortgage loan documents, on at least
an annual basis, or such other period
specified in the transaction agreements; (B)
interest on such funds is paid, or credited,
to obligors in accordance with applicable
mortgage loan documents and state laws; and
(C) such funds are returned to the obligor
within 30 calendar days of full repayment of
the related mortgage loans, or such other
number of days specified in the transaction
agreements.
-------------- ----------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as
tax or insurance payments) are made on or
before the related penalty or expiration
dates, as indicated on the appropriate bills
or notices for such payments, provided that
such support has been received by the servicer
at least 30 calendar days prior to these
dates, or such other number of days specified
in the transaction agreements.
-------------- ----------------
1122(d)(4)(xii) Any late payment penalties in connection with
any payment to be made on behalf of an obligor
are paid from the servicer's funds and not
charged to the obligor, unless the late
payment was due to the obligor's error or
omission.
-------------- ----------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are
posted within two business days to the
obligor's records maintained by the servicer,
or such other number of days specified in the
transaction agreements.
-------------- ----------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible
accounts are recognized and recorded in
accordance with the transaction agreements.
-------------- ----------------
1122(d)(4)(xv) Any external enhancement or other support,
identified in Item 1114(a)(1) through (3) or
Item 1115 of Regulation AB, is maintained as
set forth in the transaction agreements.
-------------- ----------------
------------------------------------------------
------------------------------------------------------------------------------
[Signature Page Follows]
Exhibit J-3
[ ], [as Securities
Administrator] [ ], [as Master
Servicer]
Date: _________________________
By: ________________________________
Name:
Title:
Exhibit J-4
EXHIBIT K
Form 8-K Disclosure Information
-------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
-------------------------------------------------------------------------------
Item 1.01- Entry into a Material All parties (other than the Trustee)
Definitive Agreement
-------------------------------------------------------------------------------
Item 1.02- Termination of a Material All parties (other than the Trustee)
Definitive Agreement
-------------------------------------------------------------------------------
Item 1.03- Bankruptcy or Receivership Depositor
-------------------------------------------------------------------------------
Item 2.04- Triggering Events that Depositor
Accelerate or Increase a Direct
Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement
-------------------------------------------------------------------------------
Item 3.03- Material Modification to Securities Administrator
Rights of Security Holders
-------------------------------------------------------------------------------
Item 5.03- Amendments of Articles of Depositor
Incorporation or Bylaws; Change of
Fiscal Year
-------------------------------------------------------------------------------
Item 6.01- ABS Informational and Depositor
Computational Material
-------------------------------------------------------------------------------
Item 6.02- Change of Servicer or Servicer, Securities Administrator
Securities Administrator
-------------------------------------------------------------------------------
Item 6.03- Change in Credit Depositor/Securities Administrator
Enhancement or External Support
-------------------------------------------------------------------------------
Item 6.04- Failure to Make a Required Securities Administrator
Distribution
-------------------------------------------------------------------------------
Item 6.05- Securities Act Updating Depositor
Disclosure
-------------------------------------------------------------------------------
Item 7.01- Reg FD Disclosure Depositor
-------------------------------------------------------------------------------
Item 8.01 Depositor
-------------------------------------------------------------------------------
Item 9.01 Depositor
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Exhibit K-1
EXHIBIT L
Additional Form 10-D Disclosure
-------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
-------------------------------------------------------------------------------
Item 1: Distribution and Pool Servicer
Performance Information
Securities Administrator
Any information required by 1121 which
is NOT included on the Monthly
Statement
-------------------------------------------------------------------------------
Item 2: Legal Proceedings (i) All parties to the Trust
Agreement (as to themselves), (ii)
the Securities Administrator and
servicer as to the issuing entity,
per Item 1117 of Reg AB (iii) the Depositor as to the
sponsor, any 1106(b) originator, any
1100(d)(1) party
-------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of Depositor
Proceeds
-------------------------------------------------------------------------------
Item 4: Defaults Upon Senior Securities Administrator
Securities
-------------------------------------------------------------------------------
Item 5: Submission of Matters to a Securities Administrator
Vote of Security Holders
-------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool Depositor/Servicer
Assets
-------------------------------------------------------------------------------
Item 7: Significant Enhancement Depositor/Servicer
Provider Information
-------------------------------------------------------------------------------
Item 8: Other Information Any party responsible for disclosure
items on Form 8-K
-------------------------------------------------------------------------------
Item 9: Exhibits Securities Administrator
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Exhibit L-1
EXHIBIT M
Additional Form 10-K Disclosure
-------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
-------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments Depositor
-------------------------------------------------------------------------------
Item 9B: Other Information Any party responsible for disclosure
items on Form 8-K
-------------------------------------------------------------------------------
Item 15: Exhibits, Financial Securities Administrator
Statement Schedules
Depositor
-------------------------------------------------------------------------------
Additional Item: (i) All parties to the Trust
Agreement (as to themselves), (ii)
the Securities Administrator and
Master Servicer as to the issuing
Disclosure per Item 1117 of Reg AB entity, (iii) the Depositor as to the
sponsor, any 1106(b) originator, any
1100(d)(1) party
-------------------------------------------------------------------------------
Additional Item: (i) All parties to the Trust
Agreement as to themselves, with
Disclosure per Item 1119 of Reg AB respect to such party's affiliation,
if any, with the Depositor, (ii) the
Depositor as to he sponsor,
originator, significant obligor,
enhancement or support provider;
unless otherwise identified by the
Depositor on or before March 1 of
each year, it is understood that
these parties are limited to the
Securities Administrator, Master
Servicer, Trustee, each Servicer and
each Custodian, as identified in the
Trust Agreement.
