EXHIBIT 4
EXECUTION COPY
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GSAA HOME EQUITY TRUST 2004-8
ASSET-BACKED CERTIFICATES
SERIES 2004-8
MASTER SERVICING
and
TRUST AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
Depositor,
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee and Custodian
JPMORGAN CHASE BANK,
Custodian
and
XXXXX FARGO BANK, N.A.,
Master Servicer and Securities Administrator
Dated September 1, 2004
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans...............................
Section 2.02 Acceptance by the Custodians of the Mortgage Loans.........
Section 2.03 Execution and Delivery of Certificates.....................
Section 2.04 REMIC Matters..............................................
Section 2.05 Representations and Warranties of the Depositor............
Section 2.06 Representations and Warranties of JPMorgan.................
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Excess Reserve Fund Account; Distribution Account..........
Section 3.02 Investment of Funds in the Distribution Account............
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution.................................
Section 4.02 Monthly Statements to Certificateholders...................
Section 4.03 Allocation of Applied Realized Loss Amounts................
Section 4.04 Certain Matters Relating to the Determination of
LIBOR......................................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates...........................................
Section 5.02 Certificate Register; Registration of Transfer
and Exchange of Certificates...............................
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates..........
Section 5.04 Persons Deemed Owners......................................
Section 5.05 Access to List of Certificateholders' Names and
Addresses..................................................
Section 5.06 Maintenance of Office or Agency............................
ARTICLE VI
THE DEPOSITOR
Section 6.01 Respective Liabilities of the Depositor....................
Section 6.02 Merger or Consolidation of the Depositor...................
Section 6.03 Limitation on Liability of the Depositor and
Others.....................................................
Section 6.04 Servicing Compliance Review................................
Section 6.05 Option to Purchase Defaulted Mortgage Loans................
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default..........................................
Section 7.02 Master Servicer to Act; Appointment of Successor...........
Section 7.03 Master Servicer to Act as Servicer.........................
Section 7.04 Notification to Certificateholders.........................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee......................................
Section 8.02 Custodial Responsibilities.................................
Section 8.03 Certain Matters Affecting the Trustee......................
Section 8.04 Trustee Not Liable for Certificates or Mortgage
Loans......................................................
Section 8.05 Trustee May Own Certificates...............................
Section 8.06 Trustee's Fees and Expenses................................
Section 8.07 Eligibility Requirements for the Trustee...................
Section 8.08 Resignation and Removal of the Trustee.....................
Section 8.09 Successor Trustee..........................................
Section 8.10 Merger or Consolidation of the Trustee.....................
Section 8.11 Appointment of Co-Trustee or Separate Trustee..............
Section 8.12 Tax Matters................................................
Section 8.13 Periodic Filings...........................................
Section 8.14 Tax Classification of the Excess Reserve Fund
Account and the Cap Agreement..............................
ARTICLE IX
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of
Servicer's Obligations.....................................
Section 9.02 Maintenance of Fidelity Bond and Errors Omissions
Insurance..................................................
Section 9.03 Representations and Warranties of the Master
Servicer...................................................
Section 9.04 Master Servicer Events of Default..........................
Section 9.05 Waiver of Default..........................................
Section 9.06 Successor to the Master Servicer...........................
Section 9.07 Compensation of the Master Servicer........................
Section 9.08 Merger or Consolidation....................................
Section 9.09 Resignation of the Master Servicer.........................
Section 9.10 Assignment or Delegation of Duties by the Master
Servicer...................................................
Section 9.11 Limitation on Liability of the Master Servicer.............
Section 9.12 Indemnification; Third Party Claims........................
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator.........................
Section 10.02 Certain Matters Affecting the Securities
Administrator..............................................
Section 10.03 Securities Administrator Not Liable for
Certificates or Mortgage Loans.............................
Section 10.04 Securities Administrator May Own Certificates..............
Section 10.05 Securities Administrator's Fees and Expenses...............
Section 10.06 Eligibility Requirements for Securities
Administrator..............................................
Section 10.07 Resignation and Removal of Securities
Administrator..............................................
Section 10.08 Successor Securities Administrator.........................
Section 10.09 Merger or Consolidation of Securities
Administrator..............................................
Section 10.10 Assignment or Delegation of Duties by the
Securities Administrator...................................
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the
Mortgage Loans.............................................
Section 11.02 Final Distribution on the Certificates.....................
Section 11.03 Additional Termination Requirements........................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment..................................................
Section 12.02 Recordation of Agreement; Counterparts.....................
Section 12.03 Governing Law..............................................
Section 12.04 Intention of Parties.......................................
Section 12.05 Notices....................................................
Section 12.06 Severability of Provisions.................................
Section 12.07 Limitation on Rights of Certificateholders.................
Section 12.08 Certificates Nonassessable and Fully Paid..................
Section 12.09 Waiver of Jury Trial.......................................
SCHEDULES
Schedule I Mortgage Loan Schedule
EXHIBITS
Exhibit A Form of Class A, Class M and Class B Certificates
Exhibit B Form of Class P Certificates
Exhibit C Form of Class R Certificate
Exhibit D Form of Class X Certificate
Exhibit E Form of Initial Certification of Trustee
Exhibit F Form of Document Certification and Exception Report of Trustee
Exhibit G Form of Residual Transfer Affidavit
Exhibit H Form of Transferor Certificate
Exhibit I Form of Rule 144A Letter
Exhibit J Form of Certification to be provided with Form 10-K
Exhibit K Form of Certification to be provided to Depositor
Exhibit L Master Mortgage Loan Purchase Agreement, dated as of
April 1, 2004, as amended by Amendment No. 1, dated
July 1, 2004, between GreenPoint Mortgage Funding, Inc.
and Xxxxxxx Sachs Mortgage Company
Exhibit M Servicing Agreement, dated as of April 1, 2004, as
amended by Amendment No. 1, dated July 1, 2004, between
GreenPoint Mortgage Funding, Inc. and Xxxxxxx Xxxxx
Mortgage Company,
Exhibit N Master Mortgage Loan Purchase Agreement, dated as of
February 1, 2004, between IndyMac Bank, F.S.B. and
Xxxxxxx Sachs Mortgage Company
Exhibit O Servicing Agreement, dated as of February 1, 2004, as
amended by Amendment No. 1, dated June 1, 2004, between
IndyMac Bank, F.S.B. and Xxxxxxx Xxxxx Mortgage Company
Exhibit P Master Mortgage Loan Purchase Agreement, dated as of
November 1, 2003, between Countrywide Home Loans, Inc.
and Xxxxxxx Sachs Mortgage Company
Exhibit Q Servicing Agreement, dated as of November 1, 2003,
between Countrywide Home Loans Servicing LP and Xxxxxxx
Sachs Mortgage Company
Exhibit R-1 Authorized Representatives of Countrywide Home Loans
Servicing LP
Exhibit R-2 Authorized Representatives of GreenPoint Mortgage
Funding, Inc.
Exhibit R-3 Authorized Representatives of IndyMac Bank, F.S.B.
THIS MASTER SERVICING AND TRUST AGREEMENT, dated as of September 1,
2004 (this "Agreement"), is hereby executed by and among GS MORTGAGE SECURITIES
CORP., a Delaware corporation (the "Depositor"), DEUTSCHE BANK NATIONAL TRUST
COMPANY, as trustee (in such capacity, the "Trustee") and as a custodian (in
such capacity, a "Custodian"), JPMORGAN CHASE BANK, as a custodian (a
"Custodian") and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as master servicer (in
such capacity, the "Master Servicer") and as securities administrator (in such
capacity, the "Securities Administrator").
W I T N E S S E T H:
- - - - - - - - - -
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Securities Administrator on behalf of the Trust shall elect that
two segregated asset pools within the Trust Fund be treated for federal income
tax purposes as comprising two REMICs (each, a "REMIC" or, in the alternative,
the Lower-Tier REMIC and the Upper-Tier REMIC, respectively). The Class X
Certificates and each Class of Principal Certificates (other than the right of
each Class of Principal Certificates to receive Basis Risk Carry Forward
Amounts), represents ownership of a regular interest in the Upper-Tier REMIC for
purposes of the REMIC Provisions. The Class R Certificates represent ownership
of the sole class of residual interest in each of the Lower-Tier REMIC and the
Upper-Tier REMIC for purposes of the REMIC Provisions. The Startup Day for each
REMIC described herein is the Closing Date. The latest possible maturity date
for each Certificate is the latest date referenced in Section 2.04. The
Upper-Tier REMIC shall hold as assets the several classes of uncertificated
Lower-Tier Regular Interests, set out below. Each such Lower-Tier Regular
Interest is hereby designated as a regular interest in the Lower-Tier REMIC. The
Class LT-A-1, Class LT-A-2, Class LT-A-3A, Class LT-A-3B, Class LT-M-1, Class
LT-M-2, Class LT-B-1 and Class LT-B-2 Interests are hereby designated the
LT-Accretion Directed Classes (the "LT-Accretion Directed Classes"). The Class P
Certificates represent beneficial ownership of the Prepayment Premiums, each
Class of Principal Certificates represents beneficial ownership of a regular
interest in the Upper-Tier REMIC and the right to receive Basis Risk Carry
Forward Amounts and the Class X Certificates represent beneficial ownership of a
regular interest in the Upper-Tier REMIC, the Cap Agreements and the Excess
Reserve Fund Account, which portions of the Trust Fund shall be treated as a
grantor trust.
Lower-Tier Corresponding
Interest Lower-Tier Initial Lower-Tier Upper-Tier
Designation Interest Rate Principal Amount REMIC Class
----------- ------------- ---------------- -----------
Class LT-A-1 (1) 1/2 initial Class Certificate A-1
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-A-2 (1) 1/2 initial Class Certificate A-2
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-AF-3A (1) 1/2 initial Class Certificate A-3A
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-A-3B (1) 1/2 initial Class Certificate A-3B
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-M-1 (1) 1/2 initial Class Certificate M-1
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-M-2 (1) 1/2 initial Class Certificate M-2
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-B-1 (1) 1/2 initial Class Certificate B-1
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-B-2 (1) 1/2 initial Class Certificate B-2
Balance of Corresponding
Upper-Tier REMIC Regular
Interest
Class LT-Group I (2) .001% of the aggregate
Stated Principal Balance of
the Group I Mortgage Loans (5)
Class LT-Group II (3) .001% of the aggregate
Stated Principal Balance of
the Group II Mortgage Loans (5)
Class LT-Group III (4) .001% of the aggregate
Stated Principal Balance of
the Group III Mortgage Loans (5)
Class LT-Accrual (1) 1/2 Pool Stated Principal
Balance plus 1/2
Overcollateralized Amount
less the aggregate
Lower-Tier Principal Amounts
of the Class LT-Group I,
Class LT-Group II and
Class LT-Group III Interests
Class LT-R (6) (6)
----
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the WAC Cap.
(2) The interest rate with respect to any Distribution Date for the Class
LT-Group I Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the Loan Group I Cap.
(3) The interest rate with respect to any Distribution Date for the Class
LT-Group II Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the Loan Group II
Cap.
(4) The interest rate with respect to any Distribution Date for the Class
LT-Group III Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the Loan Group III
Cap.
(5) For all future Distribution Dates, the principal balances of these
Lower-Tier Regular Interests shall be rounded to eight decimal places.
(6) The Class LT-R Interest is the sole Class of residual interest in the
Lower-Tier REMIC and it does not have a principal amount or an interest
rate.
The Lower-Tier REMIC shall hold as assets all of the assets included
in the Trust Fund, other than Prepayment Premiums, the Cap Agreements, the
Excess Reserve Fund Account and the Lower-Tier Regular Interests.
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount will be payable as a reduction of the principal
balances of the LT-Accretion Directed Classes (each such Class will be reduced
by an amount equal to 50% of any increase in the Overcollateralized Amount that
is attributable to a reduction in the Lower-Tier Principal Amount of its
Corresponding Class) and will be accrued and added to the Certificate Balance of
the Class LT-Accrual Interest. On each Distribution Date, the increase in the
Lower-Tier Principal Amount of the Class LT-Accrual Interest may not exceed
interest accruals for such Distribution Date for the Class LT-Accrual Interest.
In the event that: (i) 50% of the increase in the Overcollateralized Amount
exceeds (ii) interest accruals on the Class LT-Accrual Interest for such
Distribution Date, the excess for such Distribution Date (accumulated with all
such excesses for all prior Distribution Dates) will be added to any increase in
the Overcollateralized Amount for purposes of determining the amount of interest
accrual on the Class LT-Accrual Interest payable as principal on the
LT-Accretion Directed Classes on the next Distribution Date pursuant to the
first sentence of this paragraph. All payments of scheduled principal and
prepayments of principal generated by the Mortgage Loans shall be allocated 50%
to (i) the Class LT Accrual Interest, the Class LT Group I Interest, the Class
LT Group II Interest and the Class LT Group III Interest (and further allocated
among these Lower-Tier Regular Interests in the manner described below) and (ii)
50% to the LT-Accretion Directed Classes (principal payments shall be allocated
among such LT-Accretion Directed Classes in an amount equal to 50% of the
principal amounts allocated to their respective Corresponding Classes), until
paid in full. Notwithstanding the above, principal payments allocated to the
Class X Interest that result in the reduction in the Overcollateralized Amount
shall be allocated to the Class LT-Accrual Interest (until paid in full).
Realized Losses shall be applied so that after all distributions have been made
on each Distribution Date (i) the Lower-Tier Principal Amount of each of the
LT-Accretion Directed Classes is equal to 50% of the Certificate Balance of its
Corresponding Class, and (ii) the Class LT-Accrual Interest, the Class LT Group
I Interest, the Class LT Group II Interest and the Class LT Group III Interest
(and further allocated among these Lower-Tier Regular Interests in the manner
described below) is equal to 50% of the aggregate Stated Principal Balance of
the Mortgage Loans plus 50% of the Overcollateralized Amount. As among the Class
LT Accrual Interest, the Class LT Group I Interest, the Class LT Group II
Interest and the Class LT Group III Interest all payments of scheduled principal
and prepayments of principal generated by the Mortgage Loans, and all Realized
Losses allocable to such Lower-Tier Regular Interests shall be allocated (i) to
the Class LT Group I Interest, the Class LT Group II Interest and the Class LT
Group III Interest each from the related Loan Group so that their respective
Lower-Tier Principal Amounts (computed to at least eight decimal places) are
equal to 0.001% of the aggregate Stated Principal Balance of the Mortgage Loans
in the related Loan Group and (ii) the remainder to the Class LT Accrual
Interest.
The Upper-Tier REMIC shall issue the following classes of Upper-Tier
Regular Interests, and each such interest, other than the Class UT-R Interest,
is hereby designated as a regular interest in the Upper-Tier REMIC.
Upper-Tier
Interest Rate Initial Upper-Tier
and Principal Amount
Corresponding and Corresponding Corresponding
Upper-Tier Class Pass-Through Class Certificate Class of
Class Designation Rate Balance Certificates
----------------- ---- ------- ------------
Class A-1 (1) $96,837,000 Class A-1(11)
Class A-2 (2) $139,498,000 Class A-2(11)
Class A-3A (3) $197,534,000 Class A-3A(11)
Class A-3B (4) $7,165,000 Class A-3B(11)
Class M-1 (5) $12,093,000 Class M-1(11)
Class M-2 (6) $9,247,000 Class M-2(11)
Class B-1 (7) $7,351,000 Class B-1
Class B-2 (8) $2,875000 Class B-2
Class X (9) (9) Class X(9)
Class UT-R (10) Class R
(1) The Class A-1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the least of (i) LIBOR plus 0.380%, (ii) the Loan Group
I Cap and (iii) the WAC Cap or (b) after the Optional Termination Date,
the least of (i) LIBOR plus 0.760%, (ii) the Loan Group I Cap and (iii)
the WAC Cap.
(2) The Class A-2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the least of (i) LIBOR plus 0.380%, (ii) the Loan Group
II Cap and (iii) the WAC Cap or (b) after the Optional Termination Date,
the least of (i) LIBOR plus 0.760%, (ii) the Loan Group II Cap and (iii)
the WAC Cap.
(3) The Class A-3A Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the least of (i) LIBOR plus 0.370%, (ii) the Loan Group
III Cap and (iii) the WAC Cap or (b) after the Optional Termination Date,
the least of (i) LIBOR plus 0.740%, (ii) the Loan Group III Cap and (iii)
the WAC Cap.
(4) The Class A-3B Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the least of (i) LIBOR plus 0.450%, (ii) the Loan Group
III Cap and (iii) the WAC Cap or (b) after the Optional Termination Date,
the least of (i) LIBOR plus 0.900%, (ii) the Loan Group III Cap and (iii)
the WAC Cap.
(5) The Class M-1 Interests will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the lesser of (i) LIBOR plus 0.600% and (ii) the WAC Cap
or (b) after the Optional Termination Date, the lesser of (i) LIBOR plus
0.900% and (ii) the WAC Cap.
(6) The Class M-2 Interests will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the lesser of (i) LIBOR plus 1.150% and (ii) the WAC Cap
or (b) after the Optional Termination Date, the lesser of (i) LIBOR plus
1.725% and (ii) the WAC Cap.
(7) The Class B-1 Interests will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the Optional
Termination Date, the lesser of (i) LIBOR plus 1.900% and (ii) the WAC Cap
or (b) after the Optional Termination Date, the lesser of (i) LIBOR plus
2.850% and (ii) the WAC Cap.
(8) The Class B-2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) the lesser of (1) 5.000% and (2)
the WAC Cap or (b) after the Optional Termination Date, the lesser of (1)
5.500% and (2) the WAC Cap.
(9) The Class X Interest has an initial principal balance of $1,660,318, but
it will not accrue interest on such balance but will accrue interest on a
notional principal balance. As of any Distribution Date, the Class X
Interest shall have a notional principal balance equal to the aggregate of
the principal balances of the Lower-Tier Regular Interests as of the first
day of the related Interest Accrual Period. With respect to any Interest
Accrual Period, the Class X Interest shall bear interest at a rate equal
to the excess, if any, of the WAC Cap over the product of (i) 2 and (ii)
the weighted average Pass-Through Rate of the Lower-Tier REMIC Interests,
where the interest rate on each of the Class LT-Accrual Interest, Class LT
Group I, Class LT Group II and Class LT Group III is subject to a cap
equal to zero and each LT-Accretion Directed Class is subject to a cap
equal to the Pass-Through Rate on its Corresponding Class. With respect to
any Distribution Date, interest that so accrues on the notional principal
balance of the Class X Interest shall be deferred in an amount equal to
any increase in the Overcollateralized Amount on such Distribution Date.
Such deferred interest shall not itself bear interest. The Class X
Certificates will represent beneficial ownership of the Class X Interest,
the Cap Agreements and amounts in the Excess Reserve Fund Account, subject
to the obligation to make payments from the Excess Reserve Fund Account in
respect of Basis Risk Carry Forward Amounts. For federal income tax
purposes, the Securities Administrator will treat the Class X
Certificateholders' obligation to make payments from the Excess Reserve
Fund Account as payments made pursuant to an interest rate cap contract
written by the Class X Certificateholders in favor of each Class of
Principal Certificates. Such rights of the Class X Certificateholders and
Principal Certificateholders shall be treated as held in a portion of the
Trust Fund that is treated as a grantor trust under subpart E, Part I of
subchapter J of the Code.
(10) The Class UT-R Interest is the sole class of residual interests in the
Upper-Tier REMIC. The Class UT-R Interest does not have an interest rate.
(11) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper-Tier Regular Interest but also the right to
receive payments from the Excess Reserve Fund Account in respect of any
Basis Risk Carry Forward Amounts. For federal income tax purposes, the
Securities Administrator will treat a Certificateholder's right to receive
payments from the Excess Reserve Fund Account as payments made pursuant to
an interest rate cap contract written by the Class X Certificateholders.
The minimum denomination for each Class of the Principal
Certificates will be $50,000 initial Certificate Balance (except for the Class A
certificates, which will have a minimum denomination of $5,000), with integral
multiples of $1 in excess thereof except that two Certificates in each Class may
be issued in a different amount. The minimum denomination for (a) each of the
Class P and Class R Certificates will represent a 100% Percentage Interest in
such Class and (b) the Class X Certificates will be a 10% Percentage Interest in
such Class.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates......... All Classes of Certificates other than the
Physical Certificates.
Class A Certificates............ The Class A-1, Class A-2, Class A-3A and
Class A-3B Certificates, collectively.
ERISA-Restricted
Certificates................. Physical Certificates and any Certificate
with a rating below the lowest applicable
permitted rating under the Underwriters'
Exemption.
Fixed Rate Certificates......... The Class B-2 Certificates.
LIBOR Certificates.............. The Class A-1, Class X-0, Xxxxx X-0X, Xxxxx
X-0X, Class M-1, Class M-2 and Class B-1
Certificates, collectively.
Offered Certificates............ All Classes of Certificates other than the
Private Certificates.
Physical Certificates........... Class B-2, Class P, Class X and Class R
Certificates.
Principal Certificates.......... Fixed Rate Certificates and LIBOR
Certificates.
Private Certificates............ Class B-2, Class P, Class X and Class R
Certificates.
Rating Agencies................. Moody's and S&P.
Regular Certificates............ All Classes of Certificates other than the
Class R Certificates.
Residual Certificates........... Class R Certificates.
Subordinated Certificates....... Class M-1, Class M-2, Class B-1 and
Class B-2 Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein but not
defined herein shall have the meanings given them in the applicable Servicing
Agreement or Sale Agreement. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
Account: Any of the Distribution Account or the Excess Reserve Fund
Account. Each Account shall be an Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of Principal Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior to
such Distribution Date, as reduced by such Class's share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for the related Due
Period allocated to such Class pursuant to Section 4.02.
Adjusted Net Mortgage Interest Rate: As to each Mortgage Loan and at
any time, the per annum rate equal to the Mortgage Interest Rate less the
Expense Fee Rate.
Advance: Any Monthly Advance or Servicing Advance.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Master Servicing and Trust Agreement and all
amendments or supplements hereto.
Applied Realized Loss Amount: With respect to any Distribution Date,
the amount, if any, by which the aggregate Class Certificate Balance of the
Principal Certificates after distributions of principal on such Distribution
Date exceeds the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form (other than the assignee's
name and recording information not yet returned from the recording office),
reflecting the sale of the Mortgage to the Trustee.
Assignment Agreement: A Step 1 Assignment Agreement or a Step 2
Assignment Agreement.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Master Servicer (x) the sum of
(without duplication) (i) all scheduled installments of interest (net of the
related Expense Fees) and principal due on the Due Date on such Mortgage Loans
in the related Due Period and received on or prior to the related Determination
Date, together with any Monthly Advances in respect thereof; (ii) all
Condemnation Proceeds, Insurance Proceeds and Liquidation Proceeds received
during the related Principal Prepayment Period (in each case, net of
unreimbursed expenses incurred in connection with a liquidation or foreclosure
and unreimbursed Advances, if any); (iii) all Principal Prepayments received
during the related Principal Prepayment Period together with all Compensating
Interest paid in connection therewith; (iv) all amounts received with respect to
such Distribution Date in connection with a purchase or repurchase of a Deleted
Mortgage Loan; (v) all amounts received with respect to such Distribution Date
as a Substitution Adjustment Amount received in connection with the substitution
of a Mortgage Loan; and (vi) all proceeds received with respect to the
termination of the Trust Fund pursuant to clause (a) of Section 11.01; reduced
by (y) all amounts in reimbursement for Monthly Advances and Servicing Advances
previously made with respect to the Mortgage Loans, and other amounts as to
which the Servicers, the Depositor, the Master Servicer, the Securities
Administrator or the Trustee (or co-trustee) are entitled to be paid or
reimbursed pursuant to this Agreement.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Principal Remittance Amount
for such Distribution Date over (ii) the Excess Overcollateralized Amount, if
any, for such Distribution Date.
Basis Risk Cap Agreement: The interest rate cap agreement, dated
September 15, 2004, between the Purchaser and the Cap Provider, and its
successors in interest, for the benefit of the Principal Certificates.
Basis Risk Carry Forward Amount: With respect to each Class of
Principal Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of Principal Certificates
is based upon a Loan Group Cap or the WAC Cap, the excess, if any, of (i) the
amount of interest such Class of Certificates would otherwise be entitled to
receive on such Distribution Date had such Pass-Through Rate not been subject to
such Loan Group Cap or the WAC Cap, over (ii) the amount of interest that Class
of Certificates received on such Distribution Date taking into account such Loan
Group Cap or the WAC Cap and (B) the Basis Risk Carry Forward Amount for such
Class of Certificates for all previous Distribution Dates not previously paid,
together with interest thereon at a rate equal to the applicable Pass-Through
Rate for such Class of Certificates for such Distribution Date, without giving
effect to such Loan Group Cap or the WAC Cap).
Basis Risk Interest Rate Cap Payment: For the first 57 Distribution
Dates, the amount, if any, equal to the product of (a) the excess, if any, of
one-month LIBOR (as determined pursuant to the Basis Risk Cap Agreement) as of
the related reset date over a cap strike rate set forth on the interest rate cap
agreement schedule attached to the Basis Risk Cap Agreement, up to 10.00% per
annum, (b) the interest rate cap notional amount for such date set forth on such
schedule and (c) the actual number of days in the applicable Interest Accrual
Period divided by 360.
Basis Risk Payment: For any Distribution Date, an amount equal to
the lesser of (i) the aggregate of the Basis Risk Carry Forward Amounts for such
Distribution Date and (ii) the Class X Distributable Amount (prior to reduction
for Basis Risk Payments).
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions, in (a) the States of New
York or California, (b) the State in which a Servicer's servicing operations are
located, or (c) the State in which the Trustee's operations are located, are
authorized or obligated by law or executive order to be closed.
Cap Agreements: The Basis Risk Cap Agreement and Class A-1 Cap
Agreement.
Cap Provider: Xxxxxxx Xxxxx Capital Markets LP, a ______ limited
partnership, and its successors in interest.
Certificate: Any one of the Certificates executed by the Securities
Administrator in substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of Principal
Certificates, at any date, the maximum dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
Denomination thereof minus all distributions of principal previously made with
respect thereto and in the case of any Subordinated Certificates, reduced by any
Applied Realized Loss Amounts applicable to such Class of Subordinated
Certificates; provided, however, that immediately following the Distribution
Date on which a Subsequent Recovery is distributed, the Class Certificate
Balances of any Class or Classes of Subordinated Certificates that have been
previously reduced by Applied Realized Loss Amounts will be increased, in order
of seniority, by the amount of the Subsequent Recovery distributed on such
Distribution Date (up to the amount of Applied Realized Loss Amounts allocated
to such Class or Classes). The Class X, Class P and Class R Certificates have no
Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purpose
of giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any affiliate of the Depositor shall be deemed not
to be Outstanding and the Percentage Interest evidenced thereby shall not be
taken into account in determining whether the requisite amount of Percentage
Interests necessary to effect such consent has been obtained; provided, however,
that if any such Person (including the Depositor) owns 100% of the Percentage
Interests evidenced by a Class of Certificates, such Certificates shall be
deemed to be Outstanding for purposes of any provision hereof that requires the
consent of the Holders of Certificates of a particular Class as a condition to
the taking of any action hereunder. The Securities Administrator is entitled to
rely conclusively on a certification of the Depositor or any affiliate of the
Depositor in determining which Certificates are registered in the name of an
affiliate of the Depositor.
Certification: As defined in Section 8.13(b).
Class: All Certificates bearing the same class
designation as set forth in this Agreement.
Class A Certificates: As specified in the Preliminary Statement.
Class A Certificate Group: The Class A-1 Certificates, the Class A-2
Certificates or the Class A-3 Certificate Group, as applicable.
Class A Principal Allocation Percentage: For any Distribution Date,
the percentage equivalent of a fraction, determined as follows: (A) with respect
to the Class A-1 Certificates, a fraction, the numerator of which is the portion
of the Principal Remittance Amount for such Distribution Date that is
attributable to the principal received or advanced on the Group I Mortgage Loans
and the denominator of which is the Principal Remittance Amount for such
Distribution Date; (B) with respect to the Class A-2 Certificates, a fraction,
the numerator of which is the portion of the Principal Remittance Amount for
such Distribution Date that is attributable to the principal received or
advanced on the Group II Mortgage Loans and the denominator of which is the
Principal Remittance Amount for such Distribution Date; and (C) with respect to
the Class A-3 Certificate Group, a fraction, the numerator of which is the
portion of the Principal Remittance Amount for such Distribution Date that is
attributable to the principal received or advanced on the Group III Mortgage
Loans and the denominator of which is the Principal Remittance Amount for such
Distribution Date.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class Certificate Balances of
the Class A Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) 86.00% (rounded to two decimal places) of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class A-1 Cap Agreement: The interest rate cap agreement, dated
September 15, 2004, between the Purchaser and the Cap Provider, and its
successors in interest, for the benefit of the Class A-1 Certificates.
Class A-1 Certificates: All Certificates bearing the class
designation of "Class A-1."
Class A-1 Interest Rate Cap Payment: For the 14 Distribution Dates
beginning on the 26th Distribution Date, the amount, if any, equal to the
product of (a) the excess, if any, of one-month LIBOR (as determined pursuant to
the Class A-1 Cap Agreement) as of the related reset date over a cap strike rate
set forth on the interest rate cap agreement schedule attached to the Class A-1
Cap Agreement, up to 10.00% per annum, (b) the interest rate cap notional amount
for such date set forth on such schedule and (c) the actual number of class in
the applicable Interest Accrual Period divided by 360.
Class A-2 Certificates: All Certificates bearing the class
designation of "Class A-2."
Class A-3A Certificates: All Certificates bearing the class
designation of "Class A-3A."
Class A 3 Certificate Group: The Class A-3A Certificates and the
Class A-3B Certificates, collectively.
Class A-3B Certificates: All Certificates bearing the class
designation of "Class A-3B."
Class B-1 Certificates: All Certificates bearing the class
designation of "Class B-1."
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount for such Distribution Date), and (D) the Class
Certificate Balance of the Class B-1 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) 98.10% (rounded to two decimal
places) of the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class B-2 Certificates: All Certificates bearing the class
designation of "Class B-2."
Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date), and (E) the Class Certificate Balance of the Class B-2 Certificates
immediately prior to that Distribution Date over (ii) the lesser of (A) 99.30%
(rounded to two decimal places) of the aggregate Stated Principal Balances of
the Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class Certificate Balance: With respect to any Class and
as to any date of determination, the aggregate of the Certificate
Balances of all Certificates of such Class as of such date.
Class LT-R Interest: The residual interest in the Lower-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class M-1 Certificates: All Certificates bearing the class
designation of "Class M-1."
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), and (B) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) 91.10%
(rounded to two decimal places) of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date) and (C) the Class Certificate Balance of the
Class M-2 Certificates immediately prior to such Distribution Date over (ii) the
lesser of (A) 95.00% (rounded to two decimal places) of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class P Certificates: All Certificates bearing the class designation
of "Class P."
Class R Certificates: All Certificates bearing the class designation
of "Class R."
Class UT-R Interest: The residual interest in the Upper-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class X Certificates: All Certificates bearing the class designation
of "Class X."
Class X Distributable Amount: On any Distribution Date, (i) as a
distribution in respect of interest, the amount of interest that has accrued on
the Class X Interest and not applied as an Extra Principal Distribution Amount
on such Distribution Date, plus any such accrued interest remaining
undistributed from prior Distribution Dates, plus, without duplication, (ii) as
a distribution in respect of principal, any portion of the principal balance of
the Class X Interest which is distributable as an Overcollateralization
Reduction Amount, minus (iii) any amounts paid as a Basis Risk Payment.
Class X Interest: The Upper-Tier Regular Interest represented by the
Class X Certificates as specified and described in the Preliminary Statement and
the related footnote thereto.
Closing Date: September 23, 2004.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: The "Custodial Account" as defined in the
applicable Servicing Agreement.
Compensating Interest: For any Distribution Date, the lesser of (a)
the Prepayment Interest Shortfall, if any, for the Distribution Date, with
respect to voluntary Principal Prepayments in full or in part by the Mortgagor
(excluding any payments made upon liquidation of the Mortgage Loan), and (b)
one-half of the Servicing Fee payable to the Servicer for such Distribution
Date.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Corporate Trust Office: With respect to the Securities
Administrator, to the principal office of the Securities Administrator at Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate
Trust, GSAA Home Equity Trust 2004-8, or at such other address as the Securities
Administrator may designate from time to time by notice to the
Certificateholders. The designated office of the Trustee in the State of
California at which at any particular time its corporate trust business with
respect to this Agreement is administered, which office at the date of the
execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000-0000, Attn: Trust Administration - GS0408, facsimile number
(000) 000-0000, and its telephone number is (000) 000-0000 and which is the
address to which notices to and correspondence with the Trustee should be
directed.
Corresponding Class: The Class of interests in one Trust REMIC
created under this Agreement that corresponds to the Class of interests in the
other Trust REMIC or to a Class of Certificates in the manner set out below:
Lower-Tier Upper-Tier Corresponding
Class Designation Interest Class of Certificates
----------------- -------- ---------------------
Class LT-A-1 Class A-1 Class A-1
Class LT-A-2 Class A-2 Class A-2
Class LT-A-3A Class A-3A Class A-3A
Class LT-A-3B Class X-0X Xxxxx X-0X
Xxxxx XX-X-0 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-B-1 Class B-1 Class B-1
Class LT-B-2 Class B-2 Class B-2
Countrywide: Countrywide Home Loans, Inc., a New York corporation,
and its successors in interest.
Countrywide Mortgage Loans: The mortgage loans acquired by the
Purchaser from Countrywide pursuant to the Countrywide Sale Agreement.
Countrywide Sale Agreement: The Master Mortgage Loan Purchase
Agreement, dated as of November 1, 2003, between Countrywide and the Purchaser,
attached as Exhibit P hereto.
Countrywide Servicing: Countrywide Home Loans Servicing LP, a Texas
limited partnership, and its successors in interest.
Countrywide Servicing Agreement: The Servicing Agreement, dated as
of November 1, 2003, between Countrywide Servicing and the Purchaser, attached
as Exhibit Q hereto.
Custodial File: With respect to each Mortgage Loan, any Mortgage
Loan Document which is delivered to the applicable Custodian or which at any
time comes into the possession of that Custodian.
Custodian: With respect to the Countrywide Mortgage Loans, JPMorgan,
and with respect to all other Mortgage Loans, the Trustee.
Cut-off Date: September 1, 2004.
Cut-off Date Pool Principal Balance: The aggregate Stated Principal
Balances of all Mortgage Loans as of the Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date (after
giving effect to payments of principal due on that date).
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted Mortgage Loan: A Mortgage Loan which is purchased or
repurchased by any Responsible Party, the Purchaser or the Depositor in
accordance with the terms of any Sale Agreement, any Assignment Agreement or
this Agreement, as applicable, or which is replaced or to be replaced with a
Qualified Substitute Mortgage Loan.
Denomination: With respect to each Certificate, the amount set forth
on the face thereof as the "Initial Certificate Balance of this Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: GS Mortgage Securities Corp., a Delaware corporation, and
its successors in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust company,
including the Trustee and the Securities Administrator, that (a) is incorporated
under the laws of the United States of America or any State thereof, (b) is
subject to supervision and examination by federal or state banking authorities
and (c) has outstanding unsecured commercial paper or other short-term unsecured
debt obligations that are rated P-1 by Moody's and A-1 by Standard & Poor's.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: For each Distribution Date, the
Business Day immediately preceding the Remittance Date.
Distribution Account: The separate Eligible Account created by the
Master Servicer pursuant to Section 3.01(b) in the name of the Securities
Administrator as paying agent for the benefit of the Trustee and the
Certificateholders and designated "Xxxxx Fargo Bank, N.A., as paying agent, in
trust for registered holders of GSAA Home Equity Trust 2004-8, Asset-Backed
Certificates, Series 2004-8." Funds in the Distribution Account shall be held in
trust for the Certificateholders for the uses and purposes set forth in this
Agreement.
Distribution Date: The 25th day of each month or, if such day is not
a Business Day, the immediately succeeding Business Day, commencing in October
2004.
Document Certification and Exception Report: The report attached to
Exhibit F hereto.
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
that Distribution Date occurs and ending on the first day of the calendar month
in which that Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a federal or
state chartered depository institution or trust company the short-term unsecured
debt obligations of which (or, in the case of a depository institution or trust
company that is a subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated "A-1+" by Standard & Poor's, F1
by Fitch and "P-1" by Moody's (or a comparable rating if another Rating Agency
is specified by the Depositor by written notice to the Servicer) at the time any
amounts are held on deposit therein, (ii) a trust account or accounts maintained
with a federal or state chartered depository institution or trust company acting
in its fiduciary capacity or (iii) any other account acceptable to each Rating
Agency. Eligible Accounts may bear interest, and may include, if otherwise
qualified under this definition, accounts maintained with the Securities
Administrator or the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of Prohibited
Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Event of Default: As defined in the applicable Servicing Agreement.
Excess Overcollateralized Amount: With respect to any Distribution
Date, the excess, if any, of (a) the Overcollateralized Amount on such
Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Securities Administrator pursuant to Sections 3.01(a) in
the name of the Securities Administrator as paying agent for the benefit of the
Regular Certificateholders and designated "Xxxxx Fargo Bank, N.A., as paying
agent, in trust for registered holders of GSAA Home Equity Trust 2004-8,
Asset-Backed Certificates, Series 2004-8." Funds in the Excess Reserve Fund
Account shall be held in trust for the Regular Certificateholders for the uses
and purposes set forth in this Agreement. Amounts on deposit in the Excess
Reserve Fund Account shall not be invested.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal
to the sum of the Servicing Fee Rate, the Master Servicer Fee Rate.
Expense Fees: As to each Mortgage Loan, the fees calculated by
reference to the Expense Fee Rate.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for that Distribution
Date and (y) the related Overcollateralization Deficiency for such Distribution
Date.
Xxxxxx Xxx: The Federal National Mortgage Association, and its
successors in interest.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for each Class of Certificates is the Distribution Date occurring in
September 2034.
Fitch: Fitch, Inc.
Fixed Rate Certificates: As specified in the Preliminary Statement.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, and its successors in interest.
GreenPoint: GreenPoint Mortgage Funding, Inc., a New York
corporation, and its successor in interest.
GreenPoint Mortgage Loans: The Mortgage Loans acquired by the
Purchaser from GreenPoint pursuant to the GreenPoint Sale Agreement.
GreenPoint Sale Agreement: The Master Mortgage Loan Purchase
Agreement, dated as of April 1, 2004, as amended by Amendment No. 1 dated as of
April 1, 2004, each between GreenPoint and the Purchaser, attached as Exhibit L
hereto.
GreenPoint Servicing Agreement: The Servicing Agreement, dated as of
April 1, 2004, as amended by Amendment No. 1 dated as of April 1, 2004, each
between GreenPoint and Purchaser, attached as Exhibit M hereto.
Group I Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group I Mortgage Loans.
Group II Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group II Mortgage Loans.
Group III Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group III Mortgage Loans.
IndyMac: IndyMac Bank, F.S.B., a federal saving bank, and its
successor in interest.
IndyMac Mortgage Loans: The Mortgage Loans acquired by the Purchaser
from IndyMac pursuant to the IndyMac Sale Agreement.
IndyMac Sale Agreement: The Master Mortgage Loan Purchase Agreement,
dated as of February 1, 2004, between IndyMac and the Purchaser, attached as
Exhibit N hereto.
IndyMac Servicing Agreement: The Servicing Agreement, dated as of
February 1, 2004, as amended by Amendment No. 1, dated as of June 1, 2004, each
between IndyMac and Purchaser, attached as Exhibit O hereto.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interest Accrual Period: With respect to any Distribution Date, (i)
with respect to the LIBOR Certificates, the period commencing on the immediately
preceding Distribution Date (or commencing on the Closing Date in the case of
the first Distribution Date) and ending on the day immediately preceding the
current Distribution Date, and (ii) with respect to the Fixed Rate Certificates,
the calendar month immediately preceding the month which such Distribution Date
occurs. For purposes of computing interest accruals on each Class of LIBOR
Certificates, each Interest Accrual Period has the actual number of days in such
period and each year is assumed to have 360 days. For purposes of computing
interest accruals on the Fixed Rate Certificates, each Interest Accrual Period
has 30 days in such period and each year is assumed to have 360 days.
Interest Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans in a Loan Group, that portion of Available Funds
attributable to interest relating to the Mortgage Loans in such Loan Group.
Investment Account: As defined in Section 3.02(a).
JPMorgan: JPMorgan Chase Bank, a New York banking corporation, and
its successors in interest.
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Securities Administrator on the related
LIBOR Determination Date on the basis of the offered rate for one-month U.S.
dollar deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m.
(London time) on such date; provided, that if such rate does not appear on
Telerate Page 3750, the rate for such date will be determined on the basis of
the rates at which one-month U.S. dollar deposits are offered by the Reference
Banks at approximately 11:00 a.m. (London time) on such date to prime banks in
the London interbank market. In such event, the Securities Administrator shall
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations are provided, the rate
for that date will be the arithmetic mean of the quotations (rounded upwards if
necessary to the nearest whole multiple of 1/16%). If fewer than two quotations
are provided as requested, the rate for that date will be the arithmetic mean of
the rates quoted by major banks in New York City, selected by the Securities
Administrator (after consultation with the Depositor), at approximately 11:00
a.m. (New York City time) on such date for one-month U.S. dollar deposits of
leading European banks. The establishment of LIBOR by the Securities
Administrator and the Securities Administrator's subsequent calculations based
thereon, in the absence of manifest error, shall be final and binding. Except as
otherwise set forth herein, absent manifest error, the Securities Administrator
may conclusively rely on quotations of LIBOR as such quotations appear on
Telerate Screen Page 3750.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: With respect to any Interest Accrual
Period for the LIBOR Certificates, the second London Business Day preceding the
commencement of such Interest Accrual Period.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in the
Principal Prepayment Period preceding the month of such Distribution Date and as
to which the applicable Servicer has certified that it has received all amounts
it expects to receive in connection with the liquidation of such Mortgage Loan
including the final disposition of an REO Property.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the
sale of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan, including any Subsequent Recoveries.
Loan Group: The Group I Mortgage Loans, the Group II Mortgage Loans
or the Group III Mortgage Loans, as applicable.
Loan Group Cap: The Loan Group I Cap, the Loan Group II Cap or the
Loan Group III Cap, as applicable.
Loan Group I Cap: With respect to the Group I Mortgage Loans as of
any Distribution Date, the product of the weighted average of the Adjusted Net
Mortgage Interest Rates then in effect on the beginning of the related Due
Period on the Group I Mortgage Loans, multiplied by 30 and divided by the actual
number of days in the related Interest Accrual Period.
Loan Group II Cap: With respect to the Group II Mortgage Loans as of
any Distribution Date, the product of the weighted average of the Adjusted Net
Mortgage Interest Rates then in effect on the beginning of the related Due
Period on the Group II Mortgage Loans, multiplied by 30 and divided by the
actual number of days in the related Interest Accrual Period.
Loan Group III Cap: With respect to the Group III Mortgage Loans as
of any Distribution Date, the product of the weighted average of the Adjusted
Net Mortgage Interest Rates then in effect on the beginning of the related Due
Period on the Group III Mortgage Loans, multiplied by 30 and divided by the
actual number of days in the related Interest Accrual Period.
Lower-Tier Principal Amount: As described in the Preliminary
Statement.
Lower-Tier Regular Interest: Each of the Class LT-A-1, Class LT-A-2,
Class LT-A-3A, Class LT-A-3B, Class LT-M-1, Class LT-M-2, Class LT-B-1, Class
LT-B-2 and Class LT-Accrual Interests as described in the Preliminary Statement.
Lower-Tier REMIC: As described in the Preliminary Statement.
Majority Class X Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class X Certificates.
Master Servicer: Xxxxx Fargo, and if a successor master servicer is
appointed hereunder, such successor.
Master Servicer Event of Default: As defined in Section 9.04.
Master Servicing Fee: As to any Distribution Date and each Mortgage
Loan, an amount equal to 1/12th the product of (a) the Master Servicing Fee Rate
and (b) the outstanding Stated Principal Balance of such Mortgage Loan.
Master Servicing Fee Rate: With respect to any Mortgage Loan, a per
annum rate equal to 0.005%.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Advance: As defined in the applicable Servicing Agreement.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.02.
Moody's: Xxxxx'x Investors Service, Inc. If Xxxxx'x is designated as
a Rating Agency in the Preliminary Statement, for purposes of Section 12.05(b)
the address for notices to Moody's shall be Xxxxx'x Investors Service, Inc., 00
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Mortgage
Pass-Through Group, or such other address as Moody's may hereafter furnish to
the Depositor and the Servicer.
Mortgage: The mortgage, deed of trust or other instrument identified
on the Mortgage Loan Schedule as securing a Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to the Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of a
Sale Agreement and a Servicing Agreement, each Mortgage Loan originally sold and
subject to any Sale Agreement being identified on the Mortgage Loan Schedule,
which Mortgage Loan includes without limitation the Mortgage File, the Servicing
File, the Monthly Payments, Principal Prepayments, Prepayment Premiums (other
than with respect to the Countrywide Mortgage Loans), Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition proceeds and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan.
Mortgage Loan Documents: The mortgage loan documents pertaining to
each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Schedule I, such schedule setting forth the following information with
respect to each Mortgage Loan: (1) Responsible Party's Mortgage Loan number; (2)
the address, city, state and zip code of the Mortgaged Property; (3) a code
indicating whether the Mortgagor is self-employed; (4) a code indicating whether
the Mortgaged Property is owner-occupied, investment property or a second home;
(5) a code indicating whether the Mortgaged Property is a single family
residence, two-family residence, three-family residence, four family residence,
condominium, manufactured housing or planned unit development; (6) the purpose
of the Mortgage Loan; (7) the type of Mortgage Loan; (8) the Mortgage Interest
Rate at origination; (9) the current Mortgage Interest Rate; (10) the name of
the applicable Servicer; (11) the applicable Servicing Fee Rate; (12) the
current Monthly Payment; (13) the original term to maturity; (14) the remaining
term to maturity; (15) the principal balance of the Mortgage Loan as of the
Cut-off Date after deduction of payments of principal due on or before the
Cut-off Date whether or not collected; (16) the LTV at origination and if the
Mortgage Loan has a second lien, combined LTV at origination; (17) the actual
principal balance of the Mortgage Loan as of the Cut-off Date; (18) social
security number of the Mortgagor; (19) a code indicating whether the Mortgage
Loan had a second lien at origination; (20) if the Mortgage Loan has a second
lien, combined loan balance as of the Cut-off Date; (21) a code indicating
whether the Mortgaged Property is a leasehold estate; (22) the due date of the
Mortgage Loan; (23) whether the Mortgage Loan is insured by a Primary Mortgage
Insurance Policy and the name of the insurer; (24) the certificate number of the
Primary Mortgage Insurance Policy; (25) the amount of coverage of the Primary
Mortgage Insurance Policy, and if it is a lender-paid Primary Mortgage Insurance
Policy, the premium rate; (26) the type of appraisal; (27) a code indicating
whether the Mortgage Loan is a MERS Mortgage Loan; (28) documentation type
(including asset and income type); (29) first payment date; (30) the schedule of
the payment delinquencies in the prior 12 months; (31) FICO score; (32) the
Mortgagor's name; (33) the stated maturity date; (34) the original principal
amount of the mortgage; (35) the name of the applicable Custodian; (36) whether
such Mortgage Loan provides for a Prepayment Premium; (37) the Prepayment
Premium period of such Mortgage Loan, if applicable; (38) a description of the
Prepayment Premium, if applicable; and (39) Loan Group.
Mortgaged Property. The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the amount
remaining for distribution pursuant to subsection 4.01(a)(iii) (before giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date, the
amount by which the sum of the Prepayment Interest Shortfalls exceeds the sum of
the Compensating Interest payments made on such Distribution Date.
NIM Issuer: The entity established as the issuer of NIM Securities.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class P and Class X Certificates.
NIM Trustee: The trustee for the NIM Securities.
Non-Permitted Transferee: As defined in Section 8.12(e).
Nonrecoverable Monthly Advance: Any Monthly Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property that, in
the good faith business judgment of the Servicer, the Master Servicer or any
successor Master Servicer including the Trustee, as applicable, will not or, in
the case of a proposed Monthly Advance, would not be ultimately recoverable from
related late payments, Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds on such Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in the good faith business judgment of the Servicer, the Master Servicer
or any successor Master Servicer including the Trustee, as applicable, will not
or, in the case of a proposed Servicing Advance, would not, be ultimately
recoverable from related Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 11.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President or
an Assistant Vice President and by the Treasurer or the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of any Servicer or any Responsible
Party, and delivered to the Trustee and the Securities Administrator, as
required by any Servicing Agreement or Sale Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for applicable Servicer, reasonably acceptable to the Trustee
and/or the Securities Administrator, as applicable (and/or such other Persons as
may be set forth herein); provided, that any Opinion of Counsel relating to (a)
qualification of either the Lower-Tier REMIC or Upper-Tier REMIC or (b)
compliance with the REMIC Provisions, must be (unless otherwise stated in such
Opinion of Counsel) an opinion of counsel who (i) is in fact independent of the
applicable Servicer or the Master Servicer of the Mortgage Loans, (ii) does not
have any material direct or indirect financial interest in the applicable
Servicer or the Master Servicer of the Mortgage Loans or in an affiliate of
either and (iii) is not connected with the applicable Servicer or the Master
Servicer of the Mortgage Loans as an officer, employee, director or person
performing similar functions.
Optional Termination Date: The Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans, as of the last day of
the related Due Period, is equal to 10.00% or less of the Cut-off Date Pool
Principal Balance.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Securities
Administrator or delivered to the Securities Administrator for
cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Securities
Administrator pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Amount: As of any Distribution Date, the excess,
if any, of (a) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over (b) the aggregate of the Class Certificate Balances
of the Principal Certificates as of such Distribution Date (after giving effect
to the payment of the Principal Remittance Amount on such Certificates on that
Distribution Date).
Overcollateralization Deficiency: With respect to any Distribution
Date, the excess, if any, of (a) the Specified Overcollateralized Amount
applicable to such Distribution Date over (b) the Overcollateralized Amount
applicable to such Distribution Date.
Overcollateralization Reduction Amount: With respect to any
Distribution Date, an amount equal to the lesser of (a) the Excess
Overcollateralized Amount and (b) the Net Monthly Excess Cash Flow.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
Pass-Through Margin: With respect to each Class of Offered
Certificates, the following percentages: Class A-1 Certificates, 0.38%; Class
A-2 Certificates, 0.380%; Class A-3A Certificates, 0.370%; Class A-3B
Certificates, 0.450%; Class M-1 Certificates, 0.600%; Class M-2 Certificates,
1.150%; Class B-1 Certificates, 1.900%; provided, however, that on the first
Distribution Date after the Optional Termination Date, the Pass Through Margins
shall increase to: Class A-1 Certificates, 0.760%; Class A-2 Certificates,
0.760%; Class A-3A Certificates, 0.740%; Class A-3B Certificates, 0.900%; Class
M-1 Certificates, 0.900%; Class M-2 Certificates, 1.725%; Class B-1
Certificates, 2.850%.
Pass-Through Rate: For each Class of Certificates and each
Lower-Tier Regular Interest, the per annum rate set forth or calculated in the
manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
such percentage interest being set forth on the face thereof or equal to the
percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Permitted Investments: Any one or more of the following obligations
or securities acquired at a purchase price of not greater than par, regardless
of whether issued by the Servicer, the Trustee or any of their respective
Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars and
issued by any Depository Institution and rated F1+ by Fitch, P-1 by
Moody's and A-1+ by S&P;
(iii) repurchase obligations with respect to any security described
in clause (i) above entered into with a Depository Institution (acting as
principal);
(iv) securities bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the United States
of America or any state thereof and that are rated by each Rating Agency
that rates such securities in its highest long-term unsecured rating
categories at the time of such investment or contractual commitment
providing for such investment;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 30 days after the date of acquisition
thereof) that is rated by each Rating Agency that rates such securities in
its highest short-term unsecured debt rating available at the time of such
investment;
(vi) units of money market funds, including money market funds
advised by the Depositor or the Trustee or an Affiliate thereof, that have
been rated "Aaa" by Moody's, "AAAm" or "AAAm-G" by Standard & Poor's and,
if rated by Fitch, at least "AA" by Fitch; and
(vii) if previously confirmed in writing to the Securities
Administrator, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to the
Rating Agencies as a permitted investment of funds backing "Aaa" or "AAA"
rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a U.S.
Person or a U.S. Person with respect to whom income from a Residual Certificate
is attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of such Person or any other U.S.
Person, (vi) an "electing large partnership" within the meaning of Section 775
of the Code and (vii) any other Person so designated by the Depositor based upon
an Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to such Person may cause either the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time that the Certificates
are outstanding. The terms "United States," "State" and "international
organization" shall have the meanings set forth in Section 7701 of the Code or
successor provisions. A corporation will not be treated as an instrumentality of
the United States or of any State or political subdivision thereof for these
purposes if all of its activities are subject to tax and, with the exception of
the Xxxxxxx Mac, a majority of its board of directors is not selected by such
government unit.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans for such
Distribution Date that were Outstanding Mortgage Loans on the Due Date in the
related Due Period.
Prepayment Interest Shortfall: With respect to any Remittance Date,
the sum of, for each Mortgage Loan that was during the related Principal
Prepayment Period the subject of a Principal Prepayment that was applied by the
Servicer to reduce the outstanding principal balance of such Mortgage Loan on a
date preceding the Due Date in the succeeding Principal Prepayment Period, an
amount equal to the product of (a) the Mortgage Interest Rate net of the
applicable Servicing Fee Rate for such Mortgage Loan, (b) the amount of the
Principal Prepayment for such Mortgage Loan, (c) 1/360 and (d) the number of
days commencing on the date on which such Principal Prepayment was applied and
ending on the last day of the related Principal Prepayment Period.
Prepayment Premium: With respect to any Mortgage Loan other than a
Countrywide Mortgage Loan, any prepayment premium, penalty or charge collected
by the applicable Servicer with respect to such Mortgage Loan from the related
Mortgagor in connection with any voluntary Principal Prepayment in Full pursuant
to the terms of the related Mortgage Note.
Principal Certificates: As specified in the Preliminary Statement.
Principal Distribution Amount: For any Distribution Date, the sum of
(i) the Basic Principal Distribution Amount for such Distribution Date and (ii)
the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other recovery
of principal on a Mortgage Loan (including upon liquidation of a Mortgage Loan)
which is received in advance of its scheduled Due Date, and which is not
accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Prepayment Period: With respect to any Distribution Date,
the calendar month preceding the month in which that Distribution Date occurs.
Principal Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans, the amount equal to the sum of the following amounts
(without duplication): (i) all scheduled payments of principal due on the Due
Date on such Mortgage Loans in the related Due Period and received on or prior
to the related Determination Date, together with any Monthly Advances in respect
thereof; (ii) all Condemnation Proceeds, Insurance Proceeds and Liquidation
Proceeds allocable to principal and received during the related Principal
Prepayment Period; (iii) all Principal Prepayments allocable to principal and
received during the related Principal Prepayment Period; (iv) all amounts
received with respect to such Distribution Date representing the portion of the
purchase price allocable to principal in connection with a purchase or
repurchase of a Deleted Mortgage Loan; (v) principal portion of all amounts
received with respect to such Distribution Date as a Substitution Adjustment
Amount and received in connection with the substitution of a Mortgage Loan and
(vi) the allocable portion of the proceeds received with respect to the
termination of the Trust Fund pursuant to clause (a) of Section 11.01 (to the
extent such proceeds relate to principal).
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated September
21, 2004, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchaser: Xxxxxxx Sachs Mortgage Company, a New York limited
partnership, and its successors in interest.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Securities Administrator. References herein to a given rating or rating category
of a Rating Agency shall mean such rating category without giving effect to any
modifiers. For purposes of Section 12.05(b), the addresses for notices to each
Rating Agency shall be the address specified therefor in the definition
corresponding to the name of such Rating Agency, or such other address as either
such Rating Agency may hereafter furnish to the Depositor and the Servicer.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid principal
balance of such Liquidated Mortgage Loan together with accrued and unpaid
interest thereon exceeds (b) the Liquidation Proceeds with respect thereto net
of the expenses incurred by the Servicer in connection with the liquidation of
such Liquidated Mortgage Loan and net of any amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the related Interest Accrual Period;
provided, however, that for any Definitive Certificate issued pursuant to
Section 5.02(e), the Record Date shall be the close of business on the last
Business Day of the month immediately preceding the month in which the related
Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
Relief Act Interest Shortfall: With respect to any Distribution Date
and any Mortgage Loan, any reduction in the amount of interest collectible on
such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers' Civil Relief Act of 1940 or any similar state
statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance Advice Date: The 5th, 10th and 10th day of each calendar
month, respectively, with respect to GreenPoint, IndyMac and Countrywide,
respectively, or the immediately following Business Day if such day is not a
Business Day.
Remittance Date: With respect to any Distribution Date, the 18th day
(or if such 18th day is not a Business Day, the first Business Day immediately
preceding such 18th day) of the month in which such Distribution Date occurs.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee
(including in its capacity as the Custodian), the Securities Administrator or
the Master Servicer, any vice president, any assistant vice president, any
assistant secretary, any assistant treasurer, any associate or any other officer
of the Trustee, the Securities Administrator or the Master Servicer, customarily
performing functions similar to those performed by any of the above designated
officers who at such time shall be officers to whom, with respect to a
particular matter, such matter is referred because of such officer's knowledge
of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement.
Responsible Party: Each of GreenPoint, IndyMac and Countrywide, as
the context may require, in its capacity as seller under the related Sale
Agreement.
Rule 144A Letter: As defined in Section 5.02(b).
Sale Agreement: Each of the GreenPoint Sale Agreement, IndyMac Sale
Agreement and Countrywide Sale Agreement,.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: Xxxxx Fargo, and if a successor securities
administrator is appointed hereunder, such successor.
Securities Administrator Float Period: With respect to the
Distribution Date and the related amounts in the Distribution Account, the
period commencing on the Remittance Date immediately preceding such Distribution
Date and ending on such Distribution Date.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balances of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans as of the
first day of the month in which such Distribution Date occurs.
Senior Specified Enhancement Percentage: As of any date of
determination, 14.00%.
Servicer: Each of GreenPoint, IndyMac and Countrywide Servicing in
its capacity as servicer under the related Servicing Agreement, or any successor
servicer appointed pursuant to such Servicing Agreement.
Servicing Advances: As defined in the Servicing Agreement.
Servicing Agreement: Each of the GreenPoint Servicing Agreement, the
IndyMac Servicing Agreement and the Countrywide Servicing Agreement.
Servicing Fee: As defined in the related Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, a per annum
rate equal to 0.250%, 0.375% or 0.750%, as applicable.
Servicing File: As defined in the applicable Servicing Agreement.
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect to
which any portion of a Monthly Payment is, as of the last day of the prior Due
Period, two months or more past due (without giving effect to any grace period),
each Mortgage Loan in foreclosure, all REO Property and each Mortgage Loan for
which the Mortgagor has filed for bankruptcy.
Specified Overcollateralized Amount: An amount equal to 0.35% of the
Cut-off Date Pool Principal Balance.
Standard & Poor's or S&P: Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc. If Standard & Poor's is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
12.05(b) the address for notices to Standard & Poor's shall be Standard &
Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential
Mortgage Surveillance Group - GSAA Home Equity Trust 2004-8, or such other
address as Standard & Poor's may hereafter furnish to the Depositor and the
Servicer.
Startup Day: The Closing Date.
Stated Principal Balance: As to each Mortgage Loan and as of any
Determination Date, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date, minus (ii) all amounts previously remitted to the Securities Administrator
with respect to the related Mortgage Loan representing payments or recoveries of
principal including advances in respect of scheduled payments of principal. For
purposes of any Distribution Date, the Stated Principal Balance of any Mortgage
Loan will give effect to any scheduled payments of principal received or
advanced prior to the related Remittance Date and any unscheduled principal
payments and other unscheduled principal collections received during the related
Principal Prepayment Period.
Step 1 Assignment Agreement: Each of the (i) Assignment, Assumption
and Recognition Agreement, dated as of September 1, 2004, between the Purchaser,
GreenPoint and the Depositor, (ii) Assignment, Assumption and Recognition
Agreement, dated as of September 1, 2004, between the Purchaser, IndyMac and the
Depositor and (iii) Assignment, Assumption and Recognition Agreement, dated as
of September 1, 2004, between the Purchaser, Countrywide, Countrywide Servicing
and the Depositor.
Step 2 Assignment Agreement: Each of the (i) Assignment, Assumption
and Recognition Agreement, dated as of September 1, 2004, among the Depositor,
the Master Servicer, the Trustee and GreenPoint, (ii) Assignment, Assumption and
Recognition Agreement, dated as of September 1, 2004, among the Depositor, the
Master Servicer, the Trustee and IndyMac and (iii) Assignment, Assumption and
Recognition Agreement, dated as of September 1, 2004, among the Depositor, the
Master Servicer, the Trustee and Countrywide Servicing and Countrywide.
Stepdown Date: The earlier to occur of (a) the date on which the
Class Certificate Balances of the Class A Certificates have been reduced to
zero, and (b) the later to occur of (i) the Distribution Date in October 2007,
and (ii) the first Distribution Date on which the Senior Enhancement Percentage
is greater than or equal to the Senior Specified Enhancement Percentage.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subsequent Recoveries: Amount received with respect to any
Liquidated Mortgage Loan after it has become a Liquidated Mortgage Loan.
Substitution Adjustment Amount: An amount of cash received from the
applicable Responsible Party in connection with a substitution for a Deleted
Mortgage Loan.
Telerate Page 3750: The display page currently so designated on the
Bridge Telerate Service (or such other page as may replace that page on that
service for displaying comparable rates or prices).
Termination Price: As defined in Section 11.01.
Total Monthly Excess Spread: As to any Distribution Date, an amount
equal to the excess if any, of (i) the interest collected (prior to the
Remittance Date) or advanced on the Mortgage Loans for Due Dates during the
related Due Period (net of Expense Fees) over (ii) the sum of the interest
payable to the Principal Certificates on such Distribution Date pursuant to
Section 4.01(a)(i).
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a Trigger
Event exists if (i) on such Distribution Date the quotient (expressed as a
percentage) of (x) the rolling three month average of the aggregate unpaid
principal balances of 60+ Day Delinquent Mortgage Loans, and (y) the unpaid
principal balance of the Mortgage Loans equals or exceeds 40% of the prior
period's Senior Enhancement Percentage or (ii) the quotient (expressed as a
percentage) of (x) the aggregate amount of Realized Losses incurred since the
Cut-off Date through the last day of the related Principal Prepayment Period and
(y) the Cut-off Date Pool Principal Balance exceeds the applicable percentages
set forth below with respect to such Distribution Date:
Distribution Date Occurring In Loss Percentage
------------------------------ ---------------
October 2007 - September 2008 1.000% for the first month, plus an
additional 1/12th of 0.250% for
each month thereafter
October 2008 - September 2009 1.250% for the first month, plus an
additional 1/12th of 0.500% for
each month thereafter
October 2009 - September 2010 1.750% for the first month plus an
additional 1/12th of 0.250% for
each month thereafter
October 2010 and thereafter 2.000%
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting of
(i) the Mortgage Loans and all interest and principal received on or with
respect thereto after the related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or before the related Cut-off Date; (ii) the
Excess Reserve Fund Account, the Distribution Account, and all amounts deposited
therein pursuant to the applicable provisions of this Agreement; (iii) property
that secured a Mortgage Loan and has been acquired by foreclosure, deed-in-lieu
of foreclosure or otherwise; (iv) the rights of the Trust under the Step 2
Assignment Agreements; (v) the Cap Agreements and (vi) all proceeds of the
conversion, voluntary or involuntary, of any of the foregoing.
Trust REMIC: Either the Lower-Tier REMIC or the Upper-Tier REMIC, as
applicable.
Trustee: Deutsche Bank National Trust Company, a national banking
association, and its successors in interest, and, if a successor trustee is
appointed hereunder, such successor.
Underwriters' Exemption: Any exemption listed in footnote 1 of, and
amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002),
or any successor exemption.
Unpaid Interest Amount: As of any Distribution Date and any Class of
Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from Distribution Dates remaining unpaid prior to the
current Distribution Date and (b) interest on the amount in clause (a) at the
applicable Pass-Through Rate (to the extent permitted by applicable law).
U.S. Person: (i) A citizen or resident of the United States; (ii) a
corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of any
state thereof, including, for this purpose, the District of Columbia; (iii) a
partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any State
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control all substantial decisions of the
trust. Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
Upper-Tier Regular Interest: As described in the Preliminary
Statement.
Upper-Tier REMIC: As described in the Preliminary Statement.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any, and (c) the remaining Voting Rights shall be allocated
among Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
WAC Cap: With respect to the Mortgage Loans as of any Distribution
Date, a per annum rate equal to (a) the weighted average of the Adjusted Net
Mortgage Interest Rates then in effect on the beginning of the related Due
Period on the Mortgage Loans, multiplied by, in the case of the LIBOR
Certificates, (b) 30 divided by the actual number of days in the related
Interest Accrual Period.
Xxxxx Fargo: Xxxxx Fargo Bank, N.A., a national banking
association, and its successors in interest.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered or caused to be delivered to each Custodian on
behalf of the Trustee for the benefit of the Certificateholders the following
documents or instruments with respect to each applicable Mortgage Loan so
assigned:
(i) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(ii)The original Assignment of Mortgage in blank, unless the
Mortgage Loan is a MERS Mortgage Loan;
(iii) personal endorsement and/or guaranty agreements executed in
connection with all non individual Mortgage Loans (corporations,
partnerships, trusts, estates, etc. (if any);
(iv)the related original Mortgage and evidence of its recording or,
in certain limited circumstances, a certified copy of the mortgage with
evidence of recording;
(v) originals of any intervening Mortgage assignment or certified
copies in either case evidencing recording; provided that the assignment
may be in the form of a blanket assignment or assignments, a copy of which
with evidence of recording shall be acceptable;
(vi) originals of all assumption, modification, agreements or
certified copies thereof, in either case with evidence of recording if
required to maintain the lien of the mortgage or if otherwise required,
or, if recordation is not required, an original or copy of the agreement;
(vii) except with respect to the Countrywide Mortgage Loans, an
original or copy of a title insurance policy or evidence of title;
(viii) to the extent applicable, an original power of attorney;
(ix) for each GreenPoint Mortgage Loan and IndyMac Mortgage Loan
with respect to which the Mortgagor's name as it appears on the note does
not match the borrower's name on the mortgage loan schedule, one of the
following: the original of the assumption agreement, or a certified copy
thereof, in either case with evidence of recording thereon if required to
maintain the lien of the mortgage or if otherwise required, or, if
recordation is not so required, an original or copy of such assumption
agreement; and
(x) except with respect to Countrywide Mortgage Loans, a security
agreement, chattel mortgage or equivalent document executed in connection
with the Mortgage, if any.
The Depositor shall deliver to each Custodian the applicable
recorded document promptly upon receipt from the respective recording office but
in no event later than 120 days from the Closing Date.
From time to time, pursuant to the applicable Sale Agreement, the
Responsible Party may forward to the applicable Custodian additional original
documents, additional documents evidencing an assumption, modification,
consolidation or extension of a Mortgage Loan, in accordance with the terms of
the applicable Sale Agreement. All such mortgage documents held by the
Custodians as to each Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall deliver to the
Custodians Assignments of Mortgages (except in the case of MERS Loans), in
blank, for each applicable Mortgage Loan. On the Closing Date, the Trustee shall
provide a written request to each Responsible Party to submit the Assignments of
Mortgage for recordation, at the Responsible Party's expense, pursuant to the
applicable Sale Agreement. Each Custodian shall deliver the Assignment of
Mortgages to be submitted for recordation to the applicable Responsible Party.
In the event that such original or copy of any document submitted
for recordation to the appropriate public recording office is not so delivered
to the Custodian within the time period and in the manner specified in the
applicable Sale Agreement, the Trustee shall take or cause to be taken such
remedial actions under the Sale Agreement against the applicable Responsible
Party as may be permitted to be taken thereunder, including without limitation,
if applicable, the repurchase by the applicable Responsible Party of such
Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that
the Responsible Party cannot deliver such original or copy of any document
submitted for recordation to the appropriate public recording office within the
specified period due to a delay caused by the recording office in the applicable
jurisdiction; provided, that the applicable Responsible Party shall instead
deliver a recording receipt of such recording office or, if such recording
receipt is not available, an officer's certificate of an officer of the
applicable Responsible Party, confirming that such document has been accepted
for recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses the
original Mortgage or assignment after it has been recorded, the obligations of
the Responsible Party shall be deemed to have been satisfied upon delivery by
the Responsible Party to the applicable Custodian prior to the Closing Date of a
copy of such Mortgage or assignment, as the case may be, certified (such
certification to be an original thereof) by the public recording office to be a
true and complete copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "GSAA Home Equity Trust
2004-8" and Deutsche Bank National Trust Company is hereby appointed as Trustee
in accordance with the provisions of this Agreement.