-------------------------------------------------------------------------------
Additional Item: Depositor/ Servicer
Disclosure per Item 1112(b) of Reg AB
-------------------------------------------------------------------------------
Additional Item: Depositor
Disclosure per Items 1114(b) and
1115(b) of Reg AB
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Exhibit M-1
SCHEDULE I
BOND LEVEL REPORT
I-1
SCHEDULE II
LOAN LEVEL REPORT
II-1
SCHEDULE III
REMITTANCE REPORT
-----------------------------------------------------------------------------------------------------------------------
Servicer loan Investor PIF Principal PIF Net Interest
Data Field Investor_ID Category_ID number Loan # Amount Paid
-----------------------------------------------------------------------------------------------------------------------
Format Number (no Number (no Number (no Number (no Number (two Number (two
decimals) decimals) decimals) decimals) decimals) decimals)
-----------------------------------------------------------------------------------------------------------------------
Description ID number used by ID number used by Servicer Loan Loan number Paid-in-full Net interest
your company for your company for Number - loan used by principal paid the loan
the investor the specific deal. number used at Investor balance amount was paid-in-full
your company.
-----------------------------------------------------------------------------------------------------------------------
Example: 1000 2 1234 56789 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Beginning scheduled Beginning schedule
Data Field PIF date note rate Ending note rate service fee Ending service fee
------------------------------------------------------------------------------------------------------------------------------------
Format Date (mm/dd/yy) Number (seven Decimals) Number (seven decimals) Number (seven decimals) Number (seven decimals)
format
------------------------------------------------------------------------------------------------------------------------------------
Description Enter the date Beginning scheduled Ending scheduled loan note Beginning scheduled Ending scheduled
the loan was note rate before the rate after servicer's servicer service fee rate servicer service fee
paid-in-full. servicer's monthly monthly activity (sch/sch) before the servicer's rate after the
Leave blank if activity. Can be or the ending actual loan monthly activity. Can be servicer's monthly
no PIF blank for act/act note rate after servicer's blank for act/act pools. activity.
transaction. pools. activity (act/act).
------------------------------------------------------------------------------------------------------------------------------------
Example: 0.0887500 0.0887500 0.0025000 0.0025000
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Beginning schedule Beginning security Ending security
Ending due date 100% P&I Ending 100% P&I balance balance Ending part UPB
-----------------------------------------------------------------------------------------------------------------------------------
Date (mm/dd/yy) Number (two Number (two decimals) Number (two decimals) Number (two decimals) Number (two
format decimals) decimals)
-----------------------------------------------------------------------------------------------------------------------------------
Ending actual Beginning scheduled Ending 100% scheduled (Sch/Sch) beginning (Sch/Sch) Ending Ending actual
loan due date 100% monthly monthly loan payment scheduled balance. scheduled balance. participation loan
payment amount amount after servicer's (Act/Act) beginning (Act/Act) Ending principal balance
before the monthly activity (sch/sch) 100% Actual balance 100% Actual balance after servicer's
servicer's monthly or the ending 100% actual or the beginning or the ending monthly activity.
activity. Can be monthly loan payment participation Actual participation Actual
blank for act/act amount after servicer's balance for balance for
pools. activity (act/act). participation loans. participation loans.
-----------------------------------------------------------------------------------------------------------------------------------
07/01/02 4475.51 4475.51 557866.38 557516.76 557866.38
-----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Principal
Ending due date Ending 100% UPB remitted Interest remitted Principal Curtailment
----------------------------------------------------------------------------------------------------------------------------------
Date (mm/dd/yy) Number (two Number (two decimals) Number (two decimals) Number (two Number (two decimals)
format decimals) decimals)
----------------------------------------------------------------------------------------------------------------------------------
Ending actual Ending 100% (Sch/Sch) --- Add For Sch/Sch loans, enter (Sch/Sch) --- Curtailment amount
loan due date actual principal scheduled principal + the scheduled net scheduled
balance after Curtailments + interest amount principal
servicer's payoff/liquidation remitted. For Act/Act (Act/Act) ---
monthly activity. amount (Act/Act) --- loans, enter the net actual principal
Add actual principal interest amount paid
+ curtailments + remitted. Net Interest
payoff/liquidation should equal the Gross
amounts. Interest Amount minus
Service Fee Amount.
----------------------------------------------------------------------------------------------------------------------------------
07/01/02 557866.38 349.62 4009.67 349.62 0.00
----------------------------------------------------------------------------------------------------------------------------------
III-1