(d) It is the policy and intention of the Trust that none of the
Mortgage Loans included in the Trust is (a) covered by the Home Ownership and
Equity Protection Act of 1994, or (b) considered a "high cost home,"
"threshold," "predatory" or "covered" loan (excluding "covered home loans" as
such term was defined under clause (1) of the definition of "covered home loans"
in the New Jersey Home Ownership Security Act of 2002 that were originated
between November 23, 2003 and July 6, 2004) under applicable state, federal or
local laws.
Section 2.02 Acceptance by the Custodians of the Mortgage Loans.
Each Custodian acknowledges receipt of the documents identified in the Initial
Certification in the form annexed hereto as Exhibit E, and declares that it
holds and will hold such documents and the other documents delivered to it
pursuant to Section 2.01, and that it holds or will hold such other assets as
are included in the Trust Fund, in trust for the exclusive use and benefit of
all present and future Certificateholders. Deutsche Bank National Trust Company,
as Custodian, acknowledges that it will maintain possession of the related
Mortgage Notes in the State of California and JPMorgan, as Custodian,
acknowledges that it will maintain possession of the related Mortgage Notes in
the State of Texas, unless otherwise permitted by the Rating Agencies.
Prior to and as a condition to the Closing, each Custodian shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor an Initial Certification prior to the Closing Date, or as the
Depositor agrees to, on the Closing Date, certifying receipt of a Mortgage Note
and Assignment of Mortgage for each Mortgage Loan. Neither Custodian shall be
responsible to verify the validity, sufficiency or genuineness of any document
in any Custodial File.
On the Closing Date, each Custodian shall ascertain that all
documents required to be delivered to it are in its possession and shall deliver
to the Depositor an Initial Certification, in the form annexed hereto as Exhibit
E, and shall deliver to the Depositor a Document Certification and Exception
Report, in the form annexed hereto as Exhibit F, within 90 days after the
Closing Date to the effect that, as to each applicable Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in such certification as an exception and
not covered by such certification): (i) all documents required to be delivered
to it are in its possession; (ii) such documents have been reviewed by it and
appear regular on their face and relate to such Mortgage Loan; (iii) based on
its examination and only as to the foregoing documents, the information set
forth in items 2, 8, 35, and 36 of the Mortgage Loan Schedule respecting such
Mortgage Loan is correct; and (iv) each Mortgage Note has been endorsed as
provided in Section 2.01 of this Agreement. Neither Custodian shall be
responsible to verify the validity, sufficiency or genuineness of any document
in any Custodial File.
Each Custodian shall retain possession and custody of each
applicable Custodial File in accordance with and subject to the terms and
conditions set forth herein. The Servicer shall promptly deliver to the
applicable Custodian, upon the execution or receipt thereof, the originals of
such other documents or instruments constituting the Custodial File as come into
the possession of the Servicer from time to time.
Each Custodian shall notify the Trustee of any Mortgage Loans that
do not conform to such requirements of Sections 2.01 and 2.02 hereof. The
Trustee shall enforce the obligation of the Responsible Parties to cure or
repurchase Mortgage Loans that do not conform to such requirements as determined
in the Custodian's review as required herein, or based upon notification from
JPMorgan, by notifying the applicable Responsible Party to correct or cure such
default. The Trustee shall also enforce the obligation of the Responsible
Parties under the Sale Agreements, and the Servicing Agreements and of the
Purchaser under the GSMC Assignment Agreements to cure or repurchase Mortgage
Loans for which there is a defect or a breach of a representation or warranty
thereunder of which a Responsible Officer of the Trustee has actual knowledge,
by notifying the applicable party to correct or cure such default. If any
Servicer, any Responsible Party or the Purchaser, as the case may be, fails or
is unable to correct or cure the defect or breach within the period set forth in
the applicable agreement, the Trustee shall notify the Depositor of such failure
to correct or cure. Unless otherwise directed by the Depositor within five (5)
Business Days after notifying the Depositor of such failure by the applicable
party to correct or cure, the Trustee shall notify such party to repurchase the
Mortgage Loan. If, within ten (10) Business Days of receipt of such notice by
such party, such party fails to repurchase such Mortgage Loan, the Trustee shall
notify the Depositor of such failure. The Trustee shall pursue all legal
remedies available to the Trustee against the Servicers, the Responsible Parties
and the Purchaser, as applicable, under this Agreement, if the Trustee has
received written notice from the Depositor directing the Trustee to pursue such
remedies.
Section 2.03 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, the Securities Administrator has
executed and delivered to or upon the order of the Depositor, the Certificates
in authorized denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and future
Holders of the Certificates.
Section 2.04 REMIC Matters. The Preliminary Statement sets forth the
designations for federal income tax purposes of all interests created hereby.
The "Startup Day" for purposes of the REMIC Provisions shall be the Closing
Date. The "latest possible maturity date" is September 25, 2034, which is the
Distribution Date following the latest Mortgage Loan maturity date.
Section 2.05 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Trustee that as of
the date of this Agreement or as of such date specifically provided herein:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to convey
the Mortgage Loans and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite corporate action having been
taken, and, assuming the due authorization, execution and delivery hereof by the
other parties hereto, constitutes or will constitute the legal, valid and
binding agreement of the Depositor, enforceable against the Depositor in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(d) No consent, approval, authorization or order of or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been made on or prior to the
Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of trust, contract
or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound; (ii)
results or will result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Depositor of any court or governmental
authority having jurisdiction over the Depositor or its subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or encumbrance which
would have a material adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or against or
investigations of, the Depositor pending, or to the knowledge of the Depositor,
threatened, before any court, administrative agency or other tribunal, and no
notice of any such action, which, in the Depositor's reasonable judgment, might
materially and adversely affect the performance by the Depositor of its
obligations under this Agreement, or the validity or enforceability of this
Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder;
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of the Mortgage Note and the Mortgage
as and in the manner contemplated by this Agreement is sufficient either (i)
fully to transfer to the Trustee, for the benefit of the Certificateholders, all
right, title, and interest of the Depositor thereto as note holder and mortgagee
or (ii) to grant to the Trustee, for the benefit of the Certificateholders, the
security interest referred to in Section 12.04 hereof; and
It is understood and agreed that the representations, warranties and
covenants set forth in this Section 2.05 shall survive delivery of the
respective Custodial Files to the Custodians, and shall inure to the benefit and
to Certificateholders.
Section 2.06 Representations and Warranties of JPMorgan. JPMorgan
hereby represents and warrants to the Depositor, the Master Servicer and the
Trustee, as of the Closing Date:
(a) Such Custodian is duly organized and is validly existing and in
good standing under the laws of its jurisdiction of incorporation and is duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by such Custodian in any state in which a Mortgaged
Property is located or is otherwise not required under applicable law to effect
such qualification and, in any event, is in compliance with the doing business
laws of any such state, to the extent necessary to perform any of its
obligations under this Agreement in accordance with the terms thereof.
(b) Such Custodian has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary action
on the part of such Custodian the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of such Custodian, enforceable against such Custodian in
accordance with its terms, except that (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) The execution and delivery of this Agreement by such Custodian,
the consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms thereof are in
the ordinary course of business of such Custodian and will not (i) result in a
material breach of any term or provision of the articles of incorporation or by
laws of such Custodian, (ii) materially conflict with, result in a material
breach, violation or acceleration of, or result in a material default under, the
terms of any other material agreement or instrument to which such Custodian is a
party or by which it may be bound, or (iii) constitute a material violation of
any statute, order or regulation applicable to such Custodian of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over such Custodian; and such Custodian is not in breach or violation of any
material indenture or other material agreement or instrument, or in violation of
any statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair such Custodian's ability to perform or meet any
of its obligations under this Agreement.
(d) No litigation is pending or threatened against such Custodian
that would materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of such Custodian to perform any
of its obligations under this Agreement in accordance with the terms thereof.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by such Custodian of, or compliance by such Custodian with, this
Agreement or the consummation of the transactions contemplated thereby, or if
any such consent, approval, authorization or order is required, such Custodian
has obtained the same.
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Excess Reserve Fund Account; Distribution Account. (a)
The Securities Administrator shall establish and maintain the Excess Reserve
Fund Account, on behalf of the Class X Certificateholders, to receive any Basis
Risk Payment and to pay to the Principal Certificateholders any Basis Risk Carry
Forward Amounts. On each Distribution Date, the Securities Administrator shall
deposit the amount of any Basis Risk Payment for such date into the Excess
Reserve Fund Account.
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class or Classes of Principal Certificates, the Securities
Administrator shall (1) withdraw from the Distribution Account and deposit in
the Excess Reserve Fund Account, as set forth in Section 4.01(a)(iii)(E), the
lesser of (x) the Class X Distributable Amount (without regard to the reduction
in clause (iii) of the definition thereof with respect to Basis Risk Payments)
(to the extent remaining after the distributions specified in Sections
4.01(a)(iii)(A)-(D)) and (y) the aggregate Basis Risk Carry Forward Amounts of
the Principal Certificates for such Distribution Date and (2) withdraw from the
Excess Reserve Fund Account amounts necessary to pay to such Class or Classes of
Certificates the related Basis Risk Carry Forward Amount. Such payments shall be
allocated to those Classes based upon the amount of Basis Risk Carry Forward
Amount owed to each such Class and shall be paid in the priority set forth in
Sections 4.01(a)(iii)(F)-(H).
The Securities Administrator shall account for the Excess Reserve
Fund Account as an asset of grantor trust under subpart E, Part I of subchapter
J of the Code and not as an asset of either Trust REMIC created pursuant to this
Agreement. The beneficial owners of the Excess Reserve Fund Account are the
Class X Certificateholders. For all federal income tax purposes, amounts
transferred by the Upper-Tier REMIC to the Excess Reserve Fund Account shall be
treated as distributions by the Securities Administrator to the Class X
Certificateholders.
Any Basis Risk Carry Forward Amounts distributed by the Securities
Administrator to the Principal Certificateholders shall be accounted for by the
Securities Administrator, for federal income tax purposes, as amounts paid first
to the Holders of the Class X Certificates (in respect of the Class X Interest)
and then to the respective Class or Classes of Principal Certificates. In
addition, the Securities Administrator shall account for the Principal
Certificateholders' rights to receive payments of Basis Risk Carry Forward
Amounts as rights in a limited recourse interest rate cap contract written by
the Class X Certificateholders in favor of the Holders of each such Class.
Notwithstanding any provision contained in this Agreement, the
Securities Administrator shall not be required to make any distributions from
the Excess Reserve Fund Account except as expressly set forth in this Section
3.01(a).
(b)The Master Servicer shall establish and maintain the Distribution
Account on behalf of the Certificateholders. The Master Servicer shall, promptly
upon receipt on the Business Day received, deposit in the Distribution Account
and retain therein the following:
(i) the aggregate amount remitted by the Servicers to the Master
Servicer pursuant to the Servicing Agreements; and
(ii) any other amounts deposited hereunder which are required to be
deposited in the Distribution Account.
In the event that any Servicer shall remit any amount not required
to be remitted pursuant to the applicable Servicing Agreement, and such Servicer
directs the Master Servicer in writing to withdraw such amount from the
Distribution Account, the Master Servicer shall return such funds to the
applicable Servicer. All funds deposited in the Distribution Account shall be
held by the Securities Administrator in trust for the Certificateholders until
disbursed in accordance with this Agreement or withdrawn in accordance with
Section 4.01.
Section 3.02 Investment of Funds in the Distribution Account. (a)
The Securities Administrator may (but shall not be obligated to) invest funds in
the Distribution Account during the Securities Administrator Float Period (for
purposes of this Section 3.02, such Account is referred to as an "Investment
Account"), in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, or maturing on such
Distribution Date, in the case of an investment that is an obligation of Xxxxx
Fargo Bank, N.A., no later than the Business Day immediately preceding the date
on which such funds are required to be withdrawn from such account pursuant to
this Agreement. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Securities Administrator. The Securities Administrator
shall be entitled to sole possession over each such investment, and any
certificate or other instrument evidencing any such investment shall be
delivered directly to the Securities Administrator or its agent, together with
any document of transfer necessary to transfer title to such investment to the
Securities Administrator. In the event amounts on deposit in an Investment
Account are at any time invested in a Permitted Investment payable on demand,
the Securities Administrator may:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Securities Administrator
during the Securities Administrator Float Period shall be subject to the
Securities Administrator's withdrawal in the manner set forth in Section 10.05.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Securities Administrator shall take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings. Notwithstanding the foregoing, the
Securities Administrator shall be liable to the Trust for any such loss on any
funds it has invested under this Section 3.02 only during the Securities
Administrator Float Period, and the Securities Administrator shall deposit funds
in the amount of such loss in the Distribution Account promptly after such loss
is incurred.
(d) The Securities Administrator or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the Securities
Administrator's economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to effect
transactions in certain Permitted Investments and (iii) effecting transactions
in certain Permitted Investments. Such compensation is not payable or
reimbursable under Section 8.06 of this Agreement.
(e) In order to comply with its duties under the USA Patriot Act of
2001, the Trustee shall obtain and verify certain information and documentation
from the other parties to this Agreement including, but not limited to, each
such party's name, address and other identifying information.
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution. (a) On each Distribution
Date, the Securities Administrator shall make the disbursements and transfers
from amounts then on deposit in the Distribution Account in the following order
of priority and to the extent of the Available Funds remaining:
(i) from the Interest Remittance Amounts, to the holders of each
Class of Principal Certificates in the following order of priority:
(A) concurrently:
(I) from the Interest Remittance Amount related to the
Group I Mortgage Loans, to the Class A-1 Certificates,
the related Accrued Certificate Interest Distribution
Amounts and Unpaid Interest Amounts for the Class A-1
Certificates; and
(II) from the Interest Remittance Amount related to the
Group II Mortgage Loans, to Class A-2 Certificates, the
related Accrued Certificate Interest Distribution
Amounts and Unpaid Interest Amounts for the Class A-2
Certificates;
(III) from the Interest Remittance Amount related to the
Group III Mortgage Loans, pro rata (based on the accrued
and unpaid interest distributable under this clause
(i)(A)(III) to the Class A-3A and Class A-3B
Certificates), to the Class A-3A and Class A-3B
Certificates, the related Accrued Certificate Interest
Distribution Amounts and Unpaid Interest Amounts for the
Class A-3A and Class A-3B Certificates;
provided, that if the Interest Remittance Amount for any
Loan Group is insufficient to make the related payments
set forth clause (I), (II) or (III) above, any Interest
Remittance Amount relating to the other Loan Groups
remaining after payment of the related Accrued
Certificate Interest Distribution Amounts and Unpaid
Interest Amounts will be available to cover such
shortfall, pursuant to the allocation set forth in
clauses (iv), (v) and (vi) of this Section 4.01(a);
(B) from any remaining Interest Remittance Amounts, to the
Class M-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(C) from any remaining Interest Remittance Amounts, to the
Class M-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(D) from any remaining Interest Remittance Amounts, to the
Class B-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date; and
(E) from any remaining Interest Remittance Amounts, to the
Class B-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class on such Distribution Date;
(ii) (A) on each Distribution Date (a) before the Stepdown Date or
(b) with respect to which a Trigger Event is in effect, to the holders of
the Class or Classes of Principal Certificates then entitled to
distributions of principal as set forth below, from Available Funds
remaining after making distributions pursuant to clause (i) above, an
amount equal to the Principal Distribution Amount in the following order
of priority:
(a) concurrently:
(1) from the Principal Distribution Amount allocated to the Group I
Mortgage Loans to the Class A-1 Certificates, until their Class
Certificate Balance has been reduced to zero;
(2) from the Principal Distribution Amount allocated to the Group II
Mortgage Loans, to the Class A-2 Certificates until their Class
Certificate Balance has been reduced to zero; and
(3) from the Principal Distribution Amount allocated to the Group
III Mortgage Loans, to the Class A-3A and Class A-3B Certificates, pro
rata, (based on their respective Class Certificate Balances) until their
respective Class Certificate Balance have been reduced to zero;
provided, that if after making distributions pursuant to this paragraph
(a) on any Distribution Date the Class Certificate Balance of any class of
Class A Certificates is reduced to zero (considering the Class A-3A and
Class A-3B Certificates as one Class for the purposes of this proviso
only), then the remaining amount of principal distributable pursuant to
this paragraph (a) to the related Class A Certificates on that
Distribution Date, and the amount of principal distributable to the
related Class A Certificates on all subsequent Distribution Dates pursuant
to this paragraph (a), will be required to be distributed pro rata to the
other Class A Certificates remaining outstanding, based on their Class
Principal Balances after giving effect to principal distributions pursuant
to this paragraph (a) (but without giving effect to this proviso), until
their Class Certificate Balances have been reduced to zero;
(b) sequentially to the Class M-1, Class M-2, Class B-1 and
Class B-2 Certificates, in that order, until their respective Class
Certificate Balances are reduced to zero;
(B) on each Distribution Date (a) on and after the Stepdown Date and
(b) as long as a Trigger Event is not in effect, to the holders of the
Class or Classes of Principal Certificates then entitled to distribution
of principal, an amount equal to, the Principal Distribution Amount in the
following amounts and order of priority:
(a) concurrently:
(1) to the Class A-1 Certificates, the lesser of the Principal
Distribution Amount related to the Group I Mortgage Loans and the
portion of the Class A Principal Distribution Amount allocable to
the Class A-1 Certificates (determined in accordance with the Class
A Principal Allocation Percentage for that Class), until their Class
Certificate Balance has been reduced to zero;
(2) to the Class A-2 Certificates, the lesser of the Principal
Distribution Amount related to the Group II Mortgage Loans and the
portion of the Class A Principal Distribution Amount allocable to
the Class A-2 Certificates (determined in accordance with the Class
A Principal Allocation Percentage for that Class), until their Class
Certificate Balance has been reduced to zero;
(3) to the Class A-3A and the Class A-3B Certificates, pro
rata (based on their respective Class Certificate Balance) the
lesser of the Principal Distribution Amount related to the Group III
Mortgage Loans and the portion of the Class A Principal Distribution
Amount allocable to the Class A-3A and the Class A-3B Certificates
(determined in accordance with the Class A Principal Allocation
Percentage for those Classes), until their respective Class
Certificate Balances have been reduced to zero;
provided, that if after making distributions pursuant to this paragraph
(a) on any Distribution Date the Class Certificate Balance of any class of
Class A Certificates is reduced to zero (considering the Class A-3A and
Class A-3B Certificates as one Class for the purposes of this proviso
only) and in the aggregate the amount distributed pursuant to this
paragraph (a) to the related Class A Certificates on that Distribution
Date is less than the Class A Principal Distribution Amount, any remaining
Principal Distribution Amount (up to the amount by which the amount
distributed pursuant to this paragraph (a) to the Class A Certificates on
that Distribution Date, without giving effect to this proviso, is less
than the related Class A Principal Distribution Amount) will be required
to be distributed pro rata to the other Class A Certificates remaining
outstanding based on their Class Principal Balances after giving effect to
principal distributions pursuant to this paragraph (a) (but without giving
effect to this proviso), until their Class Certificate Balances have been
reduced to zero;
(b) to the Class M-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificates in clause (ii)(B)(a) above
and (y) the Class M-1 Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(c) to the Class M-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificates in clause (ii)(B)(a) above
and to the Class M-1 Certificates in clause (ii)(B)(b) above and (y)
the Class M-2 Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(d) to the Class B-1 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificates in clause (ii)(B)(a) above,
to the Class M-1 Certificates in clause (ii)(B)(b) above and to the
Class M-2 Certificates in clause (ii)(B)(c) above, and (y) the Class
B-1 Principal Distribution Amount, until the Class Certificate
Balance thereof has been reduced to zero; and
(e) to the Class B-2 Certificates, the lesser of (x) the
excess of (i) the Principal Distribution Amount over (ii) the amount
distributed to the Class A Certificates in clause (ii)(B)(a) above,
to the Class M-1 Certificates in clause (ii)(B)(b) above, to the
Class M-2 Certificates in clause (ii)(B)(c) above and to the Class
B-1 Certificates in clause (ii)(B)(d) above and (y) the Class B-2
Principal Distribution Amount, until the Class Certificate Balance
thereof has been reduced to zero;
(iii) any amount remaining after the distributions in clauses (i)
and (ii) above, shall be distributed in the following order of priority:
(A) to the holders of the Class M-1 Certificates, any Unpaid
Interest Amount for such Class;
(B) to the holders of the Class M-2 Certificates, any Unpaid
Interest Amount for such Class;
(C) to the holders of the Class B-1 Certificates, any Unpaid
Interest Amount for such Class;
(D) to the holders of the Class B-2 Certificates, any Unpaid
Interest Amount for such Class;
(E) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment for such Distribution Date;
(F) from funds on deposit in the Excess Reserve Fund Account
(not including Basis Risk Interest Rate Cap Payments and Class A-1
Interest Rate Cap Payments), an amount equal to any Basis Risk Carry
Forward Amount with respect to any Principal Certificate for such
Distribution Date first, concurrently to the Class A Certificates
pro rata based on their respective Basis Risk Carry Forward Amounts,
and second, sequentially to the Class M-1, Class M-2, Class B-1 and
Class B-2 Certificates, in each case up to their respective unpaid
remaining Basis Risk Carry Forward Amounts;
(G) first, from any Class A-1 Interest Rate Cap Payments on
deposit in the Excess Reserve Fund Account with respect to such
Distribution Date, to the Class A-1 Certificates up to their unpaid
remaining Basis Risk Carry Forward Amounts and second, any remaining
amounts to the Class X Certificates;
(H) from any Basis Risk Interest Rate Cap Payments on deposit
in the Excess Reserve Fund Account with respect to such Distribution
Date, (x) first, to the Class A Certificates concurrently and pro
rata, based on their respective Basis Risk Carry Forward Amounts,
(y) second, sequentially to the Class M-1 Certificates, the Class
M-2 Certificates, the Class B-1 Certificates and the Class B-2
Certificates, in each case, up to their unpaid remaining Basis Risk
Carry Forward Amounts, and then (z) any remaining amounts to the
Class X Certificates;
(I) to the holders of the Class X Certificates, the remainder
of the Class X Distributable Amount not distributed pursuant to
Sections 4.01(a)(iii)(A)-(H); and
(J) to the holders of the Class R Certificates, any remaining
amount, in respect of the Lower-Tier REMIC and Upper-Tier REMIC.
(iv) Solely for purposes of interest allocation calculations, the
Interest Remittance Amounts attributable to Group I Mortgage Loans will be
allocated:
(A) first, to the Class A-1 Certificates, the Accrued
Certificate Interest Distribution Amount and any Unpaid Interest
Amounts for the Class A-1 Certificates; and
(B) second, to the Class A-2, Class A-3A and Class A-3B, pro
rata (based on the accrued and unpaid interest distributable to such
Classes pursuant to Section 4.01(a)(i)(A)), the Accrued Certificate
Interest Distribution Amount and any Unpaid Interest Amounts for
each such Class, to the extent not otherwise previously paid from
Interest Remittance Amounts attributable to the Group II Mortgage
Loans and Group III Mortgage Loans;
(v) Solely for purposes of interest allocation calculations, the
Interest Remittance Amounts attributable to Group II Mortgage Loans will
be allocated:
(A) first, to the Class A-2 Certificates, the Accrued
Certificate Interest Distribution Amount and any Unpaid Interest
Amounts for the Class A-2 Certificates; and
(B) second, to the Class A-1, Class A-3A and Class A-3B
Certificates, pro rata (based on the accrued and unpaid interest
distributable to such Classes pursuant to Section 4.01(a)(i)(A)),
the Accrued Certificate Interest Distribution Amount and any Unpaid
Interest Amounts for the Class A-1, Class A-3A and Class A-3B
Certificates, to the extent not otherwise previously paid from the
Interest Remittance Amounts attributable to the Group I Mortgage
Loans and Group III Mortgage Loans.
(vi) Solely for purposes of interest allocation calculations, the
Interest Remittance Amounts attributable to Group III Mortgage Loans will
be allocated:
(A) first, to the Class A-3A and Class A-3B Certificates, pro
rata, (based on the accrued and unpaid interest distributable to
such Classes pursuant to Section 4.01(a)(i)(A)), the Accrued
Certificate Interest Distribution Amounts and any Unpaid Interest
Amounts for the Class A-3A and Class A-3B Certificates; and
(B) second, to the Class A-1 and Class A-2 Certificates pro
rata (based on the accrued and unpaid interest distributable to such
Classes pursuant to Section 4.01(a)(i)(A)), the Accrued Certificate
Interest Distribution Amount and any Unpaid Interest Amounts for the
Class A-1 and Class A-2 Certificates, to the extent not otherwise
previously paid from the Interest Remittance Amounts attributable to
the Mortgage Loans Group I and Group II Mortgage Loans.
If on any Distribution Date, as a result of the foregoing allocation
rules, any Class of Class A Certificates does not receive the related Accrued
Certificate Interest Distribution Amount or the related Unpaid Interest Amount,
if any, then that unpaid amount will be recoverable by the holders of those
Classes, with interest thereon, on future Distribution Dates, as an Unpaid
Interest Amount, subject to the priorities described above. In the event the
Class Certificate Balance of any Class of Principal Certificates has been
reduced to zero, that Class of Certificates shall no longer be entitled to
receive any related unpaid Basis Risk Carry Forward Amounts except to the extent
the Class Certificate Balance is increased as a result of any Subsequent
Recovery.
(b) On each Distribution Date, all amounts representing Prepayment
Premiums from the Mortgage Loans received during the related Prepayment Period
shall be deemed paid to the distributed to the holders of the Class P
Certificates.
(c) On any Distribution Date, any Relief Act Interest Shortfalls and
Net Prepayment Interest Shortfalls for such Distribution Date shall be allocated
pro rata, as a reduction of the Accrued Certificate Interest Distribution Amount
for the Class A, Class M and Class B Certificates, based on the Accrued
Certificate Interest Distribution Amount to which such Classes would otherwise
be entitled on such Distribution Date.
Section 4.02 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Securities Administrator shall make available
to each Certificateholder, the Depositor, the Trustee and each Rating Agency a
statement based upon the information provided by the Servicers setting forth
with respect to the related distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any Unpaid Interest
Amount included in such distribution and any remaining Unpaid Interest
Amount after giving effect to such distribution, any Basis Risk Carry
Forward Amount for such Distribution Date and the amount of all Basis Risk
Carry Forward Amount covered by withdrawals from the Excess Reserve Fund
Account on such Distribution Date;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest, including any Basis Risk Carry Forward Amount not covered by
amounts in the Excess Reserve Fund Account;
(iv) the Class Certificate Balance of each Class of Certificates
after giving effect to the distribution of principal on such Distribution
Date;
(v) the Pool Stated Principal Balance for the following Distribution
Date;
(vi) the amount of the Servicing Fees paid to or retained by the
Servicers with respect to such Distribution Date;
(vii) the amount of any Master Servicing Fees paid to the Master
Servicer with respect to such Distribution Date;
(viii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(ix) the amount of Advances included in the distribution on such
Distribution Date and the aggregate amount of Advances reported by the
Servicers as outstanding as of the close of business on the Determination
Date immediately preceding such Distribution Date;
(x) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the Monthly Payment is delinquent 31 to 60
days, 61 to 90 days and 91 or more days, (2) that have become REO
Property, (3) that are in foreclosure and (4) that are in bankruptcy, in
each case as of the close of business on the last Business Day of the
immediately preceding month;
(xi) for each of the preceding 12 calendar months, or all calendar
months since the related Cut off Date, whichever is less, the aggregate
dollar amount of the Monthly Payments (A) due on all Outstanding Mortgage
Loans on each of the Due Dates in each such month and (B) delinquent 60
days or more on each of the Due Dates in each such month;
(xii) with respect to each Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of such Mortgage Loan as of the close of business on the last
Business Day of the immediately preceding month prior to such Distribution
Date and the date of acquisition thereof;
(xiii) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the last
Business Day of the immediately preceding month prior to such Distribution
Date;
(xiv) whether a Trigger Event has occurred and is continuing
(including the calculation of thereof and the aggregate outstanding
balance of all 60+ Day Delinquent Mortgage Loans);
(xv) the amount on deposit in the Excess Reserve Fund Account (after
giving effect to distributions on such Distribution Date);
(xvi) the aggregate amount of Applied Realized Loss Amounts incurred
during the preceding calendar month and aggregate Applied Realized Loss
Amounts through such Distribution Date;
(xvii) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the Certificateholders
with respect to Unpaid Interest Amounts;
(xviii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xix) Prepayment Premiums collected by or paid by the applicable
Servicer;
(xx) the amount distributed on the Class X Certificates; and
(xxi) the amount of any Subsequent Recoveries for such Distribution
Date.
(b) The Securities Administrator's responsibility for providing the
above statement to the Certificateholders, each Rating Agency, the Trustee and
the Depositor is limited to the availability, timeliness and accuracy of the
information derived from the Master Servicer, the Servicers and the Responsible
Parties. The Securities Administrator shall provide the above statement via the
Securities Administrator's internet website. The Securities Administrator's
website will initially be located at xxx.xxxxxxx.xxx and assistance in using the
website can be obtained by calling the Securities Administrator's investor
relations desk at (000) 000-0000. The Securities Administrator will also make a
paper copy of the above statement available upon request.
(c) Upon request, within a reasonable period of time after the end
of each calendar year, the Securities Administrator shall cause to be furnished
to each Person who at any time during the calendar year was a Certificateholder,
a statement containing the information set forth in clauses (a)(i), (a)(ii),
(a)(iii) and (a)(vii) of this Section 4.02 aggregated for such calendar year or
applicable 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 Securities Administrator pursuant to any requirements of the
Code as from time to time in effect.
The Securities Administrator shall be entitled to rely on
information provided by third parties for purposes of preparing the foregoing
report, but shall not be responsible for the accuracy of such information.
Section 4.03 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts will be allocated to the most junior Class of the
Subordinated Certificates then outstanding in reduction of the Class Certificate
Balance thereof. After the Class Certificate Balance of the Class M-1
Certificates is reduced to zero, any Applied Realized Loss Amounts with respect
to the Group III Mortgage Loans will be allocated to the Class A-3B Certificates
in reduction of the Class Certificate Balance thereof. In the event, Applied
Realized Loss Amounts are allocated to any Class of Certificates, their Class
Certificate Balance shall be reduced by the amount so allocated and no funds
shall be distributed with respect to the written down amounts or with respect to
interest or Basis Risk Carry Forward Amounts on the written down amounts on that
Distribution Date or any future Distribution Dates, even if funds are otherwise
available therefor.
Notwithstanding the foregoing, the Class Certificate Balance of each
Class of Certificates that has been previously reduced by Applied Realized Loss
Amounts will be increased, in that order or seniority, by the amount of the
Subsequent Recoveries (but not in excess of the Applied Realized Loss Amount
allocated to the applicable Class of Certificates).
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Securities Administrator in accordance with the
definition of "LIBOR." Until all of the LIBOR Certificates are paid in full, the
Securities Administrator will at all times retain at least four Reference Banks
for the purpose of determining LIBOR with respect to each LIBOR Determination
Date. The Securities Administrator initially shall designate the Reference Banks
(after consultation with the Depositor). Each "Reference Bank" shall be a
leading bank engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, shall not control, be controlled by, or be under common
control with, the Securities Administrator and shall have an established place
of business in London. If any such Reference Bank should be unwilling or unable
to act as such or if the Securities Administrator should terminate its
appointment as Reference Bank, the Securities Administrator shall promptly
appoint or cause to be appointed another Reference Bank (after consultation with
the Depositor). The Securities Administrator shall have no liability or
responsibility to any Person for (i) the selection of any Reference Bank for
purposes of determining LIBOR or (ii) any inability to retain at least four
Reference Banks which is caused by circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Securities Administrator on
each LIBOR Determination Date so long as the LIBOR Certificates are outstanding
on the basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement. The Securities Administrator shall
not have any liability or responsibility to any Person for its inability,
following a good-faith reasonable effort, to obtain quotations from the
Reference Banks or to determine the arithmetic mean referred to in the
definition of LIBOR, all as provided for in this Section 4.04 and the definition
of LIBOR. The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Securities Administrator shall (in the absence of manifest
error) be final, conclusive and binding upon each Holder of a Certificate and
the Trustee.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, and aggregate
denominations per Class set forth in the Preliminary Statement.
The Depositor hereby directs the Securities Administrator to
register the Class P and Class X Certificates in the name of the Depositor or
its designee. On a date as to which the Depositor notifies the Securities
Administrator, the Depositor hereby directs the Securities Administrator to
transfer the Class P and Class X Certificates in the name of the NIM Trustee or
such other name or names as the Depositor shall request, and to deliver the
Class P and Class X Certificates to Deutsche Bank National Trust Company, as NIM
Trustee, or to such other name or names as the Depositor shall request.
Subject to Section 11.02 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator shall make
distributions to each Certificateholder of record on the preceding Record Date
either (x) by wire transfer in immediately available funds to the account of
such holder at a bank or other entity having appropriate facilities therefor as
directed by that Certificateholder by written wire instructions provided to the
Securities Administrator or (y), in the event that no wire instructions are
provided to the Securities Administrator, by check mailed by first class mail to
such Certificateholder at the address of such holder appearing in the
Certificate Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Securities Administrator by an authorized officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
such signatures were affixed, authorized to sign on behalf of the Securities
Administrator shall bind the Securities Administrator, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of any such Certificates or did not hold such
offices at the date of such Certificate. No Certificate shall be entitled to any
benefit under this Agreement, or be valid for any purpose, unless authenticated
by the Securities Administrator by manual signature, and such authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly executed and delivered hereunder. All
Certificates shall be dated the date of their authentication. On the Closing
Date, the Securities Administrator shall authenticate the Certificates to be
issued at the direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the
Securities Administrator on a continuous basis, an adequate inventory of
Certificates to facilitate transfers.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Securities Administrator shall maintain, or
cause to be maintained in accordance with the provisions of Section 5.06, a
Certificate Register for the Trust Fund in which, subject to the provisions of
subsections (b) and (c) below and to such reasonable regulations as it may
prescribe, the Securities Administrator shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate, the Securities
Administrator shall execute and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class and
aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator shall execute and authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator duly executed by the holder thereof
or his attorney duly authorized in writing. In the event, the Depositor or an
Affiliate transfers the Class X Certificates, or a portion thereof, to another
Affiliate, it shall notify the Securities Administrator in writing of the
affiliated status of the transferee. The Trustee and the Securities
Administrator shall have no liability regarding the lack of notice with respect
thereto.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Securities
Administrator in accordance with the Securities Administrator's customary
procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws. Except
with respect to (i) the initial transfer of the Class X, Class P and Class R
Certificates on the Closing Date, (ii) the transfer of the Class P or Class X
Certificates to the NIM Issuer or the NIM Trustee, or (iii) a transfer of the
Class X, Class P or Class R Certificates to the Depositor or any Affiliate of
the Depositor, in the event that a transfer of a Private Certificate which is a
Physical Certificate is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer shall
certify to the Securities Administrator in writing the facts surrounding the
transfer in substantially the form set forth in Exhibit H (the "Transferor
Certificate") and either (i) there shall be delivered to the Securities
Administrator a letter in substantially the form of Exhibit I (the "Rule 144A
Letter") or (ii) in the case of the Class P and Class X Certificates, there
shall be delivered to the Securities Administrator at the expense of the
transferor an Opinion of Counsel that such transfer may be made without
registration under the Securities Act. In the event that a transfer of a Private
Certificate which is a Book-Entry Certificate is to be made in reliance upon an
exemption from the Securities Act and such laws, in order to assure compliance
with the Securities Act and such laws, the Certificateholder desiring to effect
such transfer will be deemed to have made as of the transfer date each of the
certifications set forth in the Transferor Certificate in respect of such
Certificate and the transferee will be deemed to have made as of the transfer
date each of the certifications set forth in the Rule 144A Letter in respect of
such Certificate, in each case as if such Certificate were evidenced by a
Physical Certificate. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) for transfer of any such Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Trustee and the Securities Administrator
shall cooperate with the Depositor in providing the Rule 144A information
referenced in the preceding sentence, including providing to the Depositor such
information regarding the Certificates, the Mortgage Loans and other matters
regarding the Trust Fund as the Depositor shall reasonably request to meet its
obligation under the preceding sentence. Each Holder of a Private Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Trustee and the Depositor and each Servicer against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
Except with respect to (i) the initial transfer of the Class X,
Class P or Class R Certificates on the Closing Date, (ii) the transfer of the
Class P or Class X Certificates to the NIM Issuer or the NIM Trustee or (iii) a
transfer of the Class X, Class P or Class R Certificates to the Depositor or any
Affiliate of the Depositor, no transfer of an ERISA-Restricted Certificate shall
be made unless the Securities Administrator shall have received either (i) a
representation from the transferee of such Certificate acceptable to and in form
and substance satisfactory to the Securities Administrator (in the event such
Certificate is a Private Certificate or a Residual Certificate, such requirement
is satisfied only by the Securities Administrator's receipt of a representation
letter from the transferee substantially in the form of Exhibit I), to the
effect that such transferee is not an employee benefit plan or arrangement
subject to Section 406 of ERISA, a plan subject to Section 4975 of the Code or a
plan subject to any Federal, state or local law ("Similar Law") materially
similar to the foregoing provisions of ERISA or the Code, nor a person acting on
behalf of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer, (ii) in the case of an ERISA-Restricted
Certificate other than a Residual Certificate or a Class P Certificate that has
been the subject of an ERISA-Qualifying Underwriting and the purchaser is an
insurance company, a representation that the purchaser is an insurance company
that is purchasing such Certificates with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificates are covered under Sections I and III of PTCE 95-60
or (iii) in the case of any such ERISA-Restricted Certificate other than a
Residual Certificate or a Class P Certificate presented for registration in the
name of an employee benefit plan subject to Title I of ERISA, a plan or
arrangement subject to Section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a plan subject to Similar Law, or a trustee of any
such plan or any other person acting on behalf of any such plan or arrangement
or using such plan's or arrangement's assets, an Opinion of Counsel satisfactory
to the Securities Administrator and the Depositor, which Opinion of Counsel
shall not be an expense of the Trustee, the Depositor, the Securities
Administrator or the Trust Fund, addressed to the Securities Administrator and
the Depositor, to the effect that the purchase or holding of such
ERISA-Restricted Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the Code or
any Similar Law and will not subject the Trustee, the Master Servicer or the
Securities Administrator to any obligation in addition to those expressly
undertaken in this Agreement or to any liability. For purposes of the preceding
sentence, with respect to an ERISA-Restricted Certificate that is not a Private
Certificate or a Residual Certificate, in the event the representation letter
referred to in the preceding sentence is not furnished, such representation
shall be deemed to have been made to the Securities Administrator by the
transferee's (including an initial acquirer's) acceptance of the
ERISA-Restricted Certificates. In the event that such representation is
violated, or any attempt to transfer to a plan or arrangement subject to Section
406 of ERISA, a plan subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement or
using the assets of any such plan or arrangement, without such Opinion of
Counsel, such attempted transfer or acquisition shall be void and of no effect.
Neither the Class R nor the Class P Certificates may be sold to any
employee benefit plan subject to Title I of ERISA, any plan subject to Section
4975 of the Code, or any plan subject to any Similar Law or any person investing
on behalf of or with plan assets of such plan.
Neither the Securities Administrator nor the Trustee shall have any
duty to monitor transfers of beneficial interests in any Book-Entry Certificate,
and neither the Securities Administrator nor the Trustee shall be under
liability to any Person for any registration of transfer of any ERISA-Restricted
Certificate that is in fact not permitted by this Section 5.02(b) or for making
any payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement so
long as the transfer was registered by the Securities Administrator in
accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Securities Administrator shall not register the Transfer of any Residual
Certificate unless, in addition to the certificates required to be
delivered to the Securities Administrator under subparagraph (b) above,
the Securities Administrator shall have been furnished with an affidavit
(a "Transfer Affidavit") of the initial owner or the proposed transferee
in the form attached hereto as Exhibit G;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored to
all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. Neither the Securities
Administrator nor the Trustee shall have any liability to any Person for
any registration of Transfer of a Residual Certificate that is in fact not
permitted by Section 5.02(b) and this Section 5.02(c) or for making any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under the provisions of this Agreement.
The Securities Administrator shall be entitled but not obligated to
recover from any Holder of a Residual Certificate that was in fact not a
Permitted Transferee at the time it became a Holder or, at such subsequent
time as it became other than a Permitted Transferee, all payments made on
such Residual Certificate at and after either such time. Any such payments
so recovered by the Securities Administrator shall be paid and delivered
by the Securities Administrator to the last preceding Permitted Transferee
of such Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Securities Administrator, all
information necessary to compute any tax imposed under Section 860E(e) of
the Code as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Securities Administrator of an Opinion of
Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund, the
Trustee, or the Securities Administrator, to the effect that the elimination of
such restrictions will not cause either the Lower-Tier REMIC or Upper-Tier REMIC
to fail to qualify as a REMIC at any time that the Certificates are outstanding
or result in the imposition of any tax on the Trust Fund, a Certificateholder or
another Person. Each Person holding or acquiring any Ownership Interest in a
Residual Certificate hereby consents to any amendment of this Agreement which,
based on an Opinion of Counsel furnished to the Securities Administrator, is
reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Residual Certificate is not transferred, directly or
indirectly, to a Person that is not a Permitted Transferee and (b) to provide
for a means to compel the Transfer of a Residual Certificate which is held by a
Person that is not a Permitted Transferee to a Holder that is a Permitted
Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Securities Administrator except to another Depository; (ii) the Depository shall
maintain book-entry records with respect to the Certificate Owners and with
respect to ownership and transfers of such Book-Entry Certificates; (iii)
ownership and transfers of registration of the Book-Entry Certificates on the
books of the Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Trustee and the
Securities Administrator shall deal with the Depository, Depository Participants
and indirect participating firms as representatives of the Certificate Owners of
the Book-Entry Certificates for purposes of exercising the rights of holders
under this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (vi) the Securities Administrator
may rely and shall be fully protected in relying upon information furnished by
the Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and persons
shown on the books of such indirect participating firms as direct or indirect
Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (ii) the Securities
Administrator or the Depositor is unable to locate a qualified successor, or (y)
the Depositor notifies the Depository of its intent to terminate the book-entry
system through the Depository, the Depository Participants holding beneficial
interests in the Book-Entry Certificates agree to initiate such termination, the
Securities Administrator shall notify all Certificate Owners, through the
Depository, of the occurrence of any such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Securities
Administrator of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Securities Administrator shall issue the Definitive Certificates. Neither the
Depositor nor the Securities Administrator shall be liable for any delay in
delivery of such instruction and each may conclusively rely on, and shall be
protected in relying on, such instructions. The Depositor shall provide the
Securities Administrator with an adequate inventory of Certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon the
issuance of Definitive Certificates all references herein to obligations imposed
upon or to be performed by the Depository shall be deemed to be imposed upon and
performed by the Securities Administrator, to the extent applicable with respect
to such Definitive Certificates and the Securities Administrator shall recognize
the Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Securities Administrator shall not by virtue of its
assumption of such obligations become liable to any party for any act or failure
to act of the Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Securities
Administrator, duly executed by the Certificateholder or his attorney duly
authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by the Securities Administrator in accordance with its customary practice. No
service charge shall be made for any registration of transfer or exchange of
Private 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 Private Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Securities Administrator, or
the Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to the
Depositor, the Trustee and the Securities Administrator such security or
indemnity as may be required by them to hold each of them harmless, then, in the
absence of notice to the Securities Administrator that such Certificate has been
acquired by a bona fide purchaser, the Securities Administrator shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.03, the 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 Securities Administrator) connected therewith. Any replacement
Certificate issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners. The Trustee, the Depositor, the
Securities Administrator and any agent of the Depositor, the Securities
Administrator or the Trustee may treat the Person in whose name any Certificate
is registered as the owner of such Certificate for the purpose of receiving
distributions as provided in this Agreement and for all other purposes
whatsoever, and none of the Trustee, the Securities Administrator, the Depositor
or any agent of the Depositor, the Securities Administrator or the Trustee shall
be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Securities Administrator, (b) state that such
Certificateholders desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates, and (c)
provide a copy of the communication which such Certificateholders propose to
transmit, or if the Depositor or a Servicer shall request such information in
writing from the Securities Administrator, then the Securities Administrator
shall, within ten Business Days after the receipt of such request, provide the
Depositor, such Servicer or such Certificateholders at such recipients' expense
the most recent list of the Certificateholders of such Trust Fund held by the
Securities Administrator, if any. The Depositor and every Certificateholder, by
receiving and holding a Certificate, agree that the Securities Administrator
shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. The Securities
Administrator will maintain or cause to be maintained at its expense an office
or offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange. The Securities Administrator initially
designates the offices of its agent for such purposes, located at Xxxxx Xxxxxx
xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust
Services - GSAA Home Equity Trust 2004-8. The Securities Administrator will give
prompt written notice to the Certificateholders of any change in such location
of any such office or agency.
ARTICLE VI
THE DEPOSITOR
Section 6.01 Respective Liabilities of the Depositor. The Depositor
shall be liable in accordance herewith only to the extent of the obligations
specifically and respectively imposed upon and undertaken by them herein.
Section 6.02 Merger or Consolidation of the Depositor. The Depositor
will keep in full effect its existence, rights and franchises as a corporation
or federally chartered savings bank, as the case may be, under the laws of the
United States or under the laws of one of the states thereof and will each
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
Any Person into which the Depositor may be merged or consolidated,
or 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, as the case may be, hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
Section 6.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers, employees or agents
shall be under any liability to the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor or any such Person against any breach of
representations or warranties made by it herein or protect the Depositor or any
such Person from any liability which would otherwise be imposed by reasons of
willful misfeasance, bad faith or gross negligence in the performance of duties
or by reason of reckless disregard of obligations and duties hereunder. The
Depositor and any director, officer, employee or agent of the Depositor may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor
and any director, officer, employee or agent of the Depositor shall be
indemnified by the Trust Fund and held harmless against any loss, liability or
expense incurred in connection with any audit, controversy or judicial
proceeding relating to a governmental taxing authority or any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense incurred by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. The Depositor shall not be under
any obligation to appear in, prosecute or defend any legal action that is not
incidental to its respective duties hereunder and which in its opinion may
involve it in any expense or liability; provided, however, that the Depositor
may in its discretion undertake any such action (or direct the Trustee to
undertake such actions for the benefit of the Certificateholders) that it may
deem necessary or desirable in respect of this Agreement and the rights and
duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, the Depositor shall be entitled to be reimbursed
therefor out of the Distribution Account.
Section 6.04 Servicing Compliance Review. Promptly upon receipt from
each Servicer of its annual statement of compliance and accountant's report
described in the applicable Step 2 Assignment Agreement the Master Servicer
shall furnish a copy thereof to the Depositor. Promptly after the Depositor's
receipt thereof, the Depositor shall review the same and, if applicable, consult
with such Servicer as to the nature of any defaults by such Servicer in the
fulfillment of any of its Servicer's obligations under the applicable Servicing
Agreement.
Section 6.05 Option to Purchase Defaulted Mortgage Loans. The
Depositor shall have the option, but is not obligated, to purchase from the
Trust any Mortgage Loan that is 90 days or more delinquent. The purchase price
therefor shall be 100% of the unpaid principal balance of such Mortgage Loan,
plus all related accrued and unpaid interest, and the amount of any unreimbursed
Servicing Advances made by the Servicers or the Master Servicer related to the
Mortgage Loan.
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default. If an Event of Default described in
any Servicing Agreement shall occur with respect to the related Servicer then,
and in each and every such case, so long as such Event of Default shall not have
been remedied, the Master Servicer may, or at the direction of
Certificateholders entitled to a majority of the Voting Rights the Master
Servicer shall, by notice in writing to the applicable Servicer (with a copy to
each Rating Agency), terminate all of the rights and obligations of such
Servicer under the applicable Servicing Agreement and in and to the Mortgage
Loans and the proceeds thereof. The Holders of Certificates evidencing at least
66% of the Voting Rights of Certificates affected by a Event of Default may
waive such Event of Default; provided, however, that (a) an 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 Event of Default
and (b) no such waiver is permitted that would materially adversely affect any
non consenting Certificateholder. On and after the receipt by such Servicer of
such written notice of termination, all authority and power of such Servicer
hereunder, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the Master Servicer. The Master Servicer is hereby
authorized and empowered to execute and deliver, on behalf of such Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise.
Section 7.02 Master Servicer to Act; Appointment of Successor.
Within 120 days after the Master Servicer gives, and the applicable Servicer
receives, a notice of termination pursuant to Section 7.01, the Master Servicer
shall, subject to and to the extent provided in Section 7.03, and subject to the
rights of the Master Servicer to appoint a successor Servicer pursuant to this
Section 7.02, be the successor to the Servicer in its capacity as servicer under
the applicable Servicing Agreement and the transactions set forth or provided
for herein and in such Servicing Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions of such Servicing Agreement and applicable law
including the obligation to make Monthly Advances or Servicing Advances pursuant
to such Servicing Agreement (it being understood and agreed that if any Servicer
fails to make an Advance, the Master Servicer shall do so unless a determination
has been made that such Advance would constitute a Nonrecoverable Monthly
Advance or a Nonrecoverable Servicing Advance). As compensation therefor, the
Master Servicer shall be entitled to all funds relating to the Mortgage Loans
that the Servicer would have been entitled to charge to the Collection Account
if the Servicer had continued to act under the Servicing Agreement including, if
the Servicer was receiving the Servicing Fee at the Servicing Fee Rate set forth
in the Servicing Agreement (as set forth in the Mortgage Loan Schedule with
respect to the related Mortgage Loans,) such Servicing Fee and the income on
investments or gain related to the Collection Account.
Notwithstanding the foregoing, the Master Servicer may, if it shall
be unwilling to so act, or shall, if it is prohibited by applicable law from
making Monthly Advances and Servicing Advances pursuant to the applicable
Servicing Agreement, or if it is otherwise unable to so act, or, at the written
request of Certificateholders entitled to a majority of the Voting Rights,
appoint, or petition a court of competent jurisdiction to appoint, any
established mortgage loan servicing institution the appointment of which does
not adversely affect the then current rating of the Certificates by each Rating
Agency, as the successor to such Servicer under the applicable Servicing
Agreement in the assumption of all or any part of the responsibilities, duties
or liabilities of such Servicer. No such appointment of a successor to a
Servicer hereunder shall be effective until the Depositor shall have consented
thereto. Any successor to such Servicer shall be an institution which is a
Xxxxxx Xxx- and Xxxxxxx Mac-approved seller/servicer in good standing, which has
a net worth of at least $25,000,000, which is willing to service the Mortgage
Loans and which executes and delivers to the Depositor and the Master Servicer
an agreement accepting such delegation and assignment, containing an assumption
by such Person of the rights, powers, duties, responsibilities, obligations and
liabilities of such terminated Servicer, (other than liabilities of such
terminated Servicer incurred prior to termination of such Servicer under Section
7.01), with like effect as if originally named as a party to this Agreement;
provided that each Rating Agency acknowledges that its rating of the
Certificates in effect immediately prior to such assignment and delegation will
not be qualified or reduced as a result of such assignment and delegation.
Pending appointment of a successor to a Servicer hereunder, the Master Servicer,
unless the Master Servicer is prohibited by law from so acting, shall, act in
such capacity as hereinabove provided. In connection with such appointment and
assumption, the Master Servicer may make such arrangements for the compensation
of such successor out of payments on Mortgage Loans as it, the Depositor and
such successor shall agree; provided, however, that no such compensation shall
be in excess of the Servicing Fee Rate and amounts paid to the Servicer from
investments. The Master Servicer and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Neither the Master Servicer nor any other successor to a Servicer
shall be deemed to be in default hereunder by reason of any failure to make, or
any delay in making, any distribution hereunder or any portion thereof or any
failure to perform, or any delay in performing, any duties or responsibilities
hereunder, in either case caused by the failure of the predecessor Servicer to
deliver or provide, or any delay in delivering or providing, any cash,
information, documents or records to it.
Any successor Servicer shall give notice to the Mortgagors of such
change of Servicer, in accordance with applicable federal and state law, and
shall, during the term of its service as servicer, maintain in force the policy
or policies that each Servicer is required to maintain pursuant to the
applicable Servicing Agreement.
Notwithstanding the foregoing, the Master Servicer may not terminate
a Servicer without cause.
Section 7.03 Master Servicer to Act as Servicer. In the event that a
Servicer shall for any other reason no longer be the Servicer, the Master
Servicer or another successor Servicer, shall thereupon assume all of the rights
and obligations of the predecessor Servicer hereunder arising thereafter
pursuant to Section 7.02.
Section 7.04 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to a Servicer, the Securities
Administrator shall give prompt written notice thereof to Certificateholders and
to each Rating Agency.
(b) Promptly after the occurrence of any Event of Default, the
Securities Administrator shall transmit by mail to all Certificateholders and
each Rating Agency notice of each such Event of Default hereunder known to the
Securities Administrator, unless such Event of Default shall have been cured or
waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of a Master Servicer Event of Default and after the curing of all
Master Servicer Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case a Master Servicer Event of Default has occurred and remains
uncured, the Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own bad faith or willful misfeasance; provided, however, that:
(a) unless a Master Servicer Event of Default of which a Responsible
Officer of the Trustee obtains actual knowledge has occurred and is continuing,
the duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable except for
the performance of the duties and obligations specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this Agreement
against the Trustee, and the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement which it believed in good faith to be genuine and
to have been duly executed by the proper authorities respecting any matters
arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights of Certificates relating to the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Agreement.
Section 8.02 Custodial Responsibilities. Each Custodian shall
provide access to the Mortgage Loan documents in possession of the Custodian
regarding the related Mortgage Loans and REO Property and the servicing thereof
to the Trustee, the Certificateholders, the FDIC, and the supervisory agents and
examiners of the FDIC, such access being afforded only upon reasonable prior
written request and during normal business hours at the office of the Custodian.
Each Custodian shall allow representatives of the above entities to photocopy
any of the records and documentation and shall provide equipment for that
purpose at the expense of the person requesting such access.
Upon receipt of a written request by a Servicer in a form acceptable
to the applicable Custodian, the Custodian shall release within five Business
Days the related Mortgage File to the Servicer and execute and deliver to the
Servicer, without recourse, a request for reconveyance, deed of reconveyance or
release or satisfaction of mortgage or such instrument releasing the lien of the
Mortgage (furnished by such Servicer), together with the Mortgage Note.
Section 8.03 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
Opinion of Counsel, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(c) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing so to do by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not assured to the Trustee by the security afforded to it by the terms
of this Agreement, the Trustee may require indemnity satisfactory to the Trustee
against such cost, expense or liability as a condition to taking any such
action. The reasonable expense of every such examination shall be paid by the
applicable Servicer or, if paid by the Trustee, shall be repaid by the Servicer
upon demand from the applicable Servicer's own funds;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the investment
security;
(h) unless a Responsible Officer of the Trustee has actual knowledge
of the occurrence of a Master Servicer Event of Default or an Event of Default,
the Trustee shall not be deemed to have knowledge of a Master Servicer Event of
Default or an Event of Default, until a Responsible Officer of the Trustee shall
have received written notice thereof; and
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby.
(j) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act;
(k) the Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the powers granted
hereunder; and
(l) notwithstanding anything to the contrary in any Servicing
Agreement, the Trustee shall not consent to a Servicer's request of assigning
the Servicing Agreement or the servicing rights thereunder to any other party.
Section 8.04 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document. The Trustee shall not be accountable for the use or
application by the Depositor, the Master Servicer, any Servicer or the
Securities Administrator of any funds paid to the Depositor, the Master
Servicer, any Servicer or the Securities Administrator in respect of the
Mortgage Loans or deposited in or withdrawn from the Collection Account or the
Distribution Account by the Depositor, the Master Servicer, any Servicer, or the
Securities Administrator.
The Trustee shall have no responsibility (i) for filing or recording
any financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become and remains the
successor Master Servicer) (ii) to see to any insurance (unless the Trustee
shall have become the successor Master Servicer), or (iii) to confirm or verify
the contents of any reports or certificates of the Servicers, Securities
Administrator or Master Servicer delivered to the Trustee pursuant to this
Agreement believed by the Trustee to be genuine and to have been signed or
presented by the proper party or parties.
The Securities Administrator executes the Certificates not in its
individual capacity but solely as Trustee of the Trust Fund created by this
Agreement, in the exercise of the powers and authority conferred and vested in
it by this Agreement. Each of the undertakings and agreements made on the part
of the Trustee on behalf of the Trust Fund in the Certificates is made and
intended not as a personal undertaking or agreement by the Trustee but is made
and intended for the purpose of binding only the Trust Fund.
Section 8.05 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
Section 8.06 Trustee's Fees and Expenses. As compensation for its
activities under this Agreement, the Trustee shall be paid an on-going monthly
or annual fee, as applicable, by the Securities Administrator pursuant to a
separate agreement. The Trustee shall have no lien on the Trust Fund for the
payment of such fees. The Trustee shall be entitled to be reimbursed, from funds
on deposit in the Distribution Account, amounts sufficient to indemnify and hold
harmless the Trustee and any director, officer, employee, or agent of the
Trustee against any loss, liability, or expense (including reasonable attorneys'
fees) incurred in connection with any claim or legal action relating to
(a) this Agreement,
(b) the Certificates, or
(c) the performance of any of the Trustee's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any breach of any
Servicer's obligations in connection with a Servicing Agreement for which that
Servicer has performed its obligation to indemnify the Trustee pursuant to
Servicing Agreement, (ii) resulting from any breach of the Responsible Party's
obligations in connection with any Sale Agreement for which it has performed its
obligation to indemnify the Trustee pursuant to the Sale Agreement, (iii)
resulting from any breach of the Master Servicer's obligations hereunder for
which the Master Servicer has performed its obligation to indemnify the Trustee
pursuant to this Agreement, or (iv) incurred because of willful misfeasance, bad
faith, or negligence in the performance of any of the Trustee's duties under
this Agreement. This indemnity shall survive the termination of this Agreement
or the resignation or removal of the Trustee under this Agreement. Without
limiting the foregoing, except as otherwise agreed upon in writing by the
Depositor and the Trustee, and except for any expense, disbursement, or advance
arising from the Trustee's negligence, bad faith, or willful misfeasance, the
Trust Fund shall pay or reimburse the Trustee, for all reasonable expenses,
disbursements, and advances incurred or made by the Trustee in accordance with
this Agreement with respect to:
(A) the reasonable compensation, expenses, and disbursements
of its counsel not associated with the closing of the issuance of
the Certificates, and
(B) the reasonable compensation, expenses, and disbursements
of any accountant, engineer, or appraiser that is not regularly
employed by the Trustee, to the extent that the Trustee must engage
them to perform services under this Agreement.
Except as otherwise provided in this Agreement, the Trustee shall
not be entitled to payment or reimbursement for any routine ongoing expenses
incurred by the Trustee in the ordinary course of its duties as Trustee under
this Agreement or for any other expenses.
Section 8.07 Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times be a corporation, banking association or other
association organized and doing business under the laws of a state or the United
States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by federal or state authority and with a credit
rating which would not cause any of the Rating Agencies to reduce their
respective then current ratings of the Certificates (or having provided such
security from time to time as is sufficient to avoid such reduction) as
evidenced in writing by each Rating Agency. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 8.07 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with this
Section 8.07, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.08. The entity serving as Trustee may have normal
banking and trust relationships with the Depositor and its affiliates or with
the Servicer and its affiliates; provided, however, that such entity cannot be
an affiliate of the Depositor or of any Servicer other than the Trustee in its
role as successor to the Master Servicer.
Section 8.08 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice of resignation to the Depositor, the Master Servicer, the
Securities Administrator and each Rating Agency not less than 60 days before the
date specified in such notice, when, subject to Section 8.09, such resignation
is to take effect, and acceptance by a successor trustee in accordance with
Section 8.09 meeting the qualifications set forth in Section 8.07. If no
successor trustee meeting such qualifications shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.07 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, one copy of which shall
be delivered to the Trustee and one copy to the successor trustee.
The Holders of Certificates entitled to a majority of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in duplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which shall be delivered
to the Trustee so removed and one complete set to the successor so appointed.
The successor trustee shall notify each Rating Agency of any removal of the
Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.08 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.09.
Section 8.09 Successor Trustee. Any successor trustee appointed as
provided in Section 8.08 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee an instrument accepting such appointment
hereunder and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The Depositor and the predecessor trustee shall execute
and deliver such instruments and do such other things as may reasonably be
required for more fully and certainly vesting and confirming in the successor
trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.09 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.09, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 8.10 Merger or Consolidation of the Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.07
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding.
Section 8.11 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons to act as co-trustee or co-trustees
jointly with the Trustee, or separate trustee or separate trustees, of all or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity and for the benefit of the Certificateholders, such title to the Trust
Fund or any part thereof, whichever is applicable, and, subject to the other
provisions of this Section 8.11, such powers, duties, obligations, rights and
trusts as the Trustee may consider appropriate. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 8.06 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 8.09.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.11, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee (as successor Master
Servicer) under this Agreement to advance funds on behalf of the Master
Servicer, shall be conferred or imposed upon and exercised or performed by the
Trustee and such separate trustee or co-trustee jointly (it being understood
that such separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Master Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the applicable Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.12 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in, and in
accordance with, the REMIC Provisions. In furtherance of such intention, the
Securities Administrator covenants and agrees that it shall act as agent (and
the Securities Administrator is hereby appointed to act as agent) on behalf of
each REMIC described in the Preliminary Statement and that in such capacity it
shall:
(a) prepare and file, in a timely manner, a U.S. Real Estate
Mortgage Investment Conduit (REMIC) Income Tax Return (Form 1066 or any
successor form adopted by the Internal Revenue Service) and prepare and file
with the Internal Revenue Service and applicable state or local tax authorities
income tax or information returns for each taxable year with respect to each
REMIC described in the Preliminary Statement containing such information and at
the times and in the manner as may be required by the Code or state or local tax
laws, regulations, or rules, and furnish to Certificateholders the schedules,
statements or information at such times and in such manner as may be required
thereby;
(b) within thirty days of the Closing Date, apply for an employer
identification number from the Internal Revenue Service via Form SS-4 or any
other acceptable method for all tax entities and shall also furnish to the
Internal Revenue Service, on Form 8811 or as otherwise may be required by the
Code, the name, title, address, and telephone number of the person that the
holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) make an election that each of the Lower-Tier REMIC and the
Upper-Tier REMIC be treated as a REMIC on the federal tax return for its first
taxable year (and, if necessary, under applicable state law);
(d) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any original
issue discount using the prepayment assumption (as described in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax imposed
on the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee (a "Non-Permitted Transferee"), or an agent (including a broker,
nominee or other middleman) of a Non-Permitted Transferee, or a pass-through
entity in which a Non-Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so as
to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any Trust
REMIC created hereunder;
(h) pay, from the sources specified in the last paragraph of this
Section 8.12, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on either Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Securities Administrator or any other appropriate Person
from contesting any such tax in appropriate proceedings and shall not prevent
the Securities Administrator from withholding payment of such tax, if permitted
by law, pending the outcome of such proceedings);
(i) cause federal, state or local income tax or information returns
to be signed by the Securities Administrator or, if required by applicable tax
law, the Trustee or such other person as may be required to sign such returns by
the Code or state or local laws, regulations or rules;
(j) maintain records relating to each of the Trust REMICs, including
the income, expenses, assets, and liabilities thereof on a calendar year basis
and on the accrual method of accounting and the fair market value and adjusted
basis of the assets determined at such intervals as may be required by the Code,
as may be necessary to prepare the foregoing returns, schedules, statements or
information; and
(k) as and when necessary and appropriate, represent each Trust
REMIC in any administrative or judicial proceedings relating to an examination
or audit by any governmental taxing authority, request an administrative
adjustment as to any taxable year of each Trust REMIC, enter into settlement
agreements with any governmental taxing agency, extend any statute of
limitations relating to any tax item of either Trust REMIC, and otherwise act on
behalf of each Trust REMIC in relation to any tax matter or controversy
involving it.
The Securities Administrator shall treat the rights of Class P
Certificateholders to receive Prepayment Premiums, the rights of the Class X
Certificateholders to receive Basis Risk Interest Rate Cap Payments, Class A-1
Interest Rate Cap Payments and amounts in the Excess Reserve Fund Account
(subject to the obligation to pay Basis Risk Carry Forward Amounts) and the
rights of the Principal Certificateholders to receive Basis Risk Carry Forward
Amounts as the beneficial ownership interests in a grantor trust and not as an
obligations of any REMIC created hereunder, for federal income tax purposes. The
Securities Administrator shall file or cause to be filed with the Internal
Revenue Service together with Form 1041 or such other form as may be applicable
and shall furnish or cause to be furnished, to the Class P, Class X
Certificateholders and the Principal Certificateholders, the respective amounts
described above that are received, in the time or times and in the manner
required by the Code.
To enable the Securities Administrator to perform its duties under
this Agreement, the Depositor shall provide to the Securities Administrator
within ten days after the Closing Date all information or data that the
Securities Administrator requests in writing and determines to be relevant for
tax purposes to the valuations and offering prices of the Certificates,
including the price, yield, prepayment assumption, and projected cash flows of
the Certificates and the Mortgage Loans. Moreover, the Depositor shall provide
information to the Securities Administrator concerning the value, if any, to
each Class of Certificates of the right to receive Basis Risk Carry Forward
Amounts from the Excess Reserve Fund Account. Thereafter, the Depositor shall
provide to the Securities Administrator promptly upon written request therefor
any additional information or data that the Securities Administrator may, from
time to time, reasonably request to enable the Securities Administrator to
perform its duties under this Agreement. The Depositor hereby indemnifies the
Securities Administrator for any losses, liabilities, damages, claims, or
expenses of the Securities Administrator arising from any errors or
miscalculations of the Securities Administrator that result from any failure of
the Depositor to provide, or to cause to be provided, accurate information or
data to the Securities Administrator on a timely basis.
If any tax is imposed on "prohibited transactions" of any Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Lower-Tier REMIC as defined in Section 860G(c) of
the Code, on any contribution to any Trust REMIC after the Startup Day pursuant
to Section 860G(d) of the Code, or any other tax is imposed, including any
minimum tax imposed on any Trust REMIC pursuant to Sections 23153 and 24874 of
the California Revenue and Taxation Code, if not paid as otherwise provided for
herein, the tax shall be paid by (i) the Master Servicer, the Trustee or the
Securities Administrator, as applicable if such tax arises out of or results
from negligence of the Master Servicer, the Trustee or the Securities
Administrator, as applicable in the performance of any of its obligations under
this Agreement, (ii) a Servicer, in the case of any such minimum tax, and
otherwise if such tax arises out of or results from a breach by the Servicer of
any of its obligations under the applicable Servicing Agreement, (iii) a
Responsible Party if such tax arises out of or results from the Responsible
Party's obligation to repurchase a Mortgage Loan pursuant to the applicable Sale
Agreement or (iv) in all other cases, or if the Trustee, the Master Servicer,
the Securities Administrator, the Servicer or the Responsible Party fails to
honor its obligations under the preceding clause (i), (ii), or (iii), any such
tax will be paid with amounts otherwise to be distributed to the
Certificateholders, as provided in Section 4.01(a).
For as long as each REMIC shall exist, the Securities Administrator
shall act as specifically required herein, and the Securities Administrator
shall comply with any directions of the Depositor or a Servicer stating that
such directions are being given to assure such continuing treatment. In
particular, the Securities Administrator shall not (a) sell or authorize the
sale of all or any portion of the Mortgage Loans or of any investment of
deposits in an Account unless such sale is as a result of a purchase or
repurchase of the Mortgage Loans pursuant to this Agreement and (b) accept any
contribution to any REMIC after the Startup Day without receipt of a REMIC
Opinion.
Section 8.13 Periodic Filings. (a) The Securities Administrator
shall reasonably cooperate with the Depositor in connection with the Trust's
satisfying the reporting requirements under the Exchange Act. The Securities
Administrator shall prepare on behalf of the Trust any Forms 8-K and 10-K
customary for similar securities as required by the Exchange Act and the Rules
and Regulations of the Securities and Exchange Commission thereunder, and the
Securities Administrator shall sign and file (via the Securities and Exchange
Commission's Electronic Data Gathering and Retrieval System) such Forms on
behalf of the Depositor, if an officer of the Depositor signs the Certification
pursuant to paragraph (b) of this Section 8.13, or otherwise on behalf of the
Trust. In the event the Securities Administrator is signing on behalf of the
Depositor pursuant to the preceding sentence, the Depositor hereby grants to the
Securities Administrator a limited power of attorney to execute and file each
such document on behalf of the Depositor. Such power of attorney shall continue
until the earlier of either (i) receipt by the Securities Administrator from the
Depositor of written termination of such power of attorney and (ii) the
termination of the Trust. Notwithstanding the foregoing, the Securities
Administrator shall prepare such Form 10-K to be signed by the Depositor and the
Depositor shall sign such form, unless the Securities and Exchange Commission
has indicated that it will accept a certification signed by the Depositor where
the related Form 10-K is signed by the Securities Administrator.
(b) Each Form 8-K shall be filed by the Securities Administrator
within 15 days after each Distribution Date, including a copy of the statement
to the Certificateholders for such Distribution Date as an exhibit thereto.
Prior to March 30th of each year (or such earlier date as may be required by the
Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission), the Securities Administrator shall file a Form 10-K in substance as
required by applicable law or applicable Securities and Exchange Commission
staff's interpretations, with respect to the Trust Fund. Such Form 10-K shall
include the Servicer's annual statement of compliance described in the
applicable Servicing Agreement (upon which the Securities Administrator may rely
in delivering its certification hereunder) and the accountant's report described
in the applicable Servicing Agreement, in each case to the extent they have been
timely delivered to the Securities Administrator. If they are not so timely
delivered, the Securities Administrator shall file an amended Form 10-K
including such documents as exhibits reasonably promptly after they are
delivered to the Securities Administrator. The Securities Administrator shall
have no liability with respect to any failure to properly prepare or file such
periodic reports resulting from or relating to the Securities Administrator's
inability or failure to obtain any information not resulting from its own
negligence, willful misconduct or bad faith. The Form 10-K shall also include a
certification in the form attached hereto as Exhibit J, with such changes as may
be necessary or appropriate as a result of changes promulgated by the Securities
and Exchange Commission (the "Certification"), which shall, except as described
below, be signed by the senior officer of the Depositor in charge of
securitization.
(c) In the event the Certification is to be signed by an officer of
the Depositor, the Securities Administrator shall sign a certification (in the
form attached hereto as Exhibit K with such changes as may be necessary or
appropriate as a result of changes promulgated by the Securities and Exchange
Commission) for the benefit of the Depositor and its officers, directors and
Affiliates in respect of items 1 through 3 of the Certification; provided,
however, that the Securities Administrator shall not undertake an analysis of
the accountant's report attached as an exhibit to the Form 10-K. Such
certification shall be delivered to the Depositor by March 20th of each year (or
if not a Business Day, the immediately preceding Business Day). The
Certification shall be delivered to the Securities Administrator for filing by
March 25th of each year (or if not a Business Day, the immediately preceding
Business Day). In addition, the Securities Administrator shall indemnify and
hold harmless the Depositor, the Trustee and their respective officers,
directors and Affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon a breach of the
Securities Administrator's obligations under this Section 8.13(c) or the
Securities Administrator's negligence, bad faith or willful misconduct in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless the Depositor and the Trustee, then the
Securities Administrator agrees in connection with a breach of the Securities
Administrator's obligations under this Section 8.13(c) or the Securities
Administrator's negligence, bad faith or willful misconduct in connection
therewith that it shall contribute to the amount paid or payable by the
Depositor as a result of the losses, claims, damages or liabilities of the
Depositor in such proportion as is appropriate to reflect the relative fault of
the Depositor on the one hand and the Securities Administrator on the other.
(d) Upon any filing with the Securities and Exchange Commission, the
Securities Administrator shall promptly deliver to the Depositor a copy of any
such executed report, statement or information.
(e) Prior to January 30 of the first year in which the Securities
Administrator is able to do so under applicable law, the Securities
Administrator shall file a Form 15 Suspension Notification with respect to the
Trust.
Section 8.14 Tax Classification of the Excess Reserve Fund Account
and the Cap Agreement. For federal income tax purposes, the Securities
Administrator shall treat the Excess Reserve Fund Account and the Cap Agreements
as beneficially owned by the holder of the Class X Certificates and shall treat
such portion of the Trust Fund as a grantor trust under subpart E, Part I of
subchapter J of the Code. The Securities Administrator shall treat the rights
that each Class of Principal Certificates has to receive payments of Basis Risk
Carry Forward Amounts from the Excess Reserve Fund Account as rights to receive
payments under an interest rate cap contract written by the Class X
Certificateholders in favor of each Class. Accordingly, each Class of Principal
Certificates will comprise three components--a regular interest in the
Upper-Tier REMIC, an interest in an interest rate cap contract and the Class X
Certificates will be comprised of two components--a regular interest in the
Upper-Tier REMIC and ownership of the Excess Reserve Fund Account, subject to an
obligation to pay Basis Risk Carry Forward Amounts and an interest in the Cap
Agreements. The Securities Administrator shall allocate the issue price for a
Class of Certificates among these components for purposes of determining the
issue price of the Upper-Tier Regular Interest component based on information
received from the Depositor. Unless otherwise advised by the Depositor in
writing, for federal income tax purposes, the Securities Administrator is hereby
directed to assign a value of zero to the right of each Holder of a Principal
Certificate to receive the related Basis Risk Carry Forward Amount for purposes
of allocating the purchase price of an initial Principal Certificateholder
between such right and the related Upper-Tier Regular Interest.
ARTICLE IX
ADMINISTRATION OF THE MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of
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 related Servicing Agreements,
and (except as set forth below) shall use its reasonable good faith efforts to
cause the Servicers to duly and punctually perform their duties and obligations
thereunder as applicable. Upon the occurrence of an Event of Default of which a
Responsible Officer of the Master Servicer has actual knowledge, the Master
Servicer shall promptly notify the Securities Administrator and the Trustee and
shall specify in such notice the action, if any, the Master Servicer plans to
take in respect of such default. So long as an Event of Default shall occur and
be continuing, the Master Servicer shall take the actions specified in Article
VII.
If (i) a Servicer reports a delinquency on a monthly report and (ii)
such Servicer, by 11 a.m. (New York Time) on the Business Day preceding the
related Remittance Date, neither makes a Monthly Advance nor provides the
Securities Administrator and the Master Servicer with an Officer's Certificate
certifying that such a Monthly Advance would be a Nonrecoverable Monthly
Advance, then the Master Servicer shall deposit in the Distribution Account not
later than the Business Day immediately preceding the related Distribution Date
a Monthly Advance in an amount equal to the difference between (x) with respect
to each Monthly Payment due on a Mortgage Loan that is delinquent (other than
Relief Act Interest Shortfalls) and for which the related Servicer was required
to make a Monthly Advance pursuant to the related Servicing Agreement and (y)
amounts deposited in the Collection Account to be used for Monthly Advances with
respect to such Mortgage Loan, except to the extent the Master Servicer
determines any such Monthly Advance to be a Nonrecoverable Monthly Advance or
Nonrecoverable Servicing Advance. Subject to the foregoing, the Master Servicer
shall continue to make such Monthly Advances for so long as the related Servicer
is required to do so under the related Servicing Agreement. If applicable, on
the Business Day immediately preceding the Distribution Date, the Master
Servicer shall deliver an Officer's Certificate to the Trustee stating that the
Master Servicer elects not to make a Monthly Advance in a stated amount and
detailing the reason(s) it deems the Monthly Advance to be a Nonrecoverable
Monthly Advance. Any amounts deposited by the Master Servicer pursuant to this
Section 9.01 shall be net of the Servicing Fee for the related Mortgage Loans.
(b) The Master Servicer shall pay the costs of monitoring the
Servicers as required hereunder (including costs associated with (i) termination
of any Servicer, (ii) the appointment of a successor servicer or (iii) the
transfer to and assumption of, the servicing by the Master 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 the Master Servicer or any other successor servicer.
(c) If the Master Servicer assumes the servicing with respect to any
of the Mortgage Loans, it will not assume liability for the representations and
warranties of any Servicer it replaces or for any errors or omissions of such
Servicer.
(d) Neither the Depositor nor the Securities Administrator shall
consent to the assignment by any Servicer of such Servicer's rights and
obligations under the Agreement without the prior written consent of the Master
Servicer, which consent shall not be unreasonably withheld.
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance. The Master Servicer, at its expense, shall maintain in effect a
blanket fidelity bond and an errors and omissions insurance policy, affording
coverage with respect to all directors, officers, directors, employees and other
Persons acting on such Master Servicer's behalf, and covering errors and
omissions in the performance of the Master Servicer's obligations hereunder. The
errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
Section 9.03 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 of America, and as
Master Servicer has full power and authority to transact any and all
business contemplated by this Agreement and to execute, deliver and comply
with its obligations under the terms of this 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 Agreement by the Master
Servicer and its performance and compliance with the terms of this
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 Agreement;
(iii) this 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 Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations
under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement;
(vii) [Reserved];
(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 Agreement or the consummation of the transactions contemplated
by this 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
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 Agreement. The Master Servicer shall indemnify the Depositor, 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 9.03(a) above. It is understood and agreed that the
enforcement of the obligation of the Master Servicer set forth in this Section
9.03 to indemnify the Depositor, 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 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, Securities Administrator or the Trustee or notice thereof by
any one of such parties to the other parties.
Section 9.04 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 deposit in the
Distribution Account any payment received by it from any Servicer or required to
be made by the Master Servicer under the terms of this 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 any other party hereto;
(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 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 Trustee or to the Master Servicer and Trustee by
the holders of Certificates evidencing at least 25% of the Voting Rights;
(c) 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;
(d) 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;
(e) 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;
(f) Except as otherwise set forth herein, the Master Servicer
attempts to assign this Agreement or its responsibilities hereunder or to
delegate its duties hereunder (or any portion thereof) without the consent of
the Trustee, Securities Administrator and the Depositor; or
(g) 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 this Agreement, in each case, where such
indictment materially and adversely affects the ability of the Master Servicer
to perform its obligations under this 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, and
upon the request of the Holders of Certificates representing at least 51% of the
Voting Rights shall, terminate with cause all the rights and obligations of the
Master Servicer under this Agreement.
Upon receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer under this Agreement, shall pass to
and be vested in any successor master servicer appointed hereunder which accepts
such appointments. Upon written request from the Trustee or the Depositor, 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 with respect to the master
servicing of the Mortgage Loans 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 which shall at the time be credited to
the Distribution Account or are thereafter received with respect to the Mortgage
Loans.
Section 9.05 Waiver of Default. By a written notice, the Trustee may
with the consent of a Holders of Certificates evidencing at least 51% of the
Voting Rights 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 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 9.06 Successor to the Master Servicer. Upon termination of
the Master Servicer's responsibilities and duties under this 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 Agreement prior to the termination of the Master Servicer. Any successor
shall be a Xxxxxx Xxx and Xxxxxxx Mac approved servicer in good standing and
acceptable to the Depositor and the Rating Agencies. 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
servicer 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 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 which it is obligated to exercise under this 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 (i)
relieve the Master Servicer of responsibility for the representations and
warranties made pursuant to Section 9.03(a) hereof and the remedies available to
the Trustee under Section 9.03(b) hereof, it being understood and agreed that
the provisions of Section 9.03 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 Agreement; or (ii) 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).
If no successor Master Servicer has accepted its appointment within
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 this
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 this Agreement 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, including the fees and other amounts payable pursuant to
Section 9.07 hereof.
Any successor master servicer appointed as provided herein, shall
execute, acknowledge and deliver to the Master Servicer and to the Trustee an
instrument accepting such appointment, wherein the successor shall make the
representations and warranties set forth in Section 9.03 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 Agreement. Any termination or
resignation of the Master Servicer or termination of this 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 or in connection with the Trustee's assumption of
such obligations, duties and responsibilities.
Upon a successor's acceptance of appointment as such, the Master
Servicer shall notify by mail the Trustee of such appointment.
Section 9.07 Compensation of the Master Servicer. As compensation
for its activities under this Agreement, the Master Servicer shall be paid the
Master Servicing Fee.
Section 9.08 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 Servicer
shall (i) be a Person (or have an Affiliate) that is qualified and approved to
service mortgage loans for Xxxxxx Xxx and FHLMC (provided further that a
successor Master Servicer that satisfies subclause (i) through an Affiliate
agrees to service the Mortgage Loans in accordance with all applicable Xxxxxx
Mae and FHLMC guidelines) and (ii) have a net worth of not less than
$25,000,000.
Section 9.09 Resignation of the Master Servicer. Except as otherwise
provided in Sections 9.08 and 9.10 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 satisfactory to the Trustee and the Depositor shall
have assumed, the Master Servicer's responsibilities and obligations under this
Agreement. Notice of such resignation shall be given promptly by the Master
Servicer and the Depositor to the Trustee.
If at any time, Xxxxx Fargo Bank, N.A., as Master Servicer, resigns
under this Section 9.09, or is removed as Master Servicer pursuant to Section
9.04, then at such time Xxxxx Fargo Bank, N.A. shall also resign (and shall be
entitled to resign) as Securities Administrator under this Agreement.
Section 9.10 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; provided, however, that the Master Servicer
shall have the right with the prior written consent of the Depositor (which
shall not be unreasonably withheld or delayed), 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 compensation payable to the Master Servicer pursuant hereto
shall thereafter be payable to such successor master servicer but in no event
shall the fee payable to the successor master servicer exceed that payable to
the predecessor master servicer.
Section 9.11 Limitation on Liability of the Master Servicer. 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, Securities
Administrator, the Servicers or the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Master Servicer or any such person against any liability
that would otherwise be imposed by reason of willful malfeasance, bad faith or
negligence in the performance of its duties or by reason of reckless disregard
for its obligations and duties under this 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 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 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 9.07 and Section 9.12.
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 as required under the Agreement.
Section 9.12 Indemnification; Third Party Claims. The Master
Servicer agrees to indemnify the Depositor, 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 Servicer 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 Agreement.
The Depositor, Securities Administrator, the Servicer, and the Trustee shall
immediately notify the Master Servicer if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans which would entitle the
Depositor, the Servicer or the Trustee to indemnification under this Section
9.12, whereupon the Master Servicer shall assume the defense of any such claim
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim.
The Master Servicer agrees to indemnify and hold harmless the
Trustee from and against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liability, fees and expenses (including reasonable attorneys' fees) that the
Trustee may sustain as a result of such liability or obligations of the Master
Servicer and in connection with the Trustee's assumption (not including the
Trustee's performance, except to the extent that costs or liability of the
Trustee are created or increased as a result of negligent or wrongful acts or
omissions of the Master Servicer prior to its replacement as Master Servicer) of
the Master Servicer's obligations, duties or responsibilities under such
agreement.
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 Agreement, the Servicing Agreements, the Sale
Agreements, the Step 2 Assignment Agreements or the Certificates, except to the
extent that any such loss, liability or expense is related to (i) a material
breach of the Master Servicer's representations and warranties in this 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; provided that any such loss, liability or expense constitutes an
"unanticipated expense incurred by the REMIC" within the meaning of Treasury
Regulations Section 1.860G-1(b)(3)(ii). The Master Servicer shall be entitled to
reimbursement for any such indemnified amount from funds on deposit in the
Distribution Account.
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator. The Securities
Administrator shall undertake to perform such duties and only such duties as are
specifically set forth in this Agreement.
The Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Securities Administrator that are specifically
required to be furnished pursuant to any provision of this Agreement shall
examine them to determine whether they are in the form required by this
Agreement; provided, however, that the Securities Administrator shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Securities Administrator shall notify the
Certificateholders of such non-conforming instrument in the event the Securities
Administrator, after so requesting, does not receive a satisfactorily corrected
instrument.
No provision of this Agreement shall be construed to relieve the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) the duties and obligations of the Securities Administrator shall
be determined solely by the express provisions of this Agreement, the
Securities Administrator shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Securities Administrator and the Securities
Administrator 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 Securities Administrator and conforming to
the requirements of this Agreement which it believed in good faith to be
genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the Securities Administrator shall not be liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Securities Administrator, unless it shall be conclusively
determined by a court of competent jurisdiction, such determination no
longer subject to appeal, that the Securities Administrator was negligent
in ascertaining the pertinent facts;
(iii) the Securities Administrator shall not be liable with respect
to any action or inaction taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Holders of Certificates
evidencing not less than 25% of the Voting Rights of Certificates relating
to the time, method and place of conducting any proceeding for any remedy
available to the Securities Administrator, or exercising or omitting to
exercise any trust or power conferred upon the Securities Administrator
under this Agreement; and
(iv) the Securities Administrator shall not be accountable, shall
have no liability and makes no representation as to any acts or omissions
hereunder of the Master Servicer or the Trustee.
Section 10.02 Certain Matters Affecting the Securities
Administrator. Except as otherwise provided in Section 10.01:
(i) the Securities Administrator may request and conclusively rely
upon and shall be fully protected in acting or refraining from acting upon
any resolution, Officer's Certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties and the Securities Administrator shall have no
responsibility to ascertain or confirm the genuineness of any signature of
any such party or parties;
(ii) the Securities Administrator may consult with counsel,
financial advisers or accountants and the advice of any such counsel,
financial advisers or accountants and any advice or 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 advice or Opinion of Counsel;
(iii) the Securities Administrator shall not be liable for any
action or inaction taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(iv) 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 so to do by Holders of Certificates evidencing not
less than 25% of the Voting Rights allocated to each Class of
Certificates; 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 reasonably assured to the
Securities Administrator by the security afforded to it by the terms of
this Agreement, the Securities Administrator may require reasonable
indemnity against such expense or liability as a condition to so
proceeding. Nothing in this clause (iv) shall derogate from the obligation
of the Master Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors, provided that the
Master Servicer shall have no liability for disclosure required by this
Agreement;
(v) the Securities Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian and the Securities
Administrator shall not be responsible for any misconduct or negligence on
the part of any such agent, attorney or custodian appointed by the
Securities Administrator with due care;
(vi) the Securities Administrator shall not be required to risk or
expend its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its rights
or powers hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not assured to it, and none of the provisions contained in
this Agreement shall in any event require the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer under this Agreement;
(vii) the Securities Administrator shall be under no obligation to
exercise any of the trusts, rights or powers vested in it by this
Agreement or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Securities Administrator
reasonable security or indemnity satisfactory to the Securities
Administrator against the costs, expenses and liabilities which may be
incurred therein or thereby; and
(viii) the Securities Administrator shall have no obligation to
appear in, prosecute or defend any legal action that is not incidental to
its duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Securities Administrator
may in its discretion undertake any such action that it may deem necessary
or desirable in respect of this Agreement and the rights and duties of the
parties hereto and the interests of the Trustee, the Securities
Administrator and the Certificateholders hereunder. In such event, the
legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and
the Securities Administrator shall be entitled to be reimbursed therefor
out of the Collection Account.
The Securities Administrator shall have no duty (A) to see to any
recording, filing, or depositing of this Agreement or any agreement referred to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing thereof, (B) to
see to the provision of any insurance or (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 Fund other than from funds available in the Distribution Account.
Section 10.03 Securities Administrator Not Liable for Certificates
or Mortgage Loans. The recitals contained herein and in the Certificates shall
be taken as the statements of the Depositor or the Transferor, as the case may
be, and the Securities Administrator assumes no responsibility for their
correctness. The Securities Administrator makes no representations as to the
validity or sufficiency of this Agreement or of the Certificates or of any
Mortgage Loan or related document other than with respect to the Securities
Administrator's execution and authentication of the Certificates. The Securities
Administrator shall not be accountable for the use or application by the
Depositor or the Master Servicer of any funds paid to the Depositor or the
Master Servicer in respect of the Mortgage Loans or deposited in or withdrawn
from the Collection Account by the Depositor or the Master Servicer.
Section 10.04 Securities Administrator May Own Certificates. The
Securities Administrator in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact business with the parties
hereto and their Affiliates with the same rights as it would have if it were not
the Securities Administrator.
Section 10.05 Securities Administrator's Fees and Expenses. The
Securities Administrator shall be entitled to the investment income earned on
amounts in the Distribution Account during the Securities Administrator Float
Period. The Securities Administrator and any director, officer, employee, agent
or "control person" within the meaning of the Securities Act of 1933, as
amended, and the Securities Exchange of 1934, as amended ("Control Person"), of
the Securities Administrator shall be indemnified by the Trust and held harmless
against any loss, liability or expense (including reasonable attorney's fees)
(i) incurred in connection with any claim or legal action relating to (a) this
Agreement, (b) the Mortgage Loans or (c) the Certificates, other than any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of any of the Securities Administrator's duties
hereunder, (ii) incurred in connection with the performance of any of the
Securities Administrator's duties hereunder, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of any of the Securities Administrator's duties hereunder or
(iii) incurred by reason of any action of the Securities Administrator taken at
the direction of the Certificateholders, provided that any such loss, liability
or expense constitutes an "unanticipated expense incurred by the REMIC" within
the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii). Such indemnity
shall survive the termination of this Agreement or the resignation or removal of
the Securities Administrator hereunder. Without limiting the foregoing, and
except for any such expense, disbursement or advance as may arise from the
Securities Administrator's negligence, bad faith or willful misconduct, or which
would not be an "unanticipated expense" within the meaning of the second
preceding sentence, the Securities Administrator shall be reimbursed by the
Trust for all reasonable expenses, disbursements and advances incurred or made
by the Securities Administrator in accordance with any of the provisions of this
Agreement with respect to: (A) the reasonable compensation and the expenses and
disbursements of its counsel not associated with the closing of the issuance of
the Certificates, (B) the reasonable compensation, expenses and disbursements of
any accountant, engineer, appraiser or other agent that is not regularly
employed by the Securities Administrator, to the extent that the Securities
Administrator must engage such Persons to perform acts or services hereunder and
(C) printing and engraving expenses in connection with preparing any Definitive
Certificates. The Trust shall fulfill its obligations under this paragraph from
amounts on deposit from time to time in the Distribution Account.
The Securities Administrator may retain or withdraw from the
Distribution Account, (i) the master servicing fee which has been determined
pursuant to a separate agreement, (ii) amounts necessary to reimburse it or the
Master Servicer for any previously unreimbursed Advances and any Advances the
Master Servicer deems to be non-recoverable from the related Mortgage Loan
proceeds, (iii) an aggregate annual amount to indemnify the Master Servicer and
itself for amounts due in accordance with this Agreement, and (iv) any other
amounts which it or the Master Servicer is entitled to receive hereunder for
reimbursement, indemnification or otherwise, including the amount to which the
Securities Administrator is entitled pursuant to Section 3.02 hereof. The
Securities Administrator 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 Agreement.
Section 10.06 Eligibility Requirements for Securities Administrator.
The Securities Administrator hereunder shall at all times be a corporation or
association organized and doing business under the laws the United States of
America or any state thereof, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating of at least investment grade. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 10.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 10.06, the Securities
Administrator shall resign immediately in the manner and with the effect
specified in Section 10.07 hereof. The entity serving as Securities
Administrator may have normal banking and trust relationships with the Depositor
and its affiliates or the Trustee and its affiliates.
Any successor Securities Administrator (i) may not be an originator,
the Master Servicer, the Servicer, the Depositor or an affiliate of the
Depositor unless the Securities Administrator functions are operated through an
institutional trust department of the Securities Administrator, (ii) must be
authorized to exercise corporate trust powers under the laws of its jurisdiction
of organization, and (iii) must be rated at least "A/F1" by Fitch, if Fitch is a
Rating Agency, or the equivalent rating by S&P or Xxxxx'x. If no successor
Securities Administrator shall have been appointed and shall have accepted
appointment within 60 days after the Securities Administrator ceases to be the
Securities Administrator pursuant to Section 10.07, then the Trustee may (but
shall not be obligated to) become the successor Securities Administrator. The
Depositor shall appoint a successor to the Securities Administrator in
accordance with Section 10.07. The Trustee shall notify the Rating Agencies of
any change of Securities Administrator.
Section 10.07 Resignation and Removal of Securities Administrator.
The Securities Administrator may at any time resign by giving written notice of
resignation to the Depositor and the Trustee and each Rating Agency not less
than 60 days before the date specified in such notice when, subject to Section
10.08, such resignation is to take effect, and acceptance by a successor
Securities Administrator in accordance with Section 10.08 meeting the
qualifications set forth in Section 10.06. If no successor Securities
Administrator meeting such qualifications shall have been so appointed by the
Depositor and have accepted appointment within 30 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.
If at any time the Securities Administrator shall cease to be
eligible in accordance with the provisions of Section 10.06 hereof and shall
fail to resign after written request thereto by the Depositor, or if at any time
the Securities Administrator shall become incapable of acting, or shall be
adjudged as bankrupt or insolvent, or a receiver of the Securities Administrator
or of its property shall be appointed, or any public officer shall take charge
or control of the Securities Administrator or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or a tax is imposed with
respect to the Trust Fund by any state in which the Securities Administrator or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different Securities Administrator, then the Depositor may
remove the Securities Administrator and appoint a successor Securities
Administrator by written instrument, in triplicate, one copy of which instrument
shall be delivered to the Securities Administrator so removed, one copy of which
shall be delivered to the Master Servicer and one copy to the successor
Securities Administrator.
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 by the successor
Securities Administrator to the Trustee, one complete set to the Securities
Administrator so removed and one complete set to the successor so appointed.
Notice of any removal of the Securities Administrator shall be given to each
Rating Agency by the successor 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 10.07 shall become effective upon acceptance by the
successor Securities Administrator of appointment as provided in Section 10.08
hereof.
Section 10.08 Successor Securities Administrator. Any successor
Securities Administrator (which may be the Trustee) appointed as provided in
Section 10.07 hereof shall execute, acknowledge and deliver to the Depositor and
to its predecessor Securities Administrator and the Trustee an instrument
accepting such appointment hereunder 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 hereunder, with the like effect as if originally named as
Securities Administrator herein. The Depositor, the Trustee, the Master Servicer
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.
No successor Securities Administrator shall accept appointment as
provided in this Section 10.08 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 10.06 hereof and its appointment shall not adversely affect the then
current rating of the Certificates, as confirmed in writing by each Rating
Agency.
Upon acceptance by a successor Securities Administrator of
appointment as provided in this Section 10.08, the Depositor shall mail notice
of the succession of such Securities Administrator hereunder to all Holders of
Certificates. If the Depositor fails to mail such notice within 10 days after
acceptance by the successor Securities Administrator of appointment, the
successor Securities Administrator shall cause such notice to be mailed at the
expense of the Depositor.
Section 10.09 Merger or Consolidation of Securities Administrator.
Any corporation or other entity into which the Securities Administrator may be
merged or converted or with which it may be consolidated or any corporation or
other entity resulting from any merger, conversion or consolidation to which the
Securities Administrator shall be a party, or any corporation or other entity
succeeding to the business of the Securities Administrator, shall be the
successor of the Securities Administrator hereunder, provided that such
corporation or other entity shall be eligible under the provisions of Section
10.06 hereof, without the execution or filing of any paper or further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 10.10 Assignment or Delegation of Duties by the Securities
Administrator. Except as expressly provided herein, the Securities Administrator
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 Securities Administrator; provided, however, that the
Securities Administrator shall have the right with the prior written consent of
the Depositor (which shall not be unreasonably withheld or delayed), 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
Securities Administrator hereunder. Notice of such permitted assignment shall be
given promptly by the Securities Administrator to the Depositor and the Trustee.
If, pursuant to any provision hereof, the duties of the Securities Administrator
are transferred to a successor securities administrator, the entire compensation
payable to the Securities Administrator pursuant hereto shall thereafter be
payable to such successor securities administrator but in no event shall the fee
payable to the successor securities administrator exceed that payable to the
predecessor securities administrator.
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 11.03, the obligations and responsibilities
of the Depositor, the Master Servicer, the Servicers, the Securities
Administrator and the Trustee created hereby with respect to the Trust Fund
shall terminate upon the earlier of (a) the purchase, on or after the Optional
Termination Date, by the Master Servicer at the direction of the Majority Class
X Certificateholder of all Mortgage Loans (and REO Properties) at the price
equal to the sum of (i) 100% of the unpaid principal balance of each Mortgage
Loan (other than in respect of REO Property) plus accrued and unpaid interest
thereon at the applicable Mortgage Interest Rate, (ii) the lesser of (x) the
appraised value of any REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the Majority
Class X Certificateholder at its expense, plus accrued and unpaid interest on
the related mortgage loans at the applicable mortgage rate and (y) the unpaid
principal balance of each Mortgage Loan related to any REO Property, in each
case plus accrued and unpaid interest thereon at the applicable Mortgage
Interest Rate and (iii) the sum of all outstanding Basis Risk Carry Forward
Amounts ("Termination Price") and (b) the later of (i) the maturity or other
liquidation (or any Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and the disposition of all REO Property and (ii) the
distribution to Certificateholders of all amounts required to be distributed to
them pursuant to this Agreement. If the Depositor or its affiliate is a Class X
Certificateholder, the Depositor may only exercise its right to direct the
Master Servicer to purchase the Mortgage Loans pursuant to this Section 11.01
with at least one other unaffiliated Person that holds at least a 10% interest
in the Class X Certificates. Upon exercise of such option, the property of the
Trust Fund shall be sold to the Master Servicer at a price equal to the
Termination Price, whereupon the Master Servicer shall immediately sell such
property to the Majority Class X Certificateholders at a price equal to the
Termination Price. Notwithstanding anything in this Agreement to contrary, the
Master Servicer shall not be obligated to purchase the assets of the Trust Fund
unless and until the Master Servicer shall have received funds from the Majority
Class X Certificateholders in an amount equal to the Termination Price. In no
event shall the trusts created hereby continue beyond the expiration of 21 years
from the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. James's, living on the date
hereof.
Section 11.02 Final Distribution on the Certificates. If, on any
Remittance Date, the Servicers notify the Securities Administrator that there
are no Outstanding Mortgage Loans and no other funds or assets in the Trust Fund
other than the funds in the Collection Account, the Securities Administrator
shall promptly send a Notice of Final Distribution to the applicable
Certificateholders. If the Majority Class X Certificateholder elects to cause
the Master Servicer terminate the Trust Fund pursuant to clause (a) of Section
11.01, at least 20 days prior to the date the Notice of Final Distribution is to
be mailed to the affected Certificateholders, the Majority Class X
Certificateholder shall notify the Master Servicer and the Trustee of the date
the Majority Class X Certificateholder intends to cause the Master Servicer to
terminate the Trust Fund and of the applicable repurchase price of the Mortgage
Loans and REO Properties.
A Notice of Final Distribution, specifying the Distribution Date on
which Certificateholders may surrender their Certificates for payment of the
final distribution and cancellation, shall be given promptly by the Securities
Administrator by letter to Certificateholders mailed not later than the 20th day
of the month of such final distribution. Any such Notice of Final Distribution
shall specify (a) the Distribution Date upon which final distribution on the
Certificates will be made upon presentation and surrender of Certificates at the
office therein designated, (b) the amount of such final distribution, (c) the
location of the office or agency at which such presentation and surrender must
be made, and (d) that the Record Date otherwise applicable to such Distribution
Date is not applicable, distributions being made only upon presentation and
surrender of the Certificates at the office therein specified. The Securities
Administrator will give such Notice of Final Distribution to each Rating Agency
at the time such Notice of Final Distribution is given to Certificateholders.
In the event such Notice of Final Distribution is given, the
Majority Class X Certificateholder shall remit the applicable purchase price in
immediately available funds to the Master Servicer at least two Business Days
prior to the applicable Distribution Date and, upon receipt of such funds from
the majority Class X Certificateholder the Master Servicer shall cause all such
funds to be deposited in the Distribution Account on the Business Day prior to
the applicable Distribution Date in an amount equal to the final distribution in
respect of the Certificates. Upon such final deposit with respect to the Trust
Fund and the receipt by the Securities Administrator of a Request for Release
therefor, the Master Servicer shall direct the release and the relevant
Custodians shall promptly release to the Majority Class X Certificateholder or
its designee the Custodial Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class (after reimbursement of all amounts due the Depositor and the Trustee
hereunder), in each case on the final Distribution Date and in the order set
forth in Section 4.01, in proportion to their respective Percentage Interests,
with respect to Certificateholders of the same Class, an amount up to an amount
equal to (i) as to each Class of Regular Certificates (except the Class X
Certificate), the Certificate Balance thereof plus for each such Class and the
Class X Certificate accrued interest thereon in the case of an interest-bearing
Certificate and all other amounts to which such Classes are entitled pursuant to
Section 4.01, (ii) as to the Residual Certificates, the amount, if any, which
remains on deposit in the Distribution Account (other than the amounts retained
to meet claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Securities Administrator
shall give a second written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. If within six months after the second notice all the
applicable Certificates shall not have been surrendered for cancellation, the
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
funds and other assets which remain a part of the Trust Fund. If within one year
after the second notice all Certificates shall not have been surrendered for
cancellation, the Class R Certificateholders shall be entitled to all unclaimed
funds and other assets of the Trust Fund which remain subject hereto.
Section 11.03 Additional Termination Requirements. In the event the
Majority Class X Certificateholder exercises its option to direct the purchase
of the Mortgage Loans as provided in Section 11.01, the Trust Fund shall be
terminated in accordance with the following additional requirements, unless the
Trustee and the Securities Administrator have been supplied with an Opinion of
Counsel, at the expense of the Majority Class X Certificateholder, to the effect
that the failure to comply with the requirements of this Section 11.03 will not
(i) result in the imposition of taxes on "prohibited transactions" on either
Trust REMIC as defined in Section 860F of the Code, or (ii) cause either Trust
REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(a) The Securities Administrator on behalf of the Trustee shall sell
all of the assets of the Trust Fund at the direction of the Master Servicer to
the Majority Class X Certificateholder and, by the next Distribution Date after
such sale, shall distribute to the Certificateholders the proceeds of such sale
in complete liquidation of each of the Trust REMICs; and
(b) The Securities Administrator shall attach a statement to the
final federal income tax return for each of the Lower-Tier REMIC and the
Upper-Tier REMIC stating that pursuant to Treasury Regulations Section 1.860F-1,
the first day of the 90-day liquidation period for each such REMIC was the date
on which the Securities Administrator on behalf of the Trustee sold the assets
of the Trust Fund to the Majority Class X Certificateholder at the direction of
the Master Servicer.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Master Servicer, the Securities Administrator, the
Custodians and the Trustee (and the Master Servicer may request an amendment or
consent to any amendment of a Servicing Agreement as directed by the Depositor)
without the consent of any of the Certificateholders (i) to cure any ambiguity
or mistake, (ii) to correct any defective provision herein or in the applicable
Servicing Agreement, or to supplement any provision in this Agreement which may
be inconsistent with any other provision herein or in the applicable Servicing
Agreement, (iii) to add to the duties of the Depositor, or the Trustee (or with
respect to the applicable Servicing Agreement, of the applicable Servicer) the
Master Servicer, the Securities Administrator or the Custodians, (iv) to add any
other provisions with respect to matters or questions arising hereunder or under
the applicable Servicing Agreement, or (v) to modify, alter, amend, add to or
rescind any of the terms or provisions contained in this Agreement or in the
applicable Servicing Agreement; provided that any action pursuant to clause (iv)
or (v) above shall not, as evidenced by an Opinion of Counsel (which Opinion of
Counsel shall be an expense of the requesting party, but in any case shall not
be an expense of the Trustee, the Master Servicer, the Securities Administrator
or the Trust Fund), adversely affect in any material respect the interests of
any Certificateholder; provided, further, that the amendment shall not be deemed
to adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, the Depositor, the Custodians, the
Securities Administrator and the Master Servicer also may at any time and from
time to time amend this Agreement (and the Master Servicer shall request the
Servicers amend the applicable Servicing Agreements), without the consent of the
Certificateholders, to modify, eliminate or add to any of its provisions to such
extent as shall be necessary or helpful to (i) maintain the qualification of
each Trust REMIC under the REMIC Provisions, (ii) avoid or minimize the risk of
the imposition of any tax on either Trust REMIC pursuant to the Code that would
be a claim at any time prior to the final redemption of the Certificates or
(iii) comply with any other requirements of the Code; provided, that the Trustee
and the Master Servicer have been provided an Opinion of Counsel, which opinion
shall be an expense of the party requesting such opinion but in any case shall
not be an expense of the Trustee or the Trust Fund, to the effect that such
action is necessary or helpful to, as applicable, (i) maintain such
qualification, (ii) avoid or minimize the risk of the imposition of such a tax
or (iii) comply with any such requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Custodians, the Securities Administrator and
the Trustee (and the Master Servicer shall consent to any amendment to the
applicable Servicing Agreement as directed by the Depositor) with the consent of
the Holders of Certificates evidencing Percentage Interests aggregating not less
than 66(2)/3% of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
clause (i), without the consent of the Holders of Certificates of such Class
evidencing, as to such Class, Percentage Interests aggregating not less than
66(2)/3%, or (iii) reduce the aforesaid percentages of Certificates the Holders
of which are required to consent to any such amendment, without the consent of
the Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee and the Master Servicer shall not consent to any amendment to this
Agreement or any Servicing Agreement unless (i) each shall have first received
an Opinion of Counsel, which opinion shall not be an expense of the Trustee, the
Master Servicer or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on either the Lower-Tier REMIC or the Upper-Tier
REMIC or the Certificateholders or cause either the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC or the grantor trust portion of
the Trust Fund to fail to be treated as a grantor trust any time that any
Certificates are outstanding and (ii) the party seeking such amendment shall
have provided written notice to the Rating Agencies (with a copy of such notice
to the Trustee and the Master Servicer) of such amendment, stating the
provisions of the Agreement to be amended.
Notwithstanding the foregoing provisions of this Section 12.01, with
respect to any amendment that significantly modifies the permitted activities of
the Trustee or a Servicer under the applicable Servicing Agreement, any
Certificate beneficially owned by the Depositor or any of its Affiliates or by
the Responsible Party or any of its Affiliates shall be deemed not to be
outstanding (and shall not be considered when determining the percentage of
Certificateholders consenting or when calculating the total number of
Certificates entitled to consent) for purposes of determining if the requisite
consents of Certificateholders under this Section 12.01 have been obtained.
Promptly after the execution of any amendment to this Agreement or
any Servicing Agreement requiring the consent of Certificateholders, the Trustee
shall furnish written notification of the substance or a copy of such amendment
to each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee, the Master
Servicer or the Securities Administrator to enter into an amendment which
modifies its obligations or liabilities without its consent and in all cases
without receiving an Opinion of Counsel (which Opinion shall not be an expense
of the Trustee, the Master Servicer, the Securities Administrator or the Trust
Fund), satisfactory to the Trustee, the Master Servicer or the Securities
Administrator, as applicable, that (i) such amendment is permitted and is not
prohibited by this Agreement or the applicable Servicing Agreement and that all
requirements for amending this Agreement or such Servicing Agreement have been
complied with; and (ii) either (A) the amendment does not adversely affect in
any material respect the interests of any Certificateholder or (B) the
conclusion set forth in the immediately preceding clause (A) is not required to
be reached pursuant to this Section 12.01.
Notwithstanding the Trustee's consent to, or the Master Servicer's
request for, any amendment of any Servicing Agreement pursuant to the terms of
this Section 12.01, such Servicing Agreement cannot be amended without the
consent of the applicable Servicer. Neither the Master Servicer nor the Trustee
shall be responsible for any failure by such Servicer to consent to any
amendment to the applicable Servicing Agreement.
Section 12.02 Recordation of Agreement; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation shall be
effected by the Trustee at the expense of the Trust, but only if an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders is delivered to the Trustee.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 12.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. It is, further, not the intention of the
parties that such conveyances be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, either of such assets are held
to be the property of the Depositor, or if for any other reason this Agreement
is held or deemed to create a security interest in either of such assets, then
(i) this Agreement shall be deemed to be a security agreement within the meaning
of the Uniform Commercial Code of the State of New York and (ii) the conveyances
provided for in this Agreement shall be deemed to be an assignment and a grant
by the Depositor to the Trustee, for the benefit of the Certificateholders, of a
security interest in all of the assets transferred, whether now owned or
hereafter acquired.
The Depositor, for the benefit of the Certificateholders, shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Trust Fund, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement. The Depositor shall arrange for
filing any Uniform Commercial Code continuation statements in connection with
any security interest granted or assigned to the Trustee for the benefit of the
Certificateholders.
Section 12.05 Notices. (a) The Securities Administrator shall use
its best efforts to promptly provide notice to each Rating Agency with respect
to each of the following of which it has actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Event of Default that has not been cured;
(iii) The resignation or termination of a Servicer, Master Servicer,
Securities Administrator or the Trustee and the appointment of any
successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant to
this Agreement or the Sale Agreements; and
(v) The final payment to Certificateholders.
(b) In addition, the Securities Administrator shall promptly make
available on its internet website to each Rating Agency copies of the following:
(i) Each report to Certificateholders described in Section 4.02.
(ii) The Servicer's annual statement of compliance and the
accountant's report described in the Servicing Agreements; and
(iii) Any notice of a purchase of a Mortgage Loan pursuant to this
Agreement and any Sale Agreement.
All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to (a) in the case of
the Depositor or GS Mortgage Securities Corp. or Xxxxxxx, Xxxxx & Co., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Principal Finance Group/Xxxxxxxxxxx
X. Xxxxxxx and Asset Management Group/Senior Asset Manager, or such other
address as may be hereafter furnished to the Securities Administrator by the
Depositor in writing; (b) in the case of IndyMac, 000 Xxxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000 Attention: Secondary Marketing, or such other address
as may be hereafter furnished to the Depositor and the Securities Administrator
by IndyMac in writing; (c) in the case of Countrywide or Countrywide Servicing,
to Countrywide Home Loans Servicing LP, 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx
00000, Attention: Investor Accounting, or such other address as may be hereafter
furnished to the Depositor and the Securities Administrator by Countrywide in
writing; (d) in the case of GreenPoint, GreenPoint Mortgage Funding, Inc., 000
Xxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxx, or such
other address as may be hereafter furnished to the Depositor and the Securities
Administrator by GreenPoint in writing; (e) in the case of the Trustee or the
Securities Administrator to its Corporate Trust Office, or such other address as
the Trustee or the Securities Administrator may hereafter furnish to the
Depositor and; (f) in the case of the Master Servicer, Xxxxx Fargo Bank,
National Association, X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: GSAA
2004-8, or such other address as may be hereafter furnished to the Depositor and
the Securities Administrator by the Master Servicer in writing and (h) in the
case of each of the Rating Agencies, the address specified therefor in the
definition corresponding to the name of such Rating Agency. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
Section 12.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 12.07 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 12.07, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 12.08 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 12.09 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW)
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
* * * * * * *
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
GS MORTGAGE SECURITIES CORP.
By:______________________________________
Name:
Title:
DEUTSCHE BANK NATIONAL TRUST
COMPANY, solely as Trustee
and Custodian and not in
its individual capacity
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
XXXXX FARGO BANK, N.A., as
Master Servicer and
Securities Administrator
By:______________________________________
Name:
Title:
JPMORGAN CHASE BANK
By:______________________________________
Name:
Title:
SCHEDULE I
Mortgage Loan Schedule
Available Upon Request
EXHIBIT A
FORM OF CLASS A-1, CLASS X-0, XXXXX X-0X, XXXXX X-0X, CLASS M-1,
CLASS M-2, CLASS B-1 AND B-2 CERTIFICATES
[To be added to the Class B-2 Certificates while they remain Private
Certificates: IF THIS CERTIFICATE IS A PHYSICAL CERTIFICATE, NEITHER THIS
CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR LETTER (THE
"TRANSFEROR LETTER") IN THE FORM OF EXHIBIT H TO THE AGREEMENT REFERRED TO
HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER
(THE "144A LETTER") IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN
OR (II) THE SECURITIES ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED
AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.]
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE
DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.
To be added to the Class B-2 Certificates while such Certificate remains a
Private Certificate. [NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR
EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A
PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR, IF THE
TRANSFEREE IS AN INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT IS USING THE
ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE, THE
SECURITIES ADMINISTRATOR AND THE DEPOSITOR, TO THE EFFECT THAT THE PURCHASE OR
HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR
ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE, THE MASTER SERVICER OR THE
SECURITIES ADMINISTRATOR TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY
UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE
TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF
THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER OR OPINION OF COUNSEL
SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TRUSTEE AND DEPOSITOR AS DESCRIBED
ABOVE SHALL BE VOID AND OF NO EFFECT.]
In the event that a transfer of a Private Certificate which is a Book-Entry
Certificate is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer will be deemed to
have made as of the transfer date each of the certifications set forth in the
Transferor Certificate in respect of such Certificate and the transferee will be
deemed to have made as of the transfer date each of the certifications set forth
in the Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate.
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER
ASSETS.
Certificate No. :
Cut-off Date : September 1, 2004
First Distribution Date : October 25, 2004
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate
Balances of all
Certificates of this Class : Class Principal Amount
Class A-1 $96,837,000
Class A-2 $139,498,000
Class A-3A $197,534,000
Class A-3B $7,165,000
Class M-1 $12,093,000
Class M-2 $9,247,000
Class B-1 $7,351,000
Class B-2 $2,845,000
CUSIP : Class CUSIP No.
Class A-1 362373 AA 0
Class A-2 362373 AB 8
Class A-3A 362373 AC 6
Class A-3B 362373 AL 6
Class M-1 362373 AD 4
Class M-2 362373 AE 2
Class B-1 362373 AF 9
Class B-2 362373 AG 7
ISIN : Class
Class A-1 US362373AA01
Class A-2 US362373AA01
Class A-3A US362373AA01
Class A-3B US362373AL65
Class M-1 US362373AA01
Class M-2 US362373AA01
Class B-1 US362373AF97
Class B-2 US362373AG70
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2004-8
Asset-Backed Certificates, Series 2004-8
[Class A-1][Class A-2][Class A-3A][Class A-3B][Class M-1][Class M-2]
[Class B-1][Class B-2]
evidencing a percentage interest in the
distributions allocable to the Certificates
of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Master Servicer, the Securities Administrator or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Master Servicing and Trust Agreement dated as of the
Cut-off Date specified above (the "Agreement") among GS Mortgage Securities
Corp., as depositor (the "Depositor") Deutsche Bank National Trust Company, as
trustee (the "Trustee") and as custodian, Xxxxx Fargo Bank, N.A., as Master
Servicer (in such capacity, the "Master Servicer") and Securities Administrator
(in such capacity, the "Securities Administrator") and JPMorgan Chase Bank, as
custodian. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity, but
solely as Securities Administrator
By:_____________________________________
Authenticated:
By:__________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2004-8
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2004-8 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes, or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Trustee and the other parties to the Agreement with the
consent of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Trustee, the Depositor and the Securities Administrator and any
agent of the Trustee, the Depositor or the Securities Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and neither the Depositor, the Trustee or the Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined and in the manner as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to _____________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by ___________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT B
FORM OF CLASS P CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (ii) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, or a plan subject to applicable federal, state or
local law ("similar law") materially similar to the foregoing provisions of
ERISA or the code or a person investing on behalf of or with plan assets of such
a plan. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO title I of erisa, section 4975 of the code or similar law WITHOUT THE
REPRESENTATION LETTER AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : September 1, 2004
First Distribution Date : October 25, 2004
Percentage Interest of
this Certificate
("Denomination") : 100%
CUSIP :
ISIN :
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2004-8
Asset-Backed Certificates, Series 2004-8
Class P
evidencing a percentage interest in the
distributions allocable to the Certificates
of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor the Master
Servicer, to Securities Administrator or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Master Servicing and
Trust Agreement dated as of the Cut-off Date specified above (the "Agreement")
among GS Mortgage Securities Corp., as depositor (the "Depositor"), Deutsche
Bank National Trust Company, as trustee (the "Trustee") and custodian, Xxxxx
Fargo, N.A., as Master Servicer (in such capacity, to "Master Servicer") and
Securities Administrator (in such capacity, to "Securities Administrator") and
JPMorgan Chase Bank, as custodian. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Securities Administrator for such purposes or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Trust Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A., not
in its individual
capacity, but solely as
Securities Administrator
By:______________________________________
Authenticated:
By:_____________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2004-8
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2004-8 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Trustee and the other parties to the Agreement with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes or the office or agency maintained by
the Securities Administrator in Minneapolis, Minnesota, accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator duly
executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Trustee, the Depositor and the Securities Administrator and any
agent of the Trustee, the Depositor or the Securities Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Trustee, the Depositor, the Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Principal Balance, the Person specified in Section 11.01 of the Agreement will
have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined and in the manner as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip
code of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to _____________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT C
FORM OF CLASS R CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN TWO "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
IF THIS CERTIFICATE IS A PHYSICAL CERTIFICATE, NEITHER THIS CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED TRANSFEROR DELIVERS TO
THE SECURITIES ADMINISTRATOR A TRANSFEROR LETTER (THE "TRANSFEROR LETTER") IN
THE FORM OF EXHIBIT H TO THE MASTER SERVICING AND TRUST AGREEMENT REFERRED TO
HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER
(THE "144A LETTER") IN THE FORM OF EXHIBIT I TO THE MASTER SERVICING AND TRUST
AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES ADMINISTRATOR RECEIVES AN
OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH
TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
IF THIS CERTIFICATE IS A BOOK ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE
DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. NOTWITHSTANDING ANYTHING ELSE
TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON
BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF
THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. : R-1
Cut-off Date : September 1, 2004
First : October 25, 2004
Distribution Date
Percentage
Interest of this
Certificate
("Denomination") : 100%
CUSIP :
ISIN :
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2004-8
Asset-Backed Certificates, Series 2004-8
Class R
evidencing a percentage interest in the
distributions allocable to the Certificates
of the above-referenced Class.
Distributions in respect of this Certificate is distributable
monthly as set forth herein. This Class R Certificate has no Certificate Balance
and is not entitled to distributions in respect of principal or interest. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor the Master Servicer, the Securities Administrator or
the Trustee referred to below or any of their respective affiliates. Neither
this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [_____________________] is the registered owner
of the Percentage Interest specified above of any monthly distributions due to
the Class R Certificates pursuant to a Master Servicing and Trust Agreement
dated as of the Cut-Off Date specified above (the "Agreement") among GS Mortgage
Securities Corp., as depositor (the "Depositor"), Deutsche Bank National Trust
Company, as trustee (the "Trustee") and custodian, Xxxxx Fargo Bank, N.A., as
Master Servicer (in such capacity, the "Master Servicer") and securities
administrator (in such capacity, the "Securities Administrator) and JPMorgan
Chase Bank, as custodian. To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class R
Certificate at the offices designated by the Trustee for such purposes or the
office or agency maintained by the Securities Administrator in New York, New
York.
No transfer of a Class R Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan or arrangement subject to Section 406 of ERISA, a plan or
arrangement subject to Section 4975 of the Code or a plan subject to Similar
Law, or a person acting on behalf of any such plan or arrangement nor using the
assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Securities Administrator or
the Trust Fund. In the event that such representation is violated, or any
attempt is made to transfer to a plan or arrangement subject to Section 406 of
ERISA or a plan subject to Section 4975 of the Code or a plan subject to Similar
Law, or a person acting on behalf of any such plan or arrangement or using the
assets of any such plan or arrangement, such attempted transfer or acquisition
shall be void and of no effect.
Each Holder of this Class R Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class R Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R Certificate shall be a
Permitted Transferee and shall promptly notify the Securities Administrator of
any change or impending change in its status as a Permitted Transferee, (ii) no
Ownership Interest in this Class R Certificate may be registered on the Closing
Date or thereafter transferred, and the Securities Administrator shall not
register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit G to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of this Class R
Certificate, (C) not to cause income with respect to the Class R Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person and (D) not to Transfer the Ownership Interest in this Class R
Certificate or to cause the Transfer of the Ownership Interest in this Class R
Certificate to any other Person if it has actual knowledge that such Person is
not a Permitted Transferee and (iv) any attempted or purported Transfer of the
Ownership Interest in this Class R Certificate in violation of the provisions
herein shall be absolutely null and void and shall vest no rights in the
purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual
capacity, but solely as
Securities Administrator
By:______________________________________
Authenticated:
By:_____________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2004-8
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2004-8 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Trustee and the other parties to the Agreement with the
consent the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes or the office or agency maintained by
the Securities Administrator in Minneapolis, Minnesota, accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator duly
executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Trustee, the Depositor and the Securities Administrator and any
agent of the Trustee, the Depositor or the Securities Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Trustee, the Depositor, the Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined and in the manner as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip
code of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to _____________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT D
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR LETTER IN THE FORM OF
EXHIBIT H TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I
AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE DEPOSITOR, TO
THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE
OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR SIMILAR VIOLATION OF SIMILAR LAW AND WILL NOT
SUBJECT THE TRUSTEE, THE MASTER SERVICER OR THE SECURITIES ADMINISTRATOR TO ANY
OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY
LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO ERISA OR TO THE CODE WITHOUT THE REPRESENTATION LETTER AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. : X-1
Cut-off Date : September 1, 2004
First : October 25, 2004
Distribution Date
Percentage
Interest of this Certificate
("Denomination") : 100%
CUSIP :
ISIN :
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2004-8
Asset-Backed Certificates, Series 2004-8
Class X
evidencing a percentage interest in the
distributions allocable to the Certificates
of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor the Master
Servicer, to Securities Administrator or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Master Servicing and
Trust Agreement dated as of the Cut-off Date specified above (the "Agreement")
among GS Mortgage Securities Corp., as depositor (the "Depositor"), Deutsche
Bank National Trust Company, as trustee (the "Trustee") and custodian, Xxxxx
Fargo, N.A., as Master Servicer (in such capacity, to "Master Servicer") and
Securities Administrator (in such capacity, to "Securities Administrator") and
JPMorgan Chase Bank, as custodian. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Securities Administrator for such purposes or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Trust Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A., not
in its individual
capacity, but solely as
Securities Administrator
By:_____________________________________
Authenticated:
By:______________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2004-8
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2004-8 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the offices designated by the
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Trustee and the other parties to the Agreement with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes or the office or agency maintained by
the Securities Administrator in Minneapolis, Minnesota, accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator duly
executed by the holder hereof or such holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Trustee, the Depositor and the Securities Administrator and any
agent of the Trustee, the Depositor or the Securities Administrator may treat
the Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Trustee, the Depositor, the Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Principal Balance, the Person specified in Section 11.01 of the Agreement will
have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined and in the manner as provided in the Agreement. The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip
code of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to _____________________.
Applicable statements should be mailed to _____________________________________,
_______________________________________________________________________________.
This information is provided by _______________________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
[Servicer]
[Originator]
____________________
____________________
Re: Master Servicing and Trust Agreement, dated as of September 1,
2004, among GS Mortgage Securities Corp., Deutsche Bank
National Trust Company, Xxxxx Fargo Bank, N.A. and JPMorgan
Chase Bank
Gentlemen:
In accordance with Section 2.02 of the above-captioned Master
Servicing and Trust Agreement (the "Trust Agreement"), the undersigned, as
Custodian, for each Mortgage Loan listed in the Mortgage Loan Schedule for which
the undersigned is specified as the Custodian (other than any Mortgage Loan
listed in the attached schedule), it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed assignment of the Mortgage (which may be
included in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Trust Agreement. The Custodian makes no representations as to: (i) the validity,
legality, sufficiency, enforceability, recordability or genuineness of any of
the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan or the
perfection or priority of any Mortgage. Notwithstanding anything herein to the
contrary, the Custodian has made no determination and makes no representations
as to whether (i) any endorsement is sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee thereof, in and to
that Mortgage Note or (ii) any assignment is in recordable form or sufficient to
effect the assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement.
[DEUTSCHE BANK NATIONAL TRUST
COMPANY], [JPMORGAN CHASE
BANK]
By:___________________________
Name:_________________________
Title:________________________
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF CUSTODIAN
[date]
[Depositor]
[Servicer]
[Originator]
_______________________
_______________________
Re: Master Servicing and Trust Agreement, dated as of September 1,
2004, among GS Mortgage Securities Corp., Deutsche Bank
National Trust Company, Xxxxx Fargo Bank, N.A., and JPMorgan
Chase Bank, as Custodian
Gentlemen:
In accordance with Section 2.02 of the above-captioned Master Servicing
and Trust Agreement (the "Trust Agreement"), the undersigned, as Custodian,
hereby certifies that as to each Mortgage Loan listed in the Mortgage Loan
Schedule for which the undersigned is specified as the Custodian (other than any
Mortgage Loan paid in full or listed on the attached Document Exception Report)
it has received:
(a) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(b) The original Assignment of Mortgage in blank, unless the
Mortgage Loan is a MERS Mortgage Loan;
(c) personal endorsement and/or guaranty agreements executed in
connection with all non individual Mortgage Loans (corporations,
partnerships, trusts, estates, etc. (if any);
(d) the related original Mortgage and evidence of its recording or,
in certain limited circumstances, a certified copy of the mortgage with
evidence of recording with the standard Xxxxxx Xxx/FHLMC Condominium Rider
or PUD Rider be attached if the mortgaged property is a condominium or is
located in a PUD;
(e) originals of any intervening Mortgage assignment or certified
copies in either case evidencing recording; provided that the assignment
may be in the form of a blanket assignment or assignments, a copy of which
with evidence of recording shall be acceptable;
(f) originals of all assumption, modification, agreements or
certified copies thereof, in either case with evidence of recording if
required to maintain the lien of the mortgage or if otherwise required,
or, if recordation is not required, an original or copy of the agreement;
(g) an original or copy of a title insurance policy, a certificate
of title, or attorney's opinion of title and abstract of title;
(h) to the extent applicable, (1) an original power of attorney, or
a certified copy thereof, in either case with evidence of recordation
thereon if necessary to maintain the lien of the Mortgage or if the
document to which such power of attorney relates is required to be
recorded, or, if recordation is not so required, an original or copy of
such power of attorney, and (2) an original or copy of any surety
agreement or guaranty agreement;
(i) for each Mortgage Loan with respect to which the Mortgagor's
name as it appears on the note does not match the borrower's name on the
mortgage loan schedule, one of the following: the original of the
assumption agreement, or a certified copy thereof, in either case with
evidence of recording thereon if required to maintain the lien of the
mortgage or if otherwise required, or, if recordation is not so required,
an original or copy of such assumption agreement;
(j) a security agreement, chattel mortgage or equivalent document
executed in connection with the mortgage, if any.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items 2, 8, 33 and 34 of the
Mortgage Loan Schedule accurately reflects information set forth in the
Custodial File.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Trust Agreement. The Custodian makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or the perfection or priority of any Mortgage. Notwithstanding anything
herein to the contrary, the Custodian has made no determination and makes no
representations as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note or (ii) any assignment is in recordable
form or sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Trust Agreement.
[DEUTSCHE BANK NATIONAL TRUST COMPANY],
[JPMORGAN CHASE BANK] not in its
individual capacity, but solely as
Custodian
By:___________________________
Name:_________________________
Title:________________________
EXHIBIT G
RESIDUAL TRANSFER AFFIDAVIT
GSAA Home Equity Trust 2004-8,
Asset-Backed Certificates, Series 2004-8
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in a Class R Certificate (the
"Certificate") issued pursuant to the Master Servicing and Trust Agreement (the
"Agreement"), among GS Mortgage Securities Corp. (the "Depositor"), Deutsche
Bank National Trust Company (the "Trustee"), Xxxxx Fargo Bank, N.A. (the
"Securities Administrator"), and JPMorgan Chase Bank. Capitalized terms used,
but not defined herein, shall have the meanings ascribed to such terms in the
Agreement. The Transferee has authorized the undersigned to make this affidavit
on behalf of the Transferee for the benefit of the Depositor, the Securities
Administrator and the Trustee.
2. The Transferee is, as of the date hereof, and will be, as of the
date of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account. The Transferee has no
knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of
the Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Securities Administrator a certificate
substantially in the form set forth as Exhibit H to the Agreement (a "Transferor
Certificate") to the effect that such Transferee has no actual knowledge that
the Person to which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee has historically paid its debts as they have come
due, intends to pay its debts as they come due in the future, and understands
that the taxes payable with respect to the Certificate may exceed the cash flow
with respect thereto in some or all periods and intends to pay such taxes as
they become due. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect to
the Certificate.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check one of the following:
The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on such
Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from the
Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer, the Transferee
had gross assets for financial reporting purposes (excluding any obligation of a
person related to the Transferee within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in excess
of $10 million;
(iii) the Transferee will transfer the Certificate only to another
"eligible corporation," as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of U.S.
Treasury Regulations Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section
1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions (including, but
not limited to, borrowing and investment rates, prepayment and loss assumptions,
expense and reinvestment assumptions, tax rates and other factors specific to
the Transferee) that it has determined in good faith.
None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any Federal, state or local law that is substantially similar to
Title I of ERISA, and the Transferee is not acting on behalf of or investing
plan assets of such a plan.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this ____ day of __________________, 20__.
_________________________________________
Print Name of Transferee
By:___________________________
Name:
Title:
[Corporate Seal]
ATTEST:
_______________________________________
[Assistant] Secretary
Personally appeared before me the above-named __________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ___________ of the Transferee, and acknowledged that he executed the same
as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of ________, 20__.
_________________________________________
NOTARY PUBLIC
My Commission expires the __ day
of _________, 20__
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx Fargo Bank, N.A.
[Address]
Re: GSAA Home Equity Trust 2004-8, Asset-Backed Certificates
Series 2004-8, Class ___
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the statements made in paragraphs 7,
10 and 11 of the Transferee's Residual Transfer Affidavit are false.
Very truly yours,
Print Name of Transferor
By:____________________________________
Authorized Officer
EXHIBIT I
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx Fargo Bank, N.A.
[Address]
Re: GSAA Home Equity Trust 2004-8, Asset-Backed Certificates,
Series 2004-8, Class _[__]__
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either we are purchasing a Class A-1 Certificate,
Class A-2 Certificate, Class A-3A Certificate, Class A-3B Certificate, Class M-1
Certificate, Class M-2 Certificate or a Class B-1 Certificate, or we are not an
employee benefit plan that is subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or a plan or arrangement that
is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code"), or a plan subject to any Federal, state or local law materially similar
to the foregoing provisions of ERISA or the Code, nor are we acting on behalf of
any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such acquisition or, with respect to a Class B-2 or Class
X Certificate, the purchaser is an insurance company that is purchasing this
certificate with funds contained in an "insurance company general account" (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60")) and that the purchase and holding of such Certificates are
covered under Sections I and III of PTCE 95-60, (e) we have not, nor has anyone
acting on our behalf offered, transferred, pledged, sold or otherwise disposed
of the Certificates, any interest in the Certificates or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Certificates, any interest in the Certificates or any other
similar security from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Securities Act or
that would render the disposition of the Certificates a violation of Section 5
of the Securities Act or require registration pursuant thereto, nor will act,
nor has authorized or will authorize any person to act, in such manner with
respect to the Certificates and (f) we are a "qualified institutional buyer" as
that term is defined in Rule 144A under the Securities Act and have completed
either of the forms of certification to that effect attached hereto as Annex 1
or Annex 2. We are aware that the sale to us is being made in reliance on Rule
144A. We are acquiring the Certificates for our own account or for resale
pursuant to Rule 144A and further, understand that such Certificates may be
resold, pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
ANNEX 1 TO EXHIBIT I
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $____________(1) in securities (except
for the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a bank, savings
and loan association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the business
of which is substantially confined to banking and is supervised by the State or
territorial banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan association, building
and loan association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal authority
having supervision over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial statements, a
copy of which is attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934.
____ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of a State, territory
or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and maintained by a
State, its political subdivisions, or any agency or instrumentality of the State
or its political subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor registered under the
Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business investment
company licensed by the U.S. Small Business Administration under Section 301(c)
or (d) of the Small Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development company as
defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
_________________________________________
Print Name of Transferor
By:______________________________________
Name:
Title:
Date:____________________________________
--------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
ANNEX 2 TO EXHIBIT I
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
____ The Buyer owned $____________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned in the
aggregate $________ in securities (other than the excluded securities referred
to below) as of the end of the Buyer's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
_________________________________________
Print Name of Transferor
By:______________________________________
Name:
Title:
IF AN ADVISER:
_________________________________________
Print Name of Buyer
Date:____________________________________
EXHIBIT J
FORM CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
GSAA Home Equity Trust 2004-8 (the "Trust")
Asset-Backed Certificates
Series 2004-8
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K (the "Annual Report"), and
all reports on Form 8-K containing distribution date reports (collectively
with this Annual Report, the "Reports") filed in respect of periods
included in the year covered by this annual report, of the Trust;
2. Based on my knowledge, the information in these reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this Annual Report;
3. Based on my knowledge, the servicing information required to be provided
to the Securities Administrator by the Master Servicer under the Trust
Agreement for inclusion in the Reports is included in the Reports;
4. Based on my knowledge and upon the annual compliance statement included in
this Annual Report and required to be delivered to the Master Servicer in
accordance with the terms of the Trust Agreement, and except as disclosed
in the Reports, the Master Servicer has fulfilled its obligations under
the Trust Agreement; and; and
5. The Reports disclose all significant deficiencies relating to the Master
Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a
review in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar procedure, as set forth in the Trust
Agreement, that is included in the Reports.
Date: _________________________
_______________________________
[Signature]
[Title]
EXHIBIT K
FORM OF MASTER SERVICER CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: GSAA Home Equity Trust 2004-8 (the "Trust") Asset-Backed
Certificates Series 2004-8, issued pursuant to the Trust Agreement,
dated as of September 1, 2004 (the "Trust Agreement"), among GS
Mortgage Securities Corp., as depositor (the "Depositor") and
Deutsche Bank National Trust Company, as trustee (the "Trustee") and
Custodian Xxxxx Fargo, N.A., as Master Servicer and Securities
Administrator and JPMorgan Chase Bank, as Custodian
The Securities Administrator certifies to the Depositor and its
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
1. The Securities Administrator has reviewed the annual report on
Form 10-K (the "Annual Report") for the fiscal year [___], and
all reports on Form 8-K containing distribution reports filed
in respect of periods included in the year covered by the
Annual Report (collectively with the Annual Report, the
"Reports"), of the Trust;
2. To the best of our knowledge, the information in
the Reports, taken as a whole, does not contain
any untrue statement of a material fact or omit to
state a material fact necessary to make the
statements made, in light of the circumstances
under which such statements were made, not
misleading as of the last day of the period
covered by the Annual Report; and
3. To the best of our knowledge, the distribution or servicing
information required to be provided to the Master Servicer by
GreenPoint Mortgage Funding, Inc., IndyMac Bank, F.S.B.,
Countrywide Home Loans Servicing LP., as servicers, for
inclusion in the Reports is included in the Reports.
Date:
XXXXX FARGO BANK, N.A.
By:______________________________________
Name:
Title:
EXHIBIT L
MASTER MORTGAGE LOAN PURCHASE AGREEMENT,
DATED AS OF APRIL 1, 2004
BETWEEN GREENPOINT MORTGAGE FUNDING, INC.
AND XXXXXXX SACHS MORTGAGE COMPANY
AS AMENDED BY AMENDMENT NO. 1,
DATED JULY 1, 2004
EXECUTION COPY
GREENPOINT MORTGAGE FUNDING, INC.
as Seller
and
XXXXXXX XXXXX MORTGAGE COMPANY,
as Purchaser
------------------------------------------------
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
dated as of April 1, 2004
------------------------------------------------
Fixed and Adjustable Rate Residential Mortgage Loans
(SERVICING RETAINED)
ARTICLE I DEFINITIONS
ARTICLE II PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Books and Records; Transfers of Mortgage Loans.........
Section 2.02 Due Diligence by the Purchaser.........................
Section 2.03 Identification of Mortgage Loan Package................
Section 2.04 Credit Document Deficiencies Identified During Due
Diligence.............................................
Section 2.05 Delivery of Collateral Files...........................
Section 2.06 Purchase Confirmation..................................
Section 2.07 Closing................................................
Section 2.08 Payment of the Purchase Proceeds.......................
Section 2.09 Entitlement to Payments on the Mortgage Loans..........
Section 2.10 Payment of Costs and Expenses..........................
Section 2.11 MERS Mortgage Loans and the MERS System................
ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Greenpoint...
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans........................................
Section 3.03 Remedies for Breach of Representations and Warranties..
Section 3.04 Accrual of Cause of Action.............................
ARTICLE IV ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Greenpoint to Act as Servicer..........................
ARTICLE V COVENANTS BY GREENPOINT
Section 5.01 Indemnification by Greenpoint..........................
Section 5.02 [RESERVED].............................................
Section 5.03 Merger or Consolidation of Greenpoint..................
Section 5.04 Limitation on Liability of Greenpoint and Others.......
Section 5.05 No Transfer of Servicing...............................
ARTICLE VI MISCELLANEOUS
Section 6.01 Notices................................................
Section 6.02 Sale Treatment.........................................
Section 6.03 Exhibits...............................................
Section 6.04 General Interpretive Principles........................
Section 6.05 Reproduction of Documents..............................
Section 6.06 Further Agreements.....................................
Section 6.07 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers................................
Section 6.08 Conflicts between Transaction Documents................
Section 6.09 Governing Law..........................................
Section 6.10 Severability Clause....................................
Section 6.11 Successors and Assigns.................................
Section 6.12 Relationship of Parties................................
Section 6.13 Solicitation of Mortgagor..............................
Section 6.14 Confidentiality........................................
Section 6.15 Entire Agreement.......................................
EXHIBITS
Exhibit A Schedule of Collateral Documents.......................
Exhibit B Form of Purchase Confirmation..........................
Exhibit C [RESERVED].............................................
Exhibit D Form of Trade Confirmation.............................
Exhibit E Mortgage File..........................................
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
This Master Mortgage Loan Purchase Agreement is made and entered
into as of April 1, 2004 (the "Agreement"), between Greenpoint Mortgage Funding,
Inc., 000 Xxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000 ("Greenpoint"), and
Xxxxxxx Xxxxx Mortgage Company, having an address at 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the "Purchaser").
R E C I T A L S
The Purchaser has agreed to purchase from Greenpoint and Greenpoint
has agreed to sell from time to time to the Purchaser all of Greenpoint's right,
title and interest, excluding servicing rights, in and to those certain mortgage
loans identified in a Purchase Confirmation (as defined below) executed by
Greenpoint and the Purchaser. This Agreement is intended to set forth the terms
and conditions by which Greenpoint shall transfer and the Purchaser shall
acquire such mortgage loans.
In consideration of the promises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Greenpoint and the Purchaser agree
as follows:
ARTICLE I
DEFINITIONS
Unless the context requires otherwise, all capitalized terms used
herein shall have the meanings assigned to such terms in this Article I unless
defined elsewhere herein. Any capitalized term used or defined in a Purchase
Confirmation that conflicts with the corresponding definition set forth herein
shall supersede such term.
Adjustable Rate Mortgage Loan: Any Mortgage Loan in which the
related Mortgage Note contains a provision whereby the Mortgage Interest Rate is
adjusted from time to time in accordance with the terms of such Mortgage Note.
Agency: Either Xxxxxx Xxx or Xxxxxxx Mac.
Agreement: This Master Mortgage Loan Purchase Agreement, including
all exhibits and supplements hereto, and all amendments hereof.
ALTA: The American Land Title Association or any successor thereto.
Applicable Law: All provisions of statutes, rules and regulations,
interpretations and orders of governmental bodies or regulatory agencies
applicable to a Person, and all orders and decrees of all courts and arbitrators
in proceedings or actions in which the Person in question is a party.
Appraised Value: The value of the related Mortgaged Property as set
forth in an appraisal made in connection with the origination of a Mortgage Loan
or the sale price of the related Mortgaged Property if the proceeds of such
Mortgage Loan were used to purchase such Mortgaged Property, whichever is less;
provided, however, that in the case of a Refinanced Mortgage Loan, such value of
the Mortgaged Property is based solely upon the value determined by an appraisal
made for the originator of such Refinanced Mortgage Loan at the time of
origination of such Refinanced Mortgage Loan.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan wherein the Mortgage Note
matures prior to full amortization and requires a final and accelerated payment
of principal.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in either the State of
California or the State of New York are authorized or obligated by law or
executive order to be closed.
Closing: The consummation of the sale and purchase of each Mortgage
Loan Package.
Closing Date: The date on which the purchase and sale of the
Mortgage Loans constituting a Mortgage Loan Package is consummated, as set forth
in the Trade Confirmation or Purchase Confirmation.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time or any successor statute thereto, and applicable U.S. Department of
the Treasury regulations issued pursuant thereto.
Collateral Documents: The collateral documents pertaining to each
Mortgage Loan as set forth in Exhibit A hereto.
Collateral File: With respect to each Mortgage Loan, a file
containing each of the Collateral Documents.
Combined Loan-to-Value Ratio: As of any date and as to any Mortgage
Loan, the ratio, expressed as a percentage, of the (a) sum of (i) the Stated
Principal Balance (or the original principal balance, if so indicated) of such
Mortgage Loan and (ii) the Stated Principal Balance (or the original principal
balance, if so indicated) as of such date of any mortgage loan or mortgage loans
that are senior or equal in priority to the Mortgage Loan and which are secured
by the same Mortgaged Property to (b) the Appraised Value of the related
Mortgaged Property.
Condemnation Proceeds: All awards or settlements in respect of a
taking of an entire Mortgaged Property by exercise of the power of eminent
domain or condemnation.
Convertible Mortgage Loan: Any individual Adjustable Rate Mortgage
Loan purchased pursuant to this Agreement which contains a provision whereby the
Mortgagor is permitted to convert the Adjustable Rate Mortgage Loan to a Fixed
Rate Mortgage Loan in accordance with the terms of the related Mortgage Note.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements constituting
the Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Cooperative Shares
and a Proprietary Lease.
Cooperative Property: The real property and improvements owned by
the Cooperative Corporation, including the allocation of individual dwelling
units to the holders of the Coop Shares of the Cooperative Corporation.
Cooperative Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Credit File: The file retained by Greenpoint that includes the
mortgage loan documents pertaining to a Mortgage Loan including copies of the
Collateral Documents together with the credit documentation relating to the
origination of such Mortgage Loan, which Credit File may be maintained by
Greenpoint on microfilm or any other comparable medium.
Custodial Account: The account or accounts created and maintained
pursuant to Section 4.4 of the Servicing Agreement, each of which shall be an
Eligible Account.
Custodial Agreement: The letter agreement that governs the temporary
retention of the Collateral Files by the Custodian with respect to a Closing
Date.
Custodian: Deutsche Bank National Trust Company, its successor in
interest or assign, or such other custodian that may be designated by the
Purchaser from time to time.
Cut-off Date: The first day of the month in which the related
Closing Date occurs or such other date as may be set forth in the related Trade
Confirmation or Purchase Confirmation.
Cut-off Date Balance: The aggregate scheduled unpaid principal
balance of the Mortgage Loans in a Mortgage Loan Package as of the Cut-off Date,
after application of (i) scheduled payments of principal due on such Mortgage
Loans on or before such Cut-off Date, whether or not collected, and (ii) any
Principal Prepayments received from the Mortgagor prior to the Cut-off Date.
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: The first day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Eligible Account: An account or accounts (i) maintained with a
federal or state chartered depository institution the short term debt
obligations of which are rated by a nationally recognized statistical rating
agency in its highest rating categories at the time of any deposit therein and
(ii) the deposits of which are insured up to the maximum permitted by the FDIC.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 4.6 of the Servicing Agreement, each of which
shall be an Eligible Account.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums, flood insurance premiums, and other payments required to be escrowed
by the Mortgagor with the Mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 7.1 of the Servicing Agreement.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Xxxxxx Xxx: The Federal National Mortgage Association or any
successor organization.
Xxxxxx Mae Guides: The Xxxxxx Xxx Xxxxxxx' Guide and the Xxxxxx Mae
Servicers' Guide, and all amendments or additions thereto.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first lien
on the related Mortgaged Property.
Fixed Rate Mortgage Loan: Any Mortgage Loan wherein the Mortgage
Interest Rate set forth in the Mortgage Note is fixed for the term of such
Mortgage Loan.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989, as amended and in effect from time to time.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation or any
successor organization.
Funding Deadline: With respect to each Closing Date, one o'clock
(1:00) p.m. New York time.
Greenpoint: Greenpoint Mortgage Funding, Inc., or any successor or
assign to Greenpoint under this Agreement as provided herein.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note, which amount
is added to the index in accordance with the terms of the related Mortgage Note
to determine on each Interest Adjustment Date, the Mortgage Interest Rate for
such Mortgage Loan.
HUD: The Department of Housing and Urban Development or any federal
agency or official thereof which may from time to time succeed to the functions
thereof.
Index: With respect to any Adjustable Rate Mortgage Loan on each
Interest Adjustment Date the applicable index as set forth in the related
Mortgage Note.
Interest Adjustment Date: With respect to an Adjustable Rate
Mortgage Loan, the date on which an adjustment to the Mortgage Interest Rate on
a Mortgage Note becomes effective.
Lifetime Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the absolute maximum Mortgage Interest Rate payable, above which the
Mortgage Interest Rate shall not be adjusted, as set forth in the related
Mortgage Note and Mortgage Loan Schedule.
Liquidation Proceeds: Amounts, other than PMI Proceeds, Condemnation
Proceeds and Other Insurance Proceeds, received by Greenpoint in connection with
the liquidation of a defaulted Mortgage Loan through trustee's sale, foreclosure
sale or otherwise, other than amounts received following the acquisition of an
REO Property pursuant to Section 4.13.
LPMI Fee: The portion of the Mortgage Interest Rate relating to an
LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to be
retained by Greenpoint to pay the premium due on the PMI Policy with respect to
such LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which Greenpoint is
responsible for paying the premium due on the related PMI Policy with the
proceeds generated by the LPMI Fee relating to such Mortgage Loan, as set forth
on the related Mortgage Loan Schedule.
LTV: With respect to any Mortgage Loan, the ratio (expressed as a
percentage) of the Stated Principal Balance (or the original principal balance,
if so indicated) of such Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc. or any
successor or assign thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS System.
MERS System: The electronic system of recording transfers of
mortgages maintained by MERS.
MIC: A mortgage insurance certificate issued by HUD.
Missing Credit Documents: As defined in Section 2.04 hereof.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: With respect to a Mortgage Loan that is not a Cooperative
Loan, the mortgage, deed of trust or other instrument securing a Mortgage Note,
which creates a first lien, in the case of a First Lien Mortgage Loan, on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien , upon a leasehold estate of the
Mortgagor. With respect to a Cooperative Loan, the security agreement creating a
security interest in the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Cooperative Loan
and the related Cooperative Lease.
Mortgage File: With respect to any Mortgage Loan, the items listed
in Exhibit E hereto and any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate at which interest accrues on
any Mortgage Loan and, with respect to an Adjustable Rate Mortgage Loan, as
adjusted from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this
Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds
(if applicable), Other Insurance Proceeds, REO Disposition proceeds, and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan, excluding the servicing rights relating thereto. Unless
the context requires otherwise, any reference to the Mortgage Loans in this
Agreement shall refer to the Mortgage Loans constituting a Mortgage Loan
Package.
Mortgage Loan Package: The Mortgage Loans sold to the Purchaser
pursuant to a Purchase Confirmation.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the interest rate payable to the Purchaser on each Remittance Date which shall
equal the Mortgage Interest Rate less the Servicing Fee and the LPMI Fee, if
applicable.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Exhibit A, such schedule setting forth the following information with respect
to each Mortgage Loan: (1) the Seller's Mortgage Loan number; (2) the address,
city, state and zip code of the Mortgaged Property (or, in the case of each
Cooperative Loan, of the related Cooperative Unit); (3) a code indicating
whether the Mortgagor is self-employed; (4) a code indicating whether the
Mortgaged Property is owner-occupied, investment property or a second home; (5)
a code indicating whether the Mortgaged Property is a single family residence,
two-family residence, three-family residence, four family residence,
condominium, manufactured housing, mixed-use property, raw land and other
non-residential properties, planned unit development or cooperative stock in a
cooperative housing corporation; (6) the purpose of the Mortgage Loan; (7) the
type of Mortgage Loan (i.e., Fixed Rate or Adjustable Rate Mortgage Loan); (8)
the Mortgage Interest Rate at origination; (9) the current Mortgage Interest
Rate; (10) whether the Mortgage Loan has Monthly Payments that are interest only
for a period of time; (11) the Servicing Fee Rate; (12) the current Monthly
Payment; (13) the original term to maturity; (14) the remaining term to
maturity; (15) the principal balance of the Mortgage Loan as of the Cut-off Date
after deduction of payments of principal due on or before the Cut-off Date
whether or not collected; (16) the LTV at origination and if the Mortgage Loan
has a second lien, combined LTV at origination; (17) the actual principal
balance of the Mortgage Loan as of the Cut-off Date; (18) social security number
of the Mortgagor; (19) a code indicating whether the Mortgage Loan has negative
amortization and the maximum amount of such negative amortization; (20) a code
indicating whether the Mortgage Loan had a second lien at origination; (21) if
the Mortgage Loan has a second lien, combined loan balance as of the Cut-off
Date; (22) a code indicating whether the Mortgaged Property is a leasehold
estate; (23) the due date of the Mortgage Loan; (24) whether the Mortgage Loan
is insured by a PMI Policy and the name of the insurer; (25) the certificate
number of the PMI Policy; (26) the amount of coverage of the PMI Policy; (27)
the type of appraisal; (28) a code indicating whether the Mortgage Loan is a
MERS Mortgage Loan; (29) a code indicating whether the Mortgage Loan is subject
to a prepay penalty and the terms of such prepayment penalty; (30) documentation
type (including asset and income type); (31) first payment date; (32) the
schedule of the payment delinquencies in the prior 12 months; (33) FICO score;
(34) the Mortgagor's name; (35) the stated maturity date; and (36) the original
principal amount of the Mortgage. With respect to any Adjustable Rate Mortgage:
(a) the Gross Margin; (b) the Periodic Rate Cap; (c) the Lifetime Rate Cap; (d)
the first Interest Adjustment Date cap and the Interest Adjustment Date
frequency; (e) the minimum Mortgage Interest Rate; (f) the first Interest
Adjustment Date immediately following the Cut-off Date; and (g) the Index,
including the methodology for rounding (e.g. rounded upward, if necessary, to
the next nearest ten thousandth (.0001)) and the applicable time frame for
determining the Index.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Cooperative Loan, the underlying real property securing repayment of a Mortgage
Note, consisting of a single parcel of real estate considered to be real estate
under the laws of the State in which such real property is located, which may
include condominium units and planned unit developments, improved by a
residential dwelling; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, a leasehold estate of the Mortgagor, the term of
which is equal to or longer than the term of the Mortgage. With respect to a
Cooperative Loan, the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Cooperative Loan
and the related Cooperative Lease.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and
the successors and assigns of such mortgagee or beneficiary.
Mortgagor: The obligor on a Mortgage Note and their successors in
title to the Mortgaged Property.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the party on behalf of whom the opinion is being given, reasonably
acceptable to the Purchaser.
Other Insurance Proceeds: Proceeds of any title policy, hazard
policy, pool policy or other insurance policy covering a Mortgage Loan, other
than the PMI Policy, 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 Greenpoint would follow in
servicing mortgage loans held for its own account.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a trust to be formed as part of a publicly
issued or privately placed mortgage-backed securities transaction.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may increase or decrease on
an Adjustment Date above or below the Mortgage Interest Rate previously in
effect, equal to the rate set forth on the Mortgage Loan Schedule per
adjustment.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
PMI Policy: A policy of private mortgage guaranty insurance relating
to a Mortgage Loan and issued by a Qualified Insurer.
PMI Proceeds: Proceeds of any PMI Policy.
Preliminary Mortgage Loan Package: The mortgage loans identified or
described in a Trade Confirmation, which, subject to the Purchaser's due
diligence as contemplated in Section 2.02, are intended to be sold under this
Agreement as a Mortgage Loan Package.
Preliminary Mortgage Loans: The mortgage loans constituting a
Preliminary Mortgage Loan Package.
Prepayment Penalty: With respect to each Mortgage Loan, the penalty
if the Mortgagor prepays such Mortgage Loan as provided in the related Mortgage
Note or Mortgage.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
excluding any prepayment penalty or premium thereon (unless the Purchase
Confirmation provides otherwise), which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Purchase Confirmation: A letter agreement, substantially in the form
of Exhibit B hereto, executed by Greenpoint and the Purchaser in connection with
the purchase and sale of each Mortgage Loan Package, which sets forth the terms
relating thereto including a description of the related Mortgage Loans
(including the Mortgage Loan Schedule), the purchase price for such Mortgage
Loans, the Closing Date and the Servicing Fee Rate.
Purchase Proceeds: The amount paid on the related Closing Date by
the Purchaser to Greenpoint in exchange for the Mortgage Loan Package purchased
on such Closing Date as set forth in the applicable Purchase Confirmation.
Purchaser: The Person identified as the "Purchaser" in the preamble
to this Agreement or its successor in interest or any successor or assign to the
Purchaser under this Agreement as herein provided. Any reference to "Purchaser"
as used herein shall be deemed to include any designee of the Purchaser, so long
as such designation was made in accordance with the limitations set forth in
Section 6.07.
Qualification Defect: With respect to a Mortgage Loan, (a) a
defective document in the Credit File or the Mortgage File, (b) the absence of a
document in the Credit File or Mortgage File, or (c) the breach of any
representation, warranty or covenant with respect to the Mortgage Loan made by
Greenpoint, but, in each case, only if the affected Mortgage Loan would cease to
qualify as a "qualified mortgage" for purposes of the REMIC provisions.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, which insurer is approved in such
capacity by an Agency.
Qualified Substitute Mortgage Loan: A mortgage loan that must, on
the date of such substitution, (i) have an unpaid principal balance, after
deduction of all scheduled payments due in the month of substitution (or if more
than one (1) mortgage loan is being substituted, an aggregate principal
balance), not in excess of the unpaid principal balance of the repurchased
Mortgage Loan (the amount of any shortfall will be deposited in the Custodial
Account by Greenpoint in the month of substitution); (ii) have a Mortgage
Interest Rate not less than, and not more than 1% greater than, the Mortgage
Interest Rate of the repurchased Mortgage Loan; (iii) have a remaining term to
maturity not greater than, and not more than one year less than, the maturity
date of the repurchased Mortgage Loan; (iv) comply with each representation and
warranty (respecting individual Mortgage Loans) set forth in Section 3.02
hereof; (v) shall be the same type of Mortgage Loan (i.e., an Adjustable Rate
Mortgage Loan or a Fixed Rate Mortgage Loan).
Reconstitution Date: The date on which any or all of the Mortgage
Loans serviced under this Agreement shall be removed from this Agreement and
reconstituted as part of a Pass-Through Transfer pursuant to Section 6.07
hereof. The Reconstitution Date shall be such date which the Purchaser shall
designate in writing.
Refinanced Mortgage Loan: A Mortgage Loan the proceeds of which were
not used to purchase the related Mortgaged Property.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
Remittance Date: The eighteenth (18th) day of any month, beginning
with the month next following the month in which the related Cut-off Date
occurs, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately following.
REO Disposition: The final sale by Greenpoint of any REO Property or
the transfer of the management of such REO Property to the Purchaser as set
forth in Section 4.13.
REO Property: A Mortgaged Property acquired by Greenpoint on behalf
of the Purchaser as described in Section 4.13.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to (i) the Stated Principal Balance of the Mortgage Loan as of the date of
repurchase plus (ii) interest on such Stated Principal Balance at the Mortgage
Loan Remittance Rate from the last date through which interest has been paid and
distributed to the Purchaser to the last day of the month in which the
repurchase occurs, less amounts received or advanced in respect of such
repurchased Mortgage Loan which such amounts are being held in the Custodial
Account for distribution in the month of repurchase plus (iii) with respect to
any Mortgage Loan included in a Pass-Through Transfer, damages incurred by the
Purchaser or its assignee including the trust in any securitization in
connection with any violation by such Mortgage Loan of any predatory or abusive
lending law provided, however, that if at the time of repurchase the Servicer is
not the Seller or an affiliate of the Seller, the amount described in clause
(ii) shall be computed at the sum of (a) the Mortgage Loan Remittance Rate and
(b) the Servicing Fee Rate.
Security Agreement: With respect to any Cooperative Loan, the
agreement between the owner of the related Coop Shares and the originator of the
related Mortgage Note that defines the terms of the security interest in such
Coop Shares and the related Proprietary Lease.
Servicing Agreement: The agreement dated as of April 1, 2004 and
signed by the Purchaser and Greenpoint with respect to the administration and
servicing of the Mortgage Loans.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to Greenpoint, which shall, for a period of
one full month, be equal to one-twelfth of the product of (i) the Servicing Fee
Rate and (ii) the Stated Principal Balance of such Mortgage Loan. Such fee shall
be payable monthly, computed on the basis of the same principal amount and
period respecting which any related interest payment on a Mortgage Loan is
computed. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and the Servicing Fee is payable solely from, the interest portion of such
Monthly Payment collected by Greenpoint, or as otherwise provided herein.
Subject to the foregoing, and with respect to each Mortgage Loan, Greenpoint
shall be entitled to receive its Servicing Fee through the disposition of any
related REO Property and the Servicing Fee payable with respect to any REO
Property shall be based on the Stated Principal Balance of the related Mortgage
Loan at the time of foreclosure.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per
annum set forth in the applicable Trade Confirmation or Purchase Confirmation.
Stated Principal Balance: With respect to each Mortgage Loan as of
any date of determination: (i) the unpaid principal balance of the Mortgage Loan
at the Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal or advances in lieu thereof.
Trade Confirmation: A letter agreement substantially in the form of
Exhibit D hereto executed by Greenpoint and the Purchaser prior to the
applicable Closing Date confirming the terms of a prospective purchase and sale
of a Mortgage Loan Package.
Transaction Documents: With respect to any Mortgage Loan, the
related Trade Confirmation, the related Purchase Confirmation, the Custodial
Agreement, the Servicing Agreement and this Agreement.
Updated LTV: With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the date of determination divided
by the value of the related Mortgaged Property as determined by a recent
appraisal of the Mortgaged Property.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a third party, which sale or transfer is not
a Pass-Through Transfer.
ARTICLE II
PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Books and Records; Transfers of Mortgage Loans.
From and after the sale of the Mortgage Loans to the Purchaser, all
rights arising out of the Mortgage Loans including but not limited to all funds
received on or in connection with the Mortgage Loans on account of interest and
principal due after the Cut-off Date, shall be held by Greenpoint in trust for
the benefit of the Purchaser as owner of the Mortgage Loans, and Greenpoint
shall retain record title to the related Mortgage Loans for the sole purpose of
facilitating the servicing and the supervision of the servicing of the Mortgage
Loans.
The sale of each Mortgage Loan shall be reflected on Greenpoint's
balance sheet and other financial statements as a sale of assets by Greenpoint.
Greenpoint shall be responsible for maintaining, and shall maintain, a complete
set of books and records for each Mortgage Loan which shall be marked clearly to
reflect the ownership of each Mortgage Loan by the Purchaser. In particular,
Greenpoint shall maintain in its possession, available for inspection by the
Purchaser, or its designee, and shall deliver to the Purchaser upon demand,
evidence of compliance with all federal, state and local laws, rules and
regulations, and requirements of FNMA or FHLMC, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the National Flood Insurance Act of 1968, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility
of any condominium project for approval by FNMA or FHLMC, and periodic
inspection reports as required by Section 3.15 of the Servicing Agreement. To
the extent that original documents are not required for purposes of realization
of Liquidation Proceeds or Insurance Proceeds, documents maintained by
Greenpoint may be in the form of microfilm or microfiche or such other reliable
means of recreating original documents, including but not limited to, optical
imagery techniques so long as Greenpoint complies with the requirements of the
FNMA or FHLMC Selling and Servicing Guide, as amended from time to time.
Greenpoint shall indemnify the Purchaser and hold it harmless against any
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and other costs and expenses resulting from the
unenforceability (as determined by a court of competent jurisdiction) of any
Mortgage Loan document recreated in the manner described in the foregoing
sentence against the applicable Mortgagor as a result of such recreation or the
absence of such original Mortgage Loan document.
Section 2.02 Due Diligence by the Purchaser.
Review of Credit File and Mortgage File. At least 15 days prior to
the Closing Date, Greenpoint shall make available to the Purchaser the Credit
File and the Mortgage File for each Preliminary Mortgage Loan in the related
Preliminary Mortgage Loan Package and shall accommodate reasonable requests by
the Purchaser to provide personnel and documents as necessary to facilitate the
review. Greenpoint shall deliver to the Purchase a diskette or a compact disc
that contains the Credit File and the Mortgage File for each such Preliminary
Mortgage Loan and the Purchaser shall have the right to review the Credit File
and the Mortgage File for each such Preliminary Mortgage Loan for the purpose of
determining whether each Preliminary Mortgage Loan conforms in all material
respects to the applicable terms contained in the Transaction Documents, which
determination shall be made in the Purchaser's sole discretion; provided,
further, that the Purchaser, in its sole discretion, has the right to reject any
Preliminary Mortgage Loan if the original Mortgage Note for such Preliminary
Mortgage Loan is lost. In the event that the Purchaser rejects any Preliminary
Mortgage Loan based on such review, Greenpoint shall have the opportunity, at
the discretion of the Purchaser, to substitute replacement Preliminary Mortgage
Loans satisfying the requirements set forth above, and the Purchaser shall have
the right to review any such replacement Preliminary Mortgage Loan(s) in the
manner contemplated above. Such examination may be made by the Purchaser or its
designee, at its expense, at any reasonable time before the Closing Date. Such
underwriting by the Purchaser or its designee shall not impair or diminish the
rights of the Purchaser or any of its successors under this Agreement with
respect to a breach of the representations and warranties contained in this
Agreement. The fact that the Purchaser or its designee has conducted or has
failed to conduct any partial or complete examination of the Credit Files and
the Mortgage Files shall not affect the Purchaser's or any of its successors'
rights to demand repurchase or other relief or remedy provided for in this
Agreement.
Section 2.03 Identification of Mortgage Loan Package.
At least three (3) Business Days prior to the Closing Date, the
Purchaser shall identify those Preliminary Mortgage Loans that the Purchaser
intends to be included in the Mortgage Loan Package.
Section 2.04 Credit Document Deficiencies Identified During Due
Diligence.
If, with respect to a Mortgage Loan Package, the related Purchase
Confirmation identifies any Mortgage Loan for which the related Credit File or
the Mortgage File is missing material documentation (as used therein, the
"Missing Credit Documents"), Greenpoint agrees to use its best efforts to
procure each such Missing Credit Document within sixty (60) days following the
related Closing Date. In the event of a default by a Mortgagor or any material
impairment of the Mortgaged Property, in either case directly arising from a
breach of Greenpoint's obligation to deliver the Missing Credit Document within
the time specified above, Greenpoint shall repurchase such Mortgage Loan at the
Repurchase Price.
Section 2.05 Delivery of Collateral Files.
Custodial Agreement. Greenpoint shall, no later than five (5)
Business Days prior to the related Closing Date deliver and release to the
Custodian the Collateral File for each Mortgage Loan in the Mortgage Loan
Package. The Custodian will certify its receipt of all such Collateral Documents
required to be delivered pursuant to this Agreement. Greenpoint will be
responsible for the fees and expenses with respect to the delivery and will be
responsible for the fees and expenses related to the recording of the initial
Assignments of Mortgage (including any fees and expenses related to any
preparation and recording of any intervening or prior assignments of the
Mortgage Loans to Greenpoint or to any prior owners of or mortgagees with
respect to the Mortgage Loans) or Form UCC-3's for Cooperative Loans. The
Purchaser will be responsible for the Custodian's fees and expenses as set forth
in the Custodial Agreement.
Greenpoint shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 3.1(c) or 5.1 of the
Servicing Agreement within two weeks of their execution, provided, however, that
Greenpoint shall provide the Custodian with a certified true copy of any such
document submitted for recordation within ten (10) days of its execution, and
shall provide the original of any document submitted for recordation or a copy
of such document certified by the appropriate public recording office to be a
true and complete copy of the original within 120 days of its submission for
recordation. However, if Greenpoint is unable to deliver such certified copies
due to delay caused by the recording office in the applicable jurisdiction,
Greenpoint shall deliver instead an Officer's Certificate from Greenpoint
confirming that such document is a true and complete copy of the original and
that such original has been accepted for recording.
In the event the public recording office is delayed in returning any
original document, Greenpoint shall deliver to the Custodian within 240 days of
its submission for recordation, a copy of such document and an Officer's
Certificate, which shall (i) identify the recorded document; (ii) state that the
recorded document has not been delivered to the Custodian due solely to a delay
by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian. Greenpoint will be required to
deliver the document to the Custodian by the date specified in (iv) above.
Notwithstanding the foregoing, if the originals or certified copies
required in this Section 2.05 are not delivered as required within 90 days
following the Closing Date or as otherwise extended as set forth above, the
related Mortgage Loan shall, upon request of the Purchaser, be repurchased by
Greenpoint in accordance with Section 3.03 hereof; provided, however, that the
foregoing repurchase obligation shall not apply in the event Greenpoint cannot
deliver such items due to a delay caused by the recording office in the
applicable jurisdiction; provided that Greenpoint shall deliver instead a
recording receipt of such recording office or, if such recording receipt is not
available, an Officer's Certificate from Greenpoint confirming that such
documents have been accepted for recording. Any such document shall be delivered
to the Purchaser or its designee promptly upon receipt thereof from the related
recording office.
If Greenpoint, the Purchaser or the Custodian finds any document or
documents constituting a part of a Credit File or Mortgage File pertaining to a
Mortgage Loan to be defective (or missing) in any material respect, and such
defect or missing document materially and adversely affects the value of the
related Mortgage Loan or the interests of the Purchaser therein, the party
discovering such defect shall promptly so notify Greenpoint. Greenpoint shall
have a period of 90 days after receipt of such written notice within which to
correct or cure any such defect. Greenpoint hereby covenants and agrees that, if
any material defect cannot be corrected or cured, Greenpoint will, upon the
expiration of the applicable cure period described above, repurchase the related
Mortgage Loan in the manner set forth in Section 3.03; provided, however, that
with respect to any Mortgage Loan, if such defect constitutes a Qualification
Defect, any such repurchase must take place within 60 days of the date such
defect is discovered.
Notwithstanding the foregoing, with respect to a Mortgage Loan, if,
at the end of such 90-day period, Greenpoint delivers an Officer's Certificate
to the Purchaser certifying that Greenpoint is using good faith efforts to
correct or cure such defect and identifying progress made, then the Purchaser
shall grant Greenpoint an extension to correct or cure such defect. The
extension shall not extend beyond (1) if the defect is a Qualification Defect,
the date that is 60 days after the date the defect is discovered, or, (2) if the
defect is not a Qualification Defect (as evidenced by an Opinion of Counsel),
the date that is 30 days beyond the original 90-day cure period. If the defect
is not a Qualification Defect, additional 30-day extensions may be obtained
pursuant to the same procedure, as long as Greenpoint demonstrates continued
progress toward a correction or cure; provided that no extension shall be
granted beyond 180 days from the date on which the Greenpoint received the
original notice of the defect.
Notwithstanding the foregoing, with respect to a Mortgage Loan, the
failure of the Purchaser to notify Greenpoint of any defective or missing
document in a Credit File or Mortgage File within such 90-day period, or the
failure of the Purchaser to require Greenpoint to cure or repurchase the related
Mortgage Loan upon expiration of such 90-day period, shall not constitute a
waiver of its rights hereunder, including the rights with respect to a Mortgage
Loan, to require Greenpoint to repurchase the affected Mortgage Loan and the
right to indemnification pursuant to Section 3.03 hereof.
Section 2.06 Purchase Confirmation.
Upon confirmation with the Purchaser of a Mortgage Loan Package,
Greenpoint shall prepare and deliver to the Purchaser for execution the related
Purchase Confirmation, executed by an authorized signatory of Greenpoint.
Section 2.07 Closing.
The Closing of each Mortgage Loan Package shall take place on the
related Closing Date and shall be subject to the satisfaction of each of the
following conditions, unless otherwise waived by the prejudiced party(ies):
(a) All of the representations and warranties of Greenpoint under
this Agreement shall be true and correct as of the Closing Date and no event
shall have occurred that, with notice or the passage of time, would constitute a
default under this Agreement;
(b) Both parties shall have executed and delivered the related
Purchase Confirmation, Trade Confirmation and Servicing Agreement;
(c) Greenpoint shall have delivered and released to the Custodian
all documents required pursuant to this Agreement; and
(d) All other terms and conditions of this Agreement have been
complied with.
Section 2.08 Payment of the Purchase Proceeds.
Subject to the conditions set forth in Section 2.07, and in
consideration for the Mortgage Loan Package to be purchased by the Purchaser on
the related Closing Date, the Purchaser shall pay to Greenpoint on such Closing
Date the Purchase Proceeds by wire transfer of immediately available funds to
the account designated by Greenpoint on or before the Funding Deadline.
Section 2.09 Entitlement to Payments on the Mortgage Loans.
With respect to any Mortgage Loan purchased hereunder, the Purchaser
shall be entitled to (a) all scheduled principal due after the related Cut-off
Date; (b) all other recoveries of principal collected after the related Cut-off
Date, except for (i) recoveries of principal collected after the Cut-off Date
and prior to the Closing Date that are reflected in the Mortgage Loan Schedule,
and (ii) all scheduled payments of principal due on or before the related
Cut-off Date; and (c) all payments of interest on such Mortgage Loan net of
interest at the Servicing Fee Rate and the LPMI Fee, if applicable (minus that
portion of any such payment that is allocable to the period prior to the related
Cut-off Date) due after the Cut-off Date.
Section 2.10 Payment of Costs and Expenses.
The Purchaser and Greenpoint shall each bear its own costs and
expenses in connection with the purchase and sale of the Mortgage Loans
including any commissions due its sales personnel, the legal fees and expenses
of its attorneys and any due diligence expenses. Without limiting the generality
of the foregoing, any costs and expenses incurred in connection with recording
the Assignment of Mortgage or any subsequent assignment thereof shall be paid
for by the Purchaser.
Section 2.11 MERS Mortgage Loans and the MERS System.
(a) Notwithstanding anything contained in this Agreement to the
contrary, with respect to any MERS Mortgage Loan sold to the Purchaser by
Greenpoint pursuant to this Agreement, Greenpoint shall cause the registration
of such MERS Mortgage Loan to be changed on the MERS System to reflect the
Purchaser as the beneficial owner of such MERS Mortgage Loan. The foregoing
obligation of Greenpoint shall be in lieu of Greenpoint delivering to the
Purchaser an Assignment of Mortgage for such MERS Mortgage Loan. With respect to
the Mortgage and intervening assignments related to any MERS Mortgage Loan,
Greenpoint shall, in accordance with Section 2.05, provide the Purchaser with
the original Mortgage with evidence of registration with MERS and, as
applicable, the originals of all intervening assignments of the Mortgage with
evidence of recording thereon prior to the registration of the Mortgage Loan
with the MERS System.
(b) In connection with the MERS System, Greenpoint is hereby
authorized and empowered, in its own name, to register, or change the
registration of any MERS Mortgage Loan to effectuate such registration. Further,
Greenpoint is authorized to cause the removal of any MERS Mortgage Loan from
such registration, and to execute and deliver on behalf of itself and the
Purchaser, any and all instruments of assignment and comparable instruments with
respect to any registration and/or removal of such MERS Mortgage Loan on or from
the MERS System.
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Greenpoint.
Greenpoint represents, warrants and covenants to the Purchaser that,
as of each Closing Date:
(a) Organization and Standing. Greenpoint is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified and licensed to transact business in and
is in good standing under the laws of each state where each Mortgaged Property
is located to the extent necessary to ensure the enforceability of each Mortgage
Loan and the servicing of the Mortgage Loan in accordance with the terms of this
Agreement. The execution, delivery and performance of this Agreement (including
all instruments of transfer to be delivered pursuant to this Agreement) by
Greenpoint and the consummation of the transactions contemplated hereby have
been duly and validly authorized. This Agreement evidences the valid, binding
and enforceable obligation of Greenpoint; and all requisite corporate action has
been taken by Greenpoint to make this Agreement valid and binding upon
Greenpoint in accordance with its terms;
(b) Due Authority. Greenpoint has the full power and authority to
(i) perform and enter into and consummate all transactions contemplated by this
Agreement and (ii) to sell each Mortgage Loan;
(c) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of Greenpoint, which is in the business of selling and servicing loans,
and the transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by Greenpoint pursuant to this Agreement are not subject to the bulk
transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(d) No Conflict. Neither the acquisition or origination of the
Mortgage Loans by Greenpoint, the sale of the Mortgage Loans to the Purchaser,
the consummation of the transactions contemplated hereby, nor the fulfillment of
or compliance with the terms and conditions of this Agreement, will conflict
with or result in a breach of any of the terms, conditions or provisions of
Greenpoint's certificate of incorporation or by-laws or result in a material
breach of any legal restriction or any material agreement or instrument to which
Greenpoint is now a party or by which it is bound, or constitute a material
default or result in an acceleration under any of the foregoing, or result in
the violation of any material law, rule, regulation, order, judgment or decree
to which Greenpoint or its property is subject;
(e) Approved Seller. Greenpoint is an approved seller/servicer for
each Agency in good standing and is a mortgagee approved by the Secretary of
HUD. No event has occurred, including a change in insurance coverage, which
would make Greenpoint unable to comply with Xxxxxx Xxx, Xxxxxxx Mac or HUD
eligibility requirements. Furthermore, if at any time prior to the termination
of this Agreement, Greenpoint is unable to comply with any of the Xxxxxx Mae,
Xxxxxxx Mac or HUD eligibility requirements, it shall immediately notify the
Purchaser that it is no longer an approved seller/servicer as defined in the
first sentence above;
(f) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to Greenpoint's knowledge, threatened,
which either in any one instance or in the aggregate, if determined adversely to
Greenpoint would materially and adversely affect the sale of the Mortgage Loans
to the Purchaser, the ability of Greenpoint to service the Mortgage Loans
hereunder in accordance with the terms hereof, or Greenpoint's ability to
perform its obligations under this Agreement;
(g) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by Greenpoint, of or compliance by Greenpoint with,
this Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date;
(h) Reasonable Servicing Fee. Greenpoint acknowledges and agrees
that the Servicing Fee represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by Greenpoint, for
accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement;
(i) Ability to Perform. Greenpoint does not believe, nor does it
have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement. Greenpoint is solvent and the sale of the
Mortgage Loans will not cause Greenpoint to become insolvent. The sale of the
Mortgage Loans is not undertaken to hinder, delay or defraud any of Greenpoint's
creditors;
(j) No Untrue Information. Neither this Agreement nor any
statement, report or other document prepared and furnished, or to be furnished
pursuant to this Agreement or in connection with the transactions contemplated
hereby, by Greenpoint contains any untrue statement of fact or omits to state a
fact necessary to make the statements contained therein not misleading;
(k) Sale Treatment. Greenpoint has determined that the disposition
of the Mortgage Loans pursuant to this Agreement will be afforded sale treatment
for accounting and tax purposes;
(l) Fair Credit Report Act. Greenpoint, in its capacity as servicer
for each Mortgage Loan, has fully furnished (or caused to be furnished), in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on its
borrower credit files to Equifax, Experian and Trans Union Credit Information
Company (three of the credit repositories) or their successors and assigns, on a
monthly basis;
(m) No Brokers' Fees. Greenpoint has not dealt with any broker,
investment banker, agent or other Person that may be entitled to any commission
or compensation in the connection with the sale of the Mortgage Loans;
(n) Fair Consideration. The consideration received by Greenpoint
upon the sale of the Mortgage Loans under this Agreement constitutes fair
consideration and reasonably equivalent value for the Mortgage Loans; and
(o) USA Patriot Act of 2001. Greenpoint has complied with all
applicable anti-money laundering laws and regulations, including without
limitation the USA Patriot Act of 2001 (collectively, the "Anti-Money Laundering
Laws"); Greenpoint has established an anti-money laundering compliance program
as required by the Anti-Money Laundering Laws, has conducted the requisite due
diligence in connection with the origination of each Mortgage Loan for purposes
of the Anti-Money Laundering Laws, including with respect to the legitimacy of
the applicable Mortgagor and the origin of the assets used by the said Mortgagor
to purchase the property in question, and maintains, and will maintain,
sufficient information to identify the applicable Mortgagor for purposes of the
Anti-Money Laundering Laws.
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans.
With respect to each Mortgage Loan (unless otherwise specified
below), Greenpoint represents and warrants to the Purchaser as of the related
Closing Date that:
(a) Mortgage Loan Schedule. The information contained in the
Mortgage Loan Schedule is complete, true and correct in all material respects;
(b) No Delinquencies or Advances. All payments required to be made
and credited prior to the related Cut-off Date for such Mortgage Loan under the
terms of the Mortgage Note have been made; Greenpoint has not advanced funds, or
induced, solicited or knowingly received any advance of funds from a party other
than the owner of the Mortgaged Property subject to the Mortgage, directly or
indirectly, for the payment of any amount required by the Mortgage Loan; and
there has been no delinquency of more than thirty (30) days in any payment by
the Mortgagor thereunder during the last twelve (12) months;
(c) Taxes, Assessments, Insurance Premiums and Other Charges. There
are no defaults by Greenpoint or any prior originator in complying with the
terms of the Mortgage and there are no delinquent taxes, ground rents, water
charges, sewer rents, assessments, insurance premiums, leasehold payments,
including assessments payable in future installments or other outstanding
charges affecting the related Mortgaged Property;
(d) No Modifications. The terms of the Mortgage Note and the
Mortgage have not been impaired, waived, altered or modified in any respect,
except by written instruments that have been or will be recorded, if necessary
to protect the interests of the Purchaser, and that have been or will be
delivered to the Purchaser, all in accordance with this Agreement. The substance
of any such waiver, alteration or modification has been approved by the primary
mortgage guaranty insurer, if any, and by the title insurer, to the extent
required by the related policy and its terms are reflected on the Mortgage Loan
Schedule. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement approved by the primary mortgage
insurer, if any, and the title insurer, to the extent required by the policy,
and which assumption agreement is part of the Collateral File and the terms of
which are reflected in the Mortgage Loan Schedule if executed prior to the
Closing Date;
(e) No Defenses. The Mortgage Note and the Mortgage are not subject
to any right of rescission, set-off, counterclaim or defense, including the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note and the Mortgage, or the exercise of any right thereunder, render the
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(f) Hazard and Flood Insurance. All buildings and other customarily
insured improvements upon the Mortgaged Property are insured in an amount which
is not less than the lesser of (i) the maximum insurable value of the Mortgaged
Property and (ii) the greater of (a) the outstanding principal balance of the
Mortgage Loan, and (b) an amount that would prevent the Mortgagor from becoming
a co-insurer, by an insurer acceptable to an Agency against loss by fire,
hazards of extended coverage and such other hazards as are customary in the area
where the Mortgaged Property is located, and such insurer is licensed to do
business in the state where the Mortgaged Property is located. If the Mortgaged
Property is a condominium unit, it is included under the coverage afforded by a
blanket policy. All such insurance policies contain a standard mortgagee clause
naming Greenpoint, its successors and assigns as mortgagee, and all premiums
thereon have been paid. If, upon the origination of the Mortgage Loan, the
Mortgaged Property was, or was subsequently deemed to be, in an area identified
in the Federal Register by the Federal Emergency Management Agency as having
special flood hazards (and such flood insurance has been made available), a
flood insurance policy that meets the requirements of the current guidelines of
the Federal Insurance Administration (or any successor thereto) and conforms to
the requirements of an Agency is in effect. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's expense and, upon
the failure of the Mortgagor to do so, the holder of the Mortgage is authorized
to maintain such insurance at the Mortgagor's expense and to seek reimbursement
therefor from the Mortgagor;
(g) Compliance with Applicable Law. All applicable local, state and
federal laws including without limitation usury, truth in lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity,
fair housing, predatory and abusive lending and disclosure laws applicable to
the origination and servicing of the Mortgage Loan have been complied with, and
Greenpoint shall maintain in its possession, available for the Purchaser's
inspection and shall deliver to the Purchaser upon demand, evidence of
compliance with all such requirements;
(h) No Release of Mortgage. The Mortgage has not been satisfied,
canceled, subordinated, or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission. Greenpoint has not waived the
performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has
Greenpoint waived any default;
(i) Enforceability of Mortgage Documents. The Mortgage Note, the
Mortgage and any related modifications, assignments and assumptions are genuine
and each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization or similar laws;
(j) Valid First Lien on Mortgage Loans that are not Cooperative
Loans. Each related Mortgage is a valid, perfected, existing and enforceable
first lien or a first priority ownership interest in an estate in fee simple in
the Mortgaged Property, including, for Mortgage Loans that are not Cooperative
Loans, all improvements on the Mortgaged Property, securing the related Mortgage
Note, except that with respect to real property located in jurisdictions in
which the use of leasehold estates for residential properties is a
widely-accepted practice, the Mortgage may secure and create a first lien upon a
leasehold estate of the Mortgagor. The lien of the Mortgage is subject only to:
(i) the lien of current real property taxes and
assessments not yet due and payable;
(ii) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the
date of recording that are acceptable to mortgage lending
institutions generally and specifically referred to in the
lender's title insurance policy delivered to the originator of
the Mortgage Loan and that do not adversely affect the
Appraised Value of the Mortgaged Property set forth in such
appraisal; and
(iii) other matters to which like properties are
commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the
Mortgage or the use, enjoyment, value or marketability of the
related Mortgaged Property;
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid, subsisting and enforceable first lien and first priority
security interest on the property described therein and Greenpoint has full
right to sell and assign the same to the Purchaser.
(k) Valid First Liens on Cooperative Loans: With respect to each
Cooperative Loan, the related Mortgage is a valid, enforceable and subsisting
first security interest on the related cooperative shares securing the related
cooperative note and lease, subject only to (a) liens of the cooperative for
unpaid assessments representing the Mortgagor's pro rata share of the
cooperative's payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments to
which like collateral is commonly subject and (b) other matters to which like
collateral is commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Security Agreement.
There are no liens against or security interests in the cooperative shares
relating to each Cooperative Loan (except for unpaid maintenance, assessments
and other amounts owed to the related cooperative which individually or in the
aggregate will not have a material adverse effect on such Cooperative Loan),
which have priority equal to or over the Greenpoint's security interest in such
cooperative shares;
(l) With respect to each Cooperative Loan, a search for filings of
financing statements has been made by a company competent to make the same,
which company is acceptable to Xxxxxx Mae and qualified to do business in the
jurisdiction where the cooperative unit is located, and such search has not
found anything which would materially and adversely affect the Cooperative Loan;
(m) With respect to each Cooperative Loan, the related cooperative
corporation that owns title to the related cooperative apartment building is a
"cooperative housing corporation" within the meaning of Section 216 of the Code,
and is in material compliance with applicable federal, state and local laws
which, if not complied with, could have a material adverse effect on the
Mortgaged Property;
(n) With respect to each Cooperative Loan, there is no prohibition
against pledging the shares of the cooperative corporation or assigning the
Cooperative Lease;
(o) Leasehold Interests. With respect to any ground lease to which
a Mortgaged Property may be subject: (i) the Mortgagor is the owner of a valid
and subsisting leasehold interest under such ground lease: (ii) such ground
lease is in full force and effect unmodified and not supplemented by any writing
or otherwise; (iii) all rent, additional rent and other charges reserved therein
have been fully paid to the extent payable as of the Closing Date; (iv) the
Mortgagor enjoys the quiet and peaceful possession of the leasehold estate,
subject to any sublease; (v) the Mortgagor is not in default under any of the
terms of such ground lease, and there are no circumstances which, with the
passage of time or the giving of notice, or both, would result in a default
under such ground lease; (vi) the lessor under such ground lease is not in
default under any of the terms or provisions of such ground lease on the part of
the lessor to be observed or performed; (vii) the lessor under such ground lease
has satisfied any repair or construction obligations due as of the Closing Date
pursuant to the terms of such ground lease; (viii) the execution, delivery and
performance of the Mortgage do not require the consent (other than those
consents which have been obtained and are in full force and effect) under, and
will not contravene any provision of or cause a default under, such ground lease
and (ix) the term of such lease does not terminate earlier than 10 years
following the maturity date of the Mortgage Note;
(p) Disbursements of Proceeds. The proceeds of the Mortgage Loan
have been fully disbursed, and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site or
off-site improvement and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making or closing
the Mortgage Loan and recording the Mortgage were paid, and the Mortgagor is not
entitled to any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(q) Sole Owner. Greenpoint is the sole owner and holder of the
Mortgage Loan and the indebtedness evidenced by the Mortgage Note. The Mortgage
Loan is not assigned or pledged, and Greenpoint has good and marketable title
thereto, and has full right to transfer and sell the Mortgage Loan to the
Purchaser free and clear of any encumbrance, equity, lien, pledge, participation
interests, charge, claim or security interest not specifically set forth in the
related Mortgage Loan Schedule and has full right and authority subject to no
interest or participation of, or agreement with, any other party, to sell and
assign each Mortgage Loan pursuant to the terms of this Agreement. Following the
sale of the Mortgage Loan, the Purchaser will own the Mortgage Loan free and
clear of any encumbrance, equity, participation interest, lien, pledge, charge,
claim or security interest. Greenpoint intends to relinquish all rights to
monitor, possess and control the Mortgage Loan except in connection with the
servicing of the Mortgage Loan as set forth in the Servicing Agreement. After
the Closing Date, Greenpoint will not have any right to modify or alter the
terms of the sale of the Mortgage Loan, nor will Greenpoint have any obligation
or right to repurchase the Mortgage Loan, except as provided in this Agreement
or as otherwise agreed to by Greenpoint and the Purchaser;
(r) Title Insurance. Each Mortgage Loan is covered by an ALTA
lender's title insurance policy included in the related Servicing File,
acceptable to an Agency, issued by a title insurer acceptable to an Agency and
qualified to do business in the jurisdiction where the related Mortgaged
Property is located, insuring (subject to the exceptions contained in Section
3.02(j)(i), (ii) and (iii) above) Greenpoint, its successors and assigns as to
the first priority lien of the Mortgage. Additionally, such lender's title
insurance policy affirmatively insures ingress and egress, and against
encroachments by or upon the Mortgaged Property or any interest therein.
Greenpoint is the sole insured of such lender's title insurance policy, and such
lender's title insurance policy is in full force and effect and will be in full
force and effect upon the consummation of the transactions contemplated by this
Agreement. No claims have been made under such lender's title insurance policy,
and no prior holder of the related Mortgage, including Greenpoint, has done, by
act or omission, anything which would impair the coverage of such lender's title
insurance policy;
(s) No Default. There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event of
acceleration, and Greenpoint has not waived any default, breach, violation or
event of acceleration;
(t) No Mechanics' Liens. There are no mechanics' or similar liens
or claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such lien) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(u) Origination and Collection Practices. The origination and
collection practices used by Greenpoint with respect to each Mortgage Loan and
Mortgage have been in all respects legal, proper, prudent and customary in the
mortgage origination and servicing business. With respect to escrow deposits and
Escrow Payments, if any, all such payments are in the possession of, or under
the control of, Greenpoint and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have not been
made. No escrow deposits or Escrow Payments or other charges or payments due
Greenpoint have been capitalized under any Mortgage or the related Mortgage
Note. All payments have been collected in compliance with local, state and
federal law and the terms of the related Mortgage Note. With respect to
Adjustable Rate Mortgage Loans, all Mortgage Interest Rate adjustments have been
made in strict compliance with local, state and federal law and the terms of the
related Mortgage Note. Any interest required to be paid pursuant to state and
local law has been properly paid and credited;
(v) No Condemnation or Damage. There is no proceeding pending or,
to Greenpoint's knowledge, threatened for the total or partial condemnation of
the Mortgaged Property and such property is in good repair and is undamaged by
waste, fire, earthquake or earth movement, windstorm, flood, tornado or other
casualty, so as to affect adversely the value of the Mortgaged Property as
security for the Mortgage Loan or the use for which the premises were intended;
(w) Customary and Enforceable Provisions. The Mortgage contains
customary and enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security provided thereby including (a) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and (b)
otherwise by judicial foreclosure. There is no homestead or other exemption
available to a Mortgagor which would interfere with the right to sell the
Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage;
(x) Collateral. The Mortgage Note is not and has not been secured
by any collateral except the lien of the corresponding Mortgage on the Mortgaged
Property and the security interest of any applicable security agreement or
chattel mortgage referred to in (j) above;
(y) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by an appraiser who meets the minimum requisite qualifications of an
Agency for appraisers, duly appointed by the originator, that had no interest,
direct or indirect in the Mortgaged Property, and whose compensation is not
affected by the approval or disapproval of the Mortgage Loan; the appraisal is
in a form acceptable to an Agency, with such riders as are acceptable to such
Agency, and such appraisal complies with the requirements of FIRREA;
furthermore, the appraisal type for each Mortgage Loan is accurately reflected
on the Mortgage Loan Schedule;
(z) Trustee for Deed of Trust. In the event the Mortgage
constitutes a deed of trust, a trustee, duly qualified under applicable law to
serve as such, has been properly designated and currently so serves and is named
in the Mortgage, and no fees or expenses are or will become payable by the
Purchaser to the trustee under the deed of trust, except in connection with a
trustee's sale after default by the Mortgagor;
(aa) Private Mortgage Insurance. Each Mortgage Loan, with an LTV at
origination in excess of eighty percent (80%) is and will be subject to a PMI
Policy issued by an insurer acceptable to FNMA or FHLMC, in at least such
amounts as required by FHMA or FHLMC. All provisions of such PMI Policy have
been and are being complied with, such policy is in full force and effect, and
all premiums due thereunder have been paid. Any Mortgage subject to any such PMI
Policy obligates the Mortgagor thereunder to maintain such insurance and to pay
all premiums and charges in connection therewith or, in the case of a lender
paid mortgage insurance policy, the premiums and charges are included in the
Mortgage Interest Rate for the Mortgage Loan;
(bb) Lawfully Occupied. The Mortgaged Property is lawfully occupied
under applicable law. All inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of the Mortgaged Property
and, with respect to the use and occupancy of the same including certificates of
occupancy, have been made or obtained from the appropriate authorities. No
improvements violate local zoning laws or regulations;
(cc) Assignment of Mortgage. The Assignment of Mortgage is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) Form of Mortgage Note and Mortgage. The Mortgage Note and
Mortgage are on forms acceptable to each Agency;
(ee) Section 32 Loans. No Mortgage Loan is classified as a
"covered," "high cost," "high cost home loan," "threshold," "predatory loan,"
(excluding New Jersey "Covered Home Loans" as that term is defined in clause (1)
of the definition of that term in the New Jersey Home Ownership Security Act of
2002), or any other designation that indicates that such Mortgage Loan has terms
that result in costs to the Mortgagor in excess of a specified limit under the
Home Ownership and Equity Protection Act of 1994, as amended, or any similar
federal, state or local statutes or regulations related to "high cost" mortgage
loans or "predatory lending" (as such terms are defined in the applicable
statute or regulation);
(ff) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first lien priority by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated interest or by
other title evidence acceptable to each Agency. The consolidated principal
amount does not exceed the original principal amount of the Mortgage Loan;
(gg) Location and Type of Mortgaged Property. The Mortgaged Property
is located in the state identified in the Mortgage Loan Schedule and consists of
a single parcel (or more than one contiguous parcels) of real property with a
detached single family residence erected thereon, or a two- to four-family
dwelling, or an individual condominium unit in a condominium project, or an
individual unit in a planned unit development or a townhouse; provided, however,
that any condominium project or planned unit development generally conforms with
the Underwriting Guidelines regarding such dwellings, and no residence or
dwelling that is secured by a leasehold estate, is a mobile home, manufactured
dwelling or cooperative, provided further that as of the respective appraisal
date, no portion of the Mortgaged Property was being used for commercial
purposes;
(hh) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral, pledged account or other security except the
lien of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in (j) above;
(ii) Servicemembers Civil Relief Act. The Mortgagor has not notified
Greenpoint, and Greenpoint has no knowledge of any relief requested or allowed
to the Mortgagor under the Servicemembers Civil Relief Act or any similar state
law;
(jj) Payment Terms. The Mortgage Note is payable on the first day of
each month in equal monthly installments of principal and interest (or interest,
in the case of any Mortgage Loan for which monthly payments consist of only
interest for a period of time specified on the Mortgage Loan Schedule),
(provided that, the installments of interest are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment Date
with respect to an Adjustable Rate Mortgage, and interest is calculated and
payable in arrears) providing for full amortization by maturity over a scheduled
term of no more than 30 years. No Mortgage Loan converts, pursuant to the terms
of the related Mortgage Note, from having interest accrue on the principal
amount thereof based on an adjustable rate to having interest accrue based on a
fixed rate, and no Mortgage Loan has a shared appreciation or other contingent
interest feature, or permits negative amortization. The Mortgage Interest Rate,
Lifetime Rate Cap, each applicable Periodic Rate Cap and each applicable
Interest Adjustment Date for each Mortgage Loan are as set forth for such
Mortgage Loan in the Mortgage Loan Schedule;
(kk) Origination. At the time the Mortgage Loan was originated, the
originator was a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing Act or a
savings and loan association, a saving bank, a commercial bank or similar
banking institution which is supervised by a Federal or State authority;
(ll) Loan-to-Value Ratio; No Foreclosures. The Loan-to-Value Ratio
of each Mortgage Loan was no greater than 100% at the time of its origination or
refinancing, as applicable. No Mortgage Loan is subject to a written foreclosure
agreement or pending foreclosure proceedings;
(mm) Underwriting Guidelines. The Mortgage Loan was underwritten in
accordance with Greenpoint's underwriting guidelines (the "Underwriting
Guidelines") in effect at the time origination;
(nn) Adverse Selection. Greenpoint used no adverse selection
procedures in selecting the Mortgage Loan from among the outstanding first-lien
residential mortgage loans owned by it which were available for inclusion in the
Mortgage Loan Package;
(oo) Environmental Matters. To the best knowledge of Greenpoint, the
Mortgaged Property is free from any and all toxic or hazardous standards and
there exists no violation of any local, state or federal environmental law, rule
or regulation. There is no pending action or proceeding directly involving any
Mortgaged Property of which Greenpoint is aware in which compliance with any
environmental law, rule or regulation is an issue. To the best of Greenpoint's
knowledge, nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation consisting a prerequisite to
use and enjoyment of said property;
(pp) No Bankruptcy; Acceptable Investment. The Mortgagor is not in
bankruptcy and is not insolvent;
(qq) No Additional Payments. There is no obligation on the part of
Greenpoint or any other party to make payments in addition to those made by the
Mortgagor;
(rr) Georgia Fair Lending Act. There is no Mortgage Loan that was
originated on or after October 1, 2002 and before March 7, 2003, which is
secured by owner-occupied property located in the State of Georgia;
(ss) No Credit Insurance Policies. No proceeds from any Mortgage
Loan were used to purchase single-premium credit insurance policies as part of
the origination of, or as a condition to closing, such Mortgage Loan;
(tt) Prepayment Penalty Term. With respect to Mortgage Loans
originated prior to October 1, 2002, no such Prepayment Penalty may be imposed
for a term in excess of five (5) years following origination. With respect to
Mortgage Loans originated on or after October 1, 2002, no such Prepayment
Penalty may be imposed for a term in excess of three (3) years following
origination;
(uu) Qualified Mortgage. Each Mortgage Loan is a "qualified
mortgage" within Section 860G(a)(3) of the Code;
(vv) Credit Reporting. As to each consumer report (as defined in the
Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by Greenpoint to the Purchaser, Greenpoint has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded from furnishing
the same to any subsequent or prospective purchaser of such Mortgage;
(ww) Doing Business. Greenpoint and all other parties which have had
any interest in the Mortgage Loan, whether as mortgagee, assignee, pledgee or
otherwise, are (or, during the period in which they held and disposed of such
interest, were) in compliance with any and all applicable "doing business" and
licensing requirements of the laws of the state wherein the Mortgaged Property
is located;
(xx) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan is not a graduated payment mortgage loan and the
Mortgage Loan does not have a shared appreciation or other contingent interest
feature, nor does it contain any "buydown" provision which is currently in
effect;
(yy) Due-On-Sale. The Mortgage contains an enforceable provision for
the acceleration of the payment of the unpaid principal balance of the Mortgage
Loan in the event that the Mortgaged Property is sold or transferred without the
prior written consent of the mortgagee thereunder;
(zz) Disclosure Materials. The Mortgagor has received all disclosure
materials required by applicable law with respect to the making of mortgage
loans of the same type as the Mortgage Loan and rescission materials required by
applicable law if the Mortgage Loan is a Refinanced Mortgage Loan and has
acknowledged receipt of such materials to the extent required by applicable law
and such documents will remain in the Mortgage File;
(aaa) No Advancements. Greenpoint or any prior originator or
servicer has not advanced funds, or induced, solicited or knowingly received any
advance from any party other than the Mortgagor, directly or indirectly, for the
payment of any amount due under the Mortgage Loan;
(bbb) Delivery of Mortgage Documents. With respect to each Mortgage
Loan, Greenpoint is in possession of a complete Collateral File except for the
documents which have been delivered to the Purchaser or which have been
submitted for recording and not yet returned;
(ccc) Lost Note. With respect to each Mortgage where a lost note
affidavit has been delivered in place of the related Mortgage Note, the related
Mortgage Note is no longer in existence;
(ddd) Validity of Mortgage Documents. All the documents executed in
connection with the Mortgage Loan including, but not limited to, the Mortgage
Note and the Mortgage are free of fraud and any misrepresentation, are signed by
the persons they purport to be signed by, and witnessed or, as appropriate,
notarized by the persons whose signatures appear as witnesses or notaries, and
each such document constitutes the valid and binding legal obligation of the
signatories and is enforceable in accordance with its terms;
(eee) Construction or Rehabilitation of Mortgaged Property. (i) No
Mortgage Loan was made in connection with facilitating the trade-in or exchange
of a Mortgaged Property and (ii) a Mortgage Loan has a certificate of completion
if such Mortgage Loan was made in connection with the construction or
rehabilitation of the related Mortgaged Property;
(fff) Other Insurance Policies; No Defense to Coverage. No action,
inaction, or event has occurred and no state of affairs exists or has existed
that has resulted or will result in the exclusion from, denial of, or defense to
coverage under any applicable special hazard insurance policy, PMI Policy or
bankruptcy bond, irrespective of the cause of such failure of coverage. In
connection with the placement of any such insurance, no commission, fee, or
other compensation has been or will be received by Greenpoint or any of its
designee or any corporation in which Greenpoint or any officer, director, or
employee of Greenpoint had a financial interest at the time of placement of such
insurance;
(ggg) Conversion to Fixed Interest Rate. No Mortgage Loan is a
Convertible Mortgage Loan;
(hhh) No Arbitration. No Mortgage Loan originated on or after August
1, 2004 agreed to submit to arbitration to resolve any dispute arising out of or
relating in any way to the mortgage loan transaction;
(iii) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(jjj) [RESERVED];
(kkk) Xxxxxx Xxx Guides Anti-Predatory Lending Eligibility. Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility for
purchase requirements of Xxxxxx Mae Guides;
(lll) Mortgagor Selection. No Mortgagor was encouraged or required
to select a Mortgage Loan product offered by the Mortgage Loan's originator
which is a higher cost product designed for less creditworthy mortgagors, unless
at the time of the Mortgage Loan's origination, such Mortgagor did not qualify
taking into account credit history and debt-to-income ratios for a lower-cost
credit product then offered by the Mortgage Loan's originator or any affiliate
of the Mortgage Loan's originator. If, at the time of loan application, the
Mortgagor may have qualified for a for a lower-cost credit product then offered
by any mortgage lending affiliate of the Mortgage Loan's originator, the
Mortgage Loan's originator referred the related Mortgagor's application to such
affiliate for underwriting consideration;
(mmm) [RESERVED]
(nnn) Mortgage Loans with Prepayment Premiums. With respect to any
Mortgage Loan that contains a provision permitting imposition of a premium upon
a prepayment prior to maturity: (i) a mortgage loan without such a premium was
available to the Mortgagor at an interest rate and/or fee structure higher than
that of the Mortgage Loan, (ii) prior to the Mortgage Loan's funding, the
related Mortgagor had the option of obtaining the Mortgage Loan without a
requirement for payment of such a premium, and (iii) the prepayment premium is
disclosed to the related Mortgagor in the Mortgage Loan documents pursuant to
applicable state and federal law;
(ooo) Purchase of Insurance. No Mortgagor was required to purchase
any credit life, disability, accident or health insurance product as a condition
of obtaining the extension of credit. No Mortgagor obtained a prepaid
single-premium credit life, disability, accident or health insurance policy in
connection with the origination of the Mortgage Loan;
(ppp) Points and Fees. All points and fees related to each Mortgage
Loan were disclosed in writing to the Mortgagor in accordance with applicable
state and federal law and regulation. Except in the case of a Mortgage Loan in
an original principal amount of less than $60,000 which would have resulted in
an unprofitable origination, no Mortgagor was charged "points and fees" (whether
or not financed) in an amount greater than 5% of the principal amount of such
Mortgage Loan, such 5% limitation is calculated in accordance with Xxxxxx Mae's
anti-predatory lending requirements as set forth in the Xxxxxx Mae Guides; and
(qqq) Disclosure of Fees and Charges. All fees and charges
(including finance charges), whether or not financed, assessed, collected or to
be collected in connection with the origination and servicing of each Mortgage
Loan, have been disclosed in writing to the Mortgagor in accordance with
applicable state and federal law and regulation.
Section 3.03 Remedies for Breach of Representations and Warranties.
(a) Notice of Breach. The representations and warranties set forth
in Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans to the
Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or failure to examine any Collateral Documents or
Credit File. Upon discovery by either Greenpoint or the Purchaser of a breach of
any of the foregoing representations and warranties that materially and
adversely affects the value of one or more of the related Mortgage Loans, the
party discovering such breach shall give prompt written notice to the other.
(b) Cure or Repurchase. Within sixty (60) days from the earlier of
either discovery by or notice to Greenpoint of a breach of a representation or
warranty that materially and adversely affects the value of a Mortgage Loan or
the Mortgage Loans, Greenpoint shall use its best efforts to cure such breach in
all material respects, and, if such breach cannot be cured, Greenpoint shall, at
the Purchaser's option, repurchase such Mortgage Loan at the Repurchase Price.
Notwithstanding anything to the contrary herein, a breach of any one of the
representations and warranties set forth in clauses (ee), (rr), (ss), (uu),
(vv), (hhh), (kkk), (lll), (nnn), (ooo), (ppp) and (qqq) in Subsection 3.02
shall be deemed to materially and adversely affect the value of the related
Mortgage Loans and not be curable and, within sixty (60) days of the earlier of
either discovery by or notice to Greenpoint, as the case may be, of such breach,
Greenpoint shall repurchase such Mortgage Loan at the Repurchase Price. In the
event that a breach shall involve any representation or warranty set forth in
Section 3.01 and such breach cannot be cured within sixty (60) days of the
earlier of either discovery by or notice to Greenpoint of such breach,
Greenpoint shall repurchase such of the Mortgage Loans as shall be necessary to
cure such breach at the Repurchase Price.
(c) Substitution or Repurchase. If the breach shall involve a
representation or warranty set forth in Section 3.02, other than a breach of any
one of the representations and warranties set forth in clauses (ee), (rr), (ss),
(uu), (vv), (hhh), (kkk), (lll), (nnn), (ooo), (ppp) and (qqq), Greenpoint may
at the discretion of the Purchaser, rather than repurchase the Mortgage Loan as
provided above, remove such Mortgage Loan and substitute in its place a
Qualified Substitute Mortgage Loan or Loans. If Greenpoint elects not to
substitute a Qualified Substitute Mortgage Loan, it shall repurchase the
deficient Mortgage Loan. Any repurchase of a Mortgage Loan(s) pursuant to the
provisions of this Section 3.03 shall be accomplished by deposit in the
Custodial Account of the amount of the Repurchase Price for distribution to the
Purchaser on the next scheduled Remittance Date, after deducting therefrom any
amount received in respect of such repurchased Mortgage Loan or Loans and being
held in the Custodial Account for future distribution. At the time of repurchase
or substitution, the Purchaser and Greenpoint shall arrange for the reassignment
of such Mortgage Loan and release of the related Collateral File to Greenpoint
and the delivery to Greenpoint of any documents held by the Purchaser or its
designee relating to such Mortgage Loan. In the event Greenpoint is authorized
to substitute a Qualified Substitute Mortgage Loan for a repurchased Mortgage
Loan, Greenpoint shall, simultaneously with such reassignment, give written
notice to the Purchaser that substitution has taken place and identify the
Qualified Substitute Mortgage Loan(s). In connection with any such substitution,
Greenpoint shall be deemed to have made as to such Qualified Substitute Mortgage
Loan(s) the representations and warranties except that all such representations
and warranties set forth in this Agreement shall be deemed made as of the date
of such substitution. Greenpoint shall effect such substitution by delivering to
the Purchaser the Collateral Documents for such Qualified Substitute Mortgage
Loan(s). Greenpoint shall deposit in the Custodial Account the Monthly Payment
less the Servicing Fee due on such Qualified Substitute Mortgage Loan(s) in the
month following the date of such substitution. Monthly Payments due with respect
to Qualified Substitute Mortgage Loans in the month of substitution shall be
retained by Greenpoint. For the month of substitution, distributions to the
Purchaser shall include the Monthly Payment due on any substituted Mortgage Loan
in the month of substitution, and Greenpoint shall thereafter be entitled to
retain all amounts subsequently received by Greenpoint in respect of such
substituted Mortgage Loan.
For any month in which Greenpoint substitutes a Qualified Substitute
Mortgage Loan for a repurchased Mortgage Loan, Greenpoint shall determine the
amount (if any) by which the aggregate principal balance of all Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all substituted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be distributed by Greenpoint in the month of
substitution pursuant to Section 5.01. Accordingly, on the date of such
substitution, Greenpoint shall deposit from its own funds into the Custodial
Account an amount equal to the amount of such shortfall. Notwithstanding the
above, in no event shall Greenpoint substitute a loan that has been placed in a
trust with respect to a securitization.
In addition to such cure and repurchase obligations, Greenpoint
shall indemnify the Purchaser, its affiliates, and their respective directors,
officers and employees, as applicable, and hold the Purchaser, its affiliates
and each such person harmless against any damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion by any third party that is based on or grounded upon, or resulting
from, a breach of Greenpoint's representations and warranties contained in this
Agreements.
Section 3.04 Accrual of Cause of Action. Any cause of action against
Greenpoint relating to or arising out of the breach of any representations and
warranties made in Sections 3.01 or 3.02 shall accrue as to any Mortgage Loan
upon (i) discovery of such breach by the Purchaser or notice thereof by
Greenpoint to the Purchaser, (ii) failure by Greenpoint to cure such breach or
substitute or repurchase such Mortgage Loan as specified above, or (iii) demand
upon Greenpoint by the Purchaser for compliance with the relevant provisions of
this Agreement.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Greenpoint to Act as Servicer.
Greenpoint shall service and administer Mortgage Loans sold pursuant
to this Agreement in accordance with the terms of the Servicing Agreement and
shall have full power and authority, acting alone, to do or cause to be done any
and all things, in connection with such servicing and administration, that
Greenpoint may deem necessary or desirable and consistent with the terms of the
Servicing Agreement.
ARTICLE V
COVENANTS BY GREENPOINT
Section 5.01 Indemnification by Greenpoint.
Greenpoint shall indemnify the Purchaser, its affiliates, and their
respective directors, officers and employees, as applicable, and hold the
Purchaser, its affiliates and each such person harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary
attorneys' fees and related costs, judgments, and any other costs, fees and
expenses that the Purchaser may sustain in any way related to the failure of
Greenpoint to perform its obligations hereunder, including its obligations to
service and administer the Mortgage Loans in compliance with the terms of the
Servicing Agreement.
Section 5.02 [RESERVED]
Section 5.03 Merger or Consolidation of Greenpoint
Greenpoint shall keep in full effect its existence, rights and
franchises 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 this Agreement, or any of the Mortgage Loans, and
to perform its duties under this Agreement.
Notwithstanding anything to the contrary contained herein, any
Person into which Greenpoint may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which Greenpoint shall
be a party, or any Person succeeding to the business of Greenpoint, shall be the
successor of Greenpoint hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto; provided, however,
that the successor or surviving Person shall be an institution whose deposits
are insured by FDIC or a company whose business is the origination and servicing
of mortgage loans, unless otherwise consented to by the Purchaser, which consent
shall not be unreasonably withheld, and shall be qualified to service mortgage
loans on behalf of an Agency.
Section 5.04 Limitation on Liability of Greenpoint and Others.
Neither Greenpoint nor any of the officers, employees or agents of
Greenpoint shall be under any liability to the Purchaser for any action taken,
or for refraining from taking any action, in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect Greenpoint or any such person against any breach of warranties
or representations made herein, or any liability which would otherwise be
imposed by reason of any breach of the terms and conditions of this Agreement
and, provided further, that this provision shall not protect Greenpoint or any
such person against any liability that would otherwise be imposed by reason of
the willful misfeasance, bad faith or negligence in the performance of duties or
by reason of reckless disregard of the obligations or duties hereunder.
Greenpoint and any officer, employee or agent of Greenpoint may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising hereunder. Notwithstanding anything to
the contrary contained in this Agreement, unless one or more Event of Default by
Greenpoint shall occur and shall not have been remedied within the time limits
set forth in Section 7.1 of the Servicing Agreement, the Purchaser shall not
record or cause to be recorded an Assignment of Mortgage with the recording
office. To the extent the Purchaser records with the recording office as
permitted herein an Assignment of Mortgage which designates the Purchaser as the
holder of record of the Mortgage, the Purchaser agrees that it shall (i) provide
Greenpoint with immediate notice of any action with respect to the Mortgage or
the related Mortgaged Property and ensure that the proper department or person
at Greenpoint receives such notice; and (ii) immediately complete, sign and
return to Greenpoint any document reasonably requested by Greenpoint to comply
with its servicing obligations, including without limitation, any instrument
required to release the Mortgage upon payment in full of the obligation or take
any other action reasonably required by Greenpoint. The Purchaser further agrees
that Greenpoint shall have no liability for the Purchaser's failure to comply
with the subsections (i) or (ii) in the foregoing sentence. Greenpoint shall
have no liability to the Purchaser and shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
duties to service the Mortgage Loans in accordance with this Agreement and which
in its opinion may involve it in any expenses or liability; provided, however,
that Greenpoint may, with the consent of the Purchaser, undertake any such
action which it may deem necessary or desirable to protect the Purchaser's
interests in the Mortgage Loans. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities for which the Purchaser will be liable, and Greenpoint shall be
entitled to be reimbursed therefor from the Purchaser upon written demand except
when such expenses, costs and liabilities are subject to Greenpoint's
indemnification under Sections 3.03 and 5.01.
Section 5.05 No Transfer of Servicing.
Greenpoint acknowledges that the Purchaser acts in reliance upon
Greenpoint's independent status, the adequacy of its servicing facilities,
plant, personnel, records and procedures, its integrity, reputation and
financial standing and the continuance thereof. Without in any way limiting the
generality of this Section, Greenpoint shall not assign this Agreement or the
servicing rights hereunder, without the prior written approval of the Purchaser,
which consent may not be unreasonably withheld.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Notices.
All demands, notices and communications required to be provided
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, postage prepaid, and return receipt
requested, or, if by other means, when received by the other party at the
address as follows:
(i) to Greenpoint:
Greenpoint Mortgage Funding, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: _____________
(ii) the Purchaser:
To the address and contact set forth in the related
Purchase Confirmation
or such other address as may hereafter be furnished to the other
party by like notice. Any such demand, notice or communication hereunder shall
be deemed to have been received on the date delivered to or received at the
premises of the addressee (as evidenced, in the case of registered or certified
mail, by the date noted on the return receipt).
Section 6.02 Sale Treatment.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the Mortgage
Loans by Greenpoint and not a pledge of the Mortgage Loans by Greenpoint to the
Purchaser to secure a debt or other obligation of Greenpoint. Consequently, the
sale of each Mortgage Loan shall be reflected as a sale on Greenpoint's business
records, tax returns and financial statements. Accordingly, Greenpoint and the
Purchaser shall each treat the transaction for federal income tax purposes as a
sale by Greenpoint, and a purchase by the Purchaser, of the Mortgage Loans.
Section 6.03 Exhibits.
The Exhibits to this Agreement and each Trade Confirmation and
Purchase Confirmation executed by Greenpoint and the Purchaser are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
Section 6.04 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other Subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision;
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration; and
(g) reference to the Transaction Documents or any other document
referenced herein shall include all exhibits, schedules or other supplements
thereto.
Section 6.05 Reproduction of Documents.
This Agreement and all documents relating thereto, including (a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 6.06 Further Agreements.
Greenpoint shall execute and deliver to the Purchaser and the
Purchaser shall be required to execute and deliver to Greenpoint such reasonable
and appropriate additional documents, instruments or agreements as may be
necessary or appropriate to effectuate the purposes of this Agreement.
Section 6.07 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers.
(a) The Purchaser may, subject to the terms of this Agreement, sell
and transfer one or more of the Mortgage Loans; provided, however, that the
transferee will not be deemed to be the Purchaser hereunder unless such
transferee shall agree in writing to be bound by the terms of this Agreement and
an original counterpart of the document evidencing such agreement shall have
been executed by the Purchaser and the transferee and delivered to Greenpoint.
Notwithstanding the foregoing, no transfer shall be effective if such transfer
would result in there being more than five (5) "Purchasers" outstanding
hereunder with respect to any Mortgage Loan Package. Any trust to which Mortgage
Loans may be transferred pursuant to Section 6.07(b) hereunder shall constitute
a single Purchaser for the purposes of the preceding sentence.
(b) The Purchaser and Greenpoint agree that with respect to some or
all of the Mortgage Loans, the Purchaser, at its sole option, but subject to the
limitations set forth in Section 6.07(a) hereof, may effect Pass-Through
Transfers and Whole Loan Transfer, retaining Greenpoint as the servicer thereof
or subservicer if a master servicer is employed, or as applicable the
"seller/servicer." On the related Reconstitution Date, the Mortgage Loans
transferred shall cease to be covered by this Agreement; provided, however,
that, in the event that any Mortgage Loan transferred pursuant to this Section
6.07 is rejected by the related transferee, Greenpoint shall continue to service
such rejected Mortgage Loan on behalf of the Purchaser in accordance with the
terms and provisions of this Agreement. Greenpoint shall cooperate with the
Purchaser in connection with each Pass-Through Transfer and Whole Loan Transfer
in accordance with this Section 6.07. In connection therewith Greenpoint shall:
(i) negotiate in good faith and execute any
seller/servicer agreement reasonably required to effectuate
the Pass-Through Transfer and Whole Loan Transfer, provided
such agreement creates no greater obligation or cost on the
part of Greenpoint than otherwise set forth in this Agreement,
and provided further that Greenpoint shall be entitled to a
servicing fee under that agreement at a rate per annum no less
than the Servicing Fee Rate; and
(ii) provide as applicable:
(A) information pertaining to Greenpoint of the
type and scope customarily included in offering
documents for residential mortgage-backed securities
transactions involving multiple loan originators; and
(B) such opinions of counsel, letters from
auditors, and certificates of public officials or
officers of Greenpoint as are reasonably believed
necessary by the trustee, any rating agency or the
Purchaser, as the case may be, in connection with such
Pass-Through Transfer and Whole Loan Transfer. The
Purchaser shall pay all reasonable third party costs
associated with the preparation of the information
described in clause (ii)(A) above and the delivery of
any opinions, letters or certificates described in this
clause (ii)(B). Greenpoint shall not be required to
execute any seller/servicer agreement unless a draft of
the agreement is provided to Greenpoint at least 10 days
before the Reconstitution Date.
(c) In connection with any (a) Pass-Through Transfer and (b) Whole
Loan Transfer, Greenpoint shall restate to the Purchaser and, with respect to
(a) above, to the applicable depositor (the "Depositor"), trustee (the
"Trustee") and the master servicer (the "Master Servicer"), all representations
and warranties contained in this Agreement, with respect to the Mortgage Loans
as of the Closing Date and with respect to Greenpoint itself as of the closing
date of each Whole Loan Transfer or Pass-Through Transfer.
(d) In connection with any Pass-Through Transfer and Whole Loan
Transfer, Greenpoint shall indemnify, defend and hold harmless the Purchaser,
the Depositor, the Trustee, the Master Servicer, their respective affiliates,
and their respective directors, officers and employees from and against any and
all losses, claims, expenses, damages, liabilities, reasonable and necessary
attorneys' fees and related costs, judgments, and any other costs to which any
such party may be subject to as a result of any untrue statement of any material
fact contained in any information (such information, the "Greenpoint
Information") prepared and furnished to the Purchaser, the Depositor, the
Trustee and the Master Servicer by Greenpoint for inclusion in any related
offering document or prospectus (collectively, "Offering Materials"), or arise
out of, or are based upon, any omission in the Greenpoint Information necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, and will reimburse to all such parties, as
applicable, for damages or expenses reasonably incurred by it; provided,
however, that Greenpoint shall be liable only insofar as such untrue statement
or omission relates solely to the Greenpoint Information in the Offering
Materials furnished to any such party by Greenpoint specifically for inclusion
in the Offering Materials; and
(e) All Mortgage Loans not sold or transferred pursuant to
Pass-Through Transfers or Whole Loan Transfer shall remain subject to this
Agreement and shall continue to be serviced in accordance with the terms of this
Agreement and with respect thereto this Agreement shall remain in full force and
effect.
Section 6.08 Conflicts between Transaction Documents.
In the event of any conflict, inconsistency or ambiguity between the
terms and conditions of this Agreement, the Servicing Agreement, and either the
related Trade Confirmation or the related Purchase Confirmation, the terms of
the related Purchase Confirmation shall control. In the event of any conflict,
inconsistency or ambiguity between the terms and conditions of the Trade
Confirmation and the Purchase Confirmation, the terms of the Purchase
Confirmation shall control.
Section 6.09 Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements entered into and
wholly performed within that state.
Section 6.10 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to an amendment to this Agreement which places each party in the
same or as economic position as each party would have been in except for such
invalidity.
Section 6.11 Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by Greenpoint and the Purchaser and the respective permitted
successors and assigns of Greenpoint and the Purchaser.
Section 6.12 Relationship of Parties.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of
Greenpoint shall be rendered as an independent contractor and not as agent for
the Purchaser.
Section 6.13 Solicitation of Mortgagor.
From and after the Closing Date, Greenpoint hereby agrees that it
will not take any action or permit or cause any action to be taken by any of its
agents or affiliates, or by any independent contractors or independent mortgage
brokerage companies on its behalf, to personally, by telephone or mail, solicit
the mortgagor under any Mortgage Loan for the purpose of refinancing such
Mortgage Loan; provided, that Greenpoint may solicit any mortgagor from whom it
or its servicing affiliate has received a request for verification of mortgage,
a request for demand for payoff, a mortgagor initiated written or verbal
communication indicating a desire to prepay the related Mortgage Loan, or the
mortgagor initiates a title search, provided further, it is understood and
agreed that promotions undertaken by Greenpoint or any of its affiliates which
(i) concern optional insurance products or other additional products or (ii) are
directed to the general public at large, including, without limitation, mass
mailings based on commercially acquired mailing lists, newspapers, radio and
television advertisements shall not constitute solicitation nor is Greenpoint
prohibited from responding to unsolicited requests or inquiries made by a
mortgagor or an agent of a mortgagor. Notwithstanding the foregoing, the
following solicitations, if undertaken by Greenpoint or any affiliate of
Greenpoint, shall not be prohibited: (i) solicitations that are directed to the
general public at large, including, without limitation, mass mailings based on
commercially acquired mailing lists and newspaper, radio, television and other
mass media advertisements and (ii) borrower messages included on, and statement
inserts provided with, the monthly statements sent to mortgagors; provided,
however, that similar messages and inserts are sent to borrowers of other
mortgage loans serviced by Greenpoint.
Section 6.14 Confidentiality.
Greenpoint, the Purchaser and their agents shall keep confidential
and shall not divulge to any person, other than affiliates, without the written
consent of the other party, the terms of this agreement, except (i) to the
extent required by law or judicial order or to enforce its rights or remedies
under this agreement, the Servicing Agreement, or any applicable agreements,
(ii) to the extent such information enters into the public domain other than
through the wrongful act of Greenpoint or the Purchaser, as the case may be,
(iii) as is necessary in working with legal counsel, auditors, rating agencies,
agents, taxing authorities or other governmental agencies, or (iv) in order to
disclose to any and all persons, without limitation of any kind, the structure
and tax aspects of this sale or any transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to the Purchaser
related to such sale, transaction and tax aspects, all as contemplated by
Section 1.6011-4T(b)(3) (or any successor provision) of the Treasury Regulations
promulgated under Section 6011 of the Internal Revenue Code of 1986.
Moreover, Greenpoint understands and agrees that this Agreement, the
Servicing Agreement, any other agreements executed in connection with the sale
and servicing contemplated hereunder, any agreements executed in connection with
a securitization of the Mortgage Loans, and any offering circulars or other
disclosure documents produced in connection with such securitization are
confidential and proprietary to the Purchaser, and Greenpoint agrees to hold
such documents confidential and not to divulge such documents to anyone except
(a) to the extent required by law or judicial order or to enforce its rights or
remedies under this letter agreement or the Agreements, (b) to the extent such
information enters into the public domain other than through the wrongful act of
Greenpoint (c) as is necessary in working with legal counsel, auditors, agents,
taxing authorities or other governmental agencies, or (d) in order to disclose
to any and all persons, without limitation of any kind, the structure and tax
aspects of this sale or such securitization and all materials of any kind
(including opinions or other tax analyses) that are provided to the Purchaser
related to such sale, securitization and tax aspects, all as contemplated by
Section 1.6011-4T(b)(3) (or any successor provision) of the Treasury Regulations
promulgated under Section 6011 of the Internal Revenue Code of 1986. The rights
and obligations set forth in this paragraph shall survive the Closing Date and
shall not merge into the closing documents but shall be independently
enforceable by the parties hereto.
Section 6.15 Entire Agreement.
This Agreement and the related Trade Confirmation and Purchase
Confirmation constitute the entire understanding between the parties hereto with
respect to each Mortgage Loan Package and supersede all prior or contemporaneous
oral or written communications regarding same. Greenpoint and the Purchaser
understand and agree that no employee, agent or other representative of
Greenpoint or the Purchaser has any authority to bind such party with regard to
any statement, representation, warranty or other expression unless said
statement, representation, warranty or other expression is specifically included
within the express terms of this Agreement or the related Trade Confirmation or
Purchase Confirmation. Neither this Agreement nor the related Trade Confirmation
or Purchase Confirmation shall be modified, amended or in any way altered except
by an instrument in writing signed by both parties.
(SIGNATURE PAGE TO FOLLOW)
IN WITNESS WHEREOF, Greenpoint and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
GREENPOINT MORTGAGE FUNDING, INC.
the Seller
By:___________________________________________
Name:
Title:
XXXXXXX XXXXX MORTGAGE COMPANY,
the Purchaser
By:Xxxxxxx Sachs Real Estate Funding Corp.,
General Partner
By:___________________________________________
Name
Title:
EXHIBIT A
COLLATERAL DOCUMENTS
1. Mortgage Note: The original executed Mortgage Note endorsed, "Pay to the
order of ______________, without recourse", or as otherwise directed by
the Purchaser, and signed in the name of the Seller by an officer of the
Seller, or a lost note affidavit with a copy of the original mortgage note
attached; the Mortgage Note shall include all intervening original
endorsements showing a complete chain of title from the originator to the
Seller;
2. Assignment of Mortgage: Unless the Mortgage Loan is a MERS Mortgage Loan,
the original Assignment of Mortgage in blank.
3. Guarantee: Personal endorsement and/or guaranty agreements for all non
individual Mortgage Loans (corporations, partnerships, trusts, estates,
etc.).
4. Mortgage: The original executed Mortgage, or a certified copy thereof, in
either case with evidence of recording noted thereon; the standard Xxxxxx
Xxx/FHLMC Condominium Rider or PUD Rider must be attached to the mortgage
if the mortgaged property is a condominium or is located in a PUD.
5. Modifications: 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.
6. Intervening Assignments: 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.
7. Cooperative Loans: With respect to each Cooperative Loan: (i) an original
copy of the Cooperative Lease naming the Mortgagor, as tenant, or an
original copy of the assignment of the Cooperative Lease to Mortgagor
together with the original copy of all intervening assignments showing a
complete and unbroken chain of title from the original tenant to Mortgagor
and an original undated assignment, in blank, of the Cooperative Lease
executed by Mortgagor; (ii) the original stock certificate in the name of
the Mortgagor together with an undated original stock power relating to
such stock certificate executed in blank by the Mortgagor; (iii) a fully
executed original recognition agreement in substantially the same form as
a standard "AZTECH" form and the original assignment thereof from
Greenpoint to the Purchaser together with the original copy of all
intervening assignments showing a complete and unbroken chain of title
from the originator of the Mortgage Loan to the Purchaser; (iv) copies of
the UCC-1 financing statement naming the originator of the Cooperative
Loan, as secured party, with evidence of recording thereon and, if
applicable, the executed UCC-3 financing statements (Assignment) or other
appropriate UCC financing statements required by applicable state law
evidencing a complete and unbroken chain of title from the originator of
the Cooperative Loan to Greenpoint, with evidence of recording thereon,
(v) an executed UCC-3 financing statement (Assignment), or other
appropriate UCC financing statement required by applicable state law,
evidencing the assignment by Greenpoint to the Purchaser of its interest
in the Cooperative Loan, with evidence of recording thereon and (vi) a
consent from the cooperative corporation in connection with the
Mortgagor's acquisition of the coop apartment.
8. Power of Attorney: To the extent applicable, (x) 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 (y) an original or copy of any surety
agreement or guaranty agreement.
9. Security Agreement: Security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage, if any;
10. Title Insurance: 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.
11. Assumptions: for each Mortgage Loan with respect to which the borrower's
name as it appears on the note does not match the borrower's name on the
Mortgage Loan Schedule, one of the following: (i) the original of the
assumption agreement, or a certified copy thereof, in either case with
evidence of recording thereon if required to maintain the lien of the
mortgage or if otherwise required, or, if recordation is not so required,
an original or copy of such assumption agreement; or (ii) a copy of a
marriage certificate, court order, decree or other document evidencing
that the two different names refer to the same person.
EXHIBIT B
FORM OF PURCHASE CONFIRMATION
[GREENPOINT LETTERHEAD]
[DATE]
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Re: Purchase Confirmation ($x.xmm) (Deal No. xxxx-xxx)
Ladies and Gentlemen:
This purchase confirmation (the "Purchase Confirmation") between Greenpoint
Mortgage Funding, Inc.,
("Greenpoint") and Xxxxxxx Sachs Mortgage Company ("Purchaser") sets
forth our agreement pursuant to which Purchaser is purchasing, and Greenpoint is
selling, on a servicing-retained basis, those certain mortgage loans identified
in Exhibit A hereto and more particularly described herein (the "Mortgage
Loans").
The purchase, sale and servicing of the Mortgage Loans as
contemplated herein shall be governed by that certain Master Mortgage Loan
Purchase Agreement dated as of April 1, 2004, between Greenpoint and Purchaser
(as amended herein and otherwise, the "Agreement"). By executing this Purchase
Confirmation, each of Greenpoint and Purchaser again makes, with respect to
itself and each Mortgage Loan, as applicable, all of the covenants,
representations and warranties made by each such party in the Agreement, except
as the same may be amended by this Purchase Confirmation.
All exhibits hereto are incorporated herein in their entirety. In
the event there exists any inconsistency between the Agreement and this Purchase
Confirmation, the latter shall be controlling notwithstanding anything contained
in the Agreement to the contrary. All capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Agreement.
1. Assignment and Conveyance of Mortgage Loans. Upon Purchaser's
payment of the Purchase Proceeds in accordance with Section 2.08 of the
Agreement, Greenpoint shall sell, transfer, assign and convey to Purchaser,
without recourse, but subject to the terms of the Purchase Confirmation and the
Agreement, all of the right, title and interest of Greenpoint in and to the
Mortgage Loans, excluding the servicing rights relating thereto. Each Mortgage
Loan shall be serviced by Greenpoint pursuant to the terms of the Agreement.
2. Defined Terms. As used in the Agreement, the following defined
terms shall have meanings set forth below with respect to the related Mortgage
Loan Package.
a. Closing Date: [DATE].
b. Cut-off Date: [DATE].
c. Cut-off Date Balance:
d. [Index: On each Interest Adjustment Date, the
applicable index rate shall be a rate per annum equal to [the
weekly average yield on U.S. Treasury securities adjusted to a
constant maturity of one year, as published by the Board of
Governors of the Federal Reserve System in Statistical Release
No. H.15] [the average of interbank offered rates for
six-month U.S. dollar denominated deposits in the London
market (LIBOR), as published [in the Wall Street Journal] [by
Xxxxxx Xxx] [the 11th District Cost of Funds as made available
by the Federal Home Loan Bank] [the weekly average yield on
certificates of deposit adjusted to a constant maturity of six
months as published by the Board of Governors of the Federal
Reserve System in Statistical Release No. H.15 or a similar
publication.]]
e. Missing Credit Documents: As set forth in Exhibit [C]
hereto.
Notwithstanding anything contained in Section 2.04 of the Agreement to the
contrary, Greenpoint's obligation to repurchase from the Purchaser the Mortgage
Loan related to a Missing Credit Document shall occur only in the event of a
default by a Mortgagor or any material impairment of the Mortgaged Property
directly arising a breach of Greenpoint's obligation to deliver the Missing
Credit Document within the time specified in Section 2.04 of the Agreement.
f. Pending Mortgage Loans: As set forth in Exhibit [C]
hereto.]
g. Purchase Proceeds: With respect to [the Mortgage
Loans] [each Mortgage Loan], and as set forth in Exhibit [A]
and Exhibit [B] hereto, the sum of (a) the product of (i) the
Cut-off Date Balance of [such Mortgage Loan] [such Mortgage
Loans], and (ii) the purchase price percentage set forth in
Exhibit [A] hereto for such [Mortgage Loan] [Mortgage Loans],
and (b) accrued interest from the Cut-off Date through the day
prior to the Closing Date, inclusive.
h. Servicing Fee Rate: [0.25%] [0.375%] [With respect to
the period prior to the initial Interest Adjustment Date,
[0.25]% and, thereafter, [0.375]%].
3. Description of Mortgage Loans. Each Mortgage Loan complies with
the specifications set forth below in all material respects.
a. Loan Type: Each Mortgage Loan is a [Adjustable Rate]
[Balloon] [Fixed Rate] Mortgage Loan.
x. Xxxx Position: Each Mortgage Loan is secured by a
perfected first lien Mortgage.
c. Underwriting Criteria: Each Mortgage Loan [was
underwritten generally in accordance with Greenpoint's credit
underwriting guidelines in effect at the time such Mortgage
Loan was originated] [conforms to the Xxxxxx Xxx or Xxxxxxx
Mac mortgage eligibility criteria (as such criteria applies to
Greenpoint) and is eligible for sale to, and securitization
by, Xxxxxx Mae or Xxxxxxx Mac] [at the time of origination was
underwritten to guidelines which are consistent with an
institutional investor-quality mortgage loan].
Kindly acknowledge your agreement to the terms of this Purchase
Confirmation by signing in the appropriate space below and returning this
Purchase Confirmation to the undersigned. Telecopy signatures shall be deemed
valid and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
GREENPOINT MORTGAGE FUNDING, INC., XXXXXXX SACHS MORTGAGE COMPANY
By:______________________________
By:_________________________________ Name:
Name: Title:
Title:
EXHIBIT A
to
PURCHASE CONFIRMATION
MORTGAGE LOAN SCHEDULE
(attached)
EXHIBIT B
to
PURCHASE CONFIRMATION
CALCULATION OF PURCHASE PROCEEDS
(attached)
EXHIBIT C
to
PURCHASE CONFIRMATION
MISSING CREDIT DOCUMENTS
-------------------------------------
LOAN COUNT LOAN NUMBER DOCUMENT
-------------------------------------
1.
2.
3.
4.
5.
-------------------------------------
EXHIBIT D
to
PURCHASE CONFIRMATION
PENDING MORTGAGE LOANS
-------------------------------------
LOAN COUNT LOAN NUMBER DOCUMENT
-------------------------------------
1.
2.
3.
4.
5.
-------------------------------------
EXHIBIT C
[RESERVED]
EXHIBIT D
FORM OF TRADE CONFIRMATION
[GREENPOINT LETTERHEAD]
[DATE]
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Re: Sale of $[AMOUNT] Million of Mortgage Loans to Xxxxxxx Xxxxx Mortgage
Company (Deal No. yrmm-xxx)
Ladies and Gentlemen:
This Trade Confirmation confirms the agreement between Xxxxxxx Sachs
Mortgage Company ("Purchaser") and Greenpoint Mortgage Funding, Inc.
("Greenpoint") pursuant to which Purchaser has agreed to purchase, and
Greenpoint has agreed to sell, those certain mortgage loans [identified]
[summarized] in Exhibit A hereto (the "Mortgage Loans"), subject to the terms
set forth herein.
Closing Date: _________ __, [year] [, provided, however, that
the parties shall use their best efforts to
consummate the transaction prior to [DATE].
Commitment Amount: $______________.
Purchase Price: $______________.
Percentage: ____%, subject to adjustment as set forth in
Exhibit A. [Loan-level pricing as set forth in
Exhibit A.]
Product: [Jumbo] ["A"] ["A-"] ["Alt A"] [Sub-prime]
[Conforming] [fixed] [(x/1) Index adjustable]
rate mortgage loans]. (undefined terms should not
be capitalized)
Underwriting Criteria:
Servicing Rights: RETAINED: Retained by Greenpoint and serviced on a
[scheduled/scheduled] [actual/actual]
[scheduled][actual] basis for the servicing fee
rate [equal to FEE% per annum][set forth in
Exhibit A [for each Mortgage Loan]]. [ With
respect to the period prior to the initial
Interest Adjustment Date, 0.25% and, thereafter,
0.375%].
Prepayment Penalties: [Greenpoint] [Purchaser] shall be entitled to any
penalties resulting from the prepayment of any
Mortgage Loans by the related mortgagor(s).
Documentation: [Assignment of a [type of agreement]] [Industry
standard purchase and servicing agreement.]
Conditions: [Review of Mortgage Loans by Purchaser to confirm
conformance with this Trade Confirmation.
Greenpoint may, at its option, elect to substitute
comparable mortgage loans for any Mortgage Loans
rejected by Purchaser pursuant to the preceding
sentence.]
[Greenpoint's sale of the Mortgage Loans is
expressly subject to (a) the review of the Mortgage
Loans by Purchaser to confirm conformance with the
Trade Confirmation, and (b) purchase of the
Mortgage Loans by Greenpoint on or before the
Closing Date from the current owner of the Mortgage
Loans (the "Current Owner"). If either of the
foregoing conditions are not satisfied, Greenpoint
shall have no liability to Purchaser.]
Non-Circumvent: Greenpoint and Purchaser understand and agree that
Greenpoint may introduce the owner of the Mortgage
Loans to Purchaser, that the Current Owner is a
customer of Greenpoint and that such relationship
of Greenpoint is confidential. Purchaser agrees,
with respect to the Current Owner, Purchaser will
not, for the purpose of purchasing other mortgage
loans [for a period of one year from the Closing
Date], communicate with or purchase such other
mortgage loans from the Current Owner unless the
Current Owner has had previous business dealings
(other than any transactions involving Greenpoint)
with the Current Owner in a similar context.
Please acknowledge your agreement to the terms and conditions of
this Trade Confirmation by signing in the appropriate space below and returning
a copy of the same to the undersigned. Telecopy signatures shall be deemed valid
and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
GREENPOINT MORTGAGE FUNDING, INC. XXXXXXX XXXXX MORTGAGE COMPANY
By:______________________________
By:_________________________________ Name:
Name: [_______] Title:
Title: [Executive Vice President]
EXHIBIT A
MORTGAGE LOAN SCHEDULE AND PRICING INFORMATION
(attached)
EXHIBIT B
UNDERWRITING GUIDELINES
(attached)
EXHIBIT E
CONTENTS OF EACH MORTGAGE FILE
(a) Copies of the Mortgage Loan Documents.
(b) Residential loan application.
(c) Mortgage Loan closing statement.
(d) Verification of employment and income, if required.
(e) Verification of acceptable evidence of source and amount of down
payment.
(f) Credit report on Mortgagor, in a form acceptable to either
Xxxxxx Mae or Xxxxxxx Mac.
(g) Residential appraisal report.
(h) Photograph of the Mortgaged Property.
(i) Survey of the Mortgaged Property, unless a survey is not
required by the title insurer.
(j) Copy of each instrument necessary to complete identification of
any exception set forth in the exception schedule in the title policy, i.e., map
or plat, restrictions, easements, home owner association declarations, etc.
(k) Copies of all required disclosure statements.
(l) If applicable, termite report, structural engineer's report,
water potability and septic certification.
(m) Sales Contract, if applicable.
(n) The PMI Policy or certificate of insurance or electronic
notation of the existence of such policy, where required pursuant to the
Agreement.
(o) Evidence of electronic notation of the hazard insurance policy,
and, if required by law, evidence of the flood insurance policy.
(p) Evidence of payment of taxes and insurance premiums, insurance
claim files, correspondence, current and historical computerized data files, and
all other processing, underwriting and closing papers and records which are
customarily contained in a mortgage loan file and which are required to document
the Mortgage Loan or to service the Mortgage Loan.
(q) Amortization schedule, if available.
EXECUTION COPY
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of July 1, 2004 ("Amendment"), to the
Master Mortgage Loan Purchase Agreement, dated as of April 1, 2004, and as
further amended, modified and supplemented from time to time (the "Purchase
Agreement"), between XXXXXXX SACHS MORTGAGE COMPANY (the "Purchaser") and
GREENPOINT MORTGAGE FUNDING, INC. (the "Seller").
RECITALS
WHEREAS, the parties hereto have entered into the Purchase
Agreement;
WHEREAS, the parties hereto desire to modify the Purchase Agreement
as set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Purchase Agreement are used herein as therein defined.
2. Amendments.
(a) Section 1 of the Purchase Agreement is hereby amended by
inserting the following defined terms in alphabetical order therein:
"Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary."
"High Cost Loan: A Mortgage Loan covered by the Home Ownership and
Equity Protection Act of 1994, (b) classified as a "high cost home,"
"threshold," "covered," (excluding New Jersey "Covered Home Loans"
as that term was defined in clause (1) of the definition of that
term in the New Jersey Home Ownership Security Act of 2002 that were
originated between November 26, 2003 and July 6, 2004), "high risk
home," "predatory" or similar loan under any other applicable state,
federal or local law (or a similarly classified loan using different
terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having
high interest rates, points and/or fees) or (c) a Mortgage Loan
categorized as High Cost pursuant to Appendix E of Standard & Poor's
Glossary. For avoidance of doubt, the parties agree that this
definition shall apply to any law regardless of whether such law is
presently, or in the future becomes, the subject of judicial review
or litigation."
"Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary."
"Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect from time to time."
(b) The definition of "Mortgage Loan Schedule" set forth in Section
1 of the Purchase Agreement is hereby amended by deleting the word "and" before
item (36) in the first sentence of such definition and adding the following to
the end of that sentence:
"and (37) a field indicating whether such Mortgage Loan is a Home
Loan."
(c) Subsection 3.02(g) of the Purchase Agreement is hereby amended
by deleting the first sentence in its entirety and replacing it with the
following sentence:
"Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity and disclosure laws applicable
to the Mortgage Loan, including, without limitation, any provisions
relating to Prepayment Penalties, have been complied with, the
consummation of the transactions contemplated hereby will not
involve the violation of any such laws or regulations, and
Greenpoint shall maintain in its possession, available for the
Purchaser's inspection, and shall deliver to the Purchaser upon
demand, evidence of compliance with all such requirements;"
(d) Subsection 3.02(ee) of the Purchase Agreement is hereby amended
by deleting it in its entirety and replacing it with the following:
"Predatory Lending Regulations. No Mortgage Loan is a High Cost Loan
or Covered Loan, as applicable, and no Mortgage Loan originated on
or after October 1, 2002 through March 6, 2003 is governed by the
Georgia Fair Lending Act."
(e) Subsection 3.02(rr) of the Purchase Agreement is hereby amended
by deleting it in its entirety and replacing it with the following:
"No Arbitration. No Mortgagor with respect to any Mortgage Loan
originated on or after August 1, 2004 agreed to submit to
arbitration to resolve any dispute arising out of or relating in any
way to the mortgage loan transaction.
(f) Subsection 3.02(ddd) of the Purchase Agreement is hereby amended
by deleting the first sentence in its entirety and replacing it with the
following sentence:
"Validity of Mortgage Documents. The Mortgage Note and the Mortgage
and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal,
valid and binding obligation of the maker thereof enforceable in
accordance with its terms (including, without limitation, any
provisions therein relating to Prepayment Penalties)."
3. Ratification of Agreement. Except as modified and expressly
amended by this Amendment, the Purchase Agreement is in all respects
ratified and confirmed, and all the terms, provisions and conditions
thereof shall be and remain in full force and effect.
4. Counterparts. This Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one
and the same instrument.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY NEW YORK LAW
WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the day and year first above written.
SELLER:
GREENPOINT MORTGAGE FUNDING, INC.
By:______________________________________
Name:
Title:
PURCHASER:
XXXXXXX XXXXX MORTGAGE COMPANY
By:______________________________________
Name:
Title:
EXHIBIT M
SERVICING AGREEMENT,
DATED AS OF APRIL 1, 2004,
BETWEEN GREENPOINT MORTGAGE FUNDING, INC.
AND XXXXXXX SACHS MORTGAGE COMPANY
AS AMENDED BY AMENDMENT NO. 1,
DATED JULY 1, 2004
EXECUTION COPY
==============================================================================
SERVICING AGREEMENT
between
GREENPOINT MORTGAGE FUNDING, INC.
(Servicer)
and
Xxxxxxx Xxxxx Mortgage Company
(Owner)
Dated as of April 1, 2004
Fixed & Adjustable-Rate First Lien Residential Mortgage Loans
==============================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 2.1 Representations and Warranties of the Servicer...............
Section 2.2 Remedies for Breaches of Representations or Warranties.......
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.1 Identification of Mortgage Loans; Servicer to Act as
Servicer....................................................
Section 3.2 Liquidation of Mortgage Loans................................
Section 3.3 Collection of Mortgage Loan Payments.........................
Section 3.4 Establishment of Custodial Account; Deposits in Custodial
Account.....................................................
Section 3.5 Permitted Withdrawals from the Custodial Account.............
Section 3.6 Establishment of Escrow Account; Deposits in Escrow
Account; Escrow Analysis....................................
Section 3.7 Permitted Withdrawals from the Escrow Account................
Section 3.8 Payment of Taxes, Insurance and Other Charges................
Section 3.9 Transfer of Custodial Accounts and Escrow Accounts...........
Section 3.10 Maintenance of Hazard Insurance..............................
Section 3.11 Maintenance of Primary Mortgage Insurance Policies;
Collections Thereunder......................................
Section 3.12 Fidelity Bond; Errors and Omissions Insurance................
Section 3.13 Title, Management and Disposition of Real Estate Owned.......
Section 3.14 Application of Proceeds of Insurance to Repair or
Restoration.................................................
Section 3.15 Inspections..................................................
Section 3.16 Fair Credit Reporting Act....................................
Section 3.17 Compliance with the Privacy Laws.............................
ARTICLE IV
PAYMENTS TO THE OWNER
Section 4.1 Distributions................................................
Section 4.2 Reports......................................................
Section 4.3 Monthly Advances by Servicer.................................
ARTICLE V
GENERAL SERVICING PROCEDURE; COVENANTS;
REPRESENTATIONS AND WARRANTIES
Section 5.1 Assumption Agreements........................................
Section 5.2 Satisfaction of Mortgages and Release of Collateral Files....
Section 5.3 Servicing Compensation.......................................
Section 5.4 Annual Statements as to Compliance...........................
Section 5.5 Annual Independent Public Accountants' Servicing Report......
Section 5.6 Owner's Right to Examine Servicer Records, etc...............
Section 5.7 Consents and Approvals.......................................
Section 5.8 Removal of Mortgage Loans from Inclusion Under this
Agreement Upon a Whole Loan Transfer or a Pass-Through
Transfer on One or More Reconstitution Dates................
Section 5.9 Compliance With REMIC Provisions.............................
ARTICLE VI
THE SERVICER
Section 6.1 Indemnification; Third Party Claims..........................
Section 6.2 Servicer Covenants; Merger or Consolidation of the
Servicer....................................................
Section 6.3 Limitation on Liability of the Servicer and Others...........
Section 6.4 Servicer Not to Resign.......................................
Section 6.5 No Transfer of Servicing.....................................
ARTICLE VII
DEFAULT
Section 7.1 Events of Default............................................
Section 7.2 Waiver of Defaults...........................................
Section 7.3 Survival of Certain Obligations and Liabilities of the
Defaulted Servicer..........................................
ARTICLE VIII
TERMINATION
Section 8.1 Termination of Agreement.....................................
Section 8.2 Termination of the Servicer due to an Event of Default.......
Section 8.3 Termination Without Cause....................................
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Successor to the Servicer....................................
Section 9.2 Amendment....................................................
Section 9.3 Duration of Agreement........................................
Section 9.4 Governing Law................................................
Section 9.5 General Interpretive Principles..............................
Section 9.6 Reproduction of Documents....................................
Section 9.7 Notices......................................................
Section 9.8 Severability of Provisions...................................
Section 9.9 Disclosure of Relationship...................................
Section 9.10 Exhibits and Schedules.......................................
Section 9.11 Counterparts; Successors and Assigns.........................
Section 9.12 Effect of Headings...........................................
Section 9.13 Other Agreements Superseded..................................
Section 9.14 Confidentiality..............................................
DESCRIPTION OF ATTACHMENTS
Exhibit A MORTGAGE LOAN SCHEDULE
Exhibit B LIST OF COLLATERAL DOCUMENTS
Exhibit C LIST OF DOCUMENTS IN CREDIT FILE
Exhibit D FORM OF XXXXXXXX-XXXXX ACT CERTIFICATION
SERVICING AGREEMENT
-------------------
THIS SERVICING AGREEMENT (this "Agreement") dated as of April 1,
2004, is by and between GREENPOINT MORTGAGE FUNDING, INC., in its capacity as
servicer (the "Servicer"), and XXXXXXX XXXXX MORTGAGE COMPANY, and its
successors and assigns, as owner (the "Owner").
PRELIMINARY STATEMENT
---------------------
WHEREAS, the Owner and Greenpoint Mortgage Funding, Inc.,
("Greenpoint") have entered into that certain Master Mortgage Loan Purchase
Agreement dated as of April 1, 2004 between the Owner, as purchaser and
Greenpoint, as seller, pursuant to which the Owner will purchase and Greenpoint
will sell from time to time, certain fixed and adjustable-rate first lien
residential mortgage loans (the "Master Mortgage Loan Purchase Agreement");
WHEREAS, the Servicer is in the business of providing primary
servicing of mortgage loans and owns the right to service the Mortgage Loans (as
hereinafter defined) listed on the Mortgage Loan Schedule (as hereinafter
defined);
WHEREAS, the Owner has requested the Servicer to service the
Mortgage Loans and Servicer has agreed to service, as an independent contractor,
such mortgage loans for the Owner on the terms and conditions set forth herein;
and
WHEREAS, the Servicer and the Owner desire to prescribe the terms
and conditions regarding the management, servicing, and control of such mortgage
loans.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Servicer and the
Owner agree as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Acceptable Servicing Procedures: The procedures, including prudent
collection and loan administration procedures, and standard of care employed by
prudent mortgage servicers. Such standard of care (i) shall not be lower than
that the Servicer customarily employs and exercises in servicing and
administering similar mortgage loans for its own account, (ii) shall be in
accordance with the requirements of the Servicer's policies and procedures,
(iii) shall be, at a minimum, at least as prudent as the requirements of Xxxxxx
Mae as set forth from time to time in the Xxxxxx Xxx Selling and Servicing
Guide, as amended from time to time and (iv) shall be in full compliance with
all federal, state and local laws, ordinances, rules and regulations.
Advance: A Monthly Advance or Servicing Advance.
Agreement: This Servicing Agreement, including all exhibits and
schedules hereto, and all amendments hereof and supplements hereto.
Ancillary Income: All income if any, derived from any Mortgage Loan,
including but not limited to late charges, fees received with respect to checks
or bank drafts returned by the related bank for non-sufficient funds, assumption
fees, speed pay fees, Prepayment Charges, reconveyance and demand statement
fees, loan modification fees and reamortization fees.
Applicable Requirements: The (i) terms of the Mortgage and Mortgage
Note related to each Mortgage Loan, (ii) the federal, state, local and foreign
laws, statutes, rules, regulations, ordinances, standards, requirements,
administrative rulings, orders and processes pertaining to Mortgage Loans,
including but not limited to those pertaining to the processing, origination and
servicing of the Mortgage Loans and the servicer's policies and procedures,
(iii) the requirements of a Primary Mortgage Insurer (if any) with respect to
the processing, origination, insuring, servicing or filing of claims in
connection with the Mortgage Loans, (iv) the requirements of the Owner as set
forth in this Agreement, and (v) the reasonable and customary mortgage servicing
practices of prudent mortgage lending institutions which service mortgage loans
of the same type as the Mortgage Loans in the jurisdictions in which the related
Mortgaged Properties are located.
ARM Loan: A Mortgage Loan as to which the related Mortgage Note
provides that the Mortgage Interest Rate may be adjusted periodically.
Assignment of Mortgage: An assignment of mortgage, notice of
transfer, or equivalent instrument, in recordable form, sufficient under and
complying with the laws of the jurisdiction wherein the related Mortgaged
Property is located to reflect of record the sale of the Mortgage Loan to the
assignee named therein.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking or savings and loan institutions in the States of New York
or California are authorized or obligated by law or executive order to be
closed.
Closing Date: The date on which the sale and purchase of a Mortgage
Loan Package is consummated between the Owner and Greenpoint pursuant to the
terms of the Master Mortgage Loan Purchase Agreement.
Code: The Internal Revenue Code of 1986, as amended from time to
time, or any successor statute thereto.
Collateral Documents: With respect to any Mortgage Loan, the
mortgage loan documents pertaining to such Mortgage Loan which are specified in
Exhibit B hereto and any additional mortgage documents pertaining to such
Mortgage Loan required to be added to the related Collateral File pursuant to
the terms of this Agreement.
Collateral File: With respect to any Mortgage Loan, the file
pertaining to such Mortgage Loan that contains each of the related Collateral
Documents.
Condemnation Proceeds: All awards or settlements in respect of a
taking of all or part of a Mortgaged Property by exercise of the power of
eminent domain or condemnation.
Consents: shall mean the unconditional written consent or approval,
as necessary, of an Investor and any applicable Insurer to the Servicer's
servicing of the Mortgage Loans hereunder.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements constituting
the Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by
the Cooperative Corporation, including the allocation of individual dwelling
units to the holders of the Coop Shares of the Cooperative Corporation.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Credit File: With respect to any Mortgage Loan, a file pertaining to
such Mortgage Loan and containing copies of the mortgage loan documents
described on Exhibit C attached hereto, the credit documentation relating to the
origination of such Mortgage Loan and copies of the Collateral Documents. Each
Credit File shall be maintained by the Servicer (either on paper or on microfilm
or any other comparable medium).
Custodial Account: The account or accounts created and maintained
pursuant to Section 3.4 of this Agreement which account(s) shall be an Eligible
Account.
Custodial Agreement: Any agreement with respect to the Mortgage
Loans governing the retention of the originals of each Mortgage Note, Mortgage,
Assignment of Mortgage and other mortgage loan documents, entered into between
the Owner and Deutsche Bank National Trust Company.
Custodian: Deutsche Bank National Trust Company, its successor in
interest or assign, or such other custodian that may be designated by the Owner
from time to time.
Cut-off Date: With respect to a Mortgage Loan Package, the first day
of the month in which the related Cut-off Date occurs or such other date as may
be mutually agreed to by the parties.
Default: Any condition or circumstance that is, or with notice or
the lapse of time or both, would become, an Event of Default.
Depositor: As defined in Section 5.4(a).
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: With respect to any Mortgage Loan, the first day of the
month on which Monthly Payments on such Mortgage Loan are due, exclusive of any
days of grace.
Due Period: With respect to each Remittance Date, the period
beginning on the second day of the month immediately preceding the month of such
Remittance Date and ending on the first day of the month of such Remittance
Date.
Eligible Account: An account or accounts maintained with a Qualified
Depository.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 3.6.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, if any, fire and hazard
insurance premiums, and other payments required to be escrowed by the Mortgagor
with the mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 7.1.
FDIC: The Federal Deposit Insurance Corporation or any successor
thereto.
Xxxxxx Xxx: Xxxxxx Xxx, formerly known as the Federal National
Mortgage Association, or any successor thereto.
Xxxxxx Mae Guides: The Xxxxxx Xxx Xxxxxxx' Guide and the Xxxxxx Mae
Servicers' Guide, and all amendments or additions thereto.
Fidelity Bond: A fidelity bond to be obtained by the Servicer
pursuant to Section 3.12.
Fixed Rate Mortgage Loan: Any Mortgage Loan wherein the Mortgage
Interest Rate set forth in the Mortgage Note is fixed for the term of such
Mortgage Loan.
Xxxxxxx Mac: Xxxxxxx Mac, formerly known as the Federal Home Loan
Mortgage Corporation or any successor thereto.
Greenpoint: Greenpoint Mortgage Funding, Inc., and its successors in
interest.
Greenpoint Information: As defined in Section 5.8(d).
Gross Margin: With respect to each ARM Loan, the fixed percentage
amount set forth in the related Mortgage Note as shown in the Mortgage Loan
Schedule, which amount is added to the Index in accordance with the terms of the
related Mortgage Note to determine on each Interest Rate Adjustment Date the
Mortgage Interest Rate for such Mortgage Loan.
Index: With respect to any ARM Loan, the index set forth in the
applicable Mortgage Note which is added to the Gross Margin to determine the
Mortgage Interest Rate on each Interest Rate Adjustment Date. In the event the
Index becomes unavailable for any reason, the Servicer shall select an
alternative index, in accordance with the terms of the Mortgage Note, and such
alternative index shall thereafter be the Index for such Mortgage Loan.
Initial Rate Cap: As to each ARM Loan, the maximum increase or
decrease in the Mortgage Interest Rate on the first Interest Rate Adjustment
Date as provided in the related Mortgage Note.
Insurance Proceeds: Proceeds of any Primary Mortgage Insurance
Policy, any title policy, any hazard insurance policy or any other insurance
policy covering a Mortgage Loan or the related Mortgaged Property, including any
amounts required to be deposited in the Custodial Account pursuant to Section
3.10, 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
Acceptable Servicing Procedures and Section 3.14.
Interest Rate Adjustment Date: As to any ARM Loan, the date
specified in a Mortgage Note on which the Mortgage Interest Rate for the related
Mortgage Loan is subject to adjustment.
Investor: With respect to any Mortgage Loan, a Person who has a
beneficial interest in, or is a record owner of, such Mortgage Loan or any
trustee acting on behalf of any such Person.
Late Collections: With respect to any Mortgage Loan, all amounts
(other than Monthly Advances) received during any Due Period, whether as late
payments of Monthly Payments or as Insurance Proceeds, Liquidation Proceeds,
Condemnation Proceeds or otherwise, which represent late payments or collections
of Monthly Payments due but delinquent for a previous Due Period and not
previously recovered.
Lifetime Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the absolute maximum Mortgage Interest Rate payable, above which the
Mortgage Interest Rate shall not be adjusted, as set forth in the related
Mortgage Note and Mortgage Loan Schedule.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of the Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or in
connection with the sale of the Mortgaged Property if the Mortgaged Property is
a REO Property.
LPMI Fee: The portion of the Mortgage Interest Rate relating to a
LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to be
retained by the Servicer to pay the premium due on a Primary Mortgage Insurance
Policy with respect to a LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which the Servicer is
responsible for paying the premium due on the related Primary Mortgage Insurance
Policy with the proceeds generated by the LPMI Fee relating to such Mortgage
Loan, as set forth on the related Mortgage Loan Schedule.
LTV: With respect to any Mortgage Loan, the ratio (expressed as a
percentage) of the Stated Principal Balance (or the original principal balance,
if so indicated) of such Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
Losses: Any claims, penalties, fines, forfeitures, damages,
liabilities, losses and expenses, including reasonable attorneys' fees.
Master Servicer: As defined in Section 5.4(a).
Maturity Date: With respect to any Mortgage Loan, the
maturity date of the related Mortgage Note and Mortgage as specified therein.
MERS: Mortgage Electronic Registration, Inc. a corporation organized
and existing under the laws of the State of Delaware, or any successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS System.
MERS (R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Advance: Commencing with each Monthly Payment due on or
after the related Cut-off Date, the portion of each Monthly Payment that is
delinquent with respect to each Mortgage Loan at the close of business on the
Determination Date required to be advanced by the Servicer pursuant to Section
4.3 on the Business Day immediately preceding the Remittance Date of the related
month.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan which is payable by a Mortgagor from time to time
under the related Mortgage Note.
Mortgage: The mortgage, mortgage deed, deed of trust or other
instrument creating a first lien on or first priority ownership interest on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien upon a leasehold estate of the
Mortgagor, as the case may be, including any riders, addenda, assumption
agreements or modifications relating thereto.
Mortgage Interest Rate: As to each Mortgage Loan, the annual rate at
which interest accrues on such Mortgage Loan and, with respect to an ARM Loan,
as adjusted from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this
Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes, without limitation, the
Mortgage File, the Monthly Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds (if applicable) and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan, excluding the servicing rights relating thereto. Unless
the context requires otherwise, any reference to the Mortgage Loans in this
Agreement shall refer to the Mortgage Loans constituting a Mortgage Loan
Package.
Mortgage Loan Package: Pools of Mortgage Loans sold to the Owner
pursuant the Master Mortgage Loan Purchase Agreement.
Mortgage Loan Remittance Rate: with respect to each Mortgage Loan,
the interest rate payable to the Owner on each Remittance Date which shall equal
the Mortgage Interest Rate less the Servicing Fee and any LPMI Fees, if
applicable.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Exhibit A, such schedule setting forth the following information with respect
to each Mortgage Loan: (1) the Greenpoint's Mortgage Loan number; (2) the
address, city, state and zip code of the Mortgaged Property (or, in the case of
each Cooperative Loan, of the related Cooperative Unit); (3) a code indicating
whether the Mortgagor is self-employed; (4) a code indicating whether the
Mortgaged Property is owner-occupied, investment property or a second home; (5)
a code indicating whether the Mortgaged Property is a single family residence,
two-family residence, three-family residence, four family residence,
condominium, manufactured housing, mixed-use property, raw land and other
non-residential properties, planned unit development or cooperative stock in a
cooperative housing corporation; (6) the purpose of the Mortgage Loan; (7) the
type of Mortgage Loan (i.e., Fixed Rate or ARM Loan); (8) the Mortgage Interest
Rate at origination; (9) the current Mortgage Interest Rate; (10) whether the
Mortgage Loan has Monthly Payments that are interest only for a period of time;
(11) the Servicing Fee Rate; (12) the current Monthly Payment; (13) the original
term to maturity; (14) the remaining term to maturity; (15) the principal
balance of the Mortgage Loan as of the Cut-off Date after deduction of payments
of principal due on or before the Cut-off Date whether or not collected; (16)
the LTV at origination and if the Mortgage Loan has a second lien, combined LTV
at origination; (17) the actual principal balance of the Mortgage Loan as of the
Cut-off Date; (18) social security number of the Mortgagor; (19) a code
indicating whether the Mortgage Loan has negative amortization and the maximum
amount of such negative amortization; (20) a code indicating whether the
Mortgage Loan had a second lien at origination; (21) if the Mortgage Loan has a
second lien, combined loan balance as of the Cut-off Date; (22) a code
indicating whether the Mortgaged Property is a leasehold estate; (23) the due
date of the Mortgage Loan; (24) whether the Mortgage Loan is insured by a
Primary Mortgage Insurance Policy and the name of the insurer; (25) the
certificate number of the Primary Mortgage Insurance Policy; (26) the amount of
coverage of the Primary Mortgage Insurance Policy; (27) the type of appraisal;
(28) a code indicating whether the Mortgage Loan is a MERS Mortgage Loan; (29) a
code indicating whether the Mortgage Loan is subject to a prepay penalty and the
terms of such prepayment penalty; (30) documentation type (including asset and
income type); (31) first payment date; (32) the schedule of the payment
delinquencies in the prior 12 months, (33) FICO score (34) the Mortgagor's name;
(35) the stated maturity date; and (36) the original principal amount of the
Mortgage. With respect to any ARM Loan: (a) the Gross Margin; (b) the Periodic
Rate Cap; (c) the Lifetime Rate Cap; (d) the first Interest Rate Adjustment Date
cap and the Interest Rate Adjustment Date frequency; (e) the minimum Mortgage
Interest Rate; (f) the first Interest Rate Adjustment Date immediately following
the Cut-off Date; and (g) the Index, including the methodology for rounding
(e.g. rounded upward, if necessary, to the next nearest ten thousandth (.0001))
and the applicable time frame for determining the Index.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage, including any riders, addenda, assumption
agreements or modifications relating thereto.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Cooperative Loan, the underlying real property securing repayment of a Mortgage
Note, consisting of a single parcel of real estate considered to be real estate
under the laws of the State in which such real property is located, which may
include condominium units and planned unit developments, improved by a
residential dwelling; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, a leasehold estate of the Mortgagor, the term of
which is equal to or longer than the term of the Mortgage. With respect to a
Cooperative Loan, the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Cooperative Loan
and the related Cooperative Lease.
Mortgagor: The obligor on a Mortgage Note and his/her successors in
title to the Mortgage Property.
Nonrecoverable Advance: Any portion of any of a Monthly Advance or
Servicing Advance previously made or proposed to be made in respect of a
Mortgage Loan by the Servicer hereunder which, in the good faith judgment of the
Servicer, will not be ultimately recoverable from Late Collections.
Offering Materials: As defined in Section 5.8(d).
Officer's Certificate: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a Vice President of the
Servicer, and delivered to the Owner as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Servicer or an affiliate thereof, reasonably acceptable to the
Owner.
Owner: Xxxxxxx Xxxxx Mortgage Company and its successors and
assigns.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans to a REMIC or other trust to be formed as part of a publicly or
privately traded pass-through transaction retaining the Servicer as "servicer"
thereunder.
Periodic Rate Cap: With respect to each ARM Loan, the provision of
each Mortgage Note which provides for an absolute maximum amount by which the
Mortgage Interest Rate therein may increase or decrease on an Interest Rate
Adjustment Date above or below the Mortgage Interest Rate previously in effect,
equal to the rate set forth on the Mortgage Loan Schedule per adjustment.
Permitted Instruments: Any one or more of the following obligations
or securities:
(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 with respect to any security described
in clause (i) above, provided that the unsecured long-term obligations of
the party agreeing to repurchase such obligations are at the time rated by
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. ("S&P") in one of its three highest rating categories;
(iii) federal funds, certificates of deposit, time deposits, and
bankers' acceptances of any bank or trust company incorporated under the
laws of the United States or any state, provided that the long-term debt
obligations of such bank or trust company (or, in the case of the
principal bank in a bank holding company system, the long-term debt
obligations of the bank holding company) at the date of acquisition
thereof have been rated by the S&P in one of its three highest rating
categories;
(iv) commercial paper of any corporation incorporated under the laws
of the United States or any state thereof which on the date of acquisition
has been rated by the S&P in its highest short-term rating category; and
(v) any other obligation or security acceptable to Standard & Poor's
Corporation in respect of mortgage pass-through certificates rated in one
of its three highest rating categories, as evidenced by a letter from the
S&P to such effect.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability company,
unincorporated organization or government or any agency or political subdivision
thereof.
Prepayment Charge: With respect to any Mortgage Loan, the prepayment
premium or charge, if any, required under the terms of the related Mortgage Note
to be paid in connection with a Principal Prepayment, to the extent permitted by
applicable law.
Prepayment Period: With respect to a Remittance Date, the prior
calendar month.
Prepayment Interest Shortfall Amount: With respect to any Remittance
Date and Mortgage Loan that was subject to a Principal Prepayment in full or in
part during the related Principal Prepayment Period, which Principal Prepayment
was applied to such Mortgage Loan prior to such Mortgage Loan's Due Date in such
calendar month, the amount of interest (at the Mortgage Loan Remittance Rate)
that would have accrued on the amount of such Principal Prepayment during the
period commencing on the date as of which such Principal Prepayment was applied
to such Mortgage Loan and ending on the day immediately preceding such Due Date,
inclusive.
Primary Mortgage Insurance Policy: With respect to any Mortgage
Loan, the policy of primary mortgage guaranty insurance (including all
endorsements thereto), if any, issued by a Qualified Insurer with respect to
such Mortgage Loan, or any replacement policy.
Primary Mortgage Insurer: The named insurer under any Primary
Mortgage Insurance Policy.
Prime: As of any date of determination, the annual interest rate,
adjusted daily, published from time to time in The Wall Street Journal (Western
Edition) as the "PRIME RATE" in the "MONEY RATES" section.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan (other than Condemnation Proceeds, Insurance Proceeds, and
Liquidation Proceeds) which is received in advance of its scheduled Due Date
(not including any Prepayment Charge) and is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Privacy Laws: Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, as
amended, and all applicable regulations promulgated thereunder
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Qualified Depository: (i) A depository, the long-term unsecured debt
obligations of which are rated by a nationally recognized statistical rating
agency in one of its two highest rating categories at the time of any deposit
therein, or (ii) a depository, the deposits of which are fully insured to the
maximum extent permitted by the FDIC or (iii) the corporate trust department of
a national bank; provided that in case of (ii) and (iii) above, they maintain a
rating by a nationally recognized statistical rating agency in the highest
rating categories for short term debt obligations.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, which insurer is approved in such
capacity by an Agency.
Rating Agency: Any of Fitch, Xxxxx'x or Standard & Poor's, or their
respective successors designated by the Purchaser.
Reconstitution Agreements: The agreement or agreements entered into
by the Servicer and the Owner and/or certain third parties on the Reconstitution
Date or Dates with respect to any or all of the Mortgage Loans serviced
hereunder, in connection with a Whole Loan Transfer or a Pass-Through Transfer.
Such agreement or agreements shall prescribe the rights and obligations of the
Servicer in servicing the related Mortgage Loans.
Reconstitution Date: The date or dates on which any or all of the
Mortgage Loans serviced under this Agreement shall be removed from this
Agreement and reconstituted as part of a Whole Loan Transfer or Pass-Through
Transfer pursuant to Section 5.9 hereof. On such date, the Mortgage Loans
transferred shall cease to be covered by this Agreement and the Servicer shall
cease to service those Mortgage Loans under this Agreement in accordance with
the termination provisions set forth in Section 5.9 hereof.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter
1, Subtitle A of the Code, and related provisions, and regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance Advice Date: The 5th day of each month or, if such 5th
day is not a Business Day, the first Business Day immediately following such
day.
Remittance Date: With respect to each Mortgage Loan: the eighteenth
(18th) day of any month, beginning with the eighteenth (18th) day of the month
next following the month in which the related Cut-off Date occurs, or if such
eighteenth (18th) day is not a Business Day, the first Business Day immediately
following such day.
REO Property: A Mortgaged Property acquired in foreclosure or by
deed in lieu of foreclosure, as described in Section 3.13.
Sarbanes Certifying Party: A Person who provides certification
required under the Xxxxxxxx-Xxxxx Act of 2002 in connection with a
Securitization or other securitization transaction.
Securitization: The transfer of the Mortgage Loans to a trust formed
as part of a publicly issued and/or privately placed, rated securitization,
including the issuance of the related Securities.
Security Agreement: With respect to any Cooperative Loan, the
agreement between the owner of the related Coop Shares and the originator of the
related Mortgage Note that defines the terms of the security interest in such
Coop Shares and the related Proprietary Lease.
Servicer: Greenpoint or any successor to the Servicer as permitted
under this Agreement.
Servicing Advances: All customary, reasonable, and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) that are incurred by the Servicer in the performance of its
servicing obligations hereunder, including, but not limited to, the cost of (i)
the preservation, restoration, and protection of the Mortgaged Property, (ii)
any enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage, and (iv) compliance with the
obligations of this Agreement, including without limitation under Sections 3.8
and 3.10.
Servicing Fee: With respect to each Mortgage Loan being serviced and
administered pursuant to this Agreement, the amount of the annual fee payable to
the Servicer as compensation for servicing and administering such Mortgage Loan
and for managing and disposing of REO Property in accordance with the terms of
this Agreement. For each Mortgage Loan, such fee shall, for a period of one full
month, be equal to one-twelfth of the product of (i) the Servicing Fee Rate,
multiplied by (ii) the outstanding Unpaid Principal Balance of such Mortgage
Loan as of the first day of such month, and shall be payable in accordance with
Section 5.3. With respect to any REO Property that is being managed by the
Servicer in accordance with Section 3.13 of this Agreement, such fee shall be
payable through and until the disposition of such REO Property or the transfer
of the REO Property to the Owner for management by the Owner, and the amount of
such fee shall be based upon the Unpaid Principal Balance of the related
Mortgage Loan at the time of the related foreclosure.
Servicing Fee Rate: As set forth on the Mortgage Loan Schedule.
Servicing File: As to each Mortgage Loan, the copies of the
Collateral Documents, as well as the credit and closing packages, disclosures,
copies of the all other files, books, records and documents necessary to (a)
establish the eligibility of the Mortgage Loan for insurance by a Qualified
Insurer, if any; and/or (b) service the Mortgage Loan in accordance with
Acceptable Servicing Procedures, including the documents listed on Exhibit B
hereto, some of which maybe held by the Custodian.
Underwriting Guidelines: The underwriting guidelines of Greenpoint.
Unpaid Principal Balance: With respect to each Mortgage Loan as of
any date of determination: (i) the unpaid principal balance of the Mortgage Loan
at the Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (ii) all amounts previously
distributed to the Owner with respect to the related Mortgage Loan representing
payments or recoveries of principal or advances in lieu thereof.
Whole Loan Transfer: The sale or transfer by the Owner of some or
all of the Mortgage Loans in a whole loan or participation certificate format
pursuant to a Reconstitution Agreement retaining the Servicer as "servicer"
thereunder.
3/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for
the first 36 months.
5/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for
the first 60 months.
7/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for
the first 84 months.
10/1 Loan: An ARM Loan where the Mortgage Interest Rate is fixed for
the first 120 months.
Any capitalized term used herein and not otherwise defined, shall
have the meaning assigned to such term in the Master Mortgage Loan Purchase
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 2.1 Representations and Warranties of the Servicer
With respect to a Mortgage Loan Package, the Servicer represents,
warrants and covenants to the Owner that, as of the related Closing Date:
(a) The Servicer is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is organized and is
qualified and licensed to transact business in and is in good standing under the
laws of each state where each Mortgaged Property is located to the extent
necessary to ensure the enforceability of each Mortgage Loan and the servicing
of the Mortgage Loan in accordance with the terms of this Agreement. The
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by the Servicer and the
consummation of the transactions contemplated hereby have been duly and validly
authorized. This Agreement evidences the valid, binding and enforceable
obligation of the Servicer; and all requisite action has been taken by the
Servicer to make this Agreement valid and binding upon the Servicer in
accordance with its term;
(b) The Servicer has the full power and authority to (i) perform and
enter into and consummate all transactions contemplated by this Agreement and
(ii) to service each Mortgage Loan;
(c) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Servicer, which is in
the business of servicing loans;
(d) Neither the consummation of the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms and conditions of
this Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Servicer's charter or result in a material
breach of any legal restriction or any material agreement or instrument to which
the Servicer is now a party or by which it is bound, or constitute a material
default or result in an acceleration under any of the foregoing, or result in
the violation of any law, rule, regulation, order, judgment or decree to which
the Servicer or its property is subject;
(e) The Servicer is an approved servicer for Xxxxxx Xxx and Xxxxxxx
Mac in good standing. No event has occurred, including a change in insurance
coverage, which would make the Servicer unable to comply with Xxxxxx Mae or
Xxxxxxx Mac eligibility requirements;
(f) There is no action, suit, proceeding, investigation or
litigation pending or, to the Servicer's knowledge, threatened, which either in
any one instance or in the aggregate, if determined adversely to the Servicer
would materially and adversely affect the Servicer's ability to service the
Mortgage Loans hereunder in accordance with the terms hereof, or the Servicer's
ability to perform its obligations under this Agreement;
(g) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer, of or compliance by the Servicer with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date;
(h) The Servicer acknowledges and agrees that the Servicing Fee
represents reasonable compensation for performing such services and that the
entire Servicing Fee shall be treated by the Servicer, for accounting and tax
purposes, as compensation for the servicing and administration of the Mortgage
Loans pursuant to this Agreement;
(i) The Servicer does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant contained in
this Agreement;
(j) The Servicer is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans registered with MERS;
(k) The Servicer has serviced, and shall at all times service, the
Mortgage Loans in accordance with the Acceptable Servicing Procedures, the
Mortgage Note and applicable federal, state and local laws and regulations,
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or disclosure
laws, and the Servicer shall maintain in its possession, available for the
Owner's inspection and shall deliver to the Owner upon demand, evidence of
compliance with all such requirements. All inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the appropriate
authorities;
(l) The Servicer has fully furnished (or caused to be furnished), in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on its
borrower credit files to Equifax, Experian and Trans Union Credit Information
Company, or any their successors and assigns (three of the credit repositories),
on a monthly basis; and
(m) No statement, report or other document prepared and furnished by
the Servicer or to be prepared and furnished by the Servicer pursuant to this
Agreement in connection with the transactions contemplated hereby contain or
will contain any untrue statement of fact or omit to state a fact necessary to
make the statements contained therein not misleading.
Section 2.2 Remedies for Breaches of Representations or Warranties.
The Servicer shall indemnify the Owner, its affiliates and their
respective directors, officers and employees and hold such Persons harmless
against any Losses and related costs, judgments, and other costs and expenses
resulting from a breach of the Servicer's representations and warranties
contained in Section 2.1 that materially and adversely affects the interests of
the Owner in or the value of one or more of the Mortgage Loans. The obligations
of the Servicer set forth in this Section 2.2 to indemnify the Owner as provided
in this Section 2.2 constitute the sole remedies of the Owner with respect to a
breach of the foregoing representations and warranties.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.1 Identification of Mortgage Loans; Servicer to Act as
Servicer
(a) The Servicer, as independent contractor, shall commence
servicing and administering each Mortgage Loan on behalf of the Owner from and
after the Cut-off Date in accordance with the terms and conditions of this
Agreement and Acceptable Servicing Procedures and the terms of the Mortgage
Notes and the Mortgages. Except as otherwise expressly provided in this
Agreement, the Servicer shall have full power and authority, acting alone, to do
any and all things reasonably consistent with the terms of this Agreement,
including but not limited to the following: (i) to execute and deliver, on
behalf of the Owner, customary consents or waivers and other instruments and
documents, (ii) to consent to transfers of any Mortgaged Property and
assumptions of the Mortgage Notes and related Mortgages (but only in the manner
provided in this Agreement), (iii) to collect any Insurance Proceeds and other
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion of
the ownership of the Mortgaged Property securing any Mortgage Loan; provided
that the Servicer shall not take any action that is inconsistent with or
prejudices the interests of the Owner under this Agreement. The Servicer further
is authorized and empowered by the Owner, in its own name when the Servicer,
believes it appropriate in its best judgment to register any Mortgage Loan on
the MERS(R) System, or cause the removal from the registration of any Mortgage
Loan on the MERS(R) System, to execute and deliver, on behalf of the Owner, any
and all instruments of assignment and other comparable instruments with respect
to such assignment or re-recording of a Mortgage in the name of MERS, solely as
nominee for the Trustee and its successors and assigns. The Servicer shall at
all times act in the best interests of the Owner in performing its obligations
under this Agreement.
(b) The documents comprising the Collateral File relating to each
Mortgage Loan serviced hereunder and that are retained by the Servicer pursuant
to the terms hereof, together with all other documents with respect to each such
Mortgage Loan which are prepared by or which come into the possession of the
Servicer, shall immediately vest in the Owner and shall be held and maintained
in trust by the Servicer at the will of the Owner and in a custodial capacity
only. The documents comprising each Collateral File and all related documents
which come into the possession of the Servicer and are so held by the Servicer
shall be segregated from the other books and records of the Servicer and shall
be appropriately marked to clearly reflect the ownership interest of the Owner
in such Collateral File and related documents. The Servicer shall release its
custody of any such documents only in accordance with written instructions from
the Owner, unless such release is required as incidental to the Servicer's
servicing of the Mortgage Loans.
The Servicer shall maintain with respect to each Mortgage Loan and
shall make available for inspection by the Owner or its designee the related
Servicing File during the time the Owner retains ownership of a Mortgage Loan
and thereafter in accordance with applicable law. The Servicer shall keep at its
servicing office books and records in which, subject to such reasonable
regulations as it may prescribe, the Servicer shall note transfers of Mortgage
Loans. No transfer of a Mortgage Loan may be made unless such transfer is in
compliance with the terms hereof. For the purposes of this Agreement, the
Servicer shall be under no obligation to deal with any person with respect to
this Agreement or the Mortgage Loans unless the books and records show such
person as the owner of the Mortgage Loan. The Owner may, subject to the terms of
this Agreement, sell and transfer one or more of the Mortgage Loans, provided,
however, that in no event shall there be more than four Persons at any given
time having the status of "Owner" hereunder. The Owner also shall advise the
Servicer of the transfer. Upon receipt of notice of the transfer, the Servicer
shall xxxx its books and records to reflect the ownership of the Mortgage Loans
of such assignee, and shall release the previous Owner from its obligations
hereunder with respect to the Mortgage Loans sold or transferred. If the
Servicer receives written notification of a transfer less than five (5) Business
Days before the monthly Determination Date, the Servicer's duties to remit and
report to the new purchaser(s) as required by Section 5.9 hereof shall begin
with the first Determination Date after the Reconstitution Date.
(c) Consistent with the terms of this Agreement and subject to the
REMIC Provisions if the Mortgage Loans have been transferred to a REMIC, the
Servicer may waive, modify or vary any term of any Mortgage Loan or consent to
the postponement of strict compliance with any such term or in any manner grant
indulgence to any Mortgagor if, in the Servicer's reasonable and prudent
determination, such waiver, modification, variation, postponement or indulgence
is in the best interests of and is not materially adverse to the Owner and will
not result in the impairment of coverage under any Primary Mortgage Insurance
Policy; provided, however, that the Servicer may not, without the prior written
consent of the Owner, (i) waive any Prepayment Charge in full or in part, (ii)
permit any modification with respect to any Mortgage Loan that would change the
Mortgage Interest Rate (other than by adjustments required by the terms of the
related Mortgage Note), the Lifetime Rate Cap (if applicable), the Initial Rate
Cap (if applicable), the Periodic Rate Cap (if applicable) or the Gross Margin
(if applicable), (iii) defer or forgive the payment of any principal or
interest, (iv) reduce the outstanding principal amount (except to reflect actual
payments of principal), (v) except other than pursuant to the terms of the
Mortgage Loan, make any advances of additional principal or (vi) extend the
final maturity date on such Mortgage Loan. In the event of any such modification
which permits the deferral of interest or principal payments on any Mortgage
Loan, the Servicer shall, on the Business Day immediately preceding the
Remittance Date in any month in which any such principal or interest payment has
been deferred, deposit in the Custodial Account from its own funds, in
accordance with Section 4.3, the difference between (a) such month's principal
and one month's interest at the Mortgage Loan Remittance Rate on the Unpaid
Principal Balance of such Mortgage Loan and (b) the amount paid by the
Mortgagor. Without limiting the generality of the foregoing, the Servicer is
hereby authorized and empowered to execute and deliver on behalf of itself and
the Owner in connection with any Mortgage Loan all instruments of satisfaction,
cancellation or full release upon receipt by the Servicer of payment in full of
the Unpaid Principal Balance or, with the prior written consent of the Owner,
partial release or discharge, and all other comparable instruments with respect
to the Mortgage Loans and the Mortgaged Properties. The Servicer shall prepare
and deliver to the Owner such documents requiring execution and delivery as are
necessary or appropriate to enable the Servicer to service and administer the
Mortgage Loans to the extent that the Servicer is not permitted to execute and
deliver such documents pursuant to the preceding sentence. Upon receipt of such
documents, the Owner shall execute such documents and deliver them to the
Servicer. If reasonably required by the Servicer, the Owner shall furnish the
Servicer with any powers of attorney and other documents necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties under this Agreement.
(d) As to each ARM Loan, the Servicer shall make periodic Mortgage
Interest Rate and Monthly Payment adjustments, as applicable, in strict
compliance with (i) the terms of the Mortgage and Mortgage Note, (ii) all
applicable law, and (iii) Acceptable Servicing Procedures.
Section 3.2 Liquidation of Mortgage Loans
In the event that any payment due under any Mortgage Loan is not
paid when the same becomes due and payable, or in the event the Mortgagor fails
to perform or observe any other covenant or obligation under the Mortgage Loan
and such failure continues beyond any applicable grace period, the Servicer will
proceed diligently to collect all payments due and shall take such action as it
shall reasonably deem to be in the best interest of the Owner. In the event that
any payment due under any Mortgage Loan remains delinquent for a period of
ninety (90) days or more, the Servicer shall commence foreclosure proceedings in
accordance with Acceptable Servicing Procedures and the guidelines set forth by
Xxxxxx Xxx or Xxxxxxx Mac. In such connection, the Servicer shall from its own
funds make all necessary and proper Servicing Advances.
Section 3.3 Collection of Mortgage Loan Payments
Until the principal and interest on all Mortgage Loans being
serviced hereunder are paid in full or this Agreement is otherwise terminated,
the Servicer will proceed diligently to collect all payments due under each of
such Mortgage Loans when the same shall become due and payable. With respect to
those Mortgage Loans, if any, as to which the Servicer collects Escrow Payments,
the Servicer will ascertain or estimate, as the case may be, annual ground
rents, taxes, assessments, water rates, fire and hazard insurance premiums,
mortgage insurance premiums and all other charges that, as provided in any
Mortgage, will become due and payable so that the Escrow Payments payable by the
Mortgagors will be sufficient to pay such charges as and when they become due
and payable. The Servicer shall not be required to institute or join in
litigation with respect to collection of any payment (whether under a Mortgage,
Mortgage Note, Primary Mortgage Insurance Policy or otherwise or against any
public or governmental authority with respect to a taking or condemnation) if in
its reasonable judgment it believes that it will be unable to enforce the
provision of the Mortgage or other instrument pursuant to which payment is
required.
Section 3.4 Establishment of Custodial Account; Deposits in
Custodial Account
(a) The Servicer shall segregate and hold all funds collected and
received pursuant to the Mortgage Loans separate and apart from any of its own
funds and general assets and shall establish and maintain one or more Custodial
Accounts (collectively, with respect to the accounts maintained by any one
Servicer, its "Custodial Account"), in the form of time deposit or demand
accounts, which may be interest bearing, titled, with respect to the Servicer,
"Greenpoint Mortgage Funding, Inc., in trust for Xxxxxxx Sachs Mortgage Company
as Owner, and any successor Owner." Such Custodial Account shall be an Eligible
Account.
(b) With respect to each Mortgage Loan, the Servicer shall not later
than the end of the second Business Day following receipt thereof, deposit in
the Custodial Account and retain therein the following payments and collections
received by the Servicer subsequent to the Cut-off Date:
(i) all payments on account of principal, including Principal
Prepayments, actually collected by the Servicer on the Mortgage Loans;
(ii) all payments on account of interest actually collected by the
Servicer on the Mortgage Loans less the Servicing Fee;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds, other than Insurance Proceeds to be
held in the Escrow Account and applied to the restoration and repair of
the Mortgaged Property or released to the Mortgagor in accordance with
Acceptable Servicing Procedures;
(v) all Condemnation Proceeds which are not released to the
Mortgagor in accordance with the Owner's written consent and Acceptable
Servicing Procedures and Section 3.14;
(vi) any amounts with respect to Monthly Advances required to be
deposited in the Custodial Account pursuant to Sections 4.3 and 5.3 ;
(vii) any amount required to be deposited in the Custodial Account
pursuant to Sections 3.1(c), 3.4(c), 3.10, 3.11(c), 3.13(d), (e) and (g),
and 4.1(b) of this Agreement; and
(viii) an amount to be deposited from the Servicer's own funds,
without reimbursement therefor, equal to the lesser of the Prepayment
Interest Shortfall Amount, if any, for the month preceding the month in
which the applicable Remittance Date occurs and one half of the Servicing
Fee for such Remittance Date.
(c) The Servicer may cause the funds on deposit from time to time in
the Custodial Account to be invested in Permitted Instruments, which investments
shall mature not later than the Business Day immediately preceding the
applicable Remittance Date next following the date of such investment. All such
investments shall be made in the name of the Servicer or its nominee. All income
and gain realized from any such investment shall be for the benefit of the
Servicer and shall be subject to its withdrawal or order from time to time. The
Servicer shall indemnify the Owner for any and all Losses incurred in respect of
any such investment by the Servicer, and the amount of any Losses incurred in
respect of any such investment shall be deposited in the Custodial Account by
the Servicer out if its own funds immediately, without reimbursement therefor.
(d) It is understood and agreed that payments in the nature of
Ancillary Income need not be deposited by the Servicer in the Custodial Account.
Section 3.5 Permitted Withdrawals from the Custodial Account
(a) The Servicer may, from time to time, withdraw funds from the
Custodial Account for the following purposes:
(i) to make payments and distributions to the Owner in the amounts
and in the manner provided for in Section 4.1;
(ii) to reimburse itself for Monthly Advances made by the Servicer
from its own funds pursuant to Section 4.3, the Servicer's right to
reimburse itself pursuant to this subclause (ii) being limited to amounts
received on the related Mortgage Loan which represent late payments of
principal and/or interest respecting which any such Monthly Advance was
made and such other amounts as are collected by the Servicer from the
related Mortgagor or otherwise relating to the Mortgage Loan (or to
amounts received on the Mortgage Loans as a whole in the event that such
Monthly Advance is made to pay a shortfall in a Monthly Payment made by a
Mortgagor entitled to relief under the Servicemembers Civil Relief Act).
Notwithstanding the foregoing, the Servicer may reimburse itself for
Monthly Advances from any funds in the Custodial Account if it has
determined that such funds are Nonrecoverable Advances (as certified by
the Servicer to the Owner in an Officer's Certificate) (or if all funds,
with respect to the related Mortgage Loan, have previously been remitted
to the Owner). Notwithstanding anything to the contrary contained herein,
if the Servicer is Greenpoint and the Mortgage Loan for which such
Advances were made was required to be repurchased by Greenpoint pursuant
to the Master Mortgage Loan Purchase Agreement, the Servicer shall not be
entitled to reimburse itself for such Advances;
(iii) to reimburse itself for unreimbursed Servicing Advances and
any unpaid Servicing Fees, Servicer's right to reimburse itself pursuant
to this subclause (iii) with respect to any Mortgage Loan being limited to
related proceeds from Liquidation Proceeds, Condemnation Proceeds, Primary
Mortgage Insurance Proceeds and Other Insurance Proceeds; provided that
the Servicer may reimburse itself from any funds in the Custodial Account
for (a) Servicing Advances and Servicing Fees if all funds with respect to
the related Mortgage Loan have previously been remitted to Owner and (b)
Servicing Advances which it has determined are Nonrecoverable Advances (as
certified by the Servicer to the Owner in an Officer's Certificate).
Notwithstanding anything to the contrary contained herein, if the Servicer
is Greenpoint and the Mortgage Loan for which such Advances were made was
required to be repurchased by Greenpoint pursuant to the Master Mortgage
Loan Purchase Agreement, the Servicer shall not be entitled to reimburse
itself for such Advances;
(iv) to reimburse any Master Servicer for Securitization for any
unreimbursed Monthly Advances or Servicing Advances made by such Master
Servicer, as applicable, the right to reimbursement pursuant to this
subclause (iv) with respect to any Mortgage Loan being limited to related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and such
other amounts as may be collected by the Servicer from the Mortgagor or
otherwise relating to the Mortgage Loan, it being understood that, in the
case of such reimbursement, such trustee's right thereto shall be prior to
the rights of the Servicer to reimbursement under (ii) and (iii), and
prior to the rights of the Owner under (i);
(v) to pay itself any Servicing Fee and other servicing compensation
not paid to the Servicer pursuant to Section 5.3;
(vi) to pay to itself any interest earned on funds deposited in the
Custodial Account;
(vii) if there shall be amounts deposited in the Custodial Account
in error, including the Servicing Fee and other servicing compensation not
required to be deposited therein, to withdraw such amounts; and
(viii) to clear and terminate the Custodial Account upon the
termination of this Agreement in accordance with Article 8.
Section 3.6 Establishment of Escrow Account; Deposits in Escrow
Account; Escrow Analysis
(a) The Servicer shall segregate and hold all funds collected and
received pursuant to the Mortgage Loans which constitute Escrow Payments
separate and apart from any of its own funds and general assets and shall
establish and maintain one or more Escrow Accounts (collectively, with respect
to the accounts maintained by any one Servicer, its "Escrow Account"), in the
form of time deposit or demand accounts, which may be interest bearing, titled,
with respect to the Servicer, "Greenpoint Mortgage Funding, Inc., in trust for
Xxxxxxx Xxxxx Mortgage Company, as Owner, and any successor Owner, and certain
Mortgagors." The Escrow Account shall be an Eligible Account.
(b) The Servicer shall not later than the end of the second Business
Day following receipt thereof (or sooner if required by applicable law) deposit
in the Escrow Account maintained by the Servicer and retain therein: (i) all
Escrow Payments collected on account of the Mortgage Loans for the purpose of
effecting timely payment of any such items as required under the terms of this
Agreement, and (ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds which are to be applied to the restoration or repair of any Mortgaged
Property. The Servicer shall make withdrawals from the Escrow Account maintained
by the Servicer only in accordance with Section 3.7. The Servicer shall be
entitled to retain any interest earned on funds deposited in the Escrow Account
maintained by the Servicer other than interest on escrowed funds required by law
to be paid to the Mortgagor and, to the extent required by law, the Servicer
shall pay interest on escrowed funds to the Mortgagor notwithstanding that the
Escrow Account maintained by the Servicer may not bear interest or that the
interest earned on such escrowed funds is insufficient for such purpose.
Section 3.7 Permitted Withdrawals from the Escrow Account
Withdrawals from the Escrow Account maintained by the Servicer may
be made by the Servicer only (a) to effect timely payments of taxes,
assessments, water rates, insurance premiums, fire and hazard insurance premiums
or other items constituting Escrow Payments for the related Mortgage; (b) to
reimburse the Servicer for any Servicing Advance made by the Servicer pursuant
to Sections 3.8, 3.10 and 3.11 with respect to a related Mortgage Loan, the
Servicer's right to reimburse itself pursuant to this clause (b) being limited
to the amounts as may be collected by the Servicer from the related Mortgagor or
from the related insurer; (c) to refund to any Mortgagor any funds found to be
in excess of the amounts required under the terms of the related Mortgage Loan;
(d) for transfer to the Custodial Account in accordance with the terms of this
Agreement; (e) for application to restoration or repair of the related Mortgaged
Property in accordance with the provisions of Section 3.14, (f) to pay to a
Mortgagor, to the extent required by Applicable Requirements, interest on the
funds deposited in the Escrow Account; (g) to pay to itself any interest earned
on funds deposited in the Escrow Account (and not required to be paid to the
related Mortgagor), (h) to remove funds inadvertently placed in the Escrow
Account by the Servicer; or (i) to clear and terminate the Escrow Account upon
the termination of this Agreement, in accordance with Article 8.
Section 3.8 Payment of Taxes, Insurance and Other Charges
With respect to each Mortgage Loan, the Servicer shall maintain
accurate records reflecting the status of property taxes, assessments and other
charges which are or may become a lien upon the Mortgaged Property and the
status of Primary Mortgage Insurance Policy premiums, if any, and fire and
hazard insurance coverage and flood insurance, all as required hereunder. If a
Mortgage Loan requires Escrow Payments, the Servicer shall obtain, from time to
time, all bills for the payment of such charges (including renewal premiums) and
shall effect payment thereof prior to the applicable penalty or termination date
in a manner consistent with Acceptable Servicing Procedures, employing for such
purpose Mortgagor deposits in the Escrow Account. The Servicer shall, with
respect to each Mortgage Loan for which Escrow Payments are maintained, conduct
an escrow analysis in accordance with industry standard procedures. If a
Mortgage Loan does not require Escrow Payments, or if there are insufficient
funds in the related Escrow Account, the Servicer shall cause all such bills to
be paid on a timely basis and shall from its own funds, if necessary, make a
Servicing Advance to make timely payment of all such bills. The Servicer shall
monitor the payment status of such charges (including renewal premiums) by the
related Mortgagor, and shall effect payment thereof in a manner consistent with
Acceptable Servicing Procedures, and in all events prior to the foreclosure of
any lien against the Mortgaged Property resulting from non-payment of such
property taxes, assessments and other charges and prior to the termination of
any such insurance coverage. No costs incurred by the Servicer in effecting the
payment of taxes and assessments on the Mortgaged Properties shall, for the
purpose of calculating remittances to the Owner, be added to the amount owing
under the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans so permit.
Section 3.9 Transfer of Custodial Accounts and Escrow Accounts
The Servicer may from time to time transfer the Custodial Account or
the Escrow Account maintained by it to a different depository institution,
provided that each such account shall be and remain an Eligible Account.
Section 3.10 Maintenance of Hazard Insurance
(a) The Servicer shall cause to be maintained, with a Qualified
Insurer for each Mortgage Loan serviced by it, fire and hazard insurance with
extended coverage customary in the area where the Mortgaged Property is located
pursuant to insurance policies conforming to the requirements of Xxxxxx Mae and
Xxxxxxx Mac, in an amount which is at least equal to the lesser of (a) the full
insurable value of the Mortgaged Property or (b) the greater of (i) the
outstanding principal balance owing on the Mortgage Loan and (ii) an amount such
that the proceeds of such insurance shall be sufficient to avoid the application
to the Mortgagor or loss payee of any coinsurance clause under the policy. If
the Mortgaged Property is in an area then identified on a flood hazard boundary
map or flood insurance rate map issued by the Federal Emergency Management
Agency as having special flood hazards (and such flood insurance is available),
the Servicer will cause to be maintained a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
with a generally acceptable insurance carrier acceptable to Xxxxxx Mae or
Xxxxxxx Mac. Such flood insurance shall be in an amount representing coverage
not less than the least of (i) the outstanding principal balance of the Mortgage
Loan, (ii) the full insurable value of the improvements securing such Mortgage
Loan or (iii) the maximum amount of insurance available under the National Flood
Insurance Act of 1968 and the Flood Disaster Protection Act of 1973, each as
amended. The Servicer shall also maintain on each REO Property with an insurer
acceptable to Xxxxxx Mae or Xxxxxxx Mac (x) fire and hazard insurance with
extended coverage in an amount that is at least equal to the maximum insurable
value of the improvements securing the Mortgage Loan that are a part of such
property, (y) liability insurance and (z) to the extent required and available
under the National Flood Insurance Act of 1968, the Flood Disaster Protection
Act of 1973, each as amended, or other applicable federal law, flood insurance
in an amount as provided above. Any costs incurred by the Servicer maintaining
insurance under this Section 3.10 shall be recoverable as Servicing Advances.
Any amounts collected by the Servicer under any such policies shall be paid over
or applied by the Servicer in accordance with Acceptable Servicing Procedures
for the restoration or repair of the Mortgaged Property subject to the related
Mortgage, for release to the Mortgagor in accordance with Acceptable Servicing
Procedures, or for application in reduction of the Mortgage Loan. Any such
amounts shall be deposited in the Custodial Account and subject to withdrawal
pursuant to Section 3.5. It is understood and agreed that no earthquake or other
additional insurance is required to be maintained by the Servicer hereunder in
connection with any Mortgage Loan or Mortgaged Property, other than pursuant to
applicable laws and regulations that are at any time in force and require such
additional insurance. All policies required hereunder shall be endorsed with
standard mortgagee clauses with loss payable to the Servicer, and shall provide
for at least 30 days prior written notice to the Servicer of any cancellation,
reduction in amount, or material change in coverage. The Servicer shall not
interfere with the Mortgagor's freedom of choice in selecting either his
insurance carrier or agent upon any policy renewal; provided, however, upon any
such policy renewal, the Servicer shall not accept any such insurance policies,
unless the insurers are acceptable to Xxxxxx Mae or Xxxxxxx Mac and are licensed
to do business in the jurisdiction in which the Mortgaged Property is located.
In the event a hazard insurance policy shall be in danger of being
terminated, or in the event the insurer shall cease to be acceptable to Xxxxxx
Mae and Xxxxxxx Mac, the Servicer shall notify the Owner and the related
Mortgagor, and shall use its best efforts, as permitted by applicable law, to
obtain from another Qualified Insurer a replacement hazard insurance policy
substantially and materially similar in all respects to the original policy. In
no event, however, shall a Mortgage Loan be without a hazard insurance policy at
any time.
If a Mortgage is secured by a unit in a condominium project, the
Servicer shall verify that the coverage required of the owner's association,
including hazard, flood, liability, and fidelity coverage, is being maintained
in accordance with then current requirements of Xxxxxx Mae, Xxxxxxx Mac, and
secure from the owner's association its agreement to notify the Servicer
promptly of any change in the insurance coverage or of any condemnation or
casualty loss that may have a material effect on the value of the Mortgaged
Property as security.
Notwithstanding anything set forth in the preceding paragraphs, the
Servicer agrees to indemnify the Owner for any Losses and related costs,
judgments, and any other costs, fees and expenses that the Owner may sustain in
any way related to the failure of the Mortgagor (or the Servicer) to maintain
hazard insurance or flood insurance with respect to the related Mortgaged
Property which complies with the requirements of this section.
Section 3.11 Maintenance of Primary Mortgage Insurance Policies;
Collections Thereunder
(a) The parties acknowledge that not all Mortgage Loans will be
covered by Primary Mortgage Insurance. In the event that any Mortgage Loans are
or become covered by Primary Mortgage Insurance, the provisions set forth below
shall apply.
(b) If a Mortgage Loan is covered by a Primary Mortgage Insurance
Policy as of the Cut-off Date, or if a Mortgage Loan becomes covered by a
Primary Mortgage Insurance Policy pursuant to subsection 3.11(c) below, the
Servicer shall, without any cost to the Owner, cause the premium for each such
Primary Mortgage Insurance Policy, beginning with the premium due after the
Cut-off Date in the case of any Mortgage Loan covered by a Primary Insurance
Policy prior to the Cut-off Date, to be paid on a timely basis and shall from
its own funds, if necessary, make a Servicing Advance to pay the premium on a
timely basis. The Servicer will not cancel or refuse to renew any such Primary
Mortgage Insurance Policy that is required to be kept in force under any
Mortgage and pursuant to this subsection, or pursuant to subsection 3.11(c)
below, unless a replacement Primary Mortgage Insurance Policy for such canceled
or non renewed policy is obtained from and maintained with an insurer that
satisfies the standards set forth in this subsection. If the insurer shall cease
to be a Qualified Insurer, the Servicer shall obtain from another qualified
insurer a replacement Primary Mortgage Insurance Policy. The Servicer shall not
take any action or fail to take any action that would result in non-coverage
under any applicable Primary Mortgage Insurance Policy of any loss which, but
for the actions of the Servicer, would have been covered thereunder. In
connection with any assumption or substitution agreement entered into or to be
entered into pursuant to Section 4.1, the Servicer shall promptly notify the
insurer under the related Primary Mortgage Insurance Policy, if any, of such
assumption or substitution of liability in accordance with the terms of such
policy and shall take all actions which may be required by such insurer as a
condition to the continuation of coverage under such Primary Mortgage Insurance
Policy. If such Primary Mortgage Insurance Policy is terminated as a result of
such assumption or substitution of liability, the Servicer shall obtain a
replacement Primary Mortgage Insurance Policy as provided above.
(c) As part of its activities as servicer of the Mortgage Loans, the
Servicer agrees to prepare and present, on behalf of itself and the Owner,
claims under any Primary Mortgage Insurance Policy in a timely fashion in
accordance with the terms thereof and, in this regard, to take such reasonable
action as shall be necessary to permit recovery under any Primary Mortgage
Insurance Policy respecting a defaulted Mortgage Loan. Pursuant to Section 3.4,
any amounts collected by the Servicer under any Primary Mortgage Insurance
Policy shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 3.5, and remitted to the Owner on the appropriate Remittance
Date.
Section 3.12 Fidelity Bond; Errors and Omissions Insurance
The Servicer shall maintain, at its own expense, with responsible
companies that meet the requirements of Xxxxxx Xxx or Xxxxxxx Mac, a blanket
fidelity bond and an errors and omissions insurance policy, with broad coverage
on all officers, employees, agents and other persons acting in any capacity
requiring such persons to handle funds, money, documents or papers relating to
the Mortgage Loans (collectively, the "Servicer Employees"). Any such fidelity
bond and errors and omissions insurance shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Servicer against losses
from forgery, theft, embezzlement, fraud, errors, omissions, failure to maintain
any insurance policies required pursuant to this Agreement, and dishonest or
negligent acts of such Servicer Employees, any employees of outside firms that
provide data processing services for the Servicer, and temporary contract
employees or student interns. Such fidelity bond shall also protect and insure
the Servicer against losses in connection with the release or satisfaction of a
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 3.12 requiring such fidelity bond
and errors and omissions insurance shall diminish or relieve the Servicer from
its duties and obligations as set forth in this Agreement. The terms of any such
fidelity bond and errors and omissions insurance policy shall be at least equal
to the corresponding amounts required by Xxxxxx Mae in the Xxxxxx Xxx Selling
and Servicing Guide, or by Xxxxxxx Mac in the Xxxxxxx Mac Seller's and
Servicer's Guide, as amended or restated from time to time. Upon the request of
the Owner, the Servicer shall cause to be delivered to the Owner a certified
true copy of such fidelity bond and errors and omissions insurance policy and a
statement from the surety and the insurer that such fidelity bond and errors and
omission insurance policy shall in no event be terminated or materially modified
without 30 days prior written notice to the Owner.
Section 3.13 Title, Management and Disposition of Real Estate Owned
(a) The Servicer shall notify the Owner of its intention to
institute any foreclosure proceeding no fewer than ten (10) days prior to
initiating such proceeding. The Servicer shall notify the Owner of its intention
to accept a deed-in-lieu of foreclosure or a partial release of any of the
Mortgaged Property subject to the lien of the Mortgage no fewer than ten (10)
days prior to accepting such deed-in-lieu or partial release and shall only
accept such deed-in-lieu or grant such partial release if the Owner has not
objected before the end of the tenth day after delivery of such notice. In
connection with any foreclosure sale, the Servicer shall consult with the Owner
with regard to a bid price for the related Mortgaged Property and shall set such
bid price in accordance with the Owner's instructions. The Servicer shall make
all required Servicing Advances and shall service and administer the Mortgage
Loans in accordance with all applicable laws, rules and regulations and shall
provide to the Mortgagors any reports required to be provided to them thereby.
The Owner shall furnish to the Servicer any powers of attorney and other
documents reasonably necessary or appropriate to enable the Servicer to carry
out its servicing and administrative duties under this Agreement.
(b) In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure ("REO Property"), the deed or
certificate of sale shall be taken in the name of the Servicer for the benefit
of the Owner or, in the event the Owner is not authorized or permitted to hold
title to real property in the state where the REO Property is located, or would
be adversely affected under the "doing business" or tax laws of such state by so
holding title, the deed or certificate of sale shall be taken in the name of
such Person or Persons as shall be consistent with an Opinion of Counsel
obtained by the Servicer from any attorney duly licensed to practice law in the
state where the REO Property is located. The Person or Persons holding such
title other than the Owner shall acknowledge in writing that such title is being
held as nominee for the Owner.
(c) The Servicer shall manage, conserve, protect, and operate each
REO Property solely for the purpose of its prompt disposition and sale. The
Servicer shall either itself or through an agent selected by the Servicer,
manage, conserve, protect, and operate the REO Property in accordance with
Acceptable Servicing Procedures. The Servicer shall attempt to sell the same
(and may temporarily rent the same for a period not greater than one year) on
such terms and conditions as the Servicer deems to be in the best interest of
the Owner.
The Servicer shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within three years after title has been taken to such REO Property, not later
than the end of the third taxable year after the year of its acquisition unless
(i) (A) a REMIC election has not been made with respect to the arrangement under
which the Mortgage Loans and the REO Property are held, and (ii) the Servicer
determines, and gives an appropriate notice to the Owner to such effect, that a
longer period is necessary for the orderly liquidation of such REO Property. If
a period longer than three years is permitted under the foregoing sentence and
is necessary to sell any REO Property, (i) the Servicer shall report monthly to
the Owner as to the progress being made in selling such REO Property and (ii)
if, with the written consent of the Owner, a purchase money mortgage is taken in
connection with such sale, such purchase money mortgage shall name the Servicer
as mortgagee, and such purchase money mortgage shall not be held pursuant to
this Agreement, but instead a separate participation agreement among the
Servicer and Owner shall be entered into with respect to such purchase money
mortgage.
Notwithstanding anything to the contrary contained in this Section
3.13, in connection with a foreclosure or acceptance of a deed in lieu of
foreclosure, in the event the Servicer has reasonable cause to believe that a
Mortgaged Property is contaminated by hazardous or toxic substances or wastes,
or if the Owner otherwise requests, an environmental inspection or review of
such Mortgaged Property to be conducted by a qualified inspector shall be
arranged by the Servicer. Upon completion of the inspection, the Servicer shall
provide the Owner with a written report of such environmental inspection. In the
event that the environmental inspection report indicates that the Mortgaged
Property is contaminated by hazardous or toxic substances or wastes, the
Servicer shall not proceed with foreclosure or acceptance of a deed in lieu of
foreclosure. In the event that the environmental inspection report is
inconclusive as to the whether or not the Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, the Servicer shall not, without the
prior approval of the Owner, proceed with foreclosure or acceptance of a deed in
lieu of foreclosure. In the event the Owner or its designee directs the Servicer
not to proceed with foreclosure or acceptance of a deed in lieu of foreclosure,
the Servicer shall be reimbursed for all customary, reasonable, and necessary
"out of pocket" costs and expenses that are incurred by the Servicer with
respect to the related Mortgaged Property from the Custodial Account, as though
such costs were Servicing Advances, pursuant to Section 3.4 hereof.
(d) The Servicer shall hold all funds collected and received in
connection with the operation of REO Property separate and apart from its own
funds or general assets, in the Custodial Account.
(e) The Servicer shall deposit, or cause to be deposited not later
than the end of the second Business Day following receipt thereof in the
Custodial Account maintained by it all revenues received with respect to the
conservation and disposition of any REO Property for distribution to the Owner
pursuant to the provisions of Section 4.1.
(f) [RESERVED]
(g) [RESERVED]
(h) The Servicer shall withdraw the Custodial Account funds
necessary for the proper operation, management and maintenance of the REO
Property, including the cost of maintaining any hazard insurance pursuant to
Section 3.10 and the fees of any managing agent of the Servicer, or the Servicer
itself. The Servicer shall make monthly distributions on each Remittance Date to
the Owner of the net cash flow from the REO Property (which shall equal the
revenues from such REO Property net of the expenses described above and of any
reserves reasonably required from time to time to be maintained to satisfy
anticipated liabilities for such expenses).
Section 3.14 Application of Proceeds of Insurance to Repair or
Restoration
The Servicer shall collect the proceeds from all policies of
insurance required to be maintained pursuant to Section 3.10 with respect to all
losses that may occur. The Servicer may remit such proceeds to the Mortgagor
toward the restoration or repair of the related property in a manner, and shall
otherwise take such actions in connection with such restoration and repair, as
shall be consistent with Acceptable Servicing Procedures.
The Servicer need not obtain the approval of the Owner prior to
releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be
applied to the restoration or repair of the Mortgaged Property if such release
is in accordance with Acceptable Servicing Practices. At a minimum the Servicer
shall comply with the following conditions in connection with any such release
of Insurance Proceeds or Condemnation Proceeds:
The Servicer shall receive satisfactory independent verification of
completion of repairs and issuance of any required approvals with respect
thereto;
(1) the Servicer shall take all steps necessary to
preserve the priority of the lien of the Mortgage, including,
but not limited to requiring waivers with respect to
mechanics' and materialmen's liens;
(2) the Servicer shall verify that the Mortgage Loan is
not in default; and
(3) pending repairs or restoration, the Servicer shall
place the Insurance Proceeds or Condemnation Proceeds in the
Escrow Account.
If the Owner is named as an additional loss payee, the Servicer is
hereby empowered to endorse any loss draft issued in respect of such a claim in
the name of the Owner.
Section 3.15 Inspections
The Servicer or its authorized representative shall conduct
inspections of Mortgaged Properties at such times and in a manner consistent
with Acceptable Servicing Procedures. For any Mortgage Loan that is not insured
by a Primary Mortgage Insurance Policy, in the event such Mortgage Loan becomes
45 days delinquent, (a) the Servicer shall inspect the related Mortgage Property
as promptly as practicable after the 45th day of delinquency, (b) the Servicer
may perform an inspection at such other times and at such intervals as the
Servicer deems appropriate and (c) the Servicer shall immediately perform an
inspection upon any abandonment of the related Mortgaged Property. For any
Mortgage Loan that is insured by a Primary Mortgage Insurance Policy, the
Servicer shall inspect the related Mortgaged Property as directed by the related
Primary Insurer; provided, however, that, at a minimum, in the event the
Mortgage Loan becomes 60 days delinquent, the Servicer shall inspect the related
Mortgaged Property prior to the 90th day of delinquency. The Servicer shall keep
a written report of each such inspection and shall provide a copy of such report
to the Owner upon the request of the Owner.
Section 3.16 Fair Credit Reporting Act.
The Servicer, in its capacity as servicer for each Mortgage Loan,
agrees to fully furnish, in accordance with the Fair Credit Reporting Act and
its implementing regulations, accurate and complete information (e.g., favorable
and unfavorable) on its borrower credit files to Equifax, Experian and Trans
Union Credit Information Company (three of the credit repositories), on a
monthly basis.
Section 3.17 Compliance with the Privacy Laws
The Servicer shall comply with all provisions of the Privacy Laws
relating to the Mortgage Loans, the related borrowers and any "nonpublic
personal information" (as defined in the Privacy Laws) received by the Servicer
incidental to the performance of its obligations under this Agreement,
including, maintaining adequate information security procedures to protect such
nonpublic personal information and providing all privacy notices required by the
Privacy Laws.
ARTICLE IV
PAYMENTS TO THE OWNER
Section 4.1 Distributions
(a) On each Remittance Date the Servicer shall remit to the Owner
(a) all amounts credited to the Custodial Account as of the close of business on
the preceding Determination Date, net of charges or withdrawals from the
Custodial Account pursuant to Section 3.5, plus (b) all Monthly Advances, if
any, that the Servicer is obligated to distribute pursuant to Section 4.3; minus
(c) any amounts attributable to Principal Prepayments received after the related
Prepayment Period; minus (d) any amounts attributable to Monthly Payments
collected but due on a Due Date or Dates subsequent to the preceding
Determination Date. It is understood that by operation of Section 3.4, the
remittance on the first Remittance Date with respect to a Mortgage Loan Package
is to include principal collected after the Cut-off Date through the preceding
Determination Date plus interest, adjusted to the Mortgage Loan Remittance Rate,
collected through such Determination Date exclusive of any portion thereof
allocable to the period of time prior to the Cut-off Date, with the adjustments
specified in (b), (c) and (d) above. Each such remittance shall be made by wire
or other electronic funds transfer of immediately available funds to the account
of the Owner according to the written wire instructions provided by the Owner to
the Servicer from time to time.
(b) With respect to any remittance to the Owner made by the Servicer
after the second Business Day following the Business Day on which such
remittance was due, the Servicer shall pay to the Owner interest on such late
remittance at an annual rate equal to Prime plus two percent (2.0%), but in no
event greater than the maximum amount permitted by applicable law. Such interest
shall be deposited in the Custodial Account by the Servicer on the date such
late remittance is made and shall cover the period commencing with the date on
which such remittance was due and ending with the Business Day on which such
late remittance is made, both inclusive. Such interest shall be remitted along
with such late remittance. The payment by the Servicer of any such interest
shall not be deemed an extension of time for payment or a waiver of any Event of
Default by the Servicer.
Section 4.2 Reports
(a) Not later than each Remittance Advice Date, the Servicer shall
furnish to the Owner via any electronic medium a monthly report in a form
reasonable acceptable to institutional buyers of mortgage loans, which report
shall include, without limitation, with respect to each Mortgage Loan the
following loan-level information: (i) the balance due as of the last day of the
related Due Period, (ii) all Principal Prepayments applied to the Mortgagor's
account during the related Prepayment Period, (iii) the amount of the remittance
made on such Remittance Date which is allocable to principal and allocable to
interest; (iv) the amount of servicing compensation received by the Servicer
during the prior calendar month and (v) the delinquency and bankruptcy status of
the Mortgage Loan, if applicable.
(b) With respect to any REO Property, and upon the request of the
Owner, the Servicer shall furnish to the Owner a statement describing the
Servicer's efforts during the previous month in connection with the sale of such
REO Property, including any rental of such REO Property incidental to the sale
thereof and an operating statement. The Servicer shall also provide the Owner
with such information concerning the Mortgage Loans as is necessary for Owner to
prepare its federal income tax return and as the Owner may reasonably request
from time to time. The Owner agrees to pay for all reasonable out-of-pocket
expenses incurred by the Servicer in connection with complying with any request
made by the Owner hereunder if such information is not customarily provided by
the Servicer in the ordinary course of servicing mortgage loans similar to the
Mortgage Loans.
Section 4.3 Monthly Advances by Servicer
On the Determination Date, the Servicer shall deposit in the
Custodial Account from its own funds or from amounts held for future
distribution an amount equal to all Monthly Payments to the extent not allocable
to the period prior to the Cut-off Date (with interest adjusted to the Mortgage
Loan Remittance Rate) which were due on the Mortgage Loans during the applicable
Due Period and which were delinquent as of the close of business on the Business
Day prior to the related Determination Date or which were deferred pursuant to
Section 3.1(c). Any amounts held for future distribution and so used shall be
replaced by the Servicer by deposit in the Custodial Account on or before any
future Remittance Date if funds in the Custodial Account on such Remittance Date
shall be less than payments to the Owner required to be made on such Remittance
Date. Notwithstanding the foregoing, the Servicer shall not be permitted to make
any advances from amounts held for future distribution, and instead shall be
required to make all advances from its own funds, unless the Servicer, its
parent, or their respective successors hereunder shall have a long term credit
rating of at least "A" by Fitch, Inc., or the equivalent rating of another
Rating Agency. The Servicer's obligation to make such Monthly Advances as to any
Mortgage Loan will continue through the last Monthly Payment due prior to the
payment in full of the Mortgage Loan, or of the last Remittance Date prior to
the Remittance Date for the distribution of all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds and Condemnation Proceeds)
with respect to the Mortgage Loan; provided, however, that such obligation shall
cease if the Servicer determines, in its sole reasonable opinion, that advances
with respect to such Mortgage Loan are non-recoverable by the Servicer from
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, or otherwise
with respect to a particular Mortgage Loan. In the event that the Servicer
determines that any such advances are non-recoverable, the Servicer shall
provide the Owner with a certificate signed by two officers of the Servicer
evidencing such determination.
ARTICLE V
GENERAL SERVICING PROCEDURE; COVENANTS;
REPRESENTATIONS AND WARRANTIES
Section 5.1 Assumption Agreements
(a) The Servicer will use its best efforts to enforce any
"due-on-sale" provision contained in any Mortgage or Mortgage Note and to deny
assumption by the person to whom the Mortgaged Property has been or is about to
be sold, whether by absolute conveyance or by contract of sale, and whether or
not the Mortgagor remains liable on the Mortgage and the Mortgage Note, provided
that in accordance with the terms of the Mortgage Note, the Servicer may permit
an assumption if but only if the Servicer approves the creditworthiness of the
assuming party in accordance with the Underwriting Guidelines. When the
Mortgaged Property has been conveyed by the Mortgagor, the Servicer will, to the
extent it has knowledge of such conveyance, exercise its rights to accelerate
the maturity of such Mortgage Loan under the "due-on-sale" clause applicable
thereto; provided, however, the Servicer will not exercise such rights if
prohibited by Applicable Requirements from doing so or if the exercise of such
rights would impair or threaten to impair any recovery under the related Primary
Mortgage Insurance Policy, if any. If the Servicer reasonably believes it is
unable under Applicable Requirements to enforce such "due-on-sale" clause, the
Servicer (unless otherwise required by law and in any event will notify the
Owner of such requirement) will request the written permission of the Primary
Mortgage Insurer, if required to cause the coverage under the Primary Mortgage
Insurance Policy to remain in full force and effect, and the Owner prior to
entering into an assumption and modification agreement with the person to whom
such property has been conveyed, pursuant to which such person becomes liable
under the Mortgage Note and, to the extent permitted by Applicable Requirements,
the Mortgagor remains liable thereon. In connection with any such assumption,
the related Mortgage Interest Rate, the Unpaid Principal Balance, the Lifetime
Rate Cap (if applicable), the Gross Margin (if applicable), the Initial Rate Cap
(if applicable) or the Periodic Rate Cap (if applicable) of the related Mortgage
Note and the term of the Mortgage Loan may not be changed. If an assumption is
allowed pursuant to this Section 5.1(a), the Servicer, with the prior consent of
the Primary Mortgage Insurer, if any, is authorized to enter into a substitution
of liability agreement with the purchaser of the Mortgaged Property pursuant to
which the original Mortgagor is released from liability and the purchaser of the
Mortgaged Property is substituted as Mortgagor and becomes liable under the
Mortgage Note. Any such substitution of liability agreement shall be in lieu of
an assumption agreement.
(b) The Servicer shall follow Acceptable Servicing Procedures
(including underwriting standards) with respect to any such assumption or
substitution of liability. The Servicer shall notify the Owner that any such
substitution of liability or assumption agreement has been completed by
forwarding to the Owner or its designee the original of any such substitution of
liability or assumption agreement, which document shall be added to the related
Collateral File and shall, for all purposes, be considered a part of such
Collateral File to the same extent as all other documents and instruments
constituting a part thereof.
(c) For purposes of this Section 5.1, the term "assumption" is
deemed to also include a sale of the Mortgaged Property subject to the Mortgage
that is not accompanied by an assumption or substitution of liability agreement.
Section 5.2 Satisfaction of Mortgages and Release of Collateral
Files
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer (i) shall prepare the appropriate
documents and instruments required to satisfy or release the lien of the
Mortgage in accordance with applicable state law requirements, (ii) shall
promptly and within the time periods appropriate to process the satisfaction or
release within the applicable legal deadlines notify the Owner of such event and
(iii) shall request that the Owner deliver the required portion of the
Collateral File to the Servicer. The Owner shall, within five (5) Business Days
following its receipt of any such certification and request, send to the
Servicer the requested portion of the Collateral File. Upon receipt of such
package, the Servicer shall prepare and execute the documents and instruments
necessary to satisfy or release the lien of the Mortgage and shall process such
satisfaction or release in accordance with applicable state law requirements. In
addition, if, with respect to any Mortgage Loan that has been paid in full, the
Owner has recorded or caused to be recorded in the appropriate public recording
office of the jurisdiction in which the related Mortgaged Property is located
the related Assignment of Mortgage which designates the Owner as the holder of
record of the Mortgage, the Servicer shall prepare and deliver to the Owner,
together with a request for execution, the documents and instruments necessary
to satisfy or release the lien of the Mortgage. The Owner shall, within five (5)
Business Days following its receipt of any such request, send to the Servicer
the fully-executed documents that were prepared and requested by the Servicer.
Upon receipt of such package, the Servicer shall process such satisfaction or
release in accordance with applicable state law requirements. In the event that
applicable state law requires that a satisfaction or release be recorded within
a shorter time period than the processes set forth above permits, the Servicer
shall advise the Owner accordingly and shall use reasonable efforts to ensure
that the lien of the Mortgage is released or satisfied in accordance with
applicable state law requirements. The Owner shall assist therewith by returning
to the Servicer the required portion of the Collateral File (and, if applicable,
the executed satisfaction and release documents and instruments) within the time
periods specified by the Servicer. The Servicer shall not be liable for and the
Owner shall indemnify the Servicer against any third party liability for failure
to release the lien of a Mortgage as required under applicable law to the extent
that such failure was caused by the Owner's breach of its obligations under this
Section 5.2.
(b) If the Servicer satisfies or releases a Mortgage without first
having obtained payment in full of the indebtedness secured by the Mortgage or
should the Servicer otherwise prejudice any rights the Owner may have under the
mortgage instruments, upon written demand of the Owner, the Servicer shall remit
to the Owner the then unpaid principal balance of the related Mortgage Loan. The
Servicer shall maintain the fidelity bond and errors and omissions insurance
policy as provided for in Section 3.12 insuring the Servicer against any loss it
may sustain with respect to any Mortgage Loan not satisfied in accordance with
the procedures set forth herein.
Section 5.3 Servicing Compensation
As compensation for its services hereunder, the Servicer shall be
entitled to pay itself the Servicing Fee with respect to each Mortgage Loan from
the gross amount of interest payments on such Mortgage Loan which are actually
received by the Servicer with respect thereto. Additional servicing compensation
in the form of all Ancillary Income which are actually received by the Servicer
may be retained by the Servicer to the extent not required to be deposited into
the Custodial Account pursuant to the terms of this Agreement. The Servicer
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided for in this Agreement.
Section 5.4 Annual Statements as to Compliance
(a) The Servicer shall deliver to the Owner, to any master servicer
and/or trustee which is master servicing or acting as trustee with respect to
any of the Mortgage Loans pursuant to a Securitization (each, a "Master
Servicer") and to the Sarbanes Certifying Party not later than the earlier of
(a) March 15 of each calendar year (other than the calendar year during which
the related Closing Date occurs) or (b) with respect to any calendar year during
which the annual report of the entity which is the depositor (or other party
responsible for filing Form 10-K with the Commission (as defined below)) of the
Mortgage Loans pursuant to a Securitization or other securitization transaction
(the "Depositor") on Form 10-K is required to be filed in accordance with the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations of the Securities Exchange Commission (the "Commission"), 15
calendar days before the date on which the Depositor's annual report on Form
10-K is required to be filed in accordance with the Exchange Act and the rules
and regulations of the Commission (or, in each case, if such day is not a
Business Day, the immediately preceding Business Day), an Officer's Certificate
stating, as to each signatory thereof, that (i) a review of the activities of
the Servicer during the preceding fiscal year and of performance under this
Agreement has been made under such officer's supervision (ii) based on such
review, the Servicer has fulfilled all of its obligations under this Agreement
throughout such fiscal year, or, if there has been a default in the fulfillment
of any such obligation, specifying each such default known to such officer and
the nature and status thereof and the actions being taken by the Servicer to
cure such default, and (iii) all reports and information provided to the Owner
by the Servicer, pursuant to the Servicer's reporting requirements under the
Agreement, to the extent used or included in any reports filed under the
Exchange Act by the Depositor are accurate and complete in all material
respects. Copies of such statement may be provided by the Owner to any Person
identified as a prospective purchaser of the Mortgage Loans.
(b) With respect to any Mortgage Loans that are subject to a
Securitization, not later than the earlier of (a) March 15 of each calendar year
(other than the calendar year during which the Closing Date occurs) or (b) with
respect to any calendar year during which the Depositor's annual report on Form
10-K is required to be filed in accordance with the Exchange Act and the rules
and regulations of the Commission, 15 calendar days before the date on which the
Depositor's annual report on Form 10-K is required to be filed in accordance
with the Exchange Act and the rules and regulations of the Commission (or, in
each case, if such day is not a Business Day, the immediately preceding Business
Day), an officer of the Servicer shall execute and deliver an Officer's
Certificate in the form attached hereto as Exhibit D to the Sarbanes Certifying
Party for the benefit of the Master Servicer, the Sarbanes Certifying Party and
their respective officers, directors and affiliates.
(c) The Servicer shall indemnify and hold harmless the Master
Servicer and the Sarbanes Certifying Party (any such person, an "Indemnified
Party") from and against any Losses and related costs, judgments and other costs
and expenses arising out of or based upon a breach by the Servicer of its
obligations under this Section 5.4 or Section 5.5, or any material misstatement
or omission, negligence, bad faith or willful misconduct of the Servicer in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless any Indemnified Party, then the Servicer agrees
that it shall contribute to the amount paid or payable by the Indemnified Party
as a result of the Losses of the Indemnified Party in such proportion as is
appropriate to reflect the relative fault of the Indemnified Party on the one
hand and the Servicer on the other in connection with a breach of the Servicer's
obligations under this Section 5.4 or Section 5.5, or the Servicer's material
misstatement or omission, negligence, bad faith or willful misconduct in
connection therewith.
(d) It is acknowledged and agreed that each Master Servicer and the
Sarbanes Certifying Party shall be an express third party beneficiary of the
provisions of this Section 5.4 and shall be entitled independently to enforce
the provisions of this Section 5.4 with respect to any obligations owed to such
entity as if it were a direct party to this Agreement.
Section 5.5 Annual Independent Public Accountants' Servicing Report
Not later than the earlier of (a) March 15 of each calendar year
(other than the calendar year during which the related Closing Date occurs) or
(b) with respect to any calendar year during which the Depositor's annual report
on Form 10-K is required to be filed in accordance with the Exchange Act and the
rules and regulations of the Commission, 15 calendar days before the date on
which the Depositor's annual report on Form 10-K is required to be filed in
accordance with the Exchange Act and the rules and regulations of the Commission
(or, in each case, if such day is not a Business Day, the immediately preceding
Business Day), the Servicer at its expense shall cause a firm of independent
public accountants which is a member of the American Institute of Certified
Public Accountants to prepare a statement to the effect that such firm has
examined certain documents and records and performed certain other procedures
relating to the servicing of the Mortgage Loans during the immediately preceding
calendar year of the Servicer and that such firm is of the opinion that, on the
basis of such examination conducted substantially in compliance with the Uniform
Single Attestation Program for Mortgage Bankers, such servicing has been
conducted in compliance therewith, except for such exceptions as shall be set
forth in such statement. The Servicer shall furnish such statement to the Owner,
any Master Servicer and the Sarbanes Certifying Party within the above time
requirement.
Section 5.6 Owner's Right to Examine Servicer Records, etc.
The Owner shall have the right, at the Owner's expense, except for
immaterial items in the ordinary course of business, to examine and audit the
Servicer's books of account, records, reports, and other papers relating to (i)
the performance by the Servicer of its obligations and duties under this
Agreement, or (ii) the Mortgage Loans, to make copies and extracts therefrom,
and to discuss the affairs, finances, and accounts of such Servicer relating to
such performance with its officers and employees, all at such reasonable times
and places and as often as may be reasonably requested.
Section 5.7 Consents and Approvals
The Owner shall timely obtain, at its sole cost and expense, the
consents and approvals required by law or pursuant to contract to consummate the
transactions contemplated hereby. All such consents will be obtained without any
cost or expense to the Servicer and will be obtained without any adverse
modification in the terms of any of the agreements relating to the Mortgage
Loans or the imposition of any burdensome provisions or conditions on the
Servicer.
Furthermore, the Servicer shall provide to the Owner, and for any
Owner insured by FDIC or NAIC, the supervisory agents and examiners of FDIC and
OTS or NAIC, access to any documentation regarding the Mortgage Loans which may
be required by applicable regulations. Such access shall be afforded without
charge, but only upon reasonable request, during normal business hours and at
the offices of the Servicer.
In addition, the Servicer shall furnish upon request by the Owner,
during the term of this Agreement, such periodic, special or other reports or
information, whether or not provided for herein, as shall be necessary,
reasonable and appropriate with respect to the purposes of this Agreement and
applicable regulations. All such reports or information shall be provided by and
in accordance with all reasonable instructions and directions the Owner may
require and, to the extent the Servicer is required to incur out-of-pocket
expenses, at the expense of the Owner. The Servicer agrees to execute and
deliver all such instruments and take all such action as the Owner, from time to
time, may reasonably request in order to effectuate the purposes and to carry
out the terms of this Agreement.
Section 5.8 Removal of Mortgage Loans from Inclusion Under this
Agreement Upon a Whole Loan Transfer or a Pass-Through Transfer on One or More
Reconstitution Dates
(a) The Servicer and the Owner agree that with respect to some or
all of the Mortgage Loans, the Owner may effect one or more Whole Loan Transfers
and/or one or more Pass-Through Transfers. In connection with a Whole Loan
Transfer, the related Reconstitution Agreement shall provide that no more than
four (4) Persons shall have the status of "Owner" thereunder.
(b) With respect to each Whole Loan Transfer or Pass-Through
Transfer, as the case may be, entered into by Owner, Servicer agrees:
(i) To negotiate in good faith and execute a servicer agreement
reasonably required to effectuate the Whole Loan Transfer or the
Pass-Through Transfer, as the case may be, provided such agreement creates
no greater obligation or cost on the part of the Servicer than otherwise
set forth in this Agreement, and provided further that the Servicer shall
be entitled to a servicing fee under that agreement at a rate per annum no
less than the Servicing Fee Rate;
(ii) to cooperate fully with the Owner and any prospective the Owner
with respect to all reasonable requests that are necessary to effect a
Pass-Through Transfer or Whole Loan Transfer;
(iii) provide as applicable:
(A) information pertaining to the Servicer of the type and
scope customarily included in offering documents for residential
mortgage-backed securities transactions involving multiple loan
originators; and
(B) such opinions of counsel, letters from auditors, and
certificates of public officials or officers of the Servicer as are
reasonably believed necessary by the trustee, any rating agency or
the Owner, as the case may be, in connection with such Pass-Through
Transfer. The Owner shall pay all third party costs associated with
the preparation of the information described in clause (ii)(A) above
and the delivery of any opinions, letters or certificates described
in this clause (ii)(B). The Servicer shall not be required to
execute any servicer agreement unless a draft of the agreement is
provided to the Servicer at least 10 days before the Reconstitution
Date, or such longer period as may reasonably be required for the
Servicer and its counsel to review and comment on the agreement;
(c) In connection with any Pass-Through Transfer, the Servicer, upon
request, will bring down the representations and warranties made in Section 2.1
in to a date no later than the related Reconstitution Date;
(d) In connection with any Pass-Through Transfer, the Servicer shall
indemnify, defend and hold harmless the Owner, the Depositor, and their
respective affiliates, directors, officers and employees from and against any
and all Losses to which any such Person may be subject to as a result of any
untrue statement of any material fact contained in any information (such
information, the "Greenpoint Information") prepared and furnished to the Owner
or the Depositor, by the Servicer for inclusion in any related offering document
or prospectus (collectively, "Offering Materials"), or arise out of, or are
based upon, any omission in the Greenpoint Information necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and will reimburse to all such parties, as applicable, for
damages or expenses reasonably incurred by it, as they are incurred; provided,
however, that the Servicer shall be liable only insofar as such untrue statement
or omission relates solely to the Greenpoint Information in the Offering
Materials furnished to any such party by the Servicer specifically for inclusion
in the Prospectus Supplement; and
(e) All Mortgage Loans not sold or transferred pursuant to
Pass-Through Transfers shall remain subject to this Agreement and shall continue
to be serviced in accordance with the terms of this Agreement and with respect
thereto this Agreement shall remain in full force and effect.
Section 5.9 Compliance With REMIC Provisions
If a REMIC election has been made with respect to the arrangement
under which the Mortgage Loans and REO Property are held or transferred, the
Servicer shall not take any action, cause the REMIC to take any action or fail
to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of the REMIC as a REMIC or (ii) result in the imposition of a tax upon
the REMIC (including but not limited to the tax on "prohibited transactions" as
defined in Section 860(a)(2) of the Code and the tax on "contributions" to a
REMIC set forth in Section 860(d) of the Code) unless the Servicer has received
an Opinion of Counsel (at the expense of the party seeking to take such action)
to the effect that the contemplated action will not endanger such REMIC status
or result in the imposition of any such tax.
ARTICLE VI
THE SERVICER
Section 6.1 Indemnification; Third Party Claims
Subject to Section 6.3, the Servicer agrees to indemnify and hold
harmless the Owner against any and all Losses that the Owner may sustain in any
way related to the failure of such Servicer to service the Mortgage Loans in
compliance with the terms of this Agreement; provided, however, the Servicer
shall not be liable hereunder (a) to the extent such Losses directly result from
the Custodian's negligent action, negligent failure to act, bad faith, willful
misconduct or breach under the Custodial Agreement, dated as of April 1, 2004,
among the Owner and the Custodian, (b) with respect to any action or inaction in
accordance with the direction or consent of the Owner or (c) resulting from the
Owner's failure to respond to a request by the Servicer for direction or consent
in accordance with Section 3.1(c) hereof. The Servicer shall immediately notify
the Owner if a claim is made by a third party with respect to this Agreement or
the Mortgage Loans. The Servicer shall assume (with the written notification to
the Owner) the defense of any such claim and pay all reasonable expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against the Servicer or the
Owner, subject to limitation pursuant to this Section 6.1, in respect of such
claim. The Servicer shall follow any written instructions received from the
Owner in connection with any such claim and the Owner shall promptly reimburse
the Servicer for all amounts reasonably advanced by it pursuant to the preceding
sentence, except when the claim (a) is related to the Servicer's obligations to
indemnify the Owner pursuant hereto, (b) results from the failure of the
Servicer to service the Mortgage Loans in compliance with the terms of this
Agreement or (c) results from the Servicer's willful misconduct, bad faith or
negligence in performing its duties under this Agreement.
With respect to any Mortgage Loan, in the event that the Owner
records or causes to be recorded in the appropriate public recording office of
the jurisdiction in which the related Mortgaged Property is located the related
Assignment of Mortgage which designates the Owner as the holder of record of the
Mortgage, the Owner shall comply with the provisions of Section 5.2(a) regarding
the execution and delivery of release and reconveyance documents, and shall
immediately complete, sign and return to the Servicer any additional documents
that may be required of the holder of record of the Mortgage and may be
reasonably requested by the Servicer in order to permit the Servicer to comply
with the Servicer's servicing obligations, and, in its capacity as the holder of
record, shall take such other action as may be reasonably requested by the
Servicer. In addition, if, as a result of the recording of the related
Assignment of Mortgage, the Owner, in its capacity as the holder of record,
receives written notice of any action with respect to the related Mortgage or
the related Mortgaged Property, the Owner shall send a copy of such notice to
the Servicer immediately in accordance with the provisions of Section 9.8 of
this Agreement. The Owner agrees that the Servicer shall have no liability to
the Owner for the Owner's failure to comply with the provisions set forth in
this paragraph.
Section 6.2 Servicer Covenants; Merger or Consolidation of the
Servicer
(a) The Servicer covenants that it will keep in full force and
effect its existence, rights and franchises, and its status as a Xxxxxx Xxx or
Xxxxxxx Mac approved servicer in good standing and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform its
duties under this Agreement.
(b) Any Person into which the Servicer may be merged or
consolidated, or any business organization resulting from any merger, conversion
or consolidation to which the Servicer shall be a party, or any Person
succeeding to all or substantially all of the business or assets of the Servicer
(whether or not related to loan servicing), shall be the successor of the
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 Servicer shall not, without the
prior written approval of the Owner, be a party to any such merger,
consolidation or conversion, or sell or otherwise dispose of all or
substantially all of its business or assets unless the successor or surviving
person shall be an institution that is a Xxxxxx Mae or Xxxxxxx Mac approved
servicer in good standing.
Section 6.3 Limitation on Liability of the Servicer and Others
The Servicer and the directors, officers, employees or agents of the
Servicer shall not be under any liability to the Owner for (a) any action taken
or for refraining from the taking of any action in good faith pursuant to this
Agreement, (b) errors in judgment, or (c) any action or inaction in accordance
with the direction or consent of the Owner; provided, however, this provision
shall not protect the Servicer against any breach of warranties or
representations made herein, any failure to perform its obligations in
accordance with any standard of care set forth in this Agreement (unless in
accordance with the direction or consent of the Owner), or any liability which
would otherwise be imposed by reason of willful misconduct, bad faith or
negligence in the performance of its duties or by reason of any breach of the
terms and conditions of the Agreement. The Servicer and any officer, employee or
agent of the Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. Subject to Section 6.1, the Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties under this Agreement and which may involve it in any
expense or liability; provided, however, that the Servicer may, with the consent
of the Owner, undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights, duties and the interests of the
parties hereto. In such event, the legal expenses and costs of such action and
any liability resulting therefrom shall be reimbursed to the Servicer in
accordance with Section 6.1.
Section 6.4 Servicer Not to Resign
The Servicer shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Servicer and the Owner or upon the
determination that the Servicer's duties hereunder are no longer permissible
under Applicable Requirements and such incapacity cannot be cured by the
Servicer. Any such determination permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Owner. No such resignation shall become effective until a successor which
satisfies the requirements set forth in Section 9.1 has assumed the Servicer's
responsibilities and obligations hereunder in accordance with such Section.
Without in any way limiting the generality of this Section 6.4, in
the event that the Servicer either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its duties hereunder or any portion
thereof or sell or otherwise dispose of all or substantially all of its property
or assets, without the prior written consent of the Owner, then the Owner shall
have the right to terminate this Agreement upon notice given as set forth in
Section 8.2, without any payment of any penalty or damages and without any
liability whatsoever to the Servicer or any third party.
Section 6.5 No Transfer of Servicing
The Servicer acknowledges that the Owner has entered into this
Agreement with the Servicer in reliance upon the adequacy of the Servicer's
servicing facilities, plan, personnel, records, and procedures, its integrity,
reputation, and financial standing and the continuance thereof. Without in any
way limiting the generality of this Section, the Servicer shall not either
assign this Agreement or the servicing hereunder without the prior written
approval of the Owner in its sole discretion.
ARTICLE VII
DEFAULT
Section 7.1 Events of Default
In case one or more of the following Events of Default by the
Servicer shall occur and be continuing:
(i) any failure by the Servicer to remit to the Owner when due any
payment required to be made under the terms of this Agreement, which
failure continues unremedied for a period of two (2) days after the date
upon which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Owner; the Owner
shall use reasonable efforts to notify the Servicer that it has not
received the payment due, but the Owner's notice shall not be a condition
of the Event of Default; or
(ii) any failure by the Servicer to duly observe or perform, in any
material respect, any other covenant, obligation or agreement of the
Servicer as set forth in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Owner; or
(iii) 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, readjustment of debt, including
bankruptcy, marshaling of assets and liabilities, or similar proceedings,
or for the winding-up or liquidation of its affairs, shall have been
entered against the Servicer and such decree or order shall have remained
in force, undischarged or unstayed for a period of thirty (30) days; or
(iv) the Servicer shall consent to the appointment of a conservator,
receiver or liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or relating to all or substantially all of the Servicer's
property; or
(v) the 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
obligation or ceases its normal business operations for three (3) Business
Days; or
(vi) failure by the Servicer to maintain its license to do business
in any jurisdiction where a Mortgaged Property is located if such license
is required and such failure continues unremedied for a period of thirty
(30) days; or
(vii) the Servicer attempts to assign its right to servicing
compensation hereunder or to assign this Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder or any
portion thereof in violation of this Agreement, including Section 6.5; or
(viii) the Servicer shall cease to be an approved servicer for
Xxxxxx Xxx or Xxxxxxx Mac.
(ix) the Servicer shall cease to have a minimum net worth of
$25,000,000 as determined in accordance with the Financial Accounting
Standards Board's generally accepted accounting principles;
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, the Owner, by notice in writing to the Servicer (in each
such instance, the "Defaulted Servicer"), may, in addition to whatever rights
the Owner may have at law or equity to damages, including injunctive relief and
specific performance, commence termination of all of the rights and obligations
of the Defaulted Servicer under this Agreement and may exercise any and all
other remedies available at law or at equity. Upon receipt by the Defaulted
Servicer of such written notice from the Owner stating the intent to terminate
the Defaulted Servicer as servicer under this Agreement as a result of such
Event of Default, all authority and power of the Defaulted Servicer under this
Agreement, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the successor appointed pursuant to Section 9.1. Upon
written request from the Owner, the Defaulted Servicer shall, at its sole
expense, prepare, execute, and deliver to a successor any and all documents and
other instruments, place in such successor's possession all Collateral Files and
Servicing Files, and do or cause to be done all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, all of
which shall be undertaken immediately and shall be completed as soon as possible
and in all events by not later than thirty (30) Business Days following the
Owner's request therefor. The Defaulted Servicer agrees to cooperate with the
Owner and such successor in effecting the termination of the Defaulted
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer to such successor for administration by it of all cash amounts
which shall at the time be credited by the Defaulted Servicer to the Custodial
Account, the Escrow Account or the REO Account and all other amounts which may
thereafter be received with respect to the Mortgage Loans and to which the
Defaulted Servicer is not entitled pursuant to the terms of this Agreement.
Section 7.2 Waiver of Defaults
The Owner may waive any default by the Defaulted 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 Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereto except to the extent expressly so waived.
Section 7.3 Survival of Certain Obligations and Liabilities of the
Defaulted Servicer
The representations, warranties, covenants, indemnities and
agreements of the parties provided in this Agreement and the parties'
obligations hereunder shall survive the execution and delivery and the
termination or expiration of this Agreement. Notwithstanding any termination of
the rights and obligations of the Defaulted Servicer pursuant to this Section 7,
the Defaulted Servicer shall remain liable for any actions of the Defaulted
Servicer prior to the effective time of such termination.
ARTICLE VIII
TERMINATION
Section 8.1 Termination of Agreement
This Agreement shall terminate upon any of: (i) the later of the
distribution to the Owner of final payment or liquidation with respect to the
last Mortgage Loan and each REO Property, or the disposition of all property
acquired upon foreclosure or deed in lieu of foreclosure with respect to the
last Mortgage Loan and the remittance of all funds due hereunder, (ii) the
mutual consent of the parties in writing, or (iii) the termination of the
Servicer pursuant to Section 8.2.
Section 8.2 Termination of the Servicer due to an Event of Default
(a) Upon 30 days' written notice, the Owner may, at its sole option,
upon the occurrence of an Event of Default and in accordance with Section 7.1,
terminate any rights the Servicer may have hereunder. Any such notice of
termination shall be in writing and delivered to the terminated Servicer (in
such instance, the "Terminated Servicer") by registered mail as provided in
Section 9.8 of this Agreement. If the Owner so terminates the rights of a
Terminated Servicer, the Owner with full cooperation of the Terminated Servicer
shall arrange for the transfer of servicing to, at the Owner's option, the Owner
or a third party, and the Terminated Servicer shall continue servicing, for the
Servicing Fee provided herein, the Mortgage Loans under this Agreement until the
Owner gives the Terminated Servicer notice of the transfer and such transfer has
been completed.
(b) The Terminated Servicer agrees to cooperate with the Owner and
such successor in effecting the termination of the Terminated Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Terminated Servicer to the Custodial
Account, the Escrow Account or the REO Account, or thereafter be received with
respect to the Mortgage Loans and to which the Terminated Servicer is not
entitled pursuant to the terms of this Agreement.
Section 8.3 Termination Without Cause
Upon at least 30 days prior notice, the Owner may terminate, at its
sole option, the Servicer without cause. Any such notice of termination shall be
in writing and delivered to the Servicer and any Rating Agency by registered
mail as provided in Section 9.7. In the event the Owner so chooses to terminate
the Servicer, the Servicer shall be entitled to receive, as liquidated damages,
upon its termination as Servicer hereunder without cause pursuant to this
Section 8.3, an amount equal to one and a half percent (1.5%) of the aggregate
outstanding principal amount of each Mortgage Loan as of the termination date
paid by the Owner to the Servicer.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Successor to the Servicer
(a) Prior to termination of the Servicer's responsibilities and
duties under this Agreement pursuant to Section 6.4, 7.1, 8.1 or 8.2, the Owner
shall either (i) succeed to and assume all of the Servicer's responsibilities,
rights, duties, and obligations under this Agreement from and after the date of
such succession or (ii) appoint a successor to the Servicer that shall succeed
to all rights and assume all of the responsibilities, duties and liabilities of
the Servicer under this Agreement prior to the termination of the Servicer's
responsibilities, duties and liabilities under this Agreement pursuant to
Section 8.2 above. In the event that the Servicer's duties, responsibilities,
and liabilities under this Agreement shall be terminated pursuant to the
foregoing Sections, the Servicer shall discharge such duties and
responsibilities, and be compensated therefor as provided in this Agreement,
during the period from the date it acquires knowledge of such termination until
the effective date thereof with the same degree of diligence and prudence which
it is obligated to exercise under this Agreement and shall take no action
whatsoever that might impair or prejudice the rights or financial condition of
its successor. The resignation or removal of the Servicer pursuant to the
foregoing Sections shall not become effective until a successor shall have been
appointed pursuant to this Section and shall in no event relieve the Servicer of
its non-servicing duties, obligations, covenants, representations and
warranties, it being understood and agreed that the provisions of Sections 5.10,
6.1, Article 7 and Article 8 shall be applicable to the Servicer notwithstanding
any such resignation or termination of the Servicer or the termination of this
Agreement.
(b) The Servicer shall promptly deliver to the successor (i) the
funds in the Custodial Account and the Escrow Account to which the Owner is
entitled pursuant to the terms of this Agreement, (ii) all other funds to which
the Owner is entitled pursuant to the terms of this Agreement net of any
unreimbursed Advances, (iii) all other amounts which may thereafter be received
with respect to the Mortgage Loans and to which the Servicer is not entitled
pursuant to the terms of this Agreement and (iv) all Collateral Files and
Servicing Files and related documents and statements held by it hereunder. The
Servicer shall account for all funds and shall execute and deliver such
instruments and do such other things as may reasonably be required to more fully
and definitively vest in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer.
(c) Upon a successor's acceptance of appointment as such, the Owner
shall notify the Servicer of such appointment.
Section 9.2 Amendment
This Agreement may be amended from time to time by the parties by
written agreement signed by both of the parties.
Section 9.3 Duration of Agreement
This Agreement shall continue in existence and effect until
terminated as herein provided.
Section 9.4 Governing Law
THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS OF NEW
YORK OR ANY OTHER JURISDICTION.
Section 9.5 General Interpretive Principles
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular,
and the use of any gender herein shall be deemed to include the other
gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles;
(iii) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are
to designated Articles, Sections, Subsections, Paragraphs, and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein," "hereof," "hereunder," and other words of
similar import refer to this Agreement as a whole and not to any
particular provision; and
(vi) the term "include" or "including" shall mean without limitation
by reason of enumeration.
Section 9.6 Reproduction of Documents
This Agreement and all documents relating hereto, including without
limitation (i) consents, waivers, and modifications which may hereafter be
executed, (ii) documents received by any party at the closing, and (iii)
financial statements, certificates, and other information previously or
hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, microcard, miniature photographic or other similar process. The
parties agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
Section 9.7 Notices
All demands, notices, consents, waivers and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered or delivered by facsimile, overnight courier, or registered
mail, postage prepaid, or delivered by telefacsimile, to:
(i) in the case of the Servicer, at the address set forth below or
such other address as may hereafter be furnished to the Owner in writing
by the Servicer:
Greenpoint Mortgage Funding, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: _______________
(ii) in the case of the Owner, at the address set forth below, or
such other address as may hereafter be furnished to the Servicer by the
Owner:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxx Farkovits
Tel: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Xxxxxxx Xxxxx Mortgage Company
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxxx Xxxxx Mortgage Company
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and in the case of any subsequent Owner, as set forth in written notice supplied
to the Servicer by such subsequent Owner. All reports that are due to the Owner
from the Servicer pursuant to Section 4.2 shall be deemed to have been duly
given if delivered to the Internet address from time to time provided by the
Owner to the Servicer.
Section 9.8 Severability of Provisions
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other covenants,
agreements, provisions or terms of this Agreement or the rights of the Owner
hereunder. If the invalidity of any part, provision, representation or warranty
of this Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate in good faith to
develop a structure the economic effect of which is nearly as possible the same
as the economic effect of this Agreement without regard to such invalidity.
Section 9.9 Disclosure of Relationship
Each party (including the respective affiliates) shall have the
right upon obtaining prior written consent from the other party, from time to
time, to publish, distribute, advertise or otherwise disclose the relationship
and the general services created and performed under this Agreement; provided,
however, such disclosure shall not identify the amount or nature of fees earned
or to be paid hereunder. No disclosure permitted by this Section 9.10 shall
include any Mortgagor information.
Section 9.10 Exhibits and Schedules
The following exhibits and schedules to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this Agreement:
Exhibit A MORTGAGE LOAN SCHEDULE
Exhibit B LIST OF COLLATERAL DOCUMENTS
Exhibit C LIST OF DOCUMENTS IN CREDIT FILE
Exhibit D FORM OF XXXXXXXX-XXXXX ACT CERTIFICATION
Section 9.11 Counterparts; Successors and Assigns
This Agreement may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Sections 6.4, 6.5, 7.1 and
8.1, this Agreement shall inure to the benefit of and be binding upon the
Servicer, the Owner and their respective successors and assigns.
Section 9.12 Effect of Headings
The headings in this Agreement are for purposes of reference only
and shall not limit or otherwise affect the meaning hereof.
Section 9.13 Other Agreements Superseded
This Agreement supersedes all prior agreements and understandings
relating to the subject matter hereof.
Section 9.14 Confidentiality
Each of the Owner and the Servicer shall employ proper procedures
and standards designed to maintain the confidential nature of the terms of this
Agreement, except to the extent (a) the disclosure of such terms is reasonably
believed by such party to be required in connection with regulatory requirements
or other legal requirements relating to its affairs; (b) such terms are
disclosed to any one or more of such party's employees, officers, directors,
agents, attorneys or accountants who would have access to the contents of this
Agreement and such data and information in the normal course of the performance
of such Person's duties for such party, to the extent such party has procedures
in effect to inform such Person of the confidential nature thereof; (c) such
terms are disclosed in a prospectus, prospectus supplement or private placement
memorandum relating to a Securitization of the Mortgage Loans by the Owner (or
an affiliate assignee thereof) or to any Person in connection with the resale or
proposed resale of all or a portion of the Mortgage Loans by such party in
accordance with the terms of this Agreement; and (d) that is reasonably believed
by such party to be necessary for the enforcement of such party's rights under
this Agreement.
[signatures start on next page]
IN WITNESS WHEREOF, the Servicer and the Owner have caused their
names to be signed to this Servicing Agreement by their respective officers
thereunto duly authorized as of the day and year first above written.
SERVICER:
GREENPOINT MORTGAGE FUNDING, INC.
By:____________________________________
Name:
Title:
OWNER:
XXXXXXX SACHS MORTGAGE COMPANY
By:____________________________________
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[attach read-only diskette]
EXHIBIT B
LIST OF CREDIT DOCUMENTS
Copy of Note
Copy of Mortgage or Deed of Trust, including all riders
Copy of all riders to Note and Mortgage or Deed of Trust
Settlement statement (HUD 1)
Copy of PMI Certificate (if applicable)
Appraisal
Flood determination certificate
Hazard Insurance declaration page
Loan application
EXHIBIT C
LIST OF DOCUMENTS IN COLLATERAL FILE
(a) the original Mortgage Note bearing all intervening endorsements,
endorsed in blank and signed in the name of the Seller by an officer
thereof;
(b) the original Assignment of Mortgage with assignee's name left blank;
(c) the original of any guarantee executed in connection with the Mortgage
Note;
(d) the original Mortgage with evidence of recording thereon, or if any
such mortgage has not been returned from the applicable recording office
or has been lost, or if such public recording office retains the original
recorded mortgage, a photocopy of such mortgage certified by the Seller to
be a true and complete copy of the original recorded mortgage;
(e) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(f) the originals of all intervening assignments of mortgage with evidence
of recording thereon, or if any such intervening assignment of mortgage
has not been returned from the applicable recording office or has been
lost or if such public recording office retains the original recorded
assignments of mortgage, a photocopy of such intervening assignment of
mortgage, certified by the Seller to be a true and complete copy of the
original recorded intervening assignment of mortgage;
(g) the original mortgagee title insurance policy including an
Environmental Protection Agency Endorsement and, with respect to any
Adjustable Rate Mortgage Loan, an adjustable-rate endorsement;
(h) the original of any security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage;
(i) a copy of any applicable power of attorney; and
(j) with respect to any Cooperative Loan, the applicable Cooperative Loan
Documents.
EXHIBIT D
FORM OF XXXXXXXX-XXXXX ACT CERTIFICATION
I, [NAME OF CERTIFYING INDIVIDUAL], a duly elected and acting officer of
Greenpoint Mortgage Funding, Inc., (the "Servicer"), hereby certify, pursuant to
Section 5.4 of that certain Servicing Agreement (the "Agreement"), dated as of
[DATE] between the Servicer and Xxxxxxx Sachs Mortgage Company (the "Owner"), to
[ENTITY NAME] (the "Beneficiary") with respect to the calendar year immediately
preceding the date of this Certificate, as follows:
1. I have reviewed the annual statement of compliance ("Annual Statement
of Compliance") prepared by Servicer, and the annual independent public
accountant's servicing report made in accordance with the Uniform
Single Attestation Program for Mortgage Bankers ("Annual Independent
Public Accountant's Servicing Report"), which have been furnished to
the Beneficiary pursuant to the Agreement and any subsequent servicing
agreement related thereto or to the Mortgage Loans (collectively, the
"Servicing Agreement");
2. Based on my knowledge, the information in the Annual Statement of
Compliance, the Annual Independent Public Accountant's Servicing Report
and all final servicing reports prepared by Servicer and delivered to
the Beneficiary pursuant to the Servicing Agreement relating to the
servicing of the Mortgage Loans, taken as a whole, does not contain any
untrue statement of material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading as of the last
day of the period covered by such statements or reports;
3. Based on my knowledge, the servicing information required to be provided
to the Beneficiary by the Servicer under the Servicing Agreement has been
provided to the Beneficiary;
4. I am responsible for reviewing the activities performed by the Servicer
under the Servicing Agreement and based upon the review required by the
Servicing Agreement, and except as disclosed in the Annual Statement of
Compliance and the Annual Independent Public Accountant's Servicing Report
submitted to the Beneficiary, the Servicer has, as of the last day of the
period covered by the Annual Statement of Compliance, fulfilled its
obligations under the Servicing Agreement; and
5. I have disclosed to the Beneficiary's certified public accountants all
significant deficiencies relating to the Servicer's compliance with the
minimum servicing standards in accordance with a review conducted in
compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar standard as set forth in the Servicing Agreement.
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of July 1, 2004 ("Amendment"), to the
Servicing Agreement, dated as of April 1, 2004, and as further amended, modified
and supplemented from time to time (the "Servicing Agreement"), between XXXXXXX
XXXXX MORTGAGE COMPANY, having an address at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Owner"), and GREENPOINT MORTGAGE FUNDING, INC., having an address at 000
Xxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000 ("Servicer").
RECITALS
WHEREAS, the parties hereto have entered into the Servicing
Agreement;
WHEREAS, the parties hereto desire to modify the Servicing
Agreement as set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Servicing Agreement are used herein as therein defined.
2. Amendments.
(a) The defined term "Ancillary Income" of the Servicing Agreement
is hereby amended by deleting such tem in its entirety and replacing it with the
following:
"Ancillary Income: All income if any, derived from any Mortgage
Loan, including but not limited to late charges, fees received with
respect to checks or bank drafts returned by the related bank for
non-sufficient funds, assumption fees, speed pay fees, reconveyance
and demand statement fees, loan modification fees and reamortization
fees."
(b) Section 3.4 of the Servicing Agreement is hereby amended by
deleting clause (b)(i) in its entirety and replacing it with the following
clause:
"all payments on account of principal, including Principal
Prepayments and, except as otherwise expressly provided in the
related Purchase Price and Terms Letter, the Prepayment Charges,
actually collected by the Servicer on the Mortgage Loans;"
3. Ratification of Agreement. Except as modified and expressly
amended by this Amendment, the Servicing Agreement is in all
respects ratified and confirmed, and all the terms, provisions and
conditions thereof shall be and remain in full force and effect.
4. Counterparts. This Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one
and the same instrument.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY NEW YORK LAW
WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the day and year first above written.
SERVICER:
GREENPOINT MORTGAGE FUNDING, INC.
By:____________________________________
Name:
Title:
OWNER:
XXXXXXX XXXXX MORTGAGE COMPANY
By:____________________________________
Name:
Title:
EXHIBIT N
MASTER MORTGAGE LOAN PURCHASE AGREEMENT,
DATED AS OF FEBRUARY 1, 2004
BETWEEN INDYMAC BANK, F.S.B.
AND XXXXXXX SACHS MORTGAGE COMPANY
EXECUTION COPY
INDYMAC BANK, F.S.B.,
as Seller
and
XXXXXXX XXXXX MORTGAGE COMPANY,
as Purchaser
----------------
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
dated as of February 1, 2004
----------------
Fixed and Adjustable Rate Residential Mortgage Loans
(SERVICING RETAINED)
ARTICLE I
DEFINITIONS
ARTICLE II
PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Books and Records; Transfers of Mortgage Loans....................
Section 2.02 Due Diligence by the Purchaser....................................
Section 2.03 Identification of Mortgage Loan Package...........................
Section 2.04 Credit Document Deficiencies Identified During Due Diligence......
Section 2.05 Delivery of Collateral Files......................................
Section 2.06 Purchase Confirmation.............................................
Section 2.07 Closing...........................................................
Section 2.08 Payment of the Purchase Proceeds..................................
Section 2.09 Entitlement to Payments on the Mortgage Loans.....................
Section 2.10 Payment of Costs and Expenses.....................................
Section 2.11 MERS Mortgage Loans and the MERS System...........................
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Indymac.................
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans...................................................
Section 3.03 Remedies for Breach of Representations and Warranties.............
Section 3.04 Accrual of Cause of Action........................................
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Indymac to Act as Servicer........................................
ARTICLE V
COVENANTS BY INDYMAC
Section 5.01 Indemnification by Indymac........................................
Section 5.02 [RESERVED]
Section 5.03 Merger or Consolidation of Indymac................................
Section 5.04 Limitation on Liability of Indymac and Others.....................
Section 5.05 No Transfer of Servicing..........................................
ARTICLE VI
MISCELLANEOUS
Section 6.01 Notices...........................................................
Section 6.02 Sale Treatment....................................................
Section 6.03 Exhibits..........................................................
Section 6.04 General Interpretive Principles...................................
Section 6.05 Reproduction of Documents.........................................
Section 6.06 Further Agreements................................................
Section 6.07 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers...........................................
Section 6.08 Conflicts between Transaction Documents...........................
Section 6.09 Governing Law.....................................................
Section 6.10 Severability Clause...............................................
Section 6.11 Successors and Assigns............................................
Section 6.12 Relationship of Parties...........................................
Section 6.13 Solicitation of Mortgagor.........................................
Section 6.14 Confidentiality...................................................
Section 6.15 Entire Agreement..................................................
EXHIBITS
Exhibit A Schedule of Collateral Documents..................................
Exhibit B Form of Purchase Confirmation.....................................
Exhibit C Form of Custodial Agreement.......................................
Exhibit D Form of Trade Confirmation........................................
Exhibit E Mortgage File.....................................................
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
This Master Mortgage Loan Purchase Agreement is made and entered
into as of February 1, 2004 (the "Agreement"), between IndyMac Bank, F.S.B.
having an address at 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000
("Indymac"), and Xxxxxxx Sachs Mortgage Company, having an address At 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Purchaser").
R E C I T A L S
- - - - - - - -
The Purchaser has agreed to purchase from Indymac and Indymac has
agreed to sell from time to time to the Purchaser all of Indymac's right, title
and interest, excluding servicing rights, in and to those certain mortgage loans
identified in a Purchase Confirmation (as defined below) executed by Indymac and
the Purchaser. This Agreement is intended to set forth the terms and conditions
by which Indymac shall transfer and the Purchaser shall acquire such mortgage
loans.
In consideration of the promises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Indymac and the Purchaser agree as
follows:
ARTICLE I
DEFINITIONS
Unless the context requires otherwise, all capitalized terms used
herein shall have the meanings assigned to such terms in this Article I unless
defined elsewhere herein. Any capitalized term used or defined in a Purchase
Confirmation that conflicts with the corresponding definition set forth herein
shall supersede such term.
Adjustable Rate Mortgage Loan: Any Mortgage Loan in which the
related Mortgage Note contains a provision whereby the Mortgage Interest Rate is
adjusted from time to time in accordance with the terms of such Mortgage Note.
Agency: Either Xxxxxx Xxx or Xxxxxxx Mac.
Agreement: This Master Mortgage Loan Purchase Agreement, including
all exhibits and supplements hereto, and all amendments hereof.
Applicable Law: All provisions of statutes, rules and regulations,
interpretations and orders of governmental bodies or regulatory agencies
applicable to a Person, and all orders and decrees of all courts and arbitrators
in proceedings or actions in which the Person in question is a party.
Appraised Value: The value of the related Mortgaged Property as set
forth in an appraisal made in connection with the origination of a Mortgage Loan
or the sale price of the related Mortgaged Property if the proceeds of such
Mortgage Loan were used to purchase such Mortgaged Property, whichever is less;
provided, however, that in the case of a Refinanced Mortgage Loan, such value of
the Mortgaged Property is based solely upon the value determined by an appraisal
made for the originator of such Refinanced Mortgage Loan at the time of
origination of such Refinanced Mortgage Loan.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan wherein the Mortgage Note
matures prior to full amortization and requires a final and accelerated payment
of principal.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in either the State of
California or the State of New York are authorized or obligated by law or
executive order to be closed.
Closing: The consummation of the sale and purchase of each Mortgage
Loan Package.
Closing Date: The date on which the purchase and sale of the
Mortgage Loans constituting a Mortgage Loan Package is consummated, as set forth
in the Trade Confirmation or Purchase Confirmation.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time or any successor statute thereto, and applicable U.S. Department of
the Treasury regulations issued pursuant thereto.
Collateral Documents: The collateral documents pertaining to each
Mortgage Loan as set forth in Exhibit A hereto.
Collateral File: With respect to each Mortgage Loan, a file
containing each of the Collateral Documents.
Combined Loan-to-Value Ratio: As of any date and as to any Mortgage
Loan, the ratio, expressed as a percentage, of the (a) sum of (i) the Stated
Principal Balance (or the original principal balance, if so indicated) of such
Mortgage Loan and (ii) the Stated Principal Balance (or the original principal
balance, if so indicated) as of such date of any mortgage loan or mortgage loans
that are senior or equal in priority to the Mortgage Loan and which are secured
by the same Mortgaged Property to (b) the Appraised Value of the related
Mortgaged Property.
Condemnation Proceeds: All awards or settlements in respect of a
taking of an entire Mortgaged Property by exercise of the power of eminent
domain or condemnation.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements constituting
the Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by
the Cooperative Corporation, including the allocation of individual dwelling
units to the holders of the Coop Shares of the Cooperative Corporation.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Credit File: The file retained by Indymac that includes the mortgage
loan documents pertaining to a Mortgage Loan including copies of the Collateral
Documents together with the credit documentation relating to the origination of
such Mortgage Loan, which Credit File may be maintained by Indymac on microfilm
or any other comparable medium.
Custodial Account: The account or accounts created and maintained
pursuant to Section 4.4 of the Servicing Agreement, each of which shall be an
Eligible Account.
Custodial Agreement: The letter agreement, substantially in the form
of Exhibit C, that governs the temporary retention of the Collateral Files by
the Custodian with respect to a Closing Date.
Custodian: JPMorgan Chase Bank, its successor in interest or assign,
or such other custodian that may be designated by the Purchaser from time to
time.
Cut-off Date: The first day of the month in which the related
Closing Date occurs or such other date as may be set forth in the related Trade
Confirmation or Purchase Confirmation.
Cut-off Date Balance: The aggregate scheduled unpaid principal
balance of the Mortgage Loans in a Mortgage Loan Package as of the Cut-off Date,
after application of (i) scheduled payments of principal due on such Mortgage
Loans on or before such Cut-off Date, whether or not collected, and (ii) any
Principal Prepayments received from the Mortgagor prior to the Cut-off Date.
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: The first day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Eligible Account: An account or accounts (i) maintained with a
federal or state chartered depository institution the short term debt
obligations of which are rated by a nationally recognized statistical rating
agency in its highest rating categories at the time of any deposit therein and
(ii) the deposits of which are insured up to the maximum permitted by the FDIC.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 4.6 of the Servicing Agreement, each of which
shall be an Eligible Account.
Escrow Payments: The amounts constituting ground rents, taxes,
assessments, water rates, mortgage insurance premiums, fire and hazard insurance
premiums, flood insurance premiums, and other payments required to be escrowed
by the Mortgagor with the Mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 7.1 of the Servicing Agreement.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Xxxxxx Xxx: The Federal National Mortgage Association or any
successor organization.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first lien
on the related Mortgaged Property.
Fixed Rate Mortgage Loan: Any Mortgage Loan wherein the Mortgage
Interest Rate set forth in the Mortgage Note is fixed for the term of such
Mortgage Loan.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989, as amended and in effect from time to time.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation or any
successor organization.
Funding Deadline: With respect to each Closing Date, one o'clock
(1:00) p.m. New York time.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note, which amount
is added to the index in accordance with the terms of the related Mortgage Note
to determine on each Interest Adjustment Date, the Mortgage Interest Rate for
such Mortgage Loan.
HUD: The Department of Housing and Urban Development or any federal
agency or official thereof which may from time to time succeed to the functions
thereof.
Index: With respect to any Adjustable Rate Mortgage Loan on each
Interest Adjustment Date the applicable index as set forth in the related
Mortgage Note.
Indymac: IndyMac Bank, F.S.B., or any successor or assign to Indymac
under this Agreement as provided herein.
Interest Adjustment Date: With respect to an Adjustable Rate
Mortgage Loan, the date on which an adjustment to the Mortgage Interest Rate on
a Mortgage Note becomes effective.
Lifetime Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the absolute maximum Mortgage Interest Rate payable, above which the
Mortgage Interest Rate shall not be adjusted, as set forth in the related
Mortgage Note and Mortgage Loan Schedule.
Liquidation Proceeds: Amounts, other than PMI Proceeds, Condemnation
Proceeds and Other Insurance Proceeds, received by Indymac in connection with
the liquidation of a defaulted Mortgage Loan through trustee's sale, foreclosure
sale or otherwise, other than amounts received following the acquisition of an
REO Property pursuant to Section 4.13.
LPMI Fee: The portion of the Mortgage Interest Rate relating to an
LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to be
retained by Indymac to pay the premium due on the PMI Policy with respect to
such LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which Indymac is
responsible for paying the premium due on the related PMI Policy with the
proceeds generated by the LPMI Fee relating to such Mortgage Loan, as set forth
on the related Mortgage Loan Schedule.
LTV: With respect to any Mortgage Loan, the ratio (expressed as a
percentage) of the Stated Principal Balance (or the original principal balance,
if so indicated) of such Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc. or any
successor or assign thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS System.
MERS System: The electronic system of recording transfers of
mortgages maintained by MERS.
MIC: A mortgage insurance certificate issued by HUD.
Missing Credit Documents: As defined in Section 2.04 hereof.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: With respect to a Mortgage Loan that is not a Cooperative
Loan, the mortgage, deed of trust or other instrument securing a Mortgage Note,
which creates a first lien, in the case of a First Lien Mortgage Loan, on an
unsubordinated estate in fee simple in real property securing the Mortgage Note;
except that with respect to real property located in jurisdictions in which the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien , upon a leasehold estate of the
Mortgagor. With respect to a Cooperative Loan, the security agreement creating a
security interest in the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Cooperative Loan
and the related Cooperative Lease.
Mortgage File: With respect to any Mortgage Loan, the items listed
in Exhibit E hereto and any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate at which interest accrues on
any Mortgage Loan and, with respect to an Adjustable Rate Mortgage Loan, as
adjusted from time to time in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to this
Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, PMI Proceeds
(if applicable), Other Insurance Proceeds, REO Disposition proceeds, and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan, excluding the servicing rights relating thereto. Unless
the context requires otherwise, any reference to the Mortgage Loans in this
Agreement shall refer to the Mortgage Loans constituting a Mortgage Loan
Package.
Mortgage Loan Package: The Mortgage Loans sold to the Purchaser
pursuant to a Purchase Confirmation.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the interest rate payable to the Purchaser on each Remittance Date which shall
equal the Mortgage Interest Rate less the Servicing Fee and the LPMI Fee, if
applicable.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed hereto
as Exhibit A, such schedule setting forth the following information with respect
to each Mortgage Loan: (1) the Seller's Mortgage Loan number; (2) the address,
city, state and zip code of the Mortgaged Property (or, in the case of each
Co-op Loan, of the related Cooperative Unit); (3) a code indicating whether the
Mortgagor is self-employed; (4) a code indicating whether the Mortgaged Property
is owner-occupied, investment property or a second home; (5) a code indicating
whether the Mortgaged Property is a single family residence, two-family
residence, three-family residence, four family residence, condominium,
manufactured housing, mixed-use property, raw land and other non-residential
properties, planned unit development or cooperative stock in a cooperative
housing corporation; (6) the purpose of the Mortgage Loan; (7) the type of
Mortgage Loan (i.e., Fixed Rate or Adjustable Rate Mortgage Loan); (8) the
Mortgage Interest Rate at origination; (9) the current Mortgage Interest Rate;
(10) whether the Mortgage Loan has Monthly Payments that are interest only for a
period of time; (11) the Servicing Fee Rate; (12) the current Monthly Payment;
(13) the original term to maturity; (14) the remaining term to maturity; (15)
the principal balance of the Mortgage Loan as of the Cut-off Date after
deduction of payments of principal due on or before the Cut-off Date whether or
not collected; (16) the LTV at origination and if the Mortgage Loan has a second
lien, combined LTV at origination; (17) the actual principal balance of the
Mortgage Loan as of the Cut-off Date; (18) social security number of the
Mortgagor; (19) a code indicating whether the Mortgage Loan has negative
amortization and the maximum amount of such negative amortization; (20) a code
indicating whether the Mortgage Loan had a second lien at origination; (21) if
the Mortgage Loan has a second lien, combined loan balance as of the Cut-off
Date; (22) a code indicating whether the Mortgaged Property is a leasehold
estate; (23) the due date of the Mortgage Loan; (24) whether the Mortgage Loan
is insured by a Primary Mortgage Insurance Policy and the name of the insurer;
(25) the certificate number of the Primary Mortgage Insurance Policy; (26) the
amount of coverage of the Primary Mortgage Insurance Policy; (27) the type of
appraisal; (28) a code indicating whether the Mortgage Loan is a MERS Mortgage
Loan; (29) a code indicating whether the Mortgage Loan is subject to a prepay
penalty and the terms of such prepayment penalty; (30) documentation type
(including asset and income type); (31) first payment date; (32) the schedule of
the payment delinquencies in the prior 12 months and (33) FICO score. With
respect to any Adjustable Rate Mortgage: (a) the Gross Margin; (b) the Periodic
Rate Cap; (c) the Lifetime Rate Cap; (d) the first Interest Adjustment Date cap
and the Interest Adjustment Date frequency; (e) the minimum Mortgage Interest
Rate; (f) the first Interest Adjustment Date immediately following the Cut-off
Date; and (g) the Index, including the methodology for rounding (e.g. rounded
upward, if necessary, to the next nearest ten thousandth (.0001)) and the
applicable time frame for determining the Index.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Cooperative Loan, the underlying real property securing repayment of a Mortgage
Note, consisting of a single parcel of real estate considered to be real estate
under the laws of the State in which such real property is located, which may
include condominium units and planned unit developments, improved by a
residential dwelling; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, a leasehold estate of the Mortgagor, the term of
which is equal to or longer than the term of the Mortgage. With respect to a
Cooperative Loan, the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Cooperative Loan
and the related Cooperative Lease.
Mortgagee: The mortgagee or beneficiary named in the Mortgage and
the successors and assigns of such mortgagee or beneficiary.
Mortgagor: The obligor on a Mortgage Note and their successors in
title to the Mortgaged Property.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the party on behalf of whom the opinion is being given, reasonably
acceptable to the Purchaser.
Other Insurance Proceeds: Proceeds of any title policy, hazard
policy, pool policy or other insurance policy covering a Mortgage Loan, other
than the PMI Policy, 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 Indymac would follow in
servicing mortgage loans held for its own account.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a trust to be formed as part of a publicly
issued or privately placed mortgage-backed securities transaction.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute maximum
amount by which the Mortgage Interest Rate therein may increase or decrease on
an Adjustment Date above or below the Mortgage Interest Rate previously in
effect, equal to the rate set forth on the Mortgage Loan Schedule per
adjustment.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
PMI Policy: A policy of private mortgage guaranty insurance
relating to a Mortgage Loan and issued by a Qualified Insurer.
PMI Proceeds: Proceeds of any PMI Policy.
Preliminary Mortgage Loan Package: The mortgage loans identified or
described in a Trade Confirmation, which, subject to the Purchaser's due
diligence as contemplated in Section 2.02, are intended to be sold under this
Agreement as a Mortgage Loan Package.
Preliminary Mortgage Loans: The mortgage loans constituting a
Preliminary Mortgage Loan Package.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
excluding any prepayment penalty or premium thereon (unless the Purchase
Confirmation provides otherwise), which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Purchase Confirmation: A letter agreement, substantially in the form
of Exhibit B hereto, executed by Indymac and the Purchaser in connection with
the purchase and sale of each Mortgage Loan Package, which sets forth the terms
relating thereto including a description of the related Mortgage Loans
(including the Mortgage Loan Schedule), the purchase price for such Mortgage
Loans, the Closing Date and the Servicing Fee Rate.
Purchase Proceeds: The amount paid on the related Closing Date by
the Purchaser to Indymac in exchange for the Mortgage Loan Package purchased on
such Closing Date as set forth in the applicable Purchase Confirmation.
Purchaser: The Person identified as the "Purchaser" in the preamble
to this Agreement or its successor in interest or any successor or assign to the
Purchaser under this Agreement as herein provided. Any reference to "Purchaser"
as used herein shall be deemed to include any designee of the Purchaser, so long
as such designation was made in accordance with the limitations set forth in
Section 6.07.
Qualification Defect: With respect to a Mortgage Loan, (a) a
defective document in the Credit File or the Mortgage File, (b) the absence of a
document in the Credit File or Mortgage File, or (c) the breach of any
representation, warranty or covenant with respect to the Mortgage Loan made by
Indymac, but, in each case, only if the affected Mortgage Loan would cease to
qualify as a "qualified mortgage" for purposes of the REMIC provisions.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, which insurer is approved in such
capacity by an Agency.
Qualified Substitute Mortgage Loan: A mortgage loan that must, on
the date of such substitution, (i) have an unpaid principal balance, after
deduction of all scheduled payments due in the month of substitution (or if more
than one (1) mortgage loan is being substituted, an aggregate principal
balance), not in excess of the unpaid principal balance of the repurchased
Mortgage Loan (the amount of any shortfall will be deposited in the Custodial
Account by Indymac in the month of substitution); (ii) have a Mortgage Interest
Rate not less than, and not more than 1% greater than, the Mortgage Interest
Rate of the repurchased Mortgage Loan; (iii) have a remaining term to maturity
not greater than, and not more than one year less than, the maturity date of the
repurchased Mortgage Loan; (iv) comply with each representation and warranty
(respecting individual Mortgage Loans) set forth in Section 3.02 hereof; (v)
shall be the same type of Mortgage Loan (i.e., an Adjustable Rate Mortgage Loan
or a Fixed Rate Mortgage Loan).
Reconstitution Date: The date on which any or all of the Mortgage
Loans serviced under this Agreement shall be removed from this Agreement and
reconstituted as part of a Pass-Through Transfer pursuant to Section 6.07
hereof. The Reconstitution Date shall be such date which the Purchaser shall
designate in writing.
Refinanced Mortgage Loan: A Mortgage Loan the proceeds of which were
not used to purchase the related Mortgaged Property.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
Remittance Date: The eighteenth (18th) day of any month, beginning
with the month next following the month in which the related Cut-off Date
occurs, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately following.
REO Disposition: The final sale by Indymac of any REO Property or
the transfer of the management of such REO Property to the Purchaser as set
forth in Section 4.13.
REO Property: A Mortgaged Property acquired by Indymac on behalf of
the Purchaser as described in Section 4.13.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to (i) the Stated Principal Balance of the Mortgage Loan as of the date of
repurchase plus (ii) interest on such Stated Principal Balance at the Mortgage
Loan Remittance Rate from the last date through which interest has been paid and
distributed to the Purchaser to the last day of the month in which the
repurchase occurs, less amounts received or advanced in respect of such
repurchased Mortgage Loan which such amounts are being held in the Custodial
Account for distribution in the month of repurchase plus (iii) with respect to
any Mortgage Loan included in a Pass-Through Transfer, damages incurred by the
Purchaser or its assignee including the trust in any securitization in
connection with any violation by such Mortgage Loan of any predatory or abusive
lending law provided, however, that if at the time of repurchase the Servicer is
not the Seller or an affiliate of the Seller, the amount described in clause
(ii) shall be computed at the sum of (a) the Mortgage Loan Remittance Rate and
(b) the Servicing Fee Rate.
Security Agreement: With respect to any Cooperative Loan, the
agreement between the owner of the related Coop Shares and the originator of the
related Mortgage Note that defines the terms of the security interest in such
Coop Shares and the related Proprietary Lease.
Servicing Agreement: The agreement dated as of February 1, 2004 and
signed by the Purchaser and Indymac with respect to the administration and
servicing of the Mortgage Loans.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Purchaser shall pay to Indymac, which shall, for a period of one
full month, be equal to one-twelfth of the product of (i) the Servicing Fee Rate
and (ii) the Stated Principal Balance of such Mortgage Loan. Such fee shall be
payable monthly, computed on the basis of the same principal amount and period
respecting which any related interest payment on a Mortgage Loan is computed.
The obligation of the Purchaser to pay the Servicing Fee is limited to, and the
Servicing Fee is payable solely from, the interest portion of such Monthly
Payment collected by Indymac, or as otherwise provided herein. Subject to the
foregoing, and with respect to each Mortgage Loan, Indymac shall be entitled to
receive its Servicing Fee through the disposition of any related REO Property
and the Servicing Fee payable with respect to any REO Property shall be based on
the Stated Principal Balance of the related Mortgage Loan at the time of
foreclosure.
Servicing Fee Rate: With respect to any Mortgage Loan, the rate per
annum set forth in the applicable Trade Confirmation or Purchase Confirmation.
Stated Principal Balance: With respect to each Mortgage Loan as of
any date of determination: (i) the unpaid principal balance of the Mortgage Loan
at the Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal or advances in lieu thereof.
Trade Confirmation: A letter agreement substantially in the form of
Exhibit D hereto executed by Indymac and the Purchaser prior to the applicable
Closing Date confirming the terms of a prospective purchase and sale of a
Mortgage Loan Package.
Transaction Documents: With respect to any Mortgage Loan, the
related Trade Confirmation, the related Purchase Confirmation, the Custodial
Agreement, the Servicing Agreement and this Agreement.
Updated LTV: With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the date of determination divided
by the value of the related Mortgaged Property as determined by a recent
appraisal of the Mortgaged Property.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans by the Purchaser to a third party, which sale or transfer is not
a Pass-Through Transfer.
ARTICLE II
PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Books and Records; Transfers of Mortgage Loans.
From and after the sale of the Mortgage Loans to the Purchaser, all
rights arising out of the Mortgage Loans including but not limited to all funds
received on or in connection with the Mortgage Loans on account of interest and
principal due after the Cut-off Date, shall be held by Indymac in trust for the
benefit of the Purchaser as owner of the Mortgage Loans, and Indymac shall
retain record title to the related Mortgage Loans for the sole purpose of
facilitating the servicing and the supervision of the servicing of the Mortgage
Loans.
The sale of each Mortgage Loan shall be reflected on Indymac's
balance sheet and other financial statements as a sale of assets by Indymac.
Indymac shall be responsible for maintaining, and shall maintain, a complete set
of books and records for each Mortgage Loan which shall be marked clearly to
reflect the ownership of each Mortgage Loan by the Purchaser. In particular,
Indymac shall maintain in its possession, available for inspection by the
Purchaser, or its designee, and shall deliver to the Purchaser upon demand,
evidence of compliance with all federal, state and local laws, rules and
regulations, and requirements of FNMA or FHLMC, including but not limited to
documentation as to the method used in determining the applicability of the
provisions of the National Flood Insurance Act of 1968, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and eligibility
of any condominium project under the Underwriting Guidelines, and periodic
inspection reports as required by Section 3.15 of the Servicing Agreement. To
the extent that original documents are not required for purposes of realization
of Liquidation Proceeds or Insurance Proceeds, documents maintained by Indymac
may be in the form of microfilm or microfiche or such other reliable means of
recreating original documents, including but not limited to, optical imagery
techniques so long as Indymac complies with the requirements of the FNMA or
FHLMC Selling and Servicing Guide, as amended from time to time. Indymac shall
indemnify the Purchaser and hold it harmless against any damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and other costs and expenses resulting from the unenforceability (as
determined by a court of competent jurisdiction) of any Mortgage Loan document
recreated in the manner described in the foregoing sentence against the
applicable Mortgagor as a result of such recreation or the absence of such
original Mortgage Loan document.
Section 2.02 Due Diligence by the Purchaser.
Review of Credit File and Mortgage File. At least 15 days prior to
the Closing Date, Indymac shall make available to the Purchaser the Credit File
and the Mortgage File for each Preliminary Mortgage Loan in the related
Preliminary Mortgage Loan Package and shall accommodate reasonable requests by
the Purchaser to provide personnel and documents as necessary to facilitate the
review. The Purchaser shall have the right to review the Credit File and the
Mortgage File for each such Preliminary Mortgage Loan, at Indymac's offices or
such other location agreed upon by the Purchaser and Indymac, for the purpose of
determining whether each Preliminary Mortgage Loan conforms in all material
respects to the applicable terms contained in the Transaction Documents, which
determination shall be made in the Purchaser's sole discretion; provided,
further, that the Purchaser, in its sole discretion, has the right to reject any
Preliminary Mortgage Loan if the original Mortgage Note for such Preliminary
Mortgage Loan is lost. In the event that the Purchaser rejects any Preliminary
Mortgage Loan based on such review, Indymac shall have the opportunity, at the
discretion of the Purchaser, to substitute replacement Preliminary Mortgage
Loans satisfying the requirements set forth above, and the Purchaser shall have
the right to review any such replacement Preliminary Mortgage Loan(s) in the
manner contemplated above. Such examination may be made by the Purchaser or its
designee, at its expense, at any reasonable time before the Closing Date. Such
underwriting by the Purchaser or its designee shall not impair or diminish the
rights of the Purchaser or any of its successors under this Agreement with
respect to a breach of the representations and warranties contained in this
Agreement, provided that the Purchaser and Indymac shall notify the other upon
discovery of any breach of the representations and warranties contained in this
Agreement. The fact that the Purchaser or its designee has conducted or has
failed to conduct any partial or complete examination of the Credit Files and
the Mortgage Files shall not affect the Purchaser's or any of its successors'
rights to demand repurchase or other relief or remedy provided for in this
Agreement, subject to the notification requirement of Section 3.03.
Section 2.03 Identification of Mortgage Loan Package.
At least three (3) Business Days prior to the Closing Date, the
Purchaser shall identify those Preliminary Mortgage Loans that the Purchaser
intends to be included in the Mortgage Loan Package.
Section 2.04 Credit Document Deficiencies Identified During Due
Diligence.
If, with respect to a Mortgage Loan Package, the related Purchase
Confirmation identifies any Mortgage Loan for which the related Credit File or
the Mortgage File is missing material documentation (as used therein, the
"Missing Credit Documents"), Indymac agrees to use its best efforts to procure
each such Missing Credit Document within sixty (60) days following the related
Closing Date. In the event of a default by a Mortgagor or any material
impairment of the Mortgaged Property, in either case directly arising from a
breach of Indymac's obligation to deliver the Missing Credit Document within the
time specified above, Indymac shall repurchase such Mortgage Loan at the
Repurchase Price.
Section 2.05 Delivery of Collateral Files.
Custodial Agreement. Indymac shall, no later than five (5) Business
Days prior to the related Closing Date, pursuant to the Custodial Agreement
deliver and release to the Custodian the Collateral File for each Mortgage Loan
in the Mortgage Loan Package and shall execute, and cause the Custodian to
execute, the Custodial Agreement. The Custodian has certified its receipt of all
such Collateral Documents required to be delivered pursuant to the Custodial
Agreement. Indymac will be responsible for the fees and expenses with respect to
the delivery and will be responsible for the fees and expenses related to the
recording of the initial Assignments of Mortgage (including any fees and
expenses related to any preparation and recording of any intervening or prior
assignments of the Mortgage Loans to Indymac or to any prior owners of or
mortgagees with respect to the Mortgage Loans) or Form UCC-3's for Cooperative
Loans. The Purchaser will be responsible for the Custodian's fees and expenses
as set forth in the Custodial Agreement.
Indymac shall forward to the Custodian original documents evidencing
an assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 3.1(c) or 5.1 of the Servicing Agreement
within two weeks of their execution, provided, however, that Indymac shall
provide the Custodian with a certified true copy of any such document submitted
for recordation within ten (10) days of its execution, and shall provide the
original of any document submitted for recordation or a copy of such document
certified by the appropriate public recording office to be a true and complete
copy of the original within 120 days of its submission for recordation.
In the event the public recording office is delayed in returning any
original document, Indymac shall deliver to the Custodian within 240 days of its
submission for recordation, a copy of such document and an Officer's
Certificate, which shall (i) identify the recorded document; (ii) state that the
recorded document has not been delivered to the Custodian due solely to a delay
by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian. The Company will be required to
deliver the document to the Custodian by the date specified in (iv) above.
Notwithstanding the foregoing, if the originals or certified copies
required in this Section 2.05 are not delivered as required within 90 days
following the Closing Date or as otherwise extended as set forth above, the
related Mortgage Loan shall, upon request of the Purchaser, be repurchased by
Indymac in accordance with Section 3.03 hereof; provided, however, that the
foregoing repurchase obligation shall not apply in the event Indymac cannot
deliver such items due to a delay caused by the recording office in the
applicable jurisdiction; provided that Indymac shall deliver instead a recording
receipt of such recording office or, if such recording receipt is not available,
an Officer's Certificate from Indymac confirming that such documents have been
accepted for recording. Any such document shall be delivered to the Purchaser or
its designee promptly upon receipt thereof from the related recording office.
If Indymac, the Purchaser or the Custodian finds any document or
documents constituting a part of a Credit File or Mortgage File pertaining to a
Mortgage Loan to be defective (or missing) in any material respect, and such
defect or missing document materially and adversely affects the value of the
related Mortgage Loan or the interests of the Purchaser therein, the party
discovering such defect shall promptly so notify Indymac. Indymac shall have a
period of 90 days after receipt of such written notice within which to correct
or cure any such defect. Indymac hereby covenants and agrees that, if any
material defect cannot be corrected or cured, Indymac will, upon the expiration
of the applicable cure period described above, repurchase the related Mortgage
Loan in the manner set forth in Section 3.03; provided, however, that with
respect to any Mortgage Loan, if such defect constitutes a Qualification Defect,
any such repurchase must take place within 60 days of the date such defect is
discovered.
Notwithstanding the foregoing, with respect to a Mortgage Loan, if,
at the end of such 90-day period, Indymac delivers an Officer's Certificate to
the Purchaser certifying that Indymac is using good faith efforts to correct or
cure such defect and identifying progress made, then the Purchaser shall grant
Indymac an extension to correct or cure such defect. The extension shall not
extend beyond (1) if the defect is a Qualification Defect, the date that is 60
days after the date the defect is discovered, or, (2) if the defect is not a
Qualification Defect (as evidenced by an Opinion of Counsel), the date that is
30 days beyond the original 90-day cure period. If the defect is not a
Qualification Defect, additional 30-day extensions may be obtained pursuant to
the same procedure, as long as Indymac demonstrates continued progress toward a
correction or cure; provided that no extension shall be granted beyond 180 days
from the date on which the Company received the original notice of the defect.
Notwithstanding the foregoing, with respect to a Mortgage Loan, the
failure of the Purchaser to notify Indymac of any defective or missing document
in a Credit File or Mortgage File within such 90-day period, or the failure of
the Purchaser to require Indymac to cure or repurchase the related Mortgage Loan
upon expiration of such 90-day period, shall not constitute a waiver of its
rights hereunder, including the rights with respect to a Mortgage Loan, to
require Indymac to repurchase the affected Mortgage Loan and the right to
indemnification pursuant to Section 3.03 hereof.
Section 2.06 Purchase Confirmation.
Upon confirmation with the Purchaser of a Mortgage Loan Package,
Indymac shall prepare and deliver to the Purchaser for execution the related
Purchase Confirmation, executed by an authorized signatory of Indymac.
Section 2.07 Closing.
The Closing of each Mortgage Loan Package shall take place on the
related Closing Date and shall be subject to the satisfaction of each of the
following conditions, unless otherwise waived by the prejudiced party(ies):
(a) All of the representations and warranties of Indymac under this
Agreement shall be true and correct as of the Closing Date and no event shall
have occurred that, with notice or the passage of time, would constitute a
default under this Agreement;
(b) Both parties shall have executed and delivered the related
Purchase Confirmation, Trade Confirmation, Servicing Agreement and Custodial
Agreement;
(c) Indymac shall have delivered and released to the Custodian all
documents required pursuant to this Agreement and the Custodial Agreement; and
(d) All other terms and conditions of this Agreement have been
complied with.
Section 2.08 Payment of the Purchase Proceeds.
Subject to the conditions set forth in Section 2.07, and in
consideration for the Mortgage Loan Package to be purchased by the Purchaser on
the related Closing Date, the Purchaser shall pay to Indymac on such Closing
Date the Purchase Proceeds by wire transfer of immediately available funds to
the account designated by Indymac on or before the Funding Deadline.
Section 2.09 Entitlement to Payments on the Mortgage Loans.
With respect to any Mortgage Loan purchased hereunder, the Purchaser
shall be entitled to (a) all scheduled principal due after the related Cut-off
Date; (b) all other recoveries of principal collected after the related Cut-off
Date, except for (i) recoveries of principal collected after the Cut-off Date
and prior to the Closing Date that are reflected in the Mortgage Loan Schedule,
and (ii) all scheduled payments of principal due on or before the related
Cut-off Date; and (c) all payments of interest on such Mortgage Loan net of
interest at the Servicing Fee Rate and the LPMI Fee, if applicable (minus that
portion of any such payment that is allocable to the period prior to the related
Cut-off Date) due after the Cut-off Date.
Section 2.10 Payment of Costs and Expenses.
The Purchaser and Indymac shall each bear its own costs and expenses
in connection with the purchase and sale of the Mortgage Loans including any
commissions due its sales personnel, the legal fees and expenses of its
attorneys and any due diligence expenses. Without limiting the generality of the
foregoing, any costs and expenses incurred in connection with recording the
Assignment of Mortgage or any subsequent assignment thereof shall be paid for by
the Purchaser.
Section 2.11 MERS Mortgage Loans and the MERS System.
(a) Notwithstanding anything contained in this Agreement to the
contrary, with respect to any MERS Mortgage Loan sold to the Purchaser by
Indymac pursuant to this Agreement, Indymac shall cause the registration of such
MERS Mortgage Loan to be changed on the MERS System to reflect the Purchaser as
the beneficial owner of such MERS Mortgage Loan. The foregoing obligation of
Indymac shall be in lieu of Indymac delivering to the Purchaser an Assignment of
Mortgage for such MERS Mortgage Loan. With respect to the Mortgage and
intervening assignments related to any MERS Mortgage Loan, Indymac shall, in
accordance with Section 2.05, provide the Purchaser with the original Mortgage
with evidence of registration with MERS and, as applicable, the originals of all
intervening assignments of the Mortgage with evidence of recording thereon prior
to the registration of the Mortgage Loan with the MERS System.
(b) In connection with the MERS System, Indymac is hereby
authorized and empowered, in its own name, to register, or change the
registration of any MERS Mortgage Loan to effectuate such registration. Further,
Indymac is authorized to cause the removal of any MERS Mortgage Loan from such
registration, and to execute and deliver on behalf of itself and the Purchaser,
any and all instruments of assignment and comparable instruments with respect to
any registration and/or removal of such MERS Mortgage Loan on or from the MERS
System.
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Indymac.
Indymac represents, warrants and covenants to the Purchaser that, as
of each Closing Date:
(a) Organization and Standing. Indymac is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
organized and is qualified and licensed to transact business in and is in good
standing under the laws of each state where each Mortgaged Property is located
to the extent necessary to ensure the enforceability of each Mortgage Loan and
the servicing of the Mortgage Loan in accordance with the terms of this
Agreement. The execution, delivery and performance of this Agreement (including
all instruments of transfer to be delivered pursuant to this Agreement) by
Indymac and the consummation of the transactions contemplated hereby have been
duly and validly authorized. This Agreement evidences the valid, binding and
enforceable obligation of Indymac; and all requisite corporate action has been
taken by Indymac to make this Agreement valid and binding upon Indymac in
accordance with its terms;
(b) Due Authority. Indymac has the full power and authority to (i)
perform and enter into and consummate all transactions contemplated by this
Agreement and (ii) to sell each Mortgage Loan;
(c) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of Indymac, which is in the business of selling and servicing loans,
and the transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by Indymac pursuant to this Agreement are not subject to the bulk
transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(d) No Conflict. Neither the acquisition or origination of the
Mortgage Loans by Indymac, the sale of the Mortgage Loans to the Purchaser, the
consummation of the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement, will conflict with
or result in a breach of any of the terms, conditions or provisions of Indymac's
certificate of incorporation or by-laws or result in a material breach of any
legal restriction or any material agreement or instrument to which Indymac is
now a party or by which it is bound, or constitute a material default or result
in an acceleration under any of the foregoing, or result in the violation of any
material law, rule, regulation, order, judgment or decree to which Indymac or
its property is subject;
(e) Approved Seller. Indymac is an approved seller/servicer for
each Agency in good standing and is a mortgagee approved by the Secretary of
HUD. No event has occurred, including a change in insurance coverage, which
would make Indymac unable to comply with Xxxxxx Xxx, Xxxxxxx Mac or HUD
eligibility requirements. Furthermore, if at any time prior to the termination
of this Agreement, Indymac is unable to comply with any of the Xxxxxx Mae,
Xxxxxxx Mac or HUD eligibility requirements, it shall immediately notify the
Purchaser that it is no longer an approved seller/servicer as defined in the
first sentence above;
(f) No Pending Litigation. There is no action, suit, proceeding,
investigation or litigation pending or, to Indymac's knowledge, threatened,
which either in any one instance or in the aggregate, if determined adversely to
Indymac would materially and adversely affect the sale of the Mortgage Loans to
the Purchaser, the ability of Indymac to service the Mortgage Loans hereunder in
accordance with the terms hereof, or Indymac's ability to perform its
obligations under this Agreement;
(g) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by Indymac, of or compliance by Indymac with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date;
(h) Reasonable Servicing Fee. Indymac acknowledges and agrees that
the Servicing Fee represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by Indymac, for
accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement;
(i) Ability to Perform. Indymac does not believe, nor does it have
any reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement. Indymac is solvent and the sale of the Mortgage
Loans will not cause Indymac to become insolvent. The sale of the Mortgage Loans
is not undertaken to hinder, delay or defraud any of Indymac's creditors;
(j) No Untrue Information. Neither this Agreement nor any
statement, report or other document prepared and furnished, or to be furnished
pursuant to this Agreement or in connection with the transactions contemplated
hereby, by Indymac contains any untrue statement of fact or omits to state a
fact necessary to make the statements contained therein not misleading;
(k) Sale Treatment. Indymac has determined that the disposition of
the Mortgage Loans pursuant to this Agreement will be afforded sale treatment
for accounting and tax purposes;
(l) Fair Credit Report Act. Indymac, in its capacity as servicer
for each Mortgage Loan, has fully furnished (or caused to be furnished), in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on its
borrower credit files to Equifax, Experian and Trans Union Credit Information
Company (three of the credit repositories) or their successors and assigns, on a
monthly basis;
(m) No Brokers' Fees. Indymac has not dealt with any broker,
investment banker, agent or other Person that may be entitled to any commission
or compensation in the connection with the sale of the Mortgage Loans;
(n) Fair Consideration. The consideration received by Indymac upon
the sale of the Mortgage Loans under this Agreement constitutes fair
consideration and reasonably equivalent value for the Mortgage Loans; and
(o) USA Patriot Act of 2001. Indymac has complied with all
applicable anti-money laundering laws and regulations, including without
limitation the USA Patriot Act of 2001 (collectively, the "Anti-Money Laundering
Laws"); Indymac has established an anti-money laundering compliance program as
required by the Anti-Money Laundering Laws, has conducted the requisite due
diligence in connection with the origination of each Mortgage Loan for purposes
of the Anti-Money Laundering Laws, including with respect to the legitimacy of
the applicable Mortgagor and the origin of the assets used by the said Mortgagor
to purchase the property in question, and maintains, and will maintain,
sufficient information to identify the applicable Mortgagor for purposes of the
Anti-Money Laundering Laws.
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans.
With respect to each Mortgage Loan (unless otherwise specified
below), Indymac represents and warrants to the Purchaser as of the related
Closing Date that:
(a) Mortgage Loan Schedule. The information contained in the
Mortgage Loan Schedule is complete, true and correct in all material respects;
(b) No Delinquencies or Advances. All payments required to be made
and credited prior to the related Cut-off Date for such Mortgage Loan under the
terms of the Mortgage Note have been made; Indymac has not advanced funds, or
induced, solicited or knowingly received any advance of funds from a party other
than the owner of the Mortgaged Property subject to the Mortgage, directly or
indirectly, for the payment of any amount required by the Mortgage Loan; and
there has been no delinquency of more than thirty (30) days in any payment by
the Mortgagor thereunder during the last twelve (12) months;
(c) Taxes, Assessments, Insurance Premiums and Other Charges. There
are no defaults by Indymac or any prior originator in complying with the terms
of the Mortgage and there are no delinquent taxes, ground rents, water charges,
sewer rents, assessments, insurance premiums, leasehold payments, including
assessments payable in future installments or other outstanding charges
affecting the related Mortgaged Property;
(d) No Modifications. The terms of the Mortgage Note and the
Mortgage have not been impaired, waived, altered or modified in any respect,
except by written instruments that have been or will be recorded, if necessary
to protect the interests of the Purchaser, and that have been or will be
delivered to the Purchaser, all in accordance with this Agreement. The substance
of any such waiver, alteration or modification has been approved by the primary
mortgage guaranty insurer, if any, and by the title insurer, to the extent
required by the related policy and its terms are reflected on the Mortgage Loan
Schedule. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement approved by the primary mortgage
insurer, if any, and the title insurer, to the extent required by the policy,
and which assumption agreement is part of the Collateral File and the terms of
which are reflected in the Mortgage Loan Schedule if executed prior to the
Closing Date;
(e) No Defenses. The Mortgage Note and the Mortgage are not subject
to any right of rescission, set-off, counterclaim or defense, including the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note and the Mortgage, or the exercise of any right thereunder, render the
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(f) Hazard and Flood Insurance. All buildings and other customarily
insured improvements upon the Mortgaged Property are insured in an amount which
is not less than the lesser of (i) the maximum insurable value of the Mortgaged
Property and (ii) the greater of (a) the outstanding principal balance of the
Mortgage Loan, and (b) an amount that would prevent the Mortgagor from becoming
a co-insurer, by an insurer acceptable to an Agency against loss by fire,
hazards of extended coverage and such other hazards as are customary in the area
where the Mortgaged Property is located, and such insurer is licensed to do
business in the state where the Mortgaged Property is located. If the Mortgaged
Property is a condominium unit, it is included under the coverage afforded by a
blanket policy. All such insurance policies contain a standard mortgagee clause
naming Indymac, its successors and assigns as mortgagee, and all premiums
thereon have been paid. If, upon the origination of the Mortgage Loan, the
Mortgaged Property was, or was subsequently deemed to be, in an area identified
in the Federal Register by the Federal Emergency Management Agency as having
special flood hazards (and such flood insurance has been made available), a
flood insurance policy that meets the requirements of the current guidelines of
the Federal Insurance Administration (or any successor thereto) and conforms to
the requirements of an Agency is in effect. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's expense and, upon
the failure of the Mortgagor to do so, the holder of the Mortgage is authorized
to maintain such insurance at the Mortgagor's expense and to seek reimbursement
therefor from the Mortgagor;
(g) Compliance with Applicable Law. All applicable local, state and
federal laws including without limitation usury, truth in lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity,
fair housing, predatory and abusive lending and disclosure laws applicable to
the origination and servicing of the Mortgage Loan have been complied with, and
Indymac shall maintain in its possession, available for the Purchaser's
inspection and shall deliver to the Purchaser upon demand, evidence of
compliance with all such requirements;
(h) No Release of Mortgage. The Mortgage has not been satisfied,
canceled, subordinated, or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission. Indymac has not waived the
performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has
Indymac waived any default.
(i) Enforceability of Mortgage Documents. The Mortgage Note, the
Mortgage and any related modifications, assignments and assumptions are genuine
and each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization or similar laws;
(j) Valid First Lien on Mortgage Loans that are not Cooperative
Loans. Each related Mortgage is a valid, perfected, existing and enforceable
first lien or a first priority ownership interest in an estate in fee simple in
the Mortgaged Property, including, for Mortgage Loans that are not Cooperative
Loans, all improvements on the Mortgaged Property, securing the related Mortgage
Note, except that with respect to real property located in jurisdictions in
which the use of leasehold estates for residential properties is a
widely-accepted practice, the Mortgage may secure and create a first lien upon a
leasehold estate of the Mortgagor. The lien of the Mortgage is subject only to:
(i) the lien of current real property taxes and assessments not yet
due and payable;
(ii) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording
that are acceptable to mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy delivered
to the originator of the Mortgage Loan and that do not adversely affect
the Appraised Value of the Mortgaged Property set forth in such appraisal;
and
(iii) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property;
Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes and
creates a valid, subsisting and enforceable first lien and first priority
security interest on the property described therein and the Company has full
right to sell and assign the same to the Purchaser.
(k) Valid First Liens on Cooperative Loans: With respect to each
Cooperative Loan, the related Mortgage is a valid, enforceable and subsisting
first security interest on the related cooperative shares securing the related
cooperative note and lease, subject only to (a) liens of the cooperative for
unpaid assessments representing the Mortgagor's pro rata share of the
cooperative's payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments to
which like collateral is commonly subject and (b) other matters to which like
collateral is commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Security Agreement.
There are no liens against or security interests in the cooperative shares
relating to each Cooperative Loan (except for unpaid maintenance, assessments
and other amounts owed to the related cooperative which individually or in the
aggregate will not have a material adverse effect on such Cooperative Loan),
which have priority equal to or over the Indymac's security interest in such
cooperative shares;
(l) [RESERVED];
(m) With respect to each Cooperative Loan, the related cooperative
corporation that owns title to the related cooperative apartment building is a
"cooperative housing corporation" within the meaning of Section 216 of the Code,
and is in material compliance with applicable federal, state and local laws
which, if not complied with, could have a material adverse effect on the
Mortgaged Property;
(n) With respect to each Cooperative Loan, there is no prohibition
against pledging the shares of the cooperative corporation or assigning the
Cooperative Lease;
(o) Leasehold Interests. With respect to any ground lease to which
a Mortgaged Property may be subject: (i) the Mortgagor is the owner of a valid
and subsisting leasehold interest under such ground lease: (ii) such ground
lease is in full force and effect; (iii) all rent, additional rent and other
charges reserved therein have been fully paid to the extent payable as of the
Closing Date; (iv) the Mortgagor enjoys the quiet and peaceful possession of the
leasehold estate, subject to any sublease; (v) the Mortgagor is not in default
under any of the terms of such ground lease, and there are no circumstances
which, with the passage of time or the giving of notice, or both, would result
in a default under such ground lease; (vi) the lessor under such ground lease is
not in default under any of the terms or provisions of such ground lease on the
part of the lessor to be observed or performed and (vii) the term of such lease
does not terminate earlier than 5 years following the maturity date of the
Mortgage Note.
(p) Disbursements of Proceeds. The proceeds of the Mortgage Loan
have been fully disbursed, and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site or
off-site improvement and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making or closing
the Mortgage Loan and recording the Mortgage were paid, and the Mortgagor is not
entitled to any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(q) Sole Owner. Indymac is the sole owner and holder of the
Mortgage Loan and the indebtedness evidenced by the Mortgage Note. The Mortgage
Loan is not assigned or pledged, and Indymac has good and marketable title
thereto, and has full right to transfer and sell the Mortgage Loan to the
Purchaser free and clear of any encumbrance, equity, lien, pledge, participation
interests, charge, claim or security interest not specifically set forth in the
related Mortgage Loan Schedule and has full right and authority subject to no
interest or participation of, or agreement with, any other party, to sell and
assign each Mortgage Loan pursuant to the terms of this Agreement. Indymac
intends to relinquish all rights to monitor, possess and control the Mortgage
Loan except in connection with the servicing of the Mortgage Loan as set forth
in the Servicing Agreement. After the Closing Date, Indymac will not have any
right to modify or alter the terms of the sale of the Mortgage Loan, nor will
Indymac have any obligation or right to repurchase the Mortgage Loan, except as
provided in this Agreement or as otherwise agreed to by Indymac and the
Purchaser.
(r) Title Insurance. Each Mortgage Loan is covered by an ALTA
lender's title insurance policy included in the related Servicing File,
acceptable to an Agency, issued by a title insurer acceptable to an Agency and
qualified to do business in the jurisdiction where the related Mortgaged
Property is located, insuring (subject to the exceptions contained in Section
3.02(j)(i), (ii) and (iii) above) Indymac, its successors and assigns as to the
first priority lien of the Mortgage. Additionally, such lender's title insurance
policy affirmatively insures ingress and egress, and against encroachments by or
upon the Mortgaged Property or any interest therein. Indymac is the sole insured
of such lender's title insurance policy, and such lender's title insurance
policy is in full force and effect and will be in full force and effect upon the
consummation of the transactions contemplated by this Agreement. No claims have
been made under such lender's title insurance policy, and no prior holder of the
related Mortgage, including Indymac, has done, by act or omission, anything
which would impair the coverage of such lender's title insurance policy;
(s) No Default. There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event of
acceleration, and Indymac has not waived any default, breach, violation or event
of acceleration;
(t) No Mechanics' Liens. There are no mechanics' or similar liens
or claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such lien) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(u) Origination and Collection Practices. The origination and
collection practices used by Indymac with respect to each Mortgage Loan and
Mortgage have been in all respects legal, proper, prudent and customary in the
mortgage origination and servicing business. With respect to escrow deposits and
Escrow Payments, if any, all such payments are in the possession of, or under
the control of, Indymac and there exist no deficiencies in connection therewith
for which customary arrangements for repayment thereof have not been made. No
escrow deposits or Escrow Payments or other charges or payments due Indymac have
been capitalized under any Mortgage or the related Mortgage Note. All payments
have been collected in compliance with local, state and federal law and the
terms of the related Mortgage Note. With respect to Adjustable Rate Mortgage
Loans, all Mortgage Interest Rate adjustments have been made in strict
compliance with local, state and federal law and the terms of the related
Mortgage Note. Any interest required to be paid pursuant to state and local law
has been properly paid and credited;
(v) No Condemnation or Damage. There is no proceeding pending or,
to Indymac's knowledge, threatened for the total or partial condemnation of the
Mortgaged Property and such property is in good repair and is undamaged by
waste, fire, earthquake or earth movement, windstorm, flood, tornado or other
casualty, so as to affect adversely the value of the Mortgaged Property as
security for the Mortgage Loan or the use for which the premises were intended;
(w) Customary and Enforceable Provisions. The Mortgage contains
customary and enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security provided thereby including (a) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and (b)
otherwise by judicial foreclosure. There is no homestead or other exemption
available to a Mortgagor which would interfere with the right to sell the
Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage;
(x) Collateral. The Mortgage Note is not and has not been secured
by any collateral except the lien of the corresponding Mortgage on the Mortgaged
Property and the security interest of any applicable security agreement or
chattel mortgage referred to in (j) above;
(y) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by an appraiser who meets the minimum requisite qualifications of an
Agency for appraisers, duly appointed by the originator, that had no interest,
direct or indirect in the Mortgaged Property, and whose compensation is not
affected by the approval or disapproval of the Mortgage Loan; the appraisal is
in a form acceptable to an Agency, with such riders as are acceptable to such
Agency, and such appraisal complies with the requirements of FIRREA;
furthermore, the appraisal type for each Mortgage Loan is accurately reflected
on the Mortgage Loan Schedule;
(z) Trustee for Deed of Trust. In the event the Mortgage
constitutes a deed of trust, a trustee, duly qualified under applicable law to
serve as such, has been properly designated and currently so serves and is named
in the Mortgage, and no fees or expenses are or will become payable by the
Purchaser to the trustee under the deed of trust, except in connection with a
trustee's sale after default by the Mortgagor;
(aa) Private Mortgage Insurance. Each PMI Policy has been issued by
an insurer acceptable to FNMA or FHLMC, in at least such amounts as required by
FHMA or FHLMC. All provisions of such PMI Policy have been and are being
complied with, such policy is in full force and effect, and all premiums due
thereunder have been paid. Any Mortgage subject to any such PMI Policy obligates
the Mortgagor thereunder to maintain such insurance and to pay all premiums and
charges in connection therewith or, in the case of a lender paid mortgage
insurance policy, the premiums and charges are included in the Mortgage Interest
Rate for the Mortgage Loan;
(bb) Lawfully Occupied. The Mortgaged Property is lawfully occupied
under applicable law. All inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of the Mortgaged Property
and, with respect to the use and occupancy of the same including certificates of
occupancy, have been made or obtained from the appropriate authorities. No
improvements violate local zoning laws;
(cc) Assignment of Mortgage. The Assignment of Mortgage is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) Form of Mortgage Note and Mortgage. The Mortgage Note and
Mortgage are on forms that are customary in the mortgage origination and
servicing business;
(ee) Section 32 Loans. No Mortgage Loan is classified as a
"covered," "high cost," "high cost home loan," "threshold," "predatory loan,"
(excluding New Jersey "Covered Home Loans" as that term is defined in clause (1)
of the definition of that term in the New Jersey Home Ownership Security Act of
2002), or any other designation that indicates that such Mortgage Loan has terms
that result in costs to the Mortgagor in excess of a specified limit under the
Home Ownership and Equity Protection Act of 1994, as amended, or any similar
federal, state or local statutes or regulations related to "high cost" mortgage
loans or "predatory lending" (as such terms are defined in the applicable
statute or regulation);
(ff) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first lien priority by a title insurance policy, an
endorsement to the policy insuring the mortgagee's consolidated interest or by
other title evidence acceptable to each Agency. The consolidated principal
amount does not exceed the original principal amount of the Mortgage Loan
(gg) Type of Mortgaged Property. If a portion of the Mortgaged
Property was being used for commercial purposes then (i) the mixed use of the
property represents a legal, permissible use of the property under the local
zoning requirements, (ii) the Mortgagor is the owner and the operator of the
business, (iii) the Mortgaged Property is primarily residential in nature and
(iv) the market value of the property is primarily a function of its residential
characteristics.
(hh) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral, pledged account or other security except the
lien of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in (j) above
(ii) Servicemembers Civil Relief Act. The Mortgagor has not
notified Indymac, and Indymac has no knowledge of any relief requested or
allowed to the Mortgagor under the Servicemembers Civil Relief Act or any
similar state law;
(jj) Payment Terms. The Mortgage Note is payable on the first day
of each month in equal monthly installments of principal and interest (or
interest, in the case of any Mortgage Loan for which monthly payments consist of
only interest for a period of time specified on the Mortgage Loan Schedule),
(provided that, the installments of interest are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment Date
with respect to an Adjustable Rate Mortgage, and interest is calculated and
payable in arrears) providing for full amortization by maturity over a scheduled
term of no more than 30 years. No Mortgage Loan converts, pursuant to the terms
of the related Mortgage Note, from having interest accrue on the principal
amount thereof based on an adjustable rate to having interest accrue based on a
fixed rate, and no Mortgage Loan has a shared appreciation or other contingent
interest feature, or permits negative amortization. The Mortgage Interest Rate,
Lifetime Rate Cap, each applicable Periodic Rate Cap and each applicable
Interest Adjustment Date for each Mortgage Loan are as set forth for such
Mortgage Loan in the Mortgage Loan Schedule;
(kk) Origination. At the time the Mortgage Loan was originated, the
originator was a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing Act or a
savings and loan association, a saving bank, a commercial bank or similar
banking institution which is supervised by a Federal or State authority.
(ll) Loan-to-Value Ratio; No Foreclosures. The Loan-to-Value Ratio
of each Mortgage Loan was no greater than 100% at the time of its origination or
refinancing, as applicable. No Mortgage Loan is subject to a written foreclosure
agreement or pending foreclosure proceedings;
(mm) Underwriting Guidelines. The Mortgage Loan was underwritten
substantially in accordance with Indymac's underwriting guidelines at the time
of origination, subject to such reasonable variances as Indymac approved. (the
"Underwriting Guidelines");
(nn) Adverse Selection. Indymac used no adverse selection
procedures in selecting the Mortgage Loan from among the outstanding first-lien
residential mortgage loans owned by it which were available for inclusion in the
Mortgage Loan Package;
(oo) Environmental Matters. There is no pending action or
proceeding directly involving any Mortgaged Property of which Indymac is aware
in which compliance with any environmental law, rule or regulation is an issue.
To the best of Indymac's knowledge, nothing further remains to be done to
satisfy in full all requirements of each such law, rule or regulation consisting
a prerequisite to use and enjoyment of said property;
(pp) No Bankruptcy; Acceptable Investment. The Mortgagor is not in
bankruptcy and is not insolvent;
(qq) No Additional Payments. There is no obligation on the part of
Indymac or any other party to make payments in addition to those made by the
Mortgagor;
(rr) Georgia Fair Lending Act. There is no Mortgage Loan that was
originated on or after October 1, 2002 and before March 7, 2003, which is
secured by owner-occupied property located in the State of Georgia.
(ss) No Credit Insurance Policies. No proceeds from any Mortgage
Loan were used to purchase single-premium credit insurance policies as part of
the origination of, or as a condition to closing, such Mortgage Loan;
(tt) Prepayment Penalty Term. The prepayment penalty terms of the
Mortgage Loan is in full compliance with all federal, state and local law, rules
and regulations;
(uu) Qualified Mortgage. Each Mortgage Loan is a "qualified
mortgage" within Section 860G(a)(3) of the Code;
(vv) Credit Reporting. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by Indymac to the Purchaser, Indymac has full right and authority and
is not precluded by law or contract from furnishing such information to the
Purchaser and the Purchaser is not precluded from furnishing the same to any
subsequent or prospective purchaser of such Mortgage;;
(ww) Doing Business. Indymac and all other parties which have had
any interest in the Mortgage Loan, whether as mortgagee, assignee, pledgee or
otherwise, are (or, during the period in which they held and disposed of such
interest, were) in compliance with any and all applicable "doing business" and
licensing requirements of the laws of the state wherein the Mortgaged Property
is located;
(xx) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan is not a graduated payment mortgage loan and the
Mortgage Loan does not have a shared appreciation or other contingent interest
feature, nor does it contain any "buydown" provision which is currently in
effect;
(yy) Due-On-Sale. The Mortgage contains an enforceable provision
for the acceleration of the payment of the unpaid principal balance of the
Mortgage Loan in the event that the Mortgaged Property is sold or transferred
without the prior written consent of the mortgagee thereunder;
(zz) Disclosure Materials. The Mortgagor has received all
disclosure materials required by applicable law with respect to the making of
mortgage loans of the same type as the Mortgage Loan and rescission materials
required by applicable law if the Mortgage Loan is a Refinanced Mortgage Loan
and has acknowledged receipt of such materials to the extent required by
applicable law and such documents will remain in the Mortgage File;
(aaa) No Advancements. Indymac or any prior originator or servicer
has not advanced funds, or induced, solicited or knowingly received any advance
from any party other than the Mortgagor, directly or indirectly, for the payment
of any amount due under the Mortgage Loan;
(bbb) Delivery of Mortgage Documents. With respect to each Mortgage
Loan, Indymac is in possession of a complete Collateral File except for the
documents which have been delivered to the Purchaser or which have been
submitted for recording and not yet returned;
(ccc) Lost Note. With respect to each Mortgage where a lost note
affidavit has been delivered in place of the related Mortgage Note, the related
Mortgage Note is no longer in existence;
(ddd) Validity of Mortgage Documents. All the documents executed in
connection with the Mortgage Loan including, but not limited to, the Mortgage
Note and the Mortgage are free of fraud and any misrepresentation, are signed by
the persons they purport to be signed by, and witnessed or, as appropriate,
notarized by the persons whose signatures appear as witnesses or notaries, and
each such document constitutes the valid and binding legal obligation of the
signatories and is enforceable in accordance with its terms;
(eee) Construction or Rehabilitation of Mortgaged Property. (i) No
Mortgage Loan was made in connection with facilitating the trade-in or exchange
of a Mortgaged Property and (ii) a Mortgage Loan has a certificate of completion
if such Mortgage Loan was made in connection with the construction or
rehabilitation of the related Mortgaged Property;
(fff) [RESERVED];
(ggg) Conversion to Fixed Interest Rate. No Mortgage Loan is a
Convertible Mortgage Loan
Section 3.03 Remedies for Breach of Representations and Warranties.
(a) Notice of Breach. The representations and warranties set forth
in Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans to the
Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination or failure to examine any Collateral Documents or
Credit File. Upon discovery by either Indymac or the Purchaser of a breach of
any of the foregoing representations and warranties that materially and
adversely affects the value of one or more of the related Mortgage Loans, the
party discovering such breach shall give prompt written notice to the other.
(b) Cure or Repurchase. Within sixty (60) days from the earlier of
either discovery by or notice to Indymac of a breach of a representation or
warranty that materially and adversely affects the value of a Mortgage Loan or
the Mortgage Loans, Indymac shall use its best efforts to cure such breach in
all material respects, and, if such breach cannot be cured, Indymac shall, at
the Purchaser's option, repurchase such Mortgage Loan at the Repurchase Price.
Notwithstanding anything to the contrary herein, a breach of any one of the
representations and warranties set forth in clauses (ee), (rr), (ss) and (uu) in
Subsection 3.02 shall be deemed to materially and adversely affect the value of
the related Mortgage Loans and, within sixty (60) days of the earlier of either
discovery by or notice to Indymac, as the case may be, of such breach, Indymac
shall repurchase such Mortgage Loan at the Repurchase Price. In the event that a
breach shall involve any representation or warranty set forth in Section 3.01
and such breach cannot be cured within sixty (60) days of the earlier of either
discovery by or notice to Indymac of such breach, Indymac shall repurchase such
of the Mortgage Loans as shall be necessary to cure such breach at the
Repurchase Price.
(c) Substitution or Repurchase. If the breach shall involve a
representation or warranty set forth in Section 3.02, Indymac may at the
discretion of the Purchaser, rather than repurchase the Mortgage Loan as
provided above, remove such Mortgage Loan and substitute in its place a
Qualified Substitute Mortgage Loan or Loans, provided, however that with respect
to a breach of any one of the representations and warranties set forth in
clauses (ee), (rr), (ss) and (uu), Indymac shall indemnify the Purchaser, its
affiliates, and their respective directors, officers and employees, as
applicable, and hold the Purchaser, its affiliates and each such person harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary attorneys' fees and related costs, judgments, and any
other costs, fees and expenses that the Purchaser may sustain in any way related
to Indymac's breach of such representations and warranties. If Indymac elects
not to substitute a Qualified Substitute Mortgage Loan, it shall repurchase the
deficient Mortgage Loan. Any repurchase of a Mortgage Loan(s) pursuant to the
provisions of this Section 3.03 shall be accomplished by deposit in the
Custodial Account of the amount of the Repurchase Price for distribution to the
Purchaser on the next scheduled Remittance Date, after deducting therefrom any
amount received in respect of such repurchased Mortgage Loan or Loans and being
held in the Custodial Account for future distribution. At the time of repurchase
or substitution, the Purchaser and Indymac shall arrange for the reassignment of
such Mortgage Loan and release of the related Collateral File to Indymac and the
delivery to Indymac of any documents held by the Purchaser or its designee
relating to such Mortgage Loan. In the event Indymac is authorized to substitute
a Qualified Substitute Mortgage Loan for a repurchased Mortgage Loan, Indymac
shall, simultaneously with such reassignment, give written notice to the
Purchaser that substitution has taken place and identify the Qualified
Substitute Mortgage Loan(s). In connection with any such substitution, Indymac
shall be deemed to have made as to such Qualified Substitute Mortgage Loan(s)
the representations and warranties except that all such representations and
warranties set forth in this Agreement shall be deemed made as of the date of
such substitution. Indymac shall effect such substitution by delivering to the
Purchaser the Collateral Documents for such Qualified Substitute Mortgage
Loan(s). Indymac shall deposit in the Custodial Account the Monthly Payment less
the Servicing Fee due on such Qualified Substitute Mortgage Loan(s) in the month
following the date of such substitution. Monthly Payments due with respect to
Qualified Substitute Mortgage Loans in the month of substitution shall be
retained by Indymac. For the month of substitution, distributions to the
Purchaser shall include the Monthly Payment due on any substituted Mortgage Loan
in the month of substitution, and Indymac shall thereafter be entitled to retain
all amounts subsequently received by Indymac in respect of such substituted
Mortgage Loan.
For any month in which Indymac substitutes a Qualified Substitute
Mortgage Loan for a repurchased Mortgage Loan, Indymac shall determine the
amount (if any) by which the aggregate principal balance of all Qualified
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all substituted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be distributed by Indymac in the month of
substitution pursuant to Section 5.01. Accordingly, on the date of such
substitution, Indymac shall deposit from its own funds into the Custodial
Account an amount equal to the amount of such shortfall. Notwithstanding the
above, in no event shall Indymac substitute a loan that has been placed in a
trust with respect to a securitization.
In addition to such cure and repurchase obligations, Indymac shall
indemnify the Purchaser, its affiliates, and their respective directors,
officers and employees, as applicable, and hold the Purchaser, its affiliates
and each such person harmless against any damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion by any third party that is based on or grounded upon, or resulting
from, a breach of Indymac's representations and warranties contained in this
Agreements.
Section 3.04 Accrual of Cause of Action. Any cause of action against
Indymac relating to or arising out of the breach of any representations and
warranties made in Sections 3.01 or 3.02 shall accrue as to any Mortgage Loan
upon (i) discovery of such breach by the Purchaser or notice thereof by Indymac
to the Purchaser, (ii) failure by Indymac to cure such breach or substitute or
repurchase such Mortgage Loan as specified above, or (iii) demand upon Indymac
by the Purchaser for compliance with the relevant provisions of this Agreement.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Indymac to Act as Servicer.
Indymac shall service and administer Mortgage Loans sold pursuant to
this Agreement in accordance with the terms of the Servicing Agreement and shall
have full power and authority, acting alone, to do or cause to be done any and
all things, in connection with such servicing and administration, that Indymac
may deem necessary or desirable and consistent with the terms of the Servicing
Agreement.
ARTICLE V
COVENANTS BY INDYMAC
Section 5.01 Indemnification by Indymac.
Indymac shall indemnify the Purchaser, its affiliates, and their
respective directors, officers and employees, as applicable, and hold the
Purchaser, its affiliates and each such person harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary
attorneys' fees and related costs, judgments, and any other costs, fees and
expenses that the Purchaser may sustain in any way related to the failure of
Indymac to perform its obligations hereunder, including its obligations to
service and administer the Mortgage Loans in compliance with the terms of this
Agreement.
Section 5.02 [RESERVED]
Section 5.03 Merger or Consolidation of Indymac.
Indymac shall keep in full effect its existence, rights and
franchises as a federal savings bank under the laws of the United States or
under the laws of one of the states thereof, 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 this
Agreement, or any of the Mortgage Loans, and to perform its duties under this
Agreement.
Notwithstanding anything to the contrary contained herein, any
Person into which Indymac may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which Indymac shall be
a party, or any Person succeeding to the business of Indymac, shall be the
successor of Indymac hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto; provided, however,
that the successor or surviving Person shall be an institution whose deposits
are insured by FDIC or a company whose business is the origination and servicing
of mortgage loans, unless otherwise consented to by the Purchaser, which consent
shall not be unreasonably withheld, and shall be qualified to service mortgage
loans on behalf of an Agency.
Section 5.04 Limitation on Liability of Indymac and Others.
Neither Indymac nor any of the officers, employees or agents of
Indymac shall be under any liability to the Purchaser for any action taken, or
for refraining from taking any action, in good faith pursuant to this Agreement,
or for errors in judgment; provided, however, that this provision shall not
protect Indymac or any such person against any breach of warranties or
representations made herein, or any liability which would otherwise be imposed
by reason of any breach of the terms and conditions of this Agreement and,
provided further, that this provision shall not protect Indymac or any such
person against any liability that would otherwise be imposed by reason of the
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of the obligations or duties hereunder. Indymac and
any officer, employee or agent of Indymac may rely in good faith on any document
of any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. Notwithstanding anything to the contrary
contained in this Agreement, unless one or more Event of Default by Indymac
shall occur and shall not have been remedied within the time limits set forth in
Section 7.1 of the Servicing Agreement, the Purchaser shall not record or cause
to be recorded an Assignment of Mortgage with the recording office. To the
extent the Purchaser records with the recording office as permitted herein an
Assignment of Mortgage which designates the Purchaser as the holder of record of
the Mortgage, the Purchaser agrees that it shall (i) provide Indymac with
immediate notice of any action with respect to the Mortgage or the related
Mortgaged Property and ensure that the proper department or person at Indymac
receives such notice; and (ii) immediately complete, sign and return to Indymac
any document reasonably requested by Indymac to comply with its servicing
obligations, including without limitation, any instrument required to release
the Mortgage upon payment in full of the obligation or take any other action
reasonably required by Indymac. The Purchaser further agrees that Indymac shall
have no liability for the Purchaser's failure to comply with the subsections (i)
or (ii) in the foregoing sentence. Indymac shall have no liability to the
Purchaser and shall not be under any obligation to appear in, prosecute or
defend any legal action which is not incidental to its duties to service the
Mortgage Loans in accordance with this Agreement and which in its opinion may
involve it in any expenses or liability; provided, however, that Indymac may,
with the consent of the Purchaser, undertake any such action which it may deem
necessary or desirable to protect the Purchaser's interests in the Mortgage
Loans. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities for which
the Purchaser will be liable, and Indymac shall be entitled to be reimbursed
therefor from the Purchaser upon written demand except when such expenses, costs
and liabilities are subject to Indymac's indemnification under Sections 3.03 and
5.01.
Section 5.05 No Transfer of Servicing.
Indymac acknowledges that the Purchaser acts in reliance upon
Indymac's independent status, the adequacy of its servicing facilities, plant,
personnel, records and procedures, its integrity, reputation and financial
standing and the continuance thereof. Without in any way limiting the generality
of this Section, Indymac shall not assign this Agreement or the servicing rights
hereunder, without the prior written approval of the Purchaser, which consent
may not be unreasonably withheld.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Notices.
All demands, notices and communications required to be provided
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, postage prepaid, and return receipt
requested, or, if by other means, when received by the other party at the
address as follows:
(i) to Indymac:
IndyMac Bank, F.S.B
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Secondary Marketing
(ii) the Purchaser:
To the address and contact set forth in the related Purchase
Confirmation
or such other address as may hereafter be furnished to the other
party by like notice. Any such demand, notice or communication hereunder shall
be deemed to have been received on the date delivered to or received at the
premises of the addressee (as evidenced, in the case of registered or certified
mail, by the date noted on the return receipt).
Section 6.02 Sale Treatment.
It is the express intention of the parties that the transactions
contemplated by this Agreement be, and be construed as, a sale of the Mortgage
Loans by Indymac and not a pledge of the Mortgage Loans by Indymac to the
Purchaser to secure a debt or other obligation of Indymac. Consequently, the
sale of each Mortgage Loan shall be reflected as a sale on Indymac's business
records, tax returns and financial statements. Accordingly, Indymac and the
Purchaser shall each treat the transaction for federal income tax purposes as a
sale by Indymac, and a purchase by the Purchaser, of the Mortgage Loans.
Section 6.03 Exhibits.
The Exhibits to this Agreement and each Trade Confirmation and
Purchase Confirmation executed by Indymac and the Purchaser are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
Section 6.04 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other Subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision;
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration; and
(g) reference to the Transaction Documents or any other document
referenced herein shall include all exhibits, schedules or other supplements
thereto.
Section 6.05 Reproduction of Documents.
This Agreement and all documents relating thereto, including (a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 6.06 Further Agreements.
Indymac shall execute and deliver to the Purchaser and the Purchaser
shall be required to execute and deliver to Indymac such reasonable and
appropriate additional documents, instruments or agreements as may be necessary
or appropriate to effectuate the purposes of this Agreement.
Section 6.07 Assignment of Mortgage Loans by the Purchaser;
Pass-Through Transfers.
(a) The Purchaser may, subject to the terms of this Agreement, sell
and transfer one or more of the Mortgage Loans; provided, however, that the
transferee will not be deemed to be the Purchaser hereunder unless such
transferee shall agree in writing to be bound by the terms of this Agreement and
an original counterpart of the document evidencing such agreement shall have
been executed by the Purchaser and the transferee and delivered to Indymac.
Notwithstanding the foregoing, no transfer shall be effective if such transfer
would result in there being more than five (5) "Purchasers" outstanding
hereunder with respect to any Mortgage Loan Package. Any trust to which Mortgage
Loans may be transferred pursuant to Section 6.07(b) hereunder shall constitute
a single Purchaser for the purposes of the preceding sentence.
(b) The Purchaser and Indymac agree that with respect to some or
all of the Mortgage Loans, the Purchaser, at its sole option, but subject to the
limitations set forth in Section 6.07(a) hereof, may effect Pass-Through
Transfers and Whole Loan Transfer, retaining Indymac as the servicer thereof or
subservicer if a master servicer is employed, or as applicable the
"seller/servicer." On the related Reconstitution Date, the Mortgage Loans
transferred shall cease to be covered by this Agreement; provided, however,
that, in the event that any Mortgage Loan transferred pursuant to this Section
6.07 is rejected by the related transferee, Indymac shall continue to service
such rejected Mortgage Loan on behalf of the Purchaser in accordance with the
terms and provisions of this Agreement. Indymac shall cooperate with the
Purchaser in connection with each Pass-Through Transfer and Whole Loan Transfer
in accordance with this Section 6.07. In connection therewith Indymac shall:
(i) negotiate in good faith and execute any seller/servicer
agreement reasonably required to effectuate the Pass-Through Transfer and
Whole Loan Transfer, provided such agreement creates no greater obligation
or cost on the part of Indymac than otherwise set forth in this Agreement,
and provided further that Indymac shall be entitled to a servicing fee
under that agreement at a rate per annum no less than the Servicing Fee
Rate; and
(ii) provide as applicable:
(A) information pertaining to Indymac of the type and scope
customarily included in offering documents for residential
mortgage-backed securities transactions involving multiple loan
originators; and
(B) such opinions of counsel, letters from auditors, and
certificates of public officials or officers of Indymac as are
reasonably believed necessary by the trustee, any rating agency or
the Purchaser, as the case may be, in connection with such
Pass-Through Transfer and Whole Loan Transfer. The Purchaser shall
pay all reasonable third party costs associated with the preparation
of the information described in clause (ii)(A) above and the
delivery of any opinions, letters or certificates described in this
clause (ii)(B). Indymac shall not be required to execute any
seller/servicer agreement unless a draft of the agreement is
provided to Indymac at least 10 days before the Reconstitution Date.
(c) In connection with any (a) Pass-Through Transfer and (b) Whole
Loan Transfer, Indymac shall restate to the Purchaser and, with respect to (a)
above, to the applicable depositor (the "Depositor"), trustee (the "Trustee")
and the master servicer (the "Master Servicer"), all representations and
warranties contained in this Agreement, with respect to the Mortgage Loans as of
the Closing Date and with respect to Indymac itself as of the closing date of
each Whole Loan Transfer or Pass-Through Transfer.
(d) In connection with any Pass-Through Transfer and Whole Loan
Transfer, Indymac shall indemnify, defend and hold harmless the Purchaser, the
Depositor, the Trustee, the Master Servicer, their respective affiliates, and
their respective directors, officers and employees from and against any and all
losses, claims, expenses, damages, liabilities, reasonable and necessary
attorneys' fees and related costs, judgments, and any other costs to which any
such party may be subject to as a result of any untrue statement of any material
fact contained in any information (such information, the "Indymac Information")
prepared and furnished to the Purchaser, the Depositor, the Trustee and the
Master Servicer by Indymac for inclusion in any related offering document or
prospectus (collectively, "Offering Materials"), or arise out of, or are based
upon, any omission in the Indymac Information necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and will reimburse to all such parties, as applicable, for damages
or expenses reasonably incurred by it; provided, however, that Indymac shall be
liable only insofar as such untrue statement or omission relates solely to the
Indymac Information in the Offering Materials furnished to any such party by
Indymac specifically for inclusion in the Prospectus Supplement; and
(e) All Mortgage Loans not sold or transferred pursuant to
Pass-Through Transfers or Whole Loan Transfer shall remain subject to this
Agreement and shall continue to be serviced in accordance with the terms of this
Agreement and with respect thereto this Agreement shall remain in full force and
effect.
Section 6.08 Conflicts between Transaction Documents.
In the event of any conflict, inconsistency or ambiguity between the
terms and conditions of this Agreement, the Servicing Agreement, and either the
related Trade Confirmation or the related Purchase Confirmation, the terms of
the related Purchase Confirmation shall control. In the event of any conflict,
inconsistency or ambiguity between the terms and conditions of the Trade
Confirmation and the Purchase Confirmation, the terms of the Purchase
Confirmation shall control.
Section 6.09 Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements entered into and
wholly performed within that state.
Section 6.10 Severability Clause.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to an amendment to this Agreement which places each party in the
same or as economic position as each party would have been in except for such
invalidity.
Section 6.11 Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by Indymac and the Purchaser and the respective permitted successors
and assigns of Indymac and the Purchaser.
Section 6.12 Relationship of Parties.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of
Indymac shall be rendered as an independent contractor and not as agent for the
Purchaser.
Section 6.13 Solicitation of Mortgagor.
From and after the Closing Date, Indymac hereby agrees that it will
not take any action or permit or cause any action to be taken by any of its
agents or affiliates, or by any independent contractors or independent mortgage
brokerage companies on its behalf, to personally, by telephone or mail, solicit
the mortgagor under any Mortgage Loan for the purpose of refinancing such
Mortgage Loan; provided, that Indymac may solicit any mortgagor from whom it or
its servicing affiliate has received a request for verification of mortgage, a
request for demand for payoff, a mortgagor initiated written or verbal
communication indicating a desire to prepay the related Mortgage Loan, or the
mortgagor initiates a title search, provided further, it is understood and
agreed that promotions undertaken by Indymac or any of its affiliates which (i)
concern optional insurance products or other additional projects or (ii) are
directed to the general public at large, including, without limitation, mass
mailings based on commercially acquired mailing lists, newspapers, radio and
television advertisements shall not constitute solicitation nor is Indymac
prohibited from responding to unsolicited requests or inquiries made by a
mortgagor or an agent of a mortgagor. Notwithstanding the foregoing, the
following solicitations, if undertaken by Indymac or any affiliate of Indymac,
shall not be prohibited: (i) solicitations that are directed to the general
public at large, including, without limitation, mass mailings based on
commercially acquired mailing lists and newspaper, radio, television and other
mass media advertisements and (ii) borrower messages included on, and statement
inserts provided with, the monthly statements sent to mortgagors; provided,
however, that similar messages and inserts are sent to borrowers of other
mortgage loans serviced by Indymac.
Section 6.14 Confidentiality.
Indymac, the Purchaser and their agents shall keep confidential and
shall not divulge to any person, other than affiliates, without the written
consent of the other party, the terms of this agreement, except (i) to the
extent required by law or judicial order or to enforce its rights or remedies
under this agreement, the Servicing Agreement, or any applicable agreements,
(ii) to the extent such information enters into the public domain other than
through the wrongful act of Indymac or the Purchaser, as the case may be, (iii)
as is necessary in working with legal counsel, auditors, rating agencies,
agents, taxing authorities or other governmental agencies, or (iv) in order to
disclose to any and all persons, without limitation of any kind, the structure
and tax aspects of this sale or any transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to the Purchaser
related to such sale, transaction and tax aspects, all as contemplated by
Section 1.6011-4T(b)(3) (or any successor provision) of the Treasury Regulations
promulgated under Section 6011 of the Internal Revenue Code of 1986. Moreover,
Indymac understands and agrees that this Agreement, the Servicing Agreement, any
other agreements executed in connection with the sale and servicing contemplated
hereunder, any agreements executed in connection with a securitization of the
Mortgage Loans, and any offering circulars or other disclosure documents
produced in connection with such securitization are confidential and proprietary
to the Purchaser, and Indymac agrees to hold such documents confidential and not
to divulge such documents to anyone except (a) to the extent required by law or
judicial order or to enforce its rights or remedies under this letter agreement
or the Agreements, (b) to the extent such information enters into the public
domain other than through the wrongful act of Indymac (c) as is necessary in
working with legal counsel, auditors, agents, taxing authorities or other
governmental agencies, or (d) in order to disclose to any and all persons,
without limitation of any kind, the structure and tax aspects of this sale or
such securitization and all materials of any kind (including opinions or other
tax analyses) that are provided to the Purchaser related to such sale,
securitization and tax aspects, all as contemplated by Section 1.6011-4T(b)(3)
(or any successor provision) of the Treasury Regulations promulgated under
Section 6011 of the Internal Revenue Code of 1986. The rights and obligations
set forth in this paragraph shall survive the Closing Date and shall not merge
into the closing documents but shall be independently enforceable by the parties
hereto.
Section 6.15 Entire Agreement.
This Agreement and the related Trade Confirmation and Purchase
Confirmation constitute the entire understanding between the parties hereto with
respect to each Mortgage Loan Package and supersede all prior or contemporaneous
oral or written communications regarding same. Indymac and the Purchaser
understand and agree that no employee, agent or other representative of Indymac
or the Purchaser has any authority to bind such party with regard to any
statement, representation, warranty or other expression unless said statement,
representation, warranty or other expression is specifically included within the
express terms of this Agreement or the related Trade Confirmation or Purchase
Confirmation. Neither this Agreement nor the related Trade Confirmation or
Purchase Confirmation shall be modified, amended or in any way altered except by
an instrument in writing signed by both parties.
(SIGNATURE PAGE TO FOLLOW)
IN WITNESS WHEREOF, Indymac and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
INDYMAC BANK, F.S.B.,
the Seller
By:________________________________
Name:
Title:
XXXXXXX XXXXX MORTGAGE COMPANY,
the Purchaser
By:Xxxxxxx Sachs Real Estate
Funding Corp.,
General Partner
By:________________________________
Name
Title:
EXHIBIT A
COLLATERAL DOCUMENTS
1. Mortgage Note: The original executed Mortgage Note endorsed, "Pay to the
order of ______________, without recourse", or as otherwise directed by
the Purchaser, and signed in the name of the Seller by an officer of the
Seller, or a lost note affidavit with a copy of the original mortgage note
attached; the Mortgage Note shall include all intervening original
endorsements showing a complete chain of title from the originator to the
Seller;
2. Assignment of Mortgage: Unless the Mortgage Loan is a MERS Mortgage Loan,
the original Assignment of Mortgage in blank.
3. Guarantee: Personal endorsement and/or guaranty agreements for all non
individual Mortgage Loans (corporations, partnerships, trusts, estates,
etc.).
4. Mortgage: The original executed Mortgage, or a certified copy thereof, in
either case with evidence of recording noted thereon; the standard Xxxxxx
Xxx/FHLMC Condominium Rider or PUD Rider must be attached to the mortgage
if the mortgaged property is a condominium or is located in a PUD.
5. Modifications: 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.
6. Intervening Assignments: 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.
7. Cooperative Loans: With respect to each Cooperative Loan: (i) an original
copy of the Cooperative Lease naming the Mortgagor, as tenant, or an
original copy of the assignment of the Cooperative Lease to Mortgagor
together with the original copy of all intervening assignments showing a
complete and unbroken chain of title from the original tenant to Mortgagor
and an original undated assignment, in blank, of the Cooperative Lease
executed by Mortgagor; (ii) the original stock certificate in the name of
the Mortgagor together with an undated original stock power relating to
such stock certificate executed in blank by the Mortgagor; (iii) a fully
executed original recognition agreement in substantially the same form as
a standard "AZTECH" form and the original assignment thereof from Indymac
to the Purchaser together with the original copy of all intervening
assignments showing a complete and unbroken chain of title from the
originator of the Mortgage Loan to the Purchaser; (iv) copies of the UCC-1
financing statement naming the originator of the Cooperative Loan, as
secured party, with evidence of recording thereon and, if applicable, the
executed UCC-3 financing statements (Assignment) or other appropriate UCC
financing statements required by applicable state law evidencing a
complete and unbroken chain of title from the originator of the
Cooperative Loan to Indymac, with evidence of recording thereon, (v) an
executed UCC-3 financing statement (Assignment), or other appropriate UCC
financing statement required by applicable state law, evidencing the
assignment by Indymac to the Purchaser of its interest in the Cooperative
Loan, with evidence of recording thereon and (vi) a consent from the
cooperative corporation in connection with the Mortgagor's acquisition of
the coop apartment.
8. Power of Attorney: To the extent applicable, (x) 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 (y) an original or copy of any surety
agreement or guaranty agreement.
9. Title Insurance: 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.
10. Assumptions: for each Mortgage Loan with respect to which the borrower's
name as it appears on the note does not match the borrower's name on the
Mortgage Loan Schedule, one of the following: (i) the original of the
assumption agreement, or a certified copy thereof, in either case with
evidence of recording thereon if required to maintain the lien of the
mortgage or if otherwise required, or, if recordation is not so required,
an original or copy of such assumption agreement; or (ii) a copy of a
marriage certificate, court order, decree or other document evidencing
that the two different names refer to the same person.
EXHIBIT B
FORM OF PURCHASE CONFIRMATION
[INDYMAC LETTERHEAD]
[DATE]
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Re: Purchase Confirmation ($x.xmm) (Deal No. xxxx-xxx)
Ladies and Gentlemen:
This purchase confirmation (the "Purchase Confirmation") between IndyMac Bank,
F.S.B.,
("Indymac") and Xxxxxxx Sachs Mortgage Company ("Purchaser") sets
forth our agreement pursuant to which Purchaser is purchasing, and Indymac is
selling, on a servicing-retained basis, those certain mortgage loans identified
in Exhibit A hereto and more particularly described herein (the "Mortgage
Loans").
The purchase, sale and servicing of the Mortgage Loans as
contemplated herein shall be governed by that certain Master Mortgage Loan
Purchase Agreement dated as of February 1, 2004, between Indymac and Purchaser
(as amended herein and otherwise, the "Agreement"). By executing this Purchase
Confirmation, each of Indymac and Purchaser again makes, with respect to itself
and each Mortgage Loan, as applicable, all of the covenants, representations and
warranties made by each such party in the Agreement, except as the same may be
amended by this Purchase Confirmation.
All exhibits hereto are incorporated herein in their entirety. In
the event there exists any inconsistency between the Agreement and this Purchase
Confirmation, the latter shall be controlling notwithstanding anything contained
in the Agreement to the contrary. All capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Agreement.
1. Assignment and Conveyance of Mortgage Loans. Upon Purchaser's
payment of the Purchase Proceeds in accordance with Section 2.08 of the
Agreement, Indymac shall sell, transfer, assign and convey to Purchaser, without
recourse, but subject to the terms of the Purchase Confirmation and the
Agreement, all of the right, title and interest of Indymac in and to the
Mortgage Loans, excluding the servicing rights relating thereto. Each Mortgage
Loan shall be serviced by Indymac pursuant to the terms of the Agreement.
2. Defined Terms. As used in the Agreement, the following defined
terms shall have meanings set forth below with respect to the related Mortgage
Loan Package.
a. Closing Date: [DATE].
b. Cut-off Date: [DATE].
c. Cut-off Date Balance:
d. [Index: On each Interest Adjustment Date, the applicable
index rate shall be a rate per annum equal to [the weekly average
yield on U.S. Treasury securities adjusted to a constant maturity of
one year, as published by the Board of Governors of the Federal
Reserve System in Statistical Release No. H.15] [the average of
interbank offered rates for six-month U.S. dollar denominated
deposits in the London market (LIBOR), as published [in the Wall
Street Journal] [by Xxxxxx Xxx] [the 11th District Cost of Funds as
made available by the Federal Home Loan Bank] [the weekly average
yield on certificates of deposit adjusted to a constant maturity of
six months as published by the Board of Governors of the Federal
Reserve System in Statistical Release No. H.15 or a similar
publication.]]
e. Missing Credit Documents: As set forth in Exhibit [C]
hereto.
Notwithstanding anything contained in Section 2.04 of the Agreement to the
contrary, Indymac's obligation to repurchase from the Purchaser the Mortgage
Loan related to a Missing Credit Document shall occur only in the event of a
default by a Mortgagor or any material impairment of the Mortgaged Property
directly arising a breach of Indymac's obligation to deliver the Missing Credit
Document within the time specified in Section 2.04 of the Agreement.
f. Pending Mortgage Loans: As set forth in Exhibit [C]
hereto.]
g. Purchase Proceeds: With respect to [the Mortgage Loans]
[each Mortgage Loan], and as set forth in Exhibit [A] and Exhibit
[B] hereto, the sum of (a) the product of (i) the Cut-off Date
Balance of [such Mortgage Loan] [such Mortgage Loans], and (ii) the
purchase price percentage set forth in Exhibit [A] hereto for such
[Mortgage Loan] [Mortgage Loans], and (b) accrued interest from the
Cut-off Date through the day prior to the Closing Date, inclusive.
h. Servicing Fee Rate: [0.25%] [0.375%] [With respect to the
period prior to the initial Interest Adjustment Date, [0.25]% and,
thereafter, [0.375]%].
3. Description of Mortgage Loans. Each Mortgage Loan complies with
the specifications set forth below in all material respects.
a. Loan Type: Each Mortgage Loan is a [Adjustable Rate]
[Balloon] [Fixed Rate] Mortgage Loan.
x. Xxxx Position: Each Mortgage Loan is secured by a perfected
[first] [second] lien Mortgage.
c. Underwriting Criteria: Each Mortgage Loan [was underwritten
generally in accordance with Indymac's credit underwriting
guidelines in effect at the time such Mortgage Loan was originated]
[conforms to the Xxxxxx Xxx or Xxxxxxx Mac mortgage eligibility
criteria (as such criteria applies to Indymac) and is eligible for
sale to, and securitization by, Xxxxxx Mae or Xxxxxxx Mac] [at the
time of origination was underwritten to guidelines which are
consistent with an institutional investor-quality mortgage loan].
Kindly acknowledge your agreement to the terms of this
Purchase Confirmation by signing in the appropriate space below and returning
this Purchase Confirmation to the undersigned. Telecopy signatures shall be
deemed valid and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
INDYMAC BANK, F.S.B., XXXXXXX SACHS MORTGAGE COMPANY
By: _______________________________ By: _______________________________
Name: Name:
Title: Title:
EXHIBIT A
to
PURCHASE CONFIRMATION
MORTGAGE LOAN SCHEDULE
(attached)
EXHIBIT B
to
PURCHASE CONFIRMATION
CALCULATION OF PURCHASE PROCEEDS
(attached)
EXHIBIT C
to
PURCHASE CONFIRMATION
MISSING CREDIT DOCUMENTS
LOAN COUNT LOAN NUMBER DOCUMENT
1.
2.
3.
4.
5.
EXHIBIT D
to
PURCHASE CONFIRMATION
PENDING MORTGAGE LOANS
LOAN COUNT LOAN NUMBER DOCUMENT
1.
2.
3.
4.
5.
EXHIBIT C
FORM OF CUSTODIAL AGREEMENT
CUSTODIAL AGREEMENT, dated as of February 1, 2004 (the
"Agreement"), among Xxxxxxx Xxxxx Mortgage Company (the "Purchaser"), having an
address of 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, IndyMac Bank, F.S.B.,
having an address at 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000
(the "Seller"), and JPMorgan Chase Bank having an address at 0000 Xxxxxx Xxxxxx,
00xx xxxxx, Xxxxxxx, Xxxxx 00000 (the "Custodian").
WITNESSETH:
WHEREAS, the Purchaser and the Seller have entered into that certain
Master Mortgage Loan Purchase Agreement dated as of February 1, 2004, pursuant
to which the Purchaser will purchase and the Seller will sell from time to time,
certain fixed and adjustable-rate first lien residential mortgage loans (the
"Master Mortgage Loan Purchase Agreement");
WHEREAS, the Mortgage Loans purchased pursuant to the Master
Mortgage Loan Purchase Agreement will be serviced by the Seller (in such
capacity, the "Servicer") pursuant to the Servicing Agreement dated as of
February 1, 2004 (the "Servicing Agreement"); and
WHEREAS, the Purchaser desires to have the Custodian take possession
of the mortgage notes for the Mortgage Loans, along with certain other documents
specified herein, as the Custodian of the Purchaser or subsequent purchasers of
the Mortgage Loans, in accordance with the terms and conditions hereof.
NOW THEREFORE, in consideration of the mutual undertaking herein
expressed, the parties hereto hereby agree as follows:
1 On or prior to the Closing Date (as defined in the Master
Mortgage Loan Purchase Agreement), the Seller shall deliver and release to the
Custodian, subject to and in accordance with the relevant section of the Master
Mortgage Loan Purchase Agreement and the Servicing Agreement, the following
documents, pertaining to each of the Mortgage Loans identified in the Mortgage
Loan Schedule (the "Mortgage Loan Schedule") a copy of which Mortgage Loan
Schedule is annexed as Exhibit 1 hereto.
(a) the original executed mortgage note endorsed, "Pay to the
order of ______________, without recourse", or as otherwise directed
by the Purchaser, and signed in the name of the Seller by an officer
of the Seller, or a lost note affidavit with a copy of the original
mortgage note attached; the mortgage note shall include all
intervening original endorsements showing a complete chain of title
from the originator to the Seller;
(b) the original executed mortgage, or a certified copy
thereof, in either case with evidence of recording noted thereon;
the standard Xxxxxx Mae/FHLMC Condominium Rider or PUD Rider must be
attached to the mortgage if the mortgaged property is a condominium
or is located in a PUD;
(c) the original assignment of each mortgage from the Seller
to "[in blank]" or as otherwise directed by the Purchaser;
(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) 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) with respect to each cooperative loan: (i) an original
copy of the cooperative lease naming the borrower, as tenant, or an
original copy of the assignment of the cooperative lease to the
borrower together with the original copy of all intervening
assignments showing a complete and unbroken chain of title from the
original tenant to the borrower and an original undated assignment,
in blank, of the cooperative lease executed by the borrower; (ii)
the original stock certificate in the name of the borrower together
with an undated original stock power relating to such stock
certificate executed in blank by the borrower; (iii) a fully
executed original recognition agreement in substantially the same
form as a standard "AZTECH" form and the original assignment thereof
from Indymac to the Purchaser together with the original copy of all
intervening assignments showing a complete and unbroken chain of
title from the originator of the mortgage loan to the Purchaser;
(iv) copies of the UCC-1 financing statement naming the originator
of the cooperative loan, as secured party, with evidence of
recording thereon and, if applicable, the executed UCC-3 financing
statements (Assignment) or other appropriate UCC financing
statements required by applicable state law evidencing a complete
and unbroken chain of title from the originator of the cooperative
loan to Indymac, with evidence of recording thereon, (v) an executed
UCC-3 financing statement (Assignment), or other appropriate UCC
financing statement required by applicable state law, evidencing the
assignment by Indymac to the Purchaser of its interest in the
cooperative loan, with evidence of recording thereon and (vi) a
consent from the cooperative corporation in connection with the
Mortgagor's acquisition of the coop apartment.
(g) 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;
(h) for each Mortgage Loan with respect to which the
borrower's name as it appears on the note does not match the
borrower's name on the Mortgage Loan Schedule, one of the following:
(i) the original of the assumption agreement, or a certified copy
thereof, in either case with evidence of recording thereon if
required to maintain the lien of the mortgage or if otherwise
required, or, if recordation is not so required, an original or copy
of such assumption agreement; or (ii) a copy of a marriage
certificate, court order, decree or other document evidencing that
the two different names refer to the same person;
(i) to the extent applicable, (x) 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 (y) an original
or copy of any surety agreement or guaranty agreement; and
(j) personal endorsement and/or guaranty agreements for all
non-individual loans (corporations, partnerships, trusts, estates,
etc.).
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, an officer of the Seller must certify the copy as a true copy
of the original submitted for recordation. Copies of blanket intervening
assignments, however, need not be certified.
2 From time to time, the Servicer shall forward to the Custodian
additional documents evidencing an assumption or modification of a Mortgage Loan
approved by the Purchaser and the Servicer. All Mortgage Loan documents held by
the Custodian as to each Mortgage Loan are referred herein as the "Custodian's
Mortgage File." The Custodian, in its independent capacity, agrees to act as
custodian for the Purchaser and any successor to the Purchaser in accordance
with the terms and conditions of this Agreement, including upon any
securitization of the Mortgage Loans, as custodian for the trustee (the
"Trustee") under the securitization trust agreement.
3 With respect to each Custodian's Mortgage File delivered to the
Custodian, prior to the Closing Date the Custodian is exclusively the Custodian
for the Seller (or if the Mortgage Loans have been delivered to the Custodian
pursuant to a bailee letter from Seller's custodian, then for Seller's
custodian); on the Closing Date, when so notified by Seller (or by Seller's
custodian), the Custodian is exclusively the Custodian for the Purchaser, and
the Purchaser's successor or assigns. The Custodian shall hold all Custodian's
Mortgage Files for the exclusive use and benefit of the Purchaser and, except as
otherwise provided herein, shall make disposition thereof only in accordance
with the terms of this Agreement and the written instructions of the Purchaser.
The Custodian shall segregate by group (as directed by the Purchaser) and
maintain continuous custody of all Custodian's Mortgage Files received by it in
secure and fire resistant facilities in accordance with customary standards for
such custody.
4 Upon the initial sale of the Mortgage Loans, the Custodian shall
deliver to the Purchaser a Custody Receipt in the form annexed hereto as Exhibit
3 (the "Custody Receipt") which includes verification that, except as shown on
an exceptions list attached thereto:
(a) all documents required to be delivered to it pursuant to
Sections 1(a) through (d) and (f) of this Agreement are in the
Custodian's possession; provided, that, the Custodian shall
separately note on the Data Collection Schedule (as defined below)
any Mortgage Loans with respect to which the original note is
missing and a lost note affidavit and a copy of such note is
delivered;
(b) all documents required to be delivered to it pursuant to
Section 1(g), (e) and 1(h) of this Agreement are in the Custodian's
possession; provided, that:
(i) the Custodian shall have no obligation to verify
the receipt of any such documents the existence of
which was not made known to the Custodian by the
Custodian's Mortgage File, and
(ii) the Custodian shall have no obligation to
determine whether recordation of any such document
is necessary;
(c) all documents required to be delivered to it pursuant to
Section 1(i) and 1(j) of this Agreement are in the Custodian's
possession; provided, that, the Custodian shall have no obligation
to verify the receipt of any such documents the existence of which
was not made known to the Custodian by the Custodian's Mortgage
File;
(d) all powers of attorney and other documents required to be
delivered to it pursuant to Section 1(h) of this Agreement are in
the Custodian's possession; provided, that:
(i) the Custodian shall have no obligation to verify
the receipt of any such documents the existence of
which was not made known to the Custodian by the
Custodian's Mortgage File, and
(ii) the Custodian shall have no obligation to
determine whether recordation of any such power of
attorney is necessary (except that the Custodian
shall conclude that if the document to which such
power of attorney relates is a mortgage, interim
assignment, assignment or a document that was
recorded, then the Custodian shall conclude that
such power of attorney should have been recorded);
(e) all documents have been examined by the Custodian and
appear regular on their face and relate to the Mortgage Loans;
(f) based only on the Custodian's examination of the foregoing
documents, the information set forth on the Mortgage Loan Schedule
representing each Mortgage Loan accurately reflects the following:
(i) Mortgage Loan number,
(ii) Mortgage Loan type (collect if not ARM),
(iii) the first payment date,
(iv) the maturity date,
(v) the original loan amount,
(vi) the original interest rate,
(vii) with respect to each Mortgage Loan that accrues
interest at an adjustable rate pursuant to the
related mortgage note (each, an "Adjustable Rate
Mortgage Loan"), the number of days prior to the
adjustment date as of which the index is
determined,
(viii) with respect to each Adjustable Rate Mortgage
Loan, the frequency of change in interest rate,
(ix) with respect to each Adjustable Rate Mortgage
Loan, the date of the first interest rate change,
(x) with respect to each Adjustable Rate Mortgage
Loan, the date of the first payment amount change,
(xi) with respect to each Adjustable Rate Mortgage
Loan, the frequency of subsequent payment amount
changes,
(xii) with respect to each Adjustable Rate Mortgage
Loan, the payment cap (collect only if explicitly
stated on mortgage note),
(xiii) with respect to each Adjustable Rate Mortgage
Loan, the ARM index,
(xiv) with respect to each Adjustable Rate Mortgage
Loan, the spread over the index,
(xv) with respect to each Adjustable Rate Mortgage
Loan, the interest rate rounding method,
(xvi) with respect to each Adjustable Rate Mortgage
Loan, the interest rate rounding percent (data is
expressed in basis points),
(xvii) with respect to each Adjustable Rate Mortgage
Loan, the maximum interest rate, if available,
(xviii) with respect to each Adjustable Rate Mortgage
Loan, the conversion expiration date and other
relevant conversion terms, if available,
(xix) with respect to each Adjustable Rate Mortgage
Loan, the cap of the interest rate (initial and
periodic),
(xx) with respect to each Adjustable Rate Mortgage
Loan, the floor of the interest rate (initial and
periodic),
(xxi) the full name of the borrower(s) (acceptable if
first and/or middle names are missing or
initialized (e.g., X.X. Xxxxx would match Xxxxxxx
Xxxxx Xxxxx), acceptable if first names are
shortened or lengthened or nicknames substituted
therefor (e.g., Xxx for Xxxxxx or Xxxx for
Xxxxxxx), acceptable if middle or maiden names are
omitted, acceptable if "Jr.", "Sr.", "II" and
similar designations are omitted, acceptable if
discrepancy is a typographical error),
(xxii) the property address, including zip code,
(xxiii) the original principal and interest payment,
(xxiv) the identity of each Adjustable Rate Mortgage
Loan which is convertible and the date of such
conversion,
(xxv) the identity of each Mortgage Loan which has been
modified and a description of each modification,
and
(xxvi) prepayment penalty information and amortization
term (for Balloon Loans) (collectively, the
"Verified Information"); and
(g) each mortgage note has been endorsed and each assignment
of mortgage has been assigned as described in Section 1 hereof;
provided, that, the Custodian shall have no obligation to confirm
that the assignments are in recordable form.
In making the verification required by this Section 4, the Custodian
may rely conclusively on the Mortgage Loan Schedule attached hereto, and the
Custodian shall have no obligation to independently verify the correctness of
such Mortgage Loan Schedule. If any discrepancy exists between the Verified
Information and the Mortgage Loan Schedule, the Custodian shall notify the
Purchaser and the Servicer by attaching a list of such discrepancies to the
Final Certification.
It is understood that before delivering the Custody Receipt, the
Custodian shall examine the Mortgage Loan Documents to confirm the following
(and shall report any exceptions to these confirmations in the exceptions report
attached to the Custody Receipt):
(1) each mortgage note, mortgage, assumption, modification,
guaranty, power of attorney and deed of sale bears a signature
or signatures that appear to be original and that purport to
be that of the Person or Persons named as the maker and
mortgagor/trustor or, if photocopies are permitted by this
Agreement, that such copies bear a reproduction of such
signature or signatures;
(2) the principal amount of the indebtedness secured by the
mortgage is identical to the original principal amount of the
note;
(3) the interest rate shown on the note is identical to the
interest rate shown on the Mortgage Loan Schedule;
(4) the assignment of the mortgage from the Seller is in the form
required pursuant to Section l(c) hereof, and bears the
signature of the Seller, that appears to be an original and
any other necessary party or, if photocopies are permitted by
this Agreement, such copies bear a reproduction of such
signature or signatures;
(5) if intervening assignments are included in the Custodian's
Mortgage File, each such intervening assignment bears the
signature of the mortgagee and/or the assignor (and any other
necessary party) that appears to be an original or, if
photocopies are permitted by this Agreement, that such copies
bear a reproduction of such signature or signatures; and
(6) the title insurance policy or certificate of title is for an
amount not less than the original principal amount of the
related note.
5 Prior to June 1, 2004, the Custodian shall deliver to the
Purchaser a Final Certification in the form of Exhibit 4 evidencing the
completeness of the Custodian's Mortgage File for each Mortgage Loan, with any
applicable exceptions noted on such Certification.
6 No later than the fifth Business Day of each month, commencing in
March 2004, the Custodian shall deliver to the Servicer, GS Mortgage Securities
Corp., as depositor and the Trustee in electronic or hard copy format, as
requested by the Purchaser, the exceptions list required by Section 4 hereof,
updated to remove exceptions cured since the date on which the Custody Receipt
was issued pursuant to Section 4 hereof. In the event the Mortgage Loans are
securitized, the Custodian will only be required to deliver the exceptions list
upon request. In addition, such monthly reports shall list any document with
respect to which the Seller delivered a copy certifying that the original had
been sent for recording, until such time as the Seller delivers to the Custodian
the original of such document or a copy thereof certified by the appropriate
public recording office. The Data Collection Schedule shall not be included
unless specifically requested in advance. Except as specifically provided above,
the Custodian shall be under no duty to review, inspect or examine such
documents to determine that any of them are enforceable or appropriate for their
prescribed purpose. During the life of the Mortgage Loans, in the event the
Custodian discovers any defect with respect to the Custodian's Mortgage Files,
the Custodian shall give written notice of such defect to the Purchaser.
7 The Custodian shall hold in its possession and custody at
JPMorgan Chase Bank, 0000 Xxxxxx Xxxxxx, 00xx xxxxx, Xxxxxxx, XX 00000, for the
Purchaser or any assignee of the Purchaser, all of the Custodian's Mortgage
Files delivered from time to time by the Servicer to the Custodian.
8 From time to time and as appropriate for the foreclosure or
servicing of the Mortgage Loans, the Purchaser hereby authorizes the Custodian
to release to the Servicer (or, after securitization of the Mortgage Loans, if
so designated by the Servicer, to the Trustee), within three (3) business days
of receipt of either (i) a written request and receipt of the Servicer in the
form attached hereto as Exhibit 5(a) executed by one of the authorized
signatories set forth on Exhibit 6, as such exhibit may be updated from time to
time by the Servicer or (ii) an electronic request through the use of an
electronic file request system mutually acceptable to the Custodian and the
Servicer, a Custodian's Mortgage File to the place indicated in any such written
request from the Servicer. A list of authorized signatures for such written
requests has been furnished to the Custodian by the Servicer. All Custodian's
Mortgage Files so released to the Servicer shall be held by it in trust for the
benefit of the Purchaser. The Servicer shall return to the Custodian the
Custodian's Mortgage File when the Servicer's need therefor in connection with
such foreclosure or servicing no longer exist, unless the Mortgage Loan shall be
liquidated or paid in full.
The Servicer may provide an electronic transmission for release of
documents in a form agreed to in advance of initial transmission by both the
Servicer and the Custodian containing information readable without intervention
by Custodian data processing operations computer hardware and software staff,
and arranged in a record layout to be specified by Custodian (a "Paperless
Release Request"). The Servicer agrees to maintain and control access to
electronic signature information and assumes liability for any unauthorized use
thereof. The Servicer also agrees to maintain accurate records of electronic
transactions related to the Custodial Files. The Servicer hereby authorizes the
Custodian to automatically append the electronic signature of an Authorized
Representative to the applicable request for release of documents and agrees and
acknowledges that by appending such Authorized Representatives electronic
signature, the Custodian shall be entitled to rely thereon. For purposes of this
Agreement, the term "electronic signature" is defined as an "electronic
identifier intended by the person using it to have the same force and effect as
the use of a manual signature."
The Servicer agrees in advance to comply with all Custodian data
encryption, security and record layout standards in connection with any
Paperless Release Request as may be amended from time to time upon notice from
the Custodian to the Servicer. The Custodian reserves the right to restrict or
suspend the Servicer's access to the Custodian's computer systems for
maintenance or repairs or for any other reason in the Custodian's sole
discretion, provided however that the Custodian shall promptly provide the
Servicer notice of such restriction or suspension.
Notwithstanding the foregoing, the Servicer is authorized to
transmit and the Custodian is authorized to accept signed facsimile copies of
Requests for Release.
The Purchaser shall use its best efforts to cause the Servicer to
utilize the paperless release template; provided that the failure of the
Servicer to use the paperless release template shall not constitute a breach by
the Purchaser of its obligations hereunder.
9 Upon the repurchase of any Mortgage Loan or the payment or
liquidation in full of the Mortgage Loan, and within three Business Days of
receipt by the Custodian of the Servicer's request for release, receipt and
certification either (i) in the form attached hereto as Exhibit 5(b), executed
by one of the authorized signatories set forth on Exhibit 6 as such exhibit may
be updated from time to time by the Servicer or (ii) through the use of an
electronic request system mutually acceptable to the Custodian and the Servicer
(which certification shall include a statement to the effect that all amounts
received in connection with such repurchase or payment in full or liquidation
have been credited to the Collection Account as provided in the Servicing
Agreement), the Custodian shall release the related Custodian's Mortgage File to
the Servicer.
10 Upon reasonable prior written notice, the Custodian shall permit
the Purchaser and its agents, and servicing officers of the Servicer reasonable
access to its premises during the Custodian's normal business hours to inspect
the Custodian's Mortgage Files and all other documents, records and other papers
in possession or under the control of the Custodian relating to the Mortgage
Loans serviced by the Servicer. Each such person shall comply with the
Custodian's reasonable standards and procedures for physical security and
personal conduct while on the Custodian's premises. Any person failing, in the
Custodian's sole but reasonable business judgment, to meet such standards may be
removed or denied access to the premises. The Purchaser shall be responsible for
any reasonable expense in connection with such examination.
11 The Purchaser, with or without cause, or upon failure by the
Custodian to perform or observe any term of this Agreement, may remove and
discharge the Custodian or any successor Custodian thereafter appointed from the
performance of its duties under this Agreement upon written notice from the
Purchaser to the Custodian or the successor Custodian; provided that at least
sixty (60) days prior written notice shall be given with respect to a removal or
discharge without cause. Having given notice of such removal, the Purchaser
shall promptly appoint a successor Custodian to act on its behalf by written
instrument, an original counterpart of which instrument shall be delivered to
the Seller and one copy to the successor Custodian. In the event of any such
removal, the Custodian shall promptly transfer, to the successor Custodian as
directed, all Custodian's Mortgage Files being administered under this
Agreement. Such transfer shall be at the Custodian's expense only if the
Custodian is discharged and removed upon a failure by the Custodian to perform
or observe any material terms of this Agreement; otherwise such transfer shall
occur at the expense of the Purchaser. In any event, the Custodian shall be
entitled to the payment of all outstanding fees and expenses of the Custodian
due the Custodian at the time of such removal by the Purchaser. In the event
that the Purchaser removes the Custodian without cause, any transfer or set-up
fees payable to the successor Custodian will be payable by the Purchaser. In any
event, the reasonable ongoing fees of any successor Custodian shall be paid by
the Purchaser.
12 It is understood that the Custodian will charge for its services
under this agreement as set forth in a separate agreement between the Custodian
and the Purchaser, the payment of which shall be the sole obligation of the
Purchaser.
13 The Custodian shall, at its own expense, maintain at all times
during the existence of this Agreement and keep in full force and effect, (a)
fidelity insurance, (b) errors and omissions insurance, and (c) all risk
property insurance. All such insurance shall be in amounts, with standard
coverage and subject to deductibles, all as is customary for insurance typically
maintained by banks which act as custodian and in an amount and with coverages
not less than that required by the Federal National Mortgage Association. Upon
request, the Purchaser will be provided with certificates of insurance, as
specified in this paragraph 13.
14 The Custodian may resign as the Custodian hereunder upon at least
sixty (60) days prior written notice to the Purchaser whereupon the Custodian
shall deliver the Custodian's Mortgage Files to Purchaser, or a designee of the
Purchaser, in accordance with directions from the Purchaser. In the event of
such resignation, or termination, the Purchaser shall pay all outstanding fees
and expenses of the Custodian and shall appoint a successor Custodian.
15 For the purpose of facilitating the execution of this Custodial
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute and be one and the same instrument.
16 Upon the request of the Purchaser, at any time, the Custodian
shall provide to the Purchaser a list of all of the Mortgage Loans owned by the
Purchaser for which the Custodian holds a Custodian's Mortgage File pursuant to
this Agreement. Such list may be in the form of a copy of the Mortgage Loan
Schedule with manual deletions to specifically denote any Mortgage Loans paid
off, repurchased or liquidated since the date of this Agreement.
17 The duties and obligations of the Custodian shall only be such as
are expressly set forth in this Agreement or as set forth in a written amendment
to this Agreement executed by the parties hereto or their successors and
assigns. In no event shall the Custodian be liable for special, indirect or
consequential damages, even if advised of this possibility of the same.
18 All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered,
delivered by facsimile or mailed by first class mail or overnight express mail,
postage prepaid, to the parties to this agreement at the address listed on
Exhibit 2 or such other address as may hereafter be furnished in writing to each
of the parties to this Agreement. Any such demand, notice or communication
hereunder shall be deemed to have been received on the date received, if
received prior to 4 p.m. eastern time, delivered to or received at the premises
of the addressee or received at the facsimile number of the address, or, if
received after 4 p.m. eastern time, then on the next business day.
19 This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to its conflict of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
20 The Custodian shall have no duties or obligation except those
expressly stated in this Agreement, and such duties or obligations shall be
determined solely by the express provisions of the Agreement. The Custodian, its
officers, directors, employees, agents or other representatives shall not be
personally liable for any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion or rights or powers
conferred upon the Custodian by this Agreement or in reliance upon any written
notice, request, consent, certificate, order, affidavit, letter, telegram or
other document reasonably believed by it to be genuine and to have been signed
or sent by the proper party or parties; provided, however, that the provisions
of this paragraph shall not be construed to relieve the Custodian from liability
from its own negligent action, its own negligent failure to act, or its own bad
faith or willful misconduct or any breach by the Custodian of any of its
obligations hereunder, which breach was due to negligence on the part of the
Custodian. The Custodian will be regarded as making no representations and
having no responsibilities (except as expressly set forth herein) as to the
validity, sufficiency, value, genuineness, ownership or transferability of any
Mortgage Loan, and will not be required to and will not make any representations
as to the validity, value or genuineness of any Mortgage Loan. The Custodian
shall not be obligated to take any legal action hereunder that might in its
judgment involve any expense or liability unless it has been furnished with
reasonable indemnity. The Custodian may rely on and shall be protected in acting
in good faith upon the written instructions of the Purchaser, the Servicer and
the Trustee (if any) and such employees and representatives of the Purchaser,
the Servicer and the Trustee (if any) as each such party may hereinafter
designate in writing. The Custodian may execute any of the powers hereunder or
perform any duties hereunder either directly or through agents or attorneys;
provided, however, that the execution of such powers by any such agents or
attorneys shall not diminish or relieve the Custodian for responsibility
therefor to the same degree as if the Custodian itself had executed such powers.
21 The Custodian shall be entitled to obtain the advice or opinion
of counsel (which shall be either in house counsel or a nationally recognized
outside counsel) with respect to a matter of law for which the Custodian has a
reasonable question as to the rights and duties relating to the Custodian
hereunder and the Custodian shall have no liability for any action taken or
omitted in conformity with its good faith reliance on such advice or opinion;
provided, however, that the provisions of this paragraph shall not relieve the
Custodian from liability from its own negligent selection of counsel.
22 This Agreement (together with the separate fee agreement between
the Purchaser and the Custodian) contains the entire agreement between the
parties relating to the subject matter hereof and may be amended only by written
agreement signed by the Purchaser and the Custodian.
23 The Purchaser shall have the right, without consent of the
Custodian, to assign its interest under this Agreement with respect to some or
all of the Mortgage Loans, and designate any person to exercise any rights of
the Purchaser hereunder, and the assignee or designee shall accede to the rights
and obligations hereunder of the Purchaser with respect to such Mortgage Loans;
provided, however, that the Purchaser may not assign its interest to more than
five (5) persons without the consent of the Custodian, such consent not to be
unreasonably withheld. All references to the Purchaser in this Agreement shall
be deemed to include its assignee or designee. Upon the Custodian's receipt of
the written notification, which shall state the name and address of the
transferee and the date of sale and shall be accompanied by the original Custody
Receipt presently outstanding delivered to the Purchaser, the Custodian shall
change its records to reflect that such transferee is the owner of such Mortgage
Loan and shall immediately issue (i) a new Custody Receipt with respect to a
portion of or all of the Mortgage Loans, as the case may be, in the name of such
transferee and (ii) a new Custody Receipt with respect to any Mortgage Loans
retained by the Purchaser; provided, that, any Custody Receipt issued after the
date of the initial sale of the Mortgage Loans shall not (1) confirm the
accuracy of the Mortgage Loan Schedule with respect to Verified Information nor
(2) include the Data Collection Schedule. The Purchaser and the Custodian agree
herein that any and all such transferees of a Mortgage Loan shall succeed to all
the rights and obligations of the Purchaser and shall be considered a Purchaser
under this Agreement.
24 The Purchaser agrees to indemnify and hold the Custodian, its
directors, officers, agents, employees, and other representatives harmless
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by or asserted against it or
them in any way arising out of this Agreement as a result of any action or
failure to act, so long as such action or failure to act by it or them hereunder
does not constitute bad faith, negligence or willful misconduct of the Custodian
or any of its agents, officers, directors or employees or breach by the
Custodian of its obligations hereunder. The foregoing indemnity shall survive
the termination of this Agreement.
25 This Agreement shall inure to the benefit of the successors and
assigns of the parties hereto.
26 Each party agrees to keep confidential the existence of this
Agreement, the identity of the parties hereto, and any other term or condition
of this Agreement and the transactions contemplated hereby, and to use such
information solely in order to effectuate the purpose of the Agreement;
provided, that, each party may provide confidential information to its
employees, agents and affiliates who have a need to know such information in
order to effectuate the transaction, and provided, further that such information
is identified as confidential non-public information. In the event that either
party or any of its employees, agents or affiliates are requested pursuant to,
or required by, applicable law, regulation or legal process to disclose any
non-public information, such party will notify the other promptly prior to any
such disclosure so that such party may seek a protective order or other
appropriate remedy or, in such party's sole discretion, waive compliance with
the terms of this Section 26. In the event that no such protective order or
other remedy is timely obtained, or that such party waives compliance with the
terms of this Section 26, the party required to disclose such non-public
information or its employees, agents or affiliates will furnish only that
portion of the non-public information that it is advised by counsel is legally
required and will exercise all reasonable efforts to obtain reliable assurance
that confidential treatment will be accorded the non-public information.
27 The Custodian (or any successor thereto) shall at all times (a)
be a depository institution or trust company subject to supervision by federal
or state authority, (b) have a combined capital and surplus of at least
$10,000,000, (c) be qualified to do business in any jurisdiction in which it
holds a Custodian's Mortgage File, (d) be qualified to act as a custodian for
Xxxxxx Xxx, the Federal Home Loan Mortgage Corporation and the Government
National Mortgage Association, and (e) not be an affiliate of the Purchaser or
the Seller, except insofar as the Purchaser or its assignee gives its prior
written consent.
28 Upon the initial sale of the Mortgage Loans, the Custodian shall
deliver to the Purchaser (a) an opinion of counsel and (b) an officer's
certificate, each in form and substance reasonably satisfactory to the
Purchaser.
29 The Custodian represents, warrants and covenants that:
(a) The Custodian is (i) a banking corporation duly organized,
validly existing and in good standing under the laws of the State of
New York and (ii) duly qualified and in good standing and in
possession of all requisite authority, power, licenses, permits and
franchises in order to execute, deliver and comply with its
obligations under the terms of this Agreement;
(b) The execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action and the
execution and delivery of this Agreement by the Custodian in the
manner contemplated herein and the performance of and compliance
with the terms hereof by it will not (i) violate, contravene, or
create a default under any applicable laws, licenses, or permits to
the best of its knowledge, or (ii) violate, contravene or create a
default under any charter document or bylaw of the Custodian or to
the best of the Custodian's knowledge any contract, agreement or
instrument to which the Custodian or by which any of its property
may be bound and will not result in the creation of any lien,
security interest or other charge or encumbrance upon or with
respect to any of its property;
(c) The execution and delivery of this Agreement by the
Custodian and the performance of and compliance with its obligations
and covenants hereunder do not require the consent or approval of
any governmental authority or, if such consent or approval is
required, it has been obtained;
(d) The Custodian has duly executed and delivered this
Agreement, and this Agreement, assuming due authorization, execution
and delivery by the Purchaser and Seller, constitutes a legal, valid
and binding obligation of the Custodian, enforceable against it in
accordance with its terms, except as the enforcement thereof may be
limited by applicable debtor relief laws and that certain equitable
remedies may not be available regardless of whether enforcement is
sought in equity or law; and
(e) There is no action, suit, proceeding or investigation
pending or, to the Custodian's knowledge, threatened, against the
Custodian, which seeks to prevent the consummation of the
transaction contemplated hereby or which, either in any one instance
or in the aggregate, if determined adversely to the Custodian would
adversely affect the execution, delivery or enforceability of this
Agreement, the ability of the Custodian to perform its obligations
hereunder, or have a material adverse effect on the financial
condition of the Custodian.
30 The Custodian is not responsible for preparing or filing
any reports or returns relating to federal, state or local income taxes with
respect to this Agreement, other than for the Custodian's compensation or for
reimbursement of expenses. The Custodian will be responsible for the
transmission of mortgage files and loan documents, with insurance thereon as
provided in the normal course by the nationally recognized overnight courier
service utilized by the Custodian for such transmission. At the request of the
Purchaser, the Custodian will obtain and maintain additional insurance with an
insurance provider specified by the Purchaser against loss or damage to such
Mortgage Files and loan documents in connection with such transmission in an
amount specified by the Purchaser. The costs and expenses incurred in connection
with obtaining and maintaining such insurance shall be the sole responsibility
of the Purchaser. It is expressly agreed that in no event shall the Custodian
have any liability for any losses or damages to any person, including, without
limitation, the Purchaser or Servicer, arising out of actions of the Custodian
consistent with this Agreement. In the absence of any written instructions from
the Purchaser with respect to the transmission of the Custodian's Mortgage
Files, the parties hereby agree that the Custodian may utilize any nationally
recognized overnight courier service and shall be entitled to reimbursement from
the Purchaser.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
by their duly authorized officers as of the date first above written.
XXXXXXX SACHS MORTGAGE COMPANY,
as Purchaser
By: Xxxxxxx Xxxxx Real Estate Funding Corp.,
General Partner
By: __________________________________________
Name:
Title:
JPMORGAN CHASE BANK,
as Custodian
By: __________________________________________
Name:
Title:
INDYMAC BANK F.S.B., as
Seller/Servicer
By: __________________________________________
Name:
Title:
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
EXHIBIT 2
(1) If to the Purchaser:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxx Xxxxxxxxx Farkovits
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Main Street Mortgage Company
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn.: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(2) If to the Custodian:
JPMorgan Chase Bank 0000 Xxxxxx Xxxxxx, 00xx
Xxxxx Xxxxxxx, Xxxxx 00000 Attn: Xxxxx Xxxxx
Custody Division Manager Phone: 000-000-0000 Fax:
000-000-0000
With a copy to:
Xxxxxxx Xxxxxxxx & Xxxx
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Mentor
Phone: (000) 000-0000
Fax: (000) 000-0000
(3) If to the Depositor:
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxx Xxxxxxxxx Farkovits
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(4) If to the Servicer:
IndyMac Bank, F.S.B
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Secondary Marketing
EXHIBIT 3
FORM OF CUSTODY RECEIPT
_____ __, 2004
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxx Xxxxxxxxx Farkovits
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Re: The Custodial Agreement, dated as of January 1, 2004, between
Xxxxxxx Sachs Mortgage Company, as Purchaser, Indymac Bank
F.S.B., as Seller and JPMorgan Chase Bank, as Custodian
-------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provision of Section 4 of the
above-referenced Custodial Agreement, the undersigned, as the Custodian, hereby
certifies that as to each Mortgage Loan listed on the attached Mortgage Loan
Schedule, it has reviewed the Custodian&